Attorney-General (Qld) v Had

[2017] QSC 59

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v HAD [2017] QSC 59

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)

v
HAD
(respondent)

FILE NO:

BS11769 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for a Division 3 order

DELIVERED ON:

10 April 2017 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2017

JUDGES:

Mullins J

ORDER:

As per the draft order initialled by Mullins J and placed with the file.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where respondent serving six years’ imprisonment for the offence of rape against former defacto partner – where applicant seeks orders pursuant to s 13 of Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where there is a moderate to high risk of sexual reoffending – where psychiatric evidence supports the making of a division 3 order – whether a supervision order rather than a continuing detention order can ensure adequate protection of the community – where supervision order made for a period of five years

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13

COUNSEL:

B H Mumford for the applicant
D A Holliday for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant
Legal Aid Queensland for the respondent

HER HONOUR: The Attorney-General seeks a Division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) in respect of the respondent. The Attorney-General contends that the respondent is, at least, a moderate to high risk that he will commit an offence of a sexual nature involving violence, and that the Court should find that the respondent is a serious danger to the community in the absence of a Division 3 order.

The Attorney-General frankly acknowledges that the opinions offered by the three psychiatrists, who have prepared reports in this matter and who consider that adequate protection of the community can be reasonably and practicably managed by a supervision order containing conditions focused on individual psychological therapy with emphasis on relationship issues, abstinence from alcohol and illicit drugs, appropriate accommodation and other support and treatment in the community, means that a supervision order rather than a detention order is open to the Court to make. 

The respondent does not contest that the Court should be satisfied to the requisite standard that he is a serious danger to the community in the absences of a Division 3 order, having regard to the considerations set out in section 13(4) of the Act and submits that adequate protection of the community can be reasonably and practicably managed by a supervision order.

The Attorney-General prepared a draft supervision order and the respondent does not oppose the conditions that are set out in that order by his affidavit, filed in support of this proceeding.  The respondent indicates he will do his best to comply with the order and has outlined his proposals for what he intends to do when he is released, which will include living in a different region than the region where his former partners reside and, in particular, the former partner who was the victim of the one and only sexual offence in his criminal history, which is the offence for which he is currently serving a sentence of imprisonment. 

The respondent’s full-time discharge date is 21 April 2017.  The respondent is a 48-year-old Indigenous man who has a lengthy criminal history that contains many offences of violence.  It was not until he was convicted of the rape offence in the District Court on 29 March 2010 that he brought himself, potentially, within the regime of the Act that applies to protect the community from further sexual offending by a person who has been convicted of a relevant sexual offence.  The entries on the respondent’s criminal history also indicate a problem with alcohol and illicit substances. 

The offence of rape that was committed on 10 January 2009 was committed in conjunction with other criminal conduct for which the respondent was sentenced on the same date.  Those offences involving the same victim, who was the respondent’s former partner, were one count of deprivation of liberty, one count of common assault, and one count of assault occasioning bodily harm whilst armed.  It appears that offending was motivated by jealousy and an intense anger. 

The facts that were placed before the sentencing judge showed that, on this occasion, the respondent took his former partner to a place where they had lived together;  punched her to the head, face and ribs;  kicked her in the lower back;  he raped her;  and she eventually escaped from the place he had taken her.  There was a complication, in that, the same complainant had made accusations that resulted in other charges, including a sexual assault charge from two incidents that occurred in late 2008, but the complainant did not pursue those complaints.  Even though those charges had proceeded to a committal hearing, the 2008 matters did not result in any relevant convictions. 

The history of those charges was before the psychiatrist who was engaged to prepare a report for the purpose of s 8 of the Act.  On the preliminary hearing in this matter, it was an issue as to the extent to which regard should have been had to that history.  Any concern was alleviated by the psychiatrist who had provided the report for the purpose of the preliminary hearing, confirming that his assessment of the risk of reoffending in relation to a sexual violent offence by the respondent would be moderate, even if the charges from 2008 were not taken into account. 

The respondent completed the sexual offending program for Indigenous males on 26 July 2011.  As a result, he was released on parole by the parole board on 12 October 2011.  He was returned to custody on remand on 1 June 2012 when he had been charged with assault occasioning bodily harm committed on that day and a breach of a domestic violence order.  His parole was suspended and cancelled automatically on 31 October 2012 as a result of his being sentenced to 12 months’ imprisonment for those offences that were committed whilst on parole. 

The respondent was released to parole again on 30 April 2013.  The parole was suspended on 18 February 2014 after he had been involved in an incident with his partner that resulted in an application for a domestic violence order being made on 17 February 2014.  The order was then made on 19 February 2014.  The respondent’s parole was suspended indefinitely on 4 March 2014.  On 21 October 2014, the respondent was released to parole again, but it was suspended on 10 December 2014 as a result of his failure to comply with the condition of the domestic violence order.  On 22 December 2014, the parole was suspended indefinitely and then cancelled on 17 February 2015.  The respondent was convicted on 6 May 2015 for the contravention of the domestic violence order and a cumulative sentence of 12 months’ imprisonment was imposed on that occasion. 

Psychiatrist Dr Beech interviewed the respondent on 11 December 2015.  Dr Beech diagnosed the respondent with an antisocial personality disorder and that in the past he had suffered from alcohol abuse and dependence, but was now in remission whilst in custody.  Dr Beech noted:

There is nothing to indicate he suffers from a particular sexual paraphilia, but there is a history that indicates an inclination towards violence and in particular domestic violence.

Dr Beech noted in his assessment of risk that the risk of sexual violence by the respondent is lower than the risk of general violence, but that it is more likely that any sexual violence would still involve a domestic partner rather than a stranger and is likely to involve alcohol intoxication.  Dr Beech records:

The dysfunctional and volatile nature of his relationships and his personality are likely to lead to periods of jealousy, anger and resentment that he will act out in general violence, and this could include sexual assault.

Overall, it is Dr Beech’s opinion that the risk of further sexual violence is in the moderate range.  In the supplementary report dated 30 November 2016, Dr Beech expressly confirmed his opinion that the risk of reoffending would be moderate even if the charges from 2008 were not taken into account. 

Psychiatrist Dr Harden examined the respondent on 13 January 2017.  Dr Harden made similar diagnoses to Dr Beech of personality disorder with antisocial features and alcohol abuse in remission associated with incarceration.

Dr Harden assessed the respondent’s ongoing unmodified risk of sexual reoffending if released into the community as moderate to high and that his greatest risk factors are alcohol and substance use and management of conflict in intimate relationships.  Dr Harden is also of the view that if the respondent were to commit a sexually violent offence again, it would be against an intimate partner or previous partner while intoxicated and the risk of serious physical harm to the victim is significant.  Dr Harden is of the view that the risk of sexual recidivism would be reduced to low, if the respondent were placed on a supervision order in the community.

Psychiatrist Dr Phillips interviewed the respondent on 24 January 2017 for approximately four hours over two sessions.  Dr Phillips, as in the case of the other psychiatrists, applied the usual risk assessment tools to assess both the static and dynamic risk factors associated with the respondent.  Dr Phillips is also of the opinion that the respondent’s risk of future sexual reoffending falls in the moderate range, if released from custody without a supervision order, and also considers the victim of future sexual offending would likely be an adult female and most likely one with whom he had been in a current or previous intimate relationship.  Dr Phillips also noted the escalation of risk during interpersonal conflict and when intoxicated with substances.

The evidence of the three psychiatrists is acceptable and cogent and satisfies me to the high degree of probability that is required under the Act that the respondent’s moderate risk of sexual reoffending, unless appropriately supervised, is an unacceptable risk as contemplated by section 13(2) of the Act. I am satisfied that appropriate conditions can be formulated for a supervision order that will address the need to ensure the adequate protection of the community and address the particular risk factors that have been identified in relation to the circumstances in which it is assessed that the respondent is at risk of reoffending.

That is why the proposed supervision order contains a condition that the respondent abstain from the consumption of alcohol and illicit drugs for the duration of the order, and that will be supported by the condition that the respondent submit to any form of drug and alcohol testing, including both random urinalysis and breath testing, as directed by a Corrective Service officer.  There is also a condition that the respondent not have any direct or indirect contact with the victim of his rape offence committed on 10 January 2009.  I am therefore satisfied that a supervision order rather than a continuing detention order should be made.  I make an order in terms of the amended draft initialled by me and placed with the file. 

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