Attorney-General (Qld) v Heidke - [2020] QSC 29

SUPREME COURT OF QUEENSLAND

CITATION:	Attorney-General (Qld) v Heidke [2020] QSC 29
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALBERT RONALD HEIDKE (respondent)
FILE NO/S:	BS No 9699 of 2019
DIVISION:	Trial division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	4 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	24 February 2020
JUDGE:	Burns J
ORDER:	The order of the court is that, pursuant to s 13(5)(b) of the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld), Albert Ronald Heidke be released from custody subject to a supervision order in the terms appearing in the Appendix to these reasons.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY– where there is an application pursuant to s 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order pursuant to Division 3 of Part 2 of that Act – whether the respondent is a serious danger to the community in the absence of a Division 3 order – where the court may order a continuing detention order or a supervision order pursuant to s 13(5) of the Act – whether the adequate protection of the community could be reasonably and practicably managed by a supervision order – whether the requirements under s 16 of the Act could be reasonably and practicably managed by corrective services officers Dangerous Prisoners (Sexual Offenders) Act2003 (Qld), s 13, s 16 Attorney-General for the State of Queensland v Beattie [2007] QCA 96, cited Attorney-General for the State of Queensland v Fardon [2011] QCA 155, cited Attorney-General v Francis [2006] QCA 324, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Attorney-General for the State of Queensland v Waghorn [2006] QSC 171, cited
COUNSEL:	J Rolls for the applicant S Robb for the respondent
SOLICITORS:	Crown Solicitor for the applicant Legal Aid (Qld) for the respondent

The Attorney-General for the State of Queensland applies for orders pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) to detain the respondent, Albert Ronald Heidke, in custody for an indefinite term for care, treatment or control or, in the alternative, that he be released from custody subject to a supervision order.
The statutory premise for the making of either form of order is that there is evidence on which the court is satisfied that the respondent is a serious danger to the community, that is to say, that there is an unacceptable risk that he will commit, relevantly, a sexual offence against children if released into the community. The respondent concedes, through his counsel, that he is a serious danger to the community in the absence of an order but contends that the adequate protection of the community can be ensured by his release subject to a supervision order for a period of 10 years. The applicant, through her counsel, accepts that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QSC 29
Decision Date: 4 March 2020

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Heidke involved the application for the release of Albert Ronald Heidke, a convicted sexual offender, under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The primary legal issue before the court was whether Heidke posed a serious danger to the community such that he should be subject to a continuing detention order or whether his release could be adequately managed under a supervision order. The court had to assess the risk Heidke posed and determine whether the requirements of a supervision order could be reasonably and practicably managed by corrective services officers.

In considering the application, the court examined evidence from psychiatrists, the details of Heidke's past offending, and the specific conditions that could be imposed under a supervision order. The psychiatrists' opinions were that Heidke's release should be subject to a 10-year supervision order, despite his age. The court accepted that adequate protection of the community could be achieved through such an order, which included stringent conditions regarding residence, contact restrictions, and compliance with corrective services officers. The court concluded that these conditions could be reasonably and practicably managed and that Heidke's risk of reoffending could be sufficiently mitigated under a supervision order.

Given the above considerations, the court determined that Heidke should be released from custody subject to a supervision order for a period of 10 years. The order included detailed conditions that Heidke must adhere to, including regular reporting to corrective services officers, restrictions on residence and contact, and compliance with any reasonable directions given by these officers. The court's decision was based on the assessment that a supervision order was sufficient to manage the risk posed by Heidke, ensuring the adequate protection of the community while also considering Heidke's right to eventual release.

Orders

Orders of the court

The order of the court is that, pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Albert Ronald Heidke be released from custody subject to a supervision order in the terms appearing in the Appendix to these reasons.

Background

Background to the litigation

For the reasons that follow, the respondent will be released subject to a supervision order containing the conditions set forth in the Appendix to these reasons.Background The respondent is 77 years of age, having been born in 1943. After the separation of his parents when he was quite young, he was raised by his father and stepmother. He left school when he was 15 years of age and thereafter had a reasonable employment history for many years, working in the main in unskilled occupations. He has never married and has no children. On 26 March 1973, the respondent was convicted in the Magistrates Court at Beenleigh of two counts of aggravated assault. These offences were committed against two boys who were both seven years of age. The children were in the respondent’s care while their parents attended a party. The assault in each instance consisted of fondling. Then, on 25 October 1990, the respondent was convicted in the Magistrates Court at Petrie of another charge of aggravated assault, this time against a boy aged 14. The respondent felt the boy’s penis through his pyjama pants on two occasions while exposing himself. Almost 20 years later, on 8 October 2010, the respondent pleaded guilty in the District Court at Rockhampton to 41 offences against boys between 1973 and 2009. There were two episodes of offending. The first concerned 31 offences that took place between 1973 and 1981 and involved, as victims, three young brothers from the one family. This offending commenced when the boys were each nine or 10 years of age. The second involved 10 counts of indecently dealing with a child under the age of 12. There was one victim, a boy who was seven years old at the time, but he was subjected to sustained offending over a 12 month period between April 2008 and March 2009. In the case of all of the offending, it was the respondent’s friendship with the families of the victims that provided him with the opportunity to commit the offences. Overall, the offending ranged between indecent dealing with the boys and sodomy. There was quite sophisticated grooming behaviour on the part of the respondent and, with the more serious offending, the application of considerable force to restrain the boys. The sentencing judge, his Honour Judge Irwin, ordered a pre-sentence report. As a result, the respondent was examined by Dr Flanagan, a psychiatrist, who subsequently provided a report. It contained a diagnosis of paedophilia and the observation that the respondent had an “enduring and exclusive interest in male children”. According to the sentencing judge, Dr Flanagan recommended that the respondent’s eventual release from custody should be subject to “whatever restrictions the law is able to impose to make [his] opportunity of [offending] more difficult”. The respondent was sentenced to an effective head term of 11 years imprisonment with a declaration that 582 days spent in presentence custody was time already served under that sentence. The respondent became eligible for parole on 8 April 2016 and although he applied for release in June of that year, the Parole Board refused his application on 24 March 2017. A further application was made by the respondent on 24 September 2017. This, too, was refused on 14 March 2018 because the Board considered that the respondent posed an unacceptable risk of further offending in the community. No further application for release on parole has been made.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Lastly, each of the psychiatrists has expressed opinion that the supervision order should be for a period of 10 years and, despite the respondent’s age, an order of that duration is, in my view, required.Conclusion The respondent will be released from custody subject to a supervision order containing the conditions appearing in the Appendix to these reasons. You are being released from prison but only if you obey the rules in this supervision order. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison. You must obey these rules for the next 10 years. On the day you are released from prison, you must report before 4 pm to a Corrective Services officer at the Community Corrections office closest to where you will live. You must tell the Corrective Services officer your name and the address where you will live. A Corrective Services officer will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A Corrective Services officer might visit you at your home. You must let the Corrective Services officer come into your house. A Corrective Services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a Corrective Services officer gives you about:a)where you are allowed to live; andb)rehabilitation, care or treatment programs; andc)using drugs; d)who you may not have contact with; ande)anything else, except for instructions that mean you will break the rules in this supervision order.A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation. “Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.If you are not sure about a direction, you can ask a Corrective Services officer for more information, or talk to your lawyer about it. You must answer and tell the truth if a Corrective Services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with. If you change your name, where you live or any employment, you must tell a Corrective Services officer at least two business days before the change will happen. You must not break the law by committing a sexual offence. You must not break the law by committing an indictable offence. You must live at a place approved by a Corrective Services officer. You must obey any rules that are made about people who live there. You must not live at another place. If you want to live at another place, you must tell a Corrective Services officer the address of the place you want to live. The Corrective Services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a Corrective Services officer to live at another place.

Ratio Decidendi

Legal Principle Established

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