Attorney-General (Qld) v Jackway

Case [2020] QSC 377

SUPREME COURT OF QUEENSLAND

CITATION:

 Attorney-General (Qld) v Jackway [2020] QSC 377

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

DOUGLAS BRIAN JACKWAY

(respondent)

FILE NO/S:

BS 7422 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2020

JUDGE:

Brown J

ORDER:

The Court affirms the decision of O’Brien AJ made on 28 February 2012 that the respondent, Douglas Brian Jackway is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:

1. Pursuant to s 30(3)(b) of the Act, the respondent, Douglas Brian Jackway be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of 15 years.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is detained under a continuing detention order for 7 years under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where applicant applied for the order to be reaffirmed under s 30 of the Act – where respondent’s treating forensic psychologist opines respondent is demonstrating positive behaviour – where reporting psychiatrists both opined that if respondent were released on supervision order there would be moderate risk of reoffending – where potential for escalation to high risk of reoffending if respondent took illicit substances or experienced stressors – whether respondent serious danger to community in absence of Division 3 order – whether adequate protection of community can be reasonably and practically managed by supervision order – whether s 16 requirements can be reasonably and practically managed by corrective services officers

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 27, s 29, s 30, s 33

Attorney-General (Qld) v Beattie [2007] QCA 96, considered

Attorney-General (Qld) v DBJ[2017] QSC 302, considered

Attorney-General (Qld) v Fardon [2011] QCA 111, considered

Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, considered

Attorney-General (Qld) v Jackway[2015] QSC 26, cited

Attorney-General (Qld) v Jackway [2016] QSC 74, cited

Attorney-General (Qld) v Jackway[2017] QSC 67, cited

Attorney-General (Qld) v Jackway[2018] QSC 137, cited

Attorney-General (Qld) v Jackway[2019] QSC 261, cited

Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited

Attorney-General (Qld) v S[2015] QSC 157, considered

COUNSEL:

J Rolls for the applicant

S Lewis with C Smith for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

  1. This is an application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act)[1] for review of the continuing detention of Douglas Brian Jackway, the respondent.[2] The applicant seeks to have a decision of…

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Attorney-General (Qld) v Jackway [2020] QSC 377
Case
[2020] QSC 377
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Jackway involved an application by the Attorney-General for the reaffirmation of a continuing detention order for Douglas Brian Jackway, who is deemed a dangerous sexual offender under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Jackway, detained under the Act since 2012, was subject to a review to determine whether he still posed a serious danger to the community and whether he could be managed under a supervision order instead of continued detention. The court had to decide if adequate protection of the community could be achieved through a supervision order and if the requirements of the Act could be reasonably managed by the Queensland Corrective Services.

The central legal issues before the court were whether Jackway remained a serious danger to the community and if his risk could be adequately managed by a supervision order rather than continuing detention. The court had to consider psychiatric evaluations indicating that Jackway's risk of reoffending was moderate under a supervision order, although there was potential for escalation to high risk if he engaged in substance abuse or experienced stressors. The court also had to assess whether the Queensland Corrective Services could manage the conditions of a supervision order.

The court, after reviewing the psychiatric evidence and Jackway's behaviour both in custody and during previous reviews, concluded that Jackway remained a serious danger to the community and that his risk could be adequately managed by a supervision order. The court found that while Jackway had shown improvements in his behaviour and demonstrated some positive changes, the risk he posed, particularly in relation to substance abuse and stress, was still significant. The court accepted the opinion of the psychiatrists that a 15-year supervision order would be appropriate, considering Jackway's institutionalisation and the time needed for him to develop positive networks and reduce his risk of reoffending. The court also determined that the Queensland Corrective Services could manage the requirements of a supervision order.

In summary, the court affirmed that Jackway remained a serious danger to the community in the absence of a Division 3 Order under the Act. The court ordered that Jackway be released from custody and placed under a supervision order for a period of 15 years, allowing for adjustments in the conditions as his behaviour warranted.

Orders

Orders of the court

The Court affirms the decision of O’Brien AJ made on 28 February 2012 that the respondent, Douglas Brian Jackway is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:

1. Pursuant to s 30(3)(b) of the Act, the respondent, Douglas Brian Jackway be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of 15 years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Attorney-General (Qld) v S,[17] the court stated that, in determining whether the community could be adequately protected only by a continuing detention order, “the court is required to consider the nature and extent of the risk as well as the potential consequences of that risk eventuating, in order to assess whether the risk is acceptable, in the sense of providing adequate protection to the community.” [17][2015] QSC 157.Psychiatric evidence Evidence was given by Dr Timmins and by Dr Aboud. Both saw him in person prior to providing their reports. Dr Lars Madsen, who is Mr Jackway’s treating psychologist, also gave evidence. Dr Aboud Dr Aboud interviewed the respondent for the first time on 13 January 2017. In discussing Dr Aboud’s evidence in 2017 I commented that:[18]“[57] Dr Aboud considered that while it was evident that there had been some improvements in relation to the respondent’s general behaviour in prison, there remained clear examples within the last year of violent behaviour in terms of issuing threats and property damage as well as substance abuse. [58] While Dr Aboud considers that there is evidence of gradual personality maturation, he considers that there is still evidence of ongoing emotionally unstable impulsive and challenging behaviour. [59] Dr Aboud considers in the context of the supervision order the risk of reoffending sexually would reduce to moderate. However presently he is not confident that the respondent would comply with an order. He considers that given the respondent’s personality traits and impulsivity, that the respondent’s progression from stressful situations outcomes could be rapid. He stated that to be confident that the respondent would be successfully managed under a supervision order, it was necessary to see behavioural evidence that the respondent can manage his various stressors appropriately within the prison environment. In that regard, he considered that it was necessary for the respondent to demonstrate for a continuous 12 month period no physically violent behaviour, no threat of violence to an officer or inmates and no ingestion of contraband substances.”[18]Attorney-General (Qld) v Jackway [2017] QSC 67. Dr Aboud provided reports for both the 2018 and 2019 reviews and has had the opportunity to observe the changes in the respondent over the last four years. In his report dated 30 September 2020, he confirmed his opinion that the respondent suffers from an antisocial personality disorder with prominent psychopathic traits which he considers explains the respondent’s anti-authoritarian disposition, wide ranging criminal offending and tendency to breach rules. He also considers that the respondent appears to have some Borderline (Emotionally Unstable) Personality Traits manifesting with a fragile emotional state, fears of abandonment and trust issues. These vulnerabilities particularly become apparent when he experiences psychosocial stress and at those times, he is at high risk of using alcohol or illicit substances as a means of coping with his emotions. Dr Aboud considers he meets the criteria for alcohol abuse and polysubstance abuse.

Decision

Reasons for decision

I accept the opinion of Dr Timmins, from which Dr Aboud did not dissent, that the order should be for a period of 15 years. The proposed period of the Supervision Order of 15 years is naturally an onerous one, given the extensive conditions which are provided for under the order. However, the respondent is somebody who has become institutionalised given he has been incarcerated for most of his adult life, since he was 18. His diagnoses are such that it is anticipated that he will take longer to adapt and develop positive networks than would be expected for other individuals and to ameliorate his risk of sexual offending in the community to a level where the adequate protection of the community can be ensure without a supervision order at all.[81] In this regard, I place considerable weight on the psychiatrists’ evidence as to the time that it is likely to take for the respondent to reach a point where he is an acceptable risk without a supervision order. In my view, the appropriate length of time for the order is one of 15 years, noting that the order does provide for the QCS to adjust the conditions to allow the respondent greater freedoms as time progresses if his conduct supports a relaxing of the conditions to which he is subject. [81]Attorney-General (Qld) v DXP [2019] QSC 77 at [29]. Conclusions Given the above analysis, the orders that should be made by this Court are that: The Court affirms the decision of O’Brien AJ made on 28 February 2012 that the respondent, Douglas Brian Jackway is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:1.Pursuant to s 30(3)(b) of the Act, the respondent, Douglas Brian Jackway be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of 15 years.

Ratio Decidendi

Legal Principle Established

According to what Mr Jackway has told the psychiatrists he has regular telephone contact with his mother and brother, albeit they live interstate. Mr Jackway also has a sister on the Sunshine Coast. Although limited, it is evidence of some family support he can access upon his release.ConsiderationIs the respondent a serious danger to the community in the absence of a Division 3 Order? The first question is whether the respondent is a serious danger to the community in the absence of a Division 3 Order under the Act. As set out above, the respondent concedes that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order and that the order of O’Brien AJ in that regard should be affirmed. Given the evidence before me, particularly the psychiatric evidence and the psychiatrists’ assessment of Mr Jackway’s unmodified risk, which I accept, that concession is a properly made. I am satisfied to a high degree of probability that there is acceptable cogent evidence that has been presented to me, that is of sufficient weight to conclude that the respondent continues to be a serious danger to the community in the absence of a Division 3 Order under the Act. I have reached that conclusion having regard to the matters which I am required to consider under the Act, a number of which are addressed in the psychiatric opinions and Dr Madsen’s evidence. I am therefore satisfied that the court should affirm the decision of O’Brien AJ that the respondent is a serious danger to the community in the absence of a Division 3 Order. Should the respondent be released on a supervision order? The Attorney-General submits that Mr Jackway should be the subject of a continuing detention order in the exercise of the Court’s discretion pursuant to s 30(3) of the Act. The applicant carries the onus to persuade the Court in that regard.[54] As provided under s30(4) of the Act, the paramount consideration is the need to ensure adequate protection of the community. The court must consider whether the adequate protection of the community can reasonably and practicably be managed by a supervision order and whether the requirements of s 16 of the Act can be reasonably and practicably managed by QCS. There is no evidence suggesting that QCS cannot reasonably and practicably manage the requirements under s 16 of the Act in this instance. [54]Attorney-General (Qld) v Lawrence [2009] QCA 136; Attorney-General (Qld) v Francis [2007] 1 Qd R 396. In previous reviews one of the key issues has been whether Mr Jackway was able to exercise a sufficient level of control in response to various stresses, notwithstanding his antisocial personality, other personality traits and diagnosed conditions. As is evident from the above decisions, each year has seen Mr Jackway’s behaviour improving with signs of maturation, although he still engaged in self-sabotaging behaviour in 2018 and 2019. Psychiatric opinion has previously been that a minimum of 12 months of good and controlled behaviour is required in order for Mr Jackway to demonstrate sufficient control for a person with the respondent’s psychiatric condition to be the subject of a supervision order.[55] Mr Jackway had committed numerous breaches in custody demonstrating a lack of control with impulsive behaviour and violent, aggressive outbursts. His aggressive behaviours were often linked to when he was feeling agitated and frustrated when he could not get his own way. He was observed to have a low threshold in that regard. The breaches have however progressively reduced throughout the period he has been the subject of a continuing detention order and he has demonstrated significant improvement in the regulation of his behaviour.[55]Attorney-General (Qld) v Jackway [2017] QSC 67.