Attorney-General (Qld) v Jackway

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SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

DOUGLAS BRIAN JACKWAY

(respondent)

FILE NO:

BS 7422 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

5 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2018, 1 June 2018

JUDGE:

Crow J

ORDER:

The Court affirms the decision of Acting Justice O’Brien 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.   The respondent, Douglas Brian Jackway, continue to be subject to the continuing detention order made on 28 February 2012.  

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 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant applied for the order to be reaffirmed under section 30 of the Act – where reporting psychiatrists opined that if the respondent were released on a supervision order there would be a moderate chance of reoffending, and this could increase to high if the respondent took illicit substances or was experiencing stressors – where subsequent to the initial hearing date, the respondent tested positive to Buprenorphine, a synthetic opioid – whether the respondent should remain under the Continuing Detention Order under the Act

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3, s 13, s 27, s 29, s 30

A-G (Qld) v Jackway [2015] QSC 26, cited
A-G (Qld) v Jackway [2016] QSC 74, cited
Attorney-General (Qld) v DBJ [2017] QSC 302, considered
Attorney-General (Qld) v Jackway [2017] QSC 67, cited
Attorney General for the State of Queensland v DJ, unreported, O’Brien AJ, SC No 7422 of 2011, 28 February 2012, cited
Attorney-General for the State of Queensland v Francis [2006] QCA 324, considered
Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505, cited
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187, cited
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206, cited
Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519, cited
New South Wales v Kruse (No 2) [2014] NSWSC 128, cited
Turnbull v Attorney-General for the State of Queensland [2015] QCA 54, considered

COUNSEL:

P Dunning QC with J Rolls for the applicant

J Allen QC with C Smith for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

  1. This is the fifth annual review pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) of the continuing detention of Douglas Brian Jackway (the respondent). The applicant seeks to have the order made pursuant to s 30(2) by O’Brien AJ on 28…

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Details
Case
[2018] QSC 137
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Jackway involved the application by the Attorney-General for Queensland to have a continuing detention order for the respondent, Douglas Brian Jackway, reaffirmed under section 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Jackway, who has a history of serious sexual offending, is currently detained under a continuing detention order which was first made on 28 February 2012 by O’Brien AJ. This order was subsequently affirmed by several other judges over the years, most recently by Brown J on 22 May 2017. The legal issue the court had to determine was whether Jackway should continue to be subject to the continuing detention order given the risk factors associated with his potential release.

The court considered the expert evidence provided by psychiatrists Dr Lars Madsen and Dr Grant. Dr Grant opined that Jackway suffered from anti-social personality disorder and psychopathic personality disorder, which impaired his ability to empathise with others and demonstrated a tendency to lack remorse for his offences. Dr Grant considered that Jackway's sexual offending was likely motivated by his severe personality disorder and impulsivity, rather than any sexual paraphilia. However, Dr Grant also noted that Jackway had a history of substance abuse, which could increase his risk of reoffending. Additionally, Jackway had tested positive for Buprenorphine, a synthetic opioid, after the initial hearing date.

The court concluded that the risk of Jackway reoffending if released on a supervision order remained high, particularly if he were to use illicit substances or experience stressors. Given the seriousness of Jackway's prior offences and the ongoing risk he posed to the community, the court affirmed the decision of O’Brien AJ and ordered that Jackway continue to be subject to the continuing detention order. The court was satisfied that the risk of reoffending would be too great if Jackway were released into the community.

Orders

Orders of the court

The Court affirms the decision of Acting Justice O’Brien 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. The respondent, Douglas Brian Jackway, continue to be subject to the continuing detention order made on 28 February 2012.

Background

Background to the litigation

On 28 February 2012, O’Brien AJ concluded that he was satisfied the respondent was a serious danger to the community in the absence of an order under Division 3 of the Act. O’Brien AJ further ordered that the respondent be detained in custody for an indefinite term of care, control and treatment. The order of O’Brien AJ was affirmed by Daubney J on 20 December 2013, by Mullins J on 9 February 2015,[2] by the Chief Justice on 7 April 2016[3] and more recently further affirmed by Brown J on 22 May 2017.[4][2] A-G (Qld) v Jackway [2015] QSC 26.[3] A-G (Qld) v Jackway [2016] QSC 74.[4] Attorney-General (Qld) v Jackway [2017] QSC 67. Background The respondent was born on 14 December 1976. He is presently 41 years of age. O’Brien AJ summarised the respondent’s prior offending as follows:[5]“[4] The respondent is a thirty five year old man who has spent all but about four months of his adult life in prison. He has a lengthy criminal history, a copy of which is exhibited to the affidavit of Kerry Ann Heenan sworn on 19 August 2010. The most significant entries in that history are those recorded in the District Court at Gladstone in December 1995 and in the District Court at Maroochydore in 2005. As to the first of these, the respondent had pleaded guilty to one count of taking a child under the age of sixteen for immoral purposes with a circumstance of aggravation, three counts of indecent dealing with a child under twelve, two counts of attempted carnal knowledge by anal intercourse of a child under twelve, one count of unlawful use of a motor vehicle and an offence of assault occasioning bodily harm.[5] The circumstances of that offending are set out in Exhibit 12 to the affidavit of Stephanie Nicole Cooper sworn on 26 July 2011. They involve the respondent driving to Gladstone where he approached three young boys riding bicycles under the guise of seeking directions from them. One of those boys was punched and manhandled by the respondent into his vehicle. The respondent drove the boy for a short distance before his vehicle collided with a bridge. He then took the boy into some mangroves, stripped him and assaulted him by handling his genitals, licking him, kissing him on the lips and placing his tongue in the boy's mouth before spitting into his mouth and making him swallow. The respondent inserted his fingers into the boy's anus before forcing his penis into the boy's mouth and causing the boy to bend over and move backwards on to his erect penis. He was during this time using demanding language and threatening physical violence to the child.[6] A witness to the abduction of the boy had contacted police who arrived to find the respondent standing behind the boy with his erect penis against the boy's anus. The respondent made a threat to cut the boy's throat but was subdued when the boy informed the police that the respondent did not in fact have a knife. The respondent after being apprehended continued to yell obscenities and threatened harm to the boy and to his family. The respondent was sentenced to an effective term of eight years imprisonment for this offending.[7] In the District Court at Maroochydore in 2005, following a trial, the respondent had been convicted of an offence of rape. The victim of that offence was his sister who was aged about nine or ten when the offence was alleged to have been committed sometime between 1990 and 1994. Following his conviction the respondent was sentenced to a term of imprisonment for that offence as well as for a number of other lesser offences which were dealt with at that same time. On appeal in that matter, R v JJ [2005] QCA 153, McPherson J.A. referred to the respondent's prior offending as follows:-‘JJ was aged 29 at sentencing. He has an extensive history of prior offending starting as a child in 1992. Most involved property offences, such as breaking, entering and stealing and unlawful use of vehicles; but in 1994 he was convicted of aggravated assault on a child, and there are two recorded convictions for possession of a weapon or replica. It was, however, his conviction in April 1995 in the District Court at Gladstone at the age of 18 that led to the earliest of several psychiatric diagnoses carried out between 1995 and 2005. He was convicted on that occasion in 1995 of abducting a boy aged 9 from the company of the boy's companions on a bike track and attempting to have anal intercourse with him, as well as perpetrating various other acts of indecency and terror upon him. The details of the offence are related in R v J, ex p Attorney-General [1997] 2 Qd R 277, which reports an unsuccessful appeal from a sentence of imprisonment for 8 years for what he had done on that occasion. Since then he has been convicted and sentenced for offences committed while in prison, such as wilful damage and assaulting another prisoner. He has also been recorded making a threat to kill his sister the complainant for her part in his conviction in 2004.’”[5] See Attorney General for the State of Queensland v DJ, unreported, O’Brien AJ, SC No 7422 of 2011, 28 February 2012.

Evidence

Evidence Before The Court

If the Court declines to order continuing detention, then the Court must rescind the continuing detention order.[21]Expert evidence[21]See Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 30(5). In a report dated 30 January 2018 Dr Lars Madsen, subsequent to eight sessions of therapy, recorded that the respondent now engaged well in the sessions. Dr Madsen notes that the respondent is “receptive” to the intervention and that the respondent seems to demonstrate a reasonable grasp of key concepts. Dr Grant most recently assessed the respondent on 15 February 2018. Dr Grant has previously assessed the respondent and prepared reports dated:· 5 November 2010;· 3 December 2012;· 27 November 2013;· 19 October 2014;· 2 March 2016; and· 14 February 2017. Dr Grant considers that his diagnosis is unchanged. The respondent suffers from anti-social personality disorder. He has “severe” anti-social personality traits. Dr Grant opines that the respondent qualifies for a diagnosis of psychopathic personality disorder. Dr Grant opines that the combination of these two conditions give rise to a very poor ability to empathise with others and that the respondent has demonstrated a tendency to demonstrate little remorse for his offending behaviour. Dr Grant considers it is unclear whether the respondent suffers from any sexual paraphilia. Having regard to the history, there are possible paraphilias of paedophilia or sadism which possibly exist. Despite child victims, the respondent denies any sexual attraction to children. He also denies any sadistic fantasies. Dr Grant considers that on balance, it is more likely that the respondent’s sexual offending is motivated by his severe personality disorder, his impulsivity, his reaction to his own sexual abuse which was facilitated by substance abuse and intoxication. Dr Grant records a history of problems with alcohol and substance abuse. Alcohol has caused the respondent to become more aggressive and disinhibited. He is more likely to indulge in offending behaviour. Dr Grant notes that the respondent has smoked marijuana on a regular basis when not in custody. It is also recorded by Dr Grant that the respondent has used heroin and was using on a daily basis up until 1995. He has “dabbled” with methamphetamines and hallucinogenic mushrooms. He has sniffed butane gas. He has also abused prescription medications. Dr Grant notes that abuse of substances has become a lesser problem in recent years. At the time of the review on 16 April 2018, there had been no recent positive urine tests. Dr Grant notes the respondent is “highly institutionalised”. He lacks life skills in an environment outside the prison setting and that will present “significant issues” with respect to reintegration in the community. Dr Grant notes that the incident occurring on 20 July 2017. He also notes the matters recorded as occurring on 24 July 2017. He notes the respondent’s denial of those matters. Dr Grant records that previous assessments have indicated that the respondent is in the high risk group for future sexual offending. This remains the case. Although Dr Grant notes the risks have been modified to some extent over the years, firstly by the long period in custody and secondly, his advancing age. Middle age is often associated with a settling of the more extreme aspect of anti-social personality disorder.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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