Attorney-General (Qld) v Kennedy

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SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Kennedy [2016] QSC 287

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
DAMIEN PAUL KENNEDY

(respondent)

FILE NO/S:

BS No 9531 of 2016

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2016

JUDGE:

Burns J

ORDER:

The court, being satisfied to the requisite standard that the respondent, Damien Paul Kennedy, is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), orders that the respondent be released from custody subject to the requirements set forth in the draft supervision order, being Exhibit 3 in the proceeding, until 5 December 2021.

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 can be reasonably and practicably managed by a supervision order – whether the requirements under s 16 of the Act can be reasonably and practicably managed by corrective services officers

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 2, s 3, s 5, s 13, s 13A, s 16

Attorney-General (Qld) v Beattie [2007] QCA 96, followed
Attorney-General (Qld) v Fardon [2011] QCA 111, cited
Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited
Attorney-General (Qld) v Kanaveilomani [2013] QCA 404, cited
Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited
Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305; [2012] QCA 184, cited
Attorney-General (Qld) v Sutherland [2006] QSC 268, followed
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, cited
Kynuna v Attorney-General for the State of Queensland [2016] QCA 172, cited
Turnbull v Attorney-General (Qld) [2015] QCA 54, cited

COUNSEL:

J Rolls for the applicant
J McInnes for the respondent

SOLICITORS:

G R Cooper Crown Solicitor for the applicant

Legal Aid Queensland  for the respondent

  1. By this application, the Honourable Attorney-General for the State of Queensland seeks an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 detaining the respondent, Damien Paul Kennedy, in custody for an indefinite term for care, treatment or control: s 13(5)(a). In the alternative if the court is minded to release Mr Kennedy from custody, the Attorney-General asks that he be released subject to a…

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Details
Case
[2016] QSC 287
Decision Date

CaseChat Overview and Summary

In the case of Attorney-General (Qld) v Kennedy, the court was tasked with determining whether the respondent, Damien Paul Kennedy, was a serious danger to the community in the absence of a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The court was also required to decide whether the adequate protection of the community could be reasonably and practicably managed by a supervision order. The decision hinged on the evidence provided by three consultant psychiatrists, Dr Harden, Dr Lawrence, and Dr McVie, who assessed Mr Kennedy's risk of reoffending and his capacity to comply with a supervision order.

The court found that Mr Kennedy's primary issue was his substance abuse, which significantly increased his risk of sexually violent reoffending. Despite differing assessments of his unmodified risk of reoffending, all psychiatrists agreed that a relapse into substance abuse would exponentially increase this risk, potentially causing severe harm to a future victim. Given Mr Kennedy's extensive criminal history, including past instances of substance abuse and parole breaches, the court concluded that the risk of him committing a serious sexual offence was unacceptably high.

Considering the paramount need to ensure adequate protection of the community, the court found that a supervision order could reasonably and practicably manage this risk. The court was satisfied that corrective services officers could manage the requirements under section 16 of the Act. Therefore, the court ordered Mr Kennedy's release from custody, subject to the terms of a draft supervision order, until 5 December 2021.

This decision underscores the court's commitment to balancing the need for community protection with the potential for rehabilitation and reintegration of individuals deemed dangerous. The court's findings reflect a careful consideration of the evidence and a pragmatic approach to managing the risks posed by serious offenders.

Orders

Orders of the court

The court, being satisfied to the requisite standard that the respondent, Damien Paul Kennedy, is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), orders that the respondent be released from custody subject to the requirements set forth in the draft supervision order, being Exhibit 3 in the proceeding, until 5 December 2021.

Background

Background to the litigation

Mr Kennedy’s full time release date is today, 5 December 2016. Background Mr Kennedy is 27 years of age. His parents separated at around the time of his birth and he lived with his mother until he was about six years of age. He then lived with his father although that was particularly fractious at times. He was exposed in his childhood to a range of undesirable influences, including the drug culture. Mr Kennedy was expelled from four separate primary schools and was in regular conflict with his teachers, as well as other students. He was prescribed Ritalin for Attention Deficit Hyperactivity Disorder between the ages of 8 to 12 years and was an outpatient with the Child and Youth Mental Health Services before the age of 13 years. At around that time, he was admitted to a substance abuse rehabilitation facility in Toowoomba for almost a year. Prior to his admission he was using cannabis on a daily basis and in significant quantities. As soon as he left the substance abuse rehabilitation facility, Mr Kennedy resumed his use of cannabis and, not long after, began using amphetamines. This, too, gradually increased to daily intravenous use. According to the history he provided Dr Harden, by the time of his incarceration at the age of 19 years, he was a daily user of illicit substances in one form or another.[2] He told Dr McVie that he was “spending $500 to $1000 per week on drugs” at that time and admitted that he was a “junkie”.[3][2]Affidavit of Scott Harden filed on 16 September 2016, Exhibit SH-2 at p 7.[3]Exhibit 5 (Report of Dr McVie dated 31 October 2016 at page 5). Not surprisingly, Mr Kennedy has not had much in the way of an education. He has worked in a supermarket as a trolley pusher and in a job cleaning cars. In more recent times, Mr Kennedy has been employed as a joint sealer, doing work in bathrooms. It is said that he worked fairly consistently in that job when he was on parole, and this particular employment was provided to him by a friend with whom he had grown up. He believes that he will be able to regain that employment on his release from custody. Mr Kennedy also anticipates receiving support from various people in the community including the Catholic prison ministry, his parents, his older sister and the friend he hopes will again employ him. His sister is 28 years of age. She has recently married, has no children and resides with the husband in accommodation that, as I have already noted, has been assessed as suitable by Corrective Services as a place to accommodate Mr Kennedy if released on supervision. Otherwise, Mr Kennedy has been in three relationships of note and has maintained contact, to varying degrees, with each of these women since those relationships ended.Criminal history and index offending Mr Kennedy has a reasonably extensive juvenile criminal history including convictions for offences in respect of which he was sentenced to short periods in detention. These were for stealing, wilful damage, common assault, possession of tainted property, possession of cannabis, possession of utensils, burglary, unlawful use of a motor vehicle, dangerous operation of a motor vehicle and evading fares. He was first imprisoned as an adult at the age of 17 years for a brace of offences including burglary and unlawful use of a motor vehicle.

Evidence

Evidence Before The Court

Finally, it is with respect helpful to keep in mind the following observations of Chief Justice de Jersey regarding the character of Division 3 orders in Attorney-General v Fardon:[27] “These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control. Of substantial present concern is the respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that ‘there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order’.”[28][27][2011] QCA 155.[28]Ibid [29].The evidence Although no evidence was adduced on behalf of Mr Kennedy in response to this application, the Attorney-General relied on a considerable body of evidence, including reports from three consultant psychiatrists – Dr Harden, Dr Lawrence, and Dr McVie – each of whom also gave oral evidence at the hearing and was cross-examined by counsel for Mr Kennedy. It is sufficient for present purposes to summarise the overall effect of their evidence, and I do so immediately below.Dr Harden Dr Harden interviewed Mr Kennedy at the Woodford Correctional Centre on 29 April 2016. He impressed Dr Harden as being generally cooperative, a good historian and of average intelligence. Mr Kennedy was able to reflect on his offending and substance abuse and, importantly, to identify the consequences such abuse has had on his life. With respect to the index offences, Mr Kennedy confirmed that he had gone to the complainant’s place of work with the intention of robbing her and, at the time, he was intoxicated with amphetamines, having consumed a substantial quantity in the previous 24 hours. Mr Kennedy described significant guilt and remorse for the harm he had caused the victim. He told Dr Harden that he found the treatment programs he had undertaken whilst in custody to be helpful in gaining insight into his offending. He had also received a better understanding of high risk situations and had developed positive future goals. In addition to interviewing Mr Kennedy, Dr Harden administered a number of risk assessment tools, including the Static-99R, the Stable 2007, the Sex Offender Risk Appraisal Guide and the Sexual Violence Risk-20. Dr Harden could find no evidence of sexual paraphilia. He opined that Mr Kennedy was suffering from mild Antisocial Personality Disorder and Poly-substance Abuse with a preference for amphetamines and cannabis. Not surprisingly, Dr Harden considered that substance abuse remains Mr Kennedy’s “Achilles’ heel”. Overall, Dr Harden considered Mr Kennedy’s ongoing unmodified risk of sexual reoffending in the community to be moderate. His greatest risk factors are his avoidant coping style and subsequent substance misuse. He was of the opinion that, should Mr Kennedy have the benefit of a supervision order, his risk of sexual re-offence will be reduced to low and, further, that Mr Kennedy will be likely to comply with the requirements of any such order. Dr Harden recommended that any supervision order should be in place for five years.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Dr McVie recommended that Mr Kennedy receive ongoing therapy for his substance abuse disorder as well as regular psychological support to address issues such as his impulsivity, cognitive problems, solving skills and general learning skills as required. ConsiderationIs Mr Kennedy a serious danger to the community in the absence of an order? As stated at the outset, it was not in issue on the hearing of the application that Mr Kennedy is a serious danger to the community in the absence of a Division 3 order. Nevertheless, it is still necessary for the court to consider that question. For the reasons earlier expressed, it will only be if that is so that the court need concern itself with whether the adequate protection of the community or the requirements of s 16 of the Act can be reasonably and practicably managed by a supervision order. Put another way, if Mr Kennedy is not a serious danger to the community in the absence of a Division 3 order, he will not be a person to whom the Act applies. Here, the psychiatrists agree that Mr Kennedy’s major problem is substance abuse. Although his unmodified risk of sexually violent reoffending has been assessed at different levels by the three examining psychiatrists (from low to moderate), a relapse into the use, for example, of methylamphetamine will increase that risk exponentially. The victim is likely to be an adult female. Furthermore, there is a significant risk of psychological and/or physical harm to the victim. The use of weapons is not unlikely. In this context, it is necessary to recall what was said by Keane JA (as his Honour then was) in Attorney-General (Qld) v Beattie,[31] that “whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising”.[32] As such, even if the risk that Mr Kennedy might reoffend in a sexually violent way is only at a low to moderate level, there remains a high risk of very serious harm being caused to a future victim if he lapses back into substance abuse. Given the index offending, his past history of substance abuse and breaches of parole, the risk that Mr Kennedy will commit a serious sexual offence within the meaning of the Act if he is released from custody or, alternatively, released from custody without a supervision order being made is unacceptably high. The Attorney-General has established this by acceptable cogent evidence and to the high degree of probability required under the Act.[31][2007] QCA 96.[32]Ibid [19]. It follows that Mr Kennedy is a person to whom the Act applies.Which order? Being so satisfied, the next question is whether, under s 13(5) of the Act, there should be a continuing detention order or a supervision order. Section 13(6) provides:“(6)In deciding whether to make an order under subsection (5)(a) or (b) –(a)the paramount consideration is to be the need to ensure adequate protection of the community; and(b)the court must consider whether –(i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and(ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.”