Attorney-General (Qld) v Lawrence
[2014] QCA 220
•2 September 2014
SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General (Qld) v Lawrence [2014] QCA 220
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(appellant)
v
MARK RICHARD LAWRENCE
(respondent)FILE NO/S:
Appeal No 4117 of 2014
SC No 7468 of 2007DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
2 September 2014
DELIVERED AT:
Brisbane
HEARING DATE:
25 June 2014
JUDGES:
Fraser, Gotterson and Morrison JJA
Judgment of the CourtORDERS:
1. The appeal be allowed.
2. The orders of the learned primary judge made on 2 May 2014 be set aside.
3. The respondent, Mark Richard Lawrence, continue to be subject to the continuing detention order made on 3 October 2008.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – GENERALLY – where the respondent has been subject to a continuing detention order under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) since 2008 – where the primary judge rescinded that order and ordered the respondent be released subject to a supervision order – where the appellant argues the appellate court should substitute its own decision for the primary judge’s even if error in the primary decision of the kind described in House v The King is not demonstrated – whether the principles in House v The King concerning appellable error are applicable to an appeal against a discretionary decision to release a prisoner on a supervision under s 30(3) of the Act
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the primary judge rescinded the continuing detention order to which the respondent had been subject since 2008 – where the expert witnesses gave evidence that the respondent’s risk level had decreased – where those assessments were based on the assumption that the respondent was being truthful about certain matters – where the respondent was not called to give evidence about those matters– whether the primary judge properly assessed whether there was adequate evidence for assuming the respondent was being truthful about those matters – whether in all the circumstances a supervision order could ensure adequate protection of the community
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27, s 30(1), s 30(3), s 30(4), s 31, s 43
Attorney-General for the State of Queensland v Lawrence [2008] QSC 230, related
Attorney-General for the State of Queensland v Yeo [2010] QCA 69, considered
Attorney-General (Qld) v Lawrence [2011] QCA 347, cited
Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited
Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, related
Attorney-General (Qld) v Lawrence [2014] QSC 77, related
House v The King (1936) 55 CLR 499; [1936] HCA 40, considered
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17, cited
R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306, citedCOUNSEL:
P Dunning QC SG, with J B Rolls, for the appellant
J Allen for the respondentSOLICITORS:
Crown Law for the appellant
Legal Aid Queensland for the respondent
THE COURT:
Background
The respondent has been continuously in jail since December 1983. His criminal history was summarised by Chesterman JA in an earlier decision as follows:
“[6]His criminal history begins with an appearance in the Ipswich Children’s Court on 9 May 1978 when he was charged with the aggravated assault on a male child under the age of 14 on 4 May 1978. The appellant was admonished and discharged. He next appeared on 2 November 1978 in the Ipswich Magistrates Court charged with another aggravated assault of a male child under the age of 14. He was sentenced to two years’ probation. (The date given for the offence was 20 December 1978 which must be incorrect given the date of his appearance.) He appeared again in the Ipswich Magistrates Court on 23 February 1979, this time charged with the aggravated assault of a female child under the age of 17, the day before, 22 February. He was sentenced to three years’ probation and ordered to undergo any psychiatric treatment which the probation officer might direct including treatment as an inmate of a psychiatric hospital. On 23 December 1980 he appeared for a third time in the Ipswich Magistrates Court. The charge this time was aggravated assault on a male child under the age of 14 on 21 December. He was fined $75.
[7]On 3 September 1981 he appeared before the Brisbane District Court charged with conspiracy to commit a crime and assault with intent to steal with the threatened use of violence whilst armed and in company. The offences were committed on 11 April 1981. At the time the appellant was an involuntary patient in Wolston Park Hospital from which he absconded with three other patients. They caught a taxi and decided to rob the driver. One of them held a knife to the driver’s throat. He was not harmed and refused to give up his takings. The appellant was sentenced to four months’ imprisonment and required to undergo a further three years’ probation.
[8]Having served the imprisonment he was returned to Wolston Park Hospital where, on 26 December 1983, he and another patient killed a fellow patient, a woman. On 7 February 1985 the appellant was sentenced to 15 years’ imprisonment for manslaughter. That verdict rather than one for murder was returned on the basis of diminished responsibility. The appellant had compelling sexual fantasies about rape and murder. The young woman was killed as an enactment of the fantasies.
[9]In August 1991 the appellant escaped from custody. He had been allowed to leave the gaol to attend a tennis competition and did not return. He was found after a few days and on 3 September 1991 sentenced to one year’s imprisonment, cumulative upon the 15 years, for escaping lawful custody.
[10]On 4 April 2002 in the Brisbane District Court he was convicted of rape and sexual assault with a circumstance of aggravation on 14 October 1999. It was a sodomitic attack on a fellow prisoner. He was sentenced to seven years’ imprisonment for the rape and three years for the assault, to be served concurrently. An earlier conviction had been quashed and the appellant was retried in 2002. By the time he was convicted and sentenced the second time his previous sentences had expired. He was, however, kept in gaol and remanded in custody. That time, from 7 February 2001 until 4 April 2002, was declared to be time served under the sentence.
[11]The term of imprisonment imposed for the manslaughter expired on 6 February 2000. The year’s imprisonment for escaping expired 12 months later. The seven years imposed for rape expired on 7 February 2008…”.[1]
[1]Attorney-General v Lawrence [2010] 1 Qd R 505 at 506 – 507 [5] – [11].
The seven year term of imprisonment which expired in February 2008 was the last of the respondent’s terms of imprisonment. Since then he has been detained under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). The Act provides that a prisoner is a “serious danger to the community” if there is an unacceptable risk that the prisoner will commit a serious sexual offence if the prisoner is released from custody or released from custody without a “supervision order” (an order releasing a prisoner from custody subject to requirements stated in the order which the Court considers appropriate): s 13(2). If the Court is satisfied that a prisoner is a serious danger to the community in the absence of a “division 3 order” (a supervision order or a “continuing detention order” detaining a prisoner in custody for an indefinite term for control, care or treatment) the Court is empowered by the Act to make either of those orders: s 13.
The respondent was first detained in custody under the Act by order made by a judge in the Trial Division on 3 October 2008.[2] The evidence, including the evidence of psychiatrists who examined the respondent at that time that he was at a high risk of violent sexual offending if released into the community, persuaded the judge that the respondent was a serious danger to the community if released without a division 3 order being made, and the evidence then was “insufficiently detailed and precise to permit the confident formulation of requirements for a supervision order… [and] [i]n the absence of such requirements a supervision order would not ensure adequate protection of the community.”[3] This Court dismissed an appeal against that order[4] and the High Court refused the respondent’s appeal from that decision.[5]
[2]Attorney-General for the State of Queensland v Lawrence [2008] QSC 230.
[3][2008] QSC 230 at [69].
[4]Attorney-General v Lawrence [2010] 1 Qd R 505.
[5]Lawrence v Attorney-General for the State of Queensland [2009] HCATrans 244.
The Act requires that there be regular reviews of a prisoner’s continued detention under a continuing detention order: Pt 3. Section 27(2) requires the Attorney-General to make any application that is required to be made to cause the reviews to be carried out. Such reviews have been conducted. An order made in the Trial Division on 4 October 2011 that the respondent be released under supervision[6] was set aside by this Court on appeal on 2 December 2011.[7] The High Court refused an application for special leave to appeal from that decision,[8] so that the respondent remained in detention. On 6 December 2012 a judge in the Trial Division ordered that the respondent remain in detention under the original continuing detention order made on 3 October 2008.[9]
[6]Attorney-Genera1 for the State of Queensland v Lawrence [2011] QSC 291.
[7]A-G (Qld) v Lawrence [2011] QCA 347.
[8]Lawrence v Attorney-Genera1for the State of Queensland [2012] HCATrans 247.
[9]Attorney-General for the State of Queensland v Lawrence [2012] QSC 386.
The orders under appeal
This appeal concerns orders made upon the Attorney-General’s application of 29 October 2013 under s 27 of the Act for the most recent annual review of the continuing detention of the respondent. (The hearing of that application was delayed by resolution of constitutional questions which were decided in December 2013.[10]) After hearing the Attorney-General’s application in February 2014, on 2 May 2014 a judge in the Trial Division made an order affirming the decision made on 3 October 2008 that the respondent is a serious danger to the community in the absence of an order pursuant to Part 2 Division 3 of the Act. The judge ordered that the continuing detention order made on 3 October 2008 be rescinded and that the respondent be released from custody on 2 May 2014 and from that time until 2 May 2029, be subject to the following requirements:
[10]Attorney-General (Qld) v Lawrence (2013) 306 ALR 281.
“The respondent must:
(i)be under the supervision of an authorised Corrective Services Officer for the duration of this order;
(ii)report to an authorised Corrective Services Officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence within 72 hours of the day of release from custody and at the time advise the officer of the respondent's current name and address;
(iii)report to, and receive visits from, an authorised Corrective Service Officer at such time and at such frequency as determined by Queensland Corrective Services;
(iv)notify and obtain the approval of the authorised Corrective Services Officer for every change of the respondent's name at least two business days before the change occurs;
(v)notify an authorised Corrective Services Officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed;
(vi)seek permission and obtain approval from an authorised Corrective Services Officer prior to entering into an employment agreement or engaging in volunteer work, paid or unpaid employment;
(vii)reside at a place as approved by a Corrective Services Officer by way of a suitability assessment;
(viii)not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised Corrective Services Officer;
(ix)not leave or stay out of Queenslasnd without the written permission of an authorised Corrective Service Officer;
(x)not commit an offence of a sexual nature during the period of this order;
(xi)not commit an indictable offence during the period of this order;
(xii)comply with every reasonable direction of a Corrective Services Officer under section 16B of the Act given to him;
(xiii)comply with every reasonable direction of a Corrective Services Officer that is not directly inconsistent with a requirement of the order;
(xiv)respond truthfully to enquiries by a Corrective Services Officer about his whereabouts and movements;
(xv)not have any direct or indirect contact with a victim of his sexual offences or a relative of the victim;
(xvi)notify an authorised Corrective Services Officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;
(xvii)attend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by an authorised Corrective Services Officer at a frequency and duration which shall be recommended by the treating professional, the expense of which is to be met by Queensland Corrective Services;
(xviii)agree to open communication and full co-operation between himself and the treating person and that if either party deems it advisable for that party to contact an authorised Corrective Services Officer;
(xix)agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist or an authorised Corrective Services Officer, and permit the release of the results and details of the testing to Queensland Corrective Services, if such a request is made for the purpose of amending the supervision order or for ensuring compliance with this order, the expense of which is to be met by Queensland Corrective Services;
(xx)attend and participate in any program or course conducted by a psychologist, counsellor, or other professional, in a group or individual capacity, as directed by an authorised Corrective Services Officer in consultation with any treating medical, psychiatric, psychologist or other mental health practitioner where appropriate, with any expense of such program to be met by Queensland Corrective Services;
(xxi)submit to and discuss with an authorised Corrective Services Officer a schedule of his planned and proposed activities on a weekly basis or at such other intervals as directed by an authorised Corrective Services Officer;
(xxii)develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it as directed with an authorised Corrective Services Officer;
(xxiii)not initiate or maintain any supervised or unsupervised contact with any child under 16 years of age, except with the prior written approval of an authorised Corrective Services Officer;
(xxiv)not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation without the prior written permission of an authorised Corrective Services Officer;
(xxv)not visit or attend the premises of any place where there is a dedicated children's play area or child minding area without the prior written approval of an authorised Corrective Services Officer;
(xxvi)not without reasonable excuse be within 100 metres of a school or child care centre without the prior written approval of an authorised Corrective Services Officer;
(xxvii)not be on the premises of any shopping centre, without reasonable excuse, between 8am to 9:30am between 2:30pm and 4:30pm on school days other than for the purpose of:
a. approved employment; or
b.attending an approved bona fide pre-arranged appointment with a Government agency, medical practitioner or the like without the prior written approval of an authorised Corrective Services Officer;
(xxvii)comply with every reasonable curfew direction or monitoring direction of a Corrective Services Officer;
(xxix)abstain from the consumption of alcohol unless with the prior written permission of an authorised Corrective Services Officer;
(xxx)abstain from the consumption of all intoxicating substances; and
(xxxi)submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by an authorised Corrective Services Officer, the expense of which is to be met by Queensland Corrective Services.”
The appeal
The Attorney-General has appealed against the orders rescinding the 3 October 2008 continuing detention order and ordering that the respondent be released from custody on 2 May 2014 and from that time until 2 May 2029 be subject to the requirements set out above. The Attorney-General accepted that the appeal could succeed only if he established an error in the primary judge’s decision. He argued that the primary judge erred in the ways asserted in the grounds of appeal:
“(a)the discretion of the primary judge under Section 30(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) miscarried by reason that the primary trial judge failed to take into account in assessing whether the community could be adequately protected by the release on condition… that it would be difficult, if not impossible, absent the respondent’s self-report, to assess whether the respondent would experience deviant sexual fantasies if and when released into the community;
(b) the discretion of the primary judge under Section 30(4) of the Act miscarried by reason that the primary judge failed to take into account, in the assessment of whether the community could be adequately protected the respondent’s release on condition having regard to the extent of the risk and the catastrophic consequences of the risk materialising;
(c) there was no basis upon which the learned primary judge could have found the supervision order would adequately protect the community; and
(d) the decision is:
(i) contrary to the evidence;
(ii) unsupported by the evidence; and
(iii) unreasonable
(e) on the evidence, the learned primary judge erred in making an order for the release, on condition, of the respondent pursuant to s30(3) of the Act;
(f) the learned trial judge failed to give detailed reasons for the making of the supervision order pursuant to Section 30(3) of the Act.”
The Attorney-General’s arguments under those grounds of appeal emphasised the provisions in ss 30(3) and (4) of the Act. Section 30 applies if on the hearing of a review under s 27 (or a review for which the prisoner has applied under s 28) the Court affirms the decision that the prisoner is a serious danger to the community in the absence of a Div 3 order: s 30(1). Subsections 30(3) and (4) provide:
“(3)If the court affirms the decision, the court may order that the prisoner –
(a)continue to be subject to the continuing detention order; or
(b)be released from custody subject to a supervision order.
(4)In deciding whether to make an order under subsection (3)(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.”
Summary of the primary judge’s reasons
Before discussing these grounds of appeal it is useful to summarise relevant aspects of the primary judge’s reasons.
After referring to the respondent’s criminal history, orders made under the Act, and the critically relevant provisions of the Act, the primary judge referred to the emphasis placed by counsel for the Attorney-General upon the word “ensure” in the expression in s 30(4)(a) of the paramount consideration being “the need to ensure adequate protection of the community”. The primary judge accepted that the word “ensure” must be given effect, but pointed out that “what must be ensured is the adequate protection of the community” and that “the Act does not contemplate that such orders should be “watertight” or (put another way) risk free…”.[11]
[11][2014] QSC 77 at [15], citing Attorney-General v Francis [2007] 1 Qd R 396 at 405 [39].
The primary judge referred to the respondent’s admissions that in the 1983 offence of manslaughter the respondent effectively fulfilled a fantasy of a sadistic sexual nature, choosing a new victim when the particular victim he had in mind was not available, and observed that it was doubtful whether, as the respondent said, he had not experienced such fantasies for many years and that he had the means to control them should they re-emerge. The primary judge then referred to the earlier judgments in which it was held that it was necessary that the respondent be detained under the Act to ensure adequate protection of the community. Those judgments had referred to the evidence given in the past of psychiatrists, including Dr Lawrence and Dr Grant, about the high risks of the respondent committing a life-threatening violent sexual offence, as well as the need to treat with the utmost caution the respondent’s assertions that he no longer experienced fantasies of a sadistic sexual nature and the difficulty of objectively assessing whether or not the respondent was having such sexual fantasies.[12] The primary judge observed that in the present matter the evidence was different, particularly in relation to the opinions provided by Dr Lawrence and Dr Grant, and also by a psychologist, Dr Madsen, and extensively summarised their evidence.[13]
[12]A-G (Qld) v Lawrence [2011] QCA 347 at [97] – [99]; Attorney-General for the State of Queensland v Lawrence [2012] QSC 386 at [59], [63].
[13][2014] QSC 77 at [21] – [40].
The primary judge referred to Dr Madsen’s evidence that between the time of his report in November 2012 and the time of his most recent report in November 2013 he had seen the respondent approximately fortnightly for therapy and conducted a number of assessments over those sessions. Dr Madsen noted that on actuarial tools, the respondent would score highly for risks of offending and that at the time of his offending there had been “problems with sexual self-regulation [and that] [i]n addition to dominant deviant sexual interests and arousal to violence, there were marked antisocial and psychopathic features to his personality, not least a problematic level of impulsivity”.[14] The primary judge noted that Dr Madsen contrasted that with the present; Dr Madsen reported that the respondent “does not appear impulsively aggressive, reckless or display other evidence of poor self regulation…does not obviously appear to endorse pro-offending attitudes, nor from his self report is there ‘evidence’ of sexual deviancy, although it was not clear whether this had dissipated, is lying dormant or he simply is being dishonest about the frequency and intensity of his deviant fantasies. Mr Lawrence was well able to acknowledge a hypothetical risk for himself, although he felt fairly confident that he would not reoffend.”[15] After referring to the respondent having engaged well in the one-to-one treatment and that the quality of his work was reasonable, Dr Madsen concluded that the respondent’s “presentation within sessions and… progress within the prison environment suggests that his behaviour has stabilised somewhat and he has developed some personal strengths (most notably, his work ethic, good self regulation)”, but that “[c]oncerns remain regarding sexual deviancy and his capacity to conceptualise risk factors and risk management strategies”.[16]
[14]Report of Dr Madsen, 4 November 2013, at [34].
[15]Report of Dr Madsen, 4 November 2013, at [35].
[16]Report of Dr Madsen, 4 November 2013, at [49].
For about 30 years Dr Lawrence has reported upon the respondent’s mental state. Dr Lawrence stated that her opinion at the present time had changed to an extent which she would not previously have anticipated. She wrote that:
“12.4In my most recent and current risk assessment of Mark Lawrence, I believe that there is evidence of change in his understanding, belief systems and ability to understand his own behaviour, as well as his emotional and impulsive responses greater than previously, and that he has also learnt strategies to assist him in managing those emotional responses and drives in an appropriate and prosocial fashion.
12.5As he himself acknowledges, the most significant agent of change for him, and in my opinion, has been the individual therapeutic interventions and counselling he has received from Psychologist, Dr Lars Madsen, in the prison situation over the past 2 years. This individual counselling has, in my opinion, been such as to amplify his understanding, and the incorporation into his psychic functioning of that understanding of concepts, previously addressed in the group Sexual Offending Programs which he has undertaken (HISOP and SOMP) in recent years. It is apparent that he has benefited from the establishment of a therapeutic relationship with an individual Psychologist, skilled in the treatment of sexual offenders, including those with some intellectual limitations.
…
12.7I believe also that credit must also be given to Mark Lawrence himself, since the psychological changes which he has apparently achieved can only reflect his motivation and active involvement in those therapeutic endeavours. He himself appears to recognise the need for, and willingness to continue with, those endeavours if he were to be released on a Supervision Order. In my opinion, it is vital that they should continue if he were to be released under a Supervision Order.”[17]
[17]Report of Dr Lawrence, 31 October 2013, at [12.4] – [12.7].
Dr Lawrence referred to the respondent having consistently shown “pro social attitudes and behaviour” and in the last five years having undertaken intensive therapeutic programs which “would appear to have been able to effect evidence of change in emotional and cognitive states as well as improving, through cognitive means, his apparent ability to manage the more aberrant and harmful of his moods and impulses”. She concluded that the respondent’s level of risk of offending violently or sexually had more likely than not moderated, that the respondent appeared to have benefited significantly from receiving individual counselling for his sexual offending issues from Dr Madsen, and that “the evidence suggests that a high risk of re-offending based primarily on historical past factors has been modified by recent therapeutic changes to lower the risks now to a moderate level.”[18] Dr Lawrence reported her belief that “a Supervision Order could be compiled in such a way as to ensure that the level of risk can be supervised and monitored adequately”,[19] and that, in contrast to her previous opinion, she believed “that a Supervision Order could be constructed for Mark Lawrence such as to monitor and supervise his return to the [community].”[20]
[18]Report of Dr Lawrence, 31 October 2013, at [14.7].
[19]Report of Dr Lawrence, 31 October 2013, at [13.7].
[20]Report of Dr Lawrence, 31 October 2013, at [14.8].
In oral evidence Dr Lawrence agreed that it was likely that the respondent would still experience deviant fantasies and that if they were not well controlled or avoided by him it was possible that he could act upon them again. She acknowledged that he would have a motivation to present himself well to professionals; but she nonetheless believed that “there had been evidence of real change or greater understanding of his difficulties and evidence of very genuine attempts to deal with his problems”, and, while she could be wrong in that assessment, “one would hope that one’s clinical knowledge and skills can be applied to be of assistance in these matters”.
Dr Grant reported that over the preceding 12 months the respondent, with the assistance of treatment he had undergone, had “become more willing to discuss [his] fantasies and their relevance to future offending and more open to working on strategies to deal with such fantasises should they become more prominent in the future”. Ultimately, Dr Grant concluded in his report that:
“Overall, in my opinion, the actuarial high risk of reoffending as exhibited on formal instruments is reduced by dynamic factors such as his age, lessons he has learnt from treatment and his current response to therapy, to a moderate level of risk which has the potential to be reasonably contained by a strict program of supervision and support outside custody. … The major issue will be monitoring Mr Lawrence’s fantasy life and detecting recurrence of any prominent sexual sadistic fantasies. Mr Lawrence does appear to have become somewhat more open about discussing such fantasies and I believe that if his treatment continues to be satisfactorily progressed and his supervision be delivered by experienced and dedicated personnel, it is likely that he will report the recurrences of risky sexual fantasies. Whilst this cannot be guaranteed, I believe that he has now reached the point where the risk is containable by appropriate supervision and treatment in the community.”[21]
[21]Report of Dr Grant, 28 October 2013, at p 15.
The primary judge referred to Dr Grant’s oral evidence, including the following passage:
“In his oral evidence, Dr Grant agreed that a supervisor could not tell whether these fantasies were occurring and that to a large extent, there would be a reliance upon honest and consistent reporting by the respondent about those matters. And it was possible that the respondent might not be so candid about these matters if they had the potential to bring an end to his supervised release. Dr Grant added that “hopefully, he can understand that talking about them is going to be necessary in terms of achieving long-term adjustment in the community”.[22]
[22][2014] QSC 77 at [40] (footnotes omitted).
The primary judge was satisfied that the respondent remained a serious danger to the community in absence of a Div 3 order. The primary judge then turned to the question whether the respondent should be released under supervision. The primary judge referred to the effect of the Act that the burden of proving that the community will not be adequately protected by a prisoner’s release on supervision is on the Attorney-General.[23]
[23][2014] QSC 77 at [42], referring to Attorney-General v Lawrence [2010] 1 Qd R 505 at 512 [33].
The primary judge observed that the Attorney-General’s case was not as strong as the cases which resulted in orders for continuing detention of the respondent in previous judgments; there had been a “marked shift” in the opinions of Dr Lawrence and Dr Grant.[24] After referring to Dr Lawrence’s evidence that it was unlikely that the occurrence of deviant sexual fantasies by the respondent had been eliminated entirely, and her evidence that the respondent now appeared to be genuinely minded to control the risk from those fantasies and was developing means to do so, the primary judge observed that it was the uncertainty whether the respondent would remain willing and able, outside the custodial environment, to avoid the development of such fantasies and their potentially dangerous consequences which resulted in some ongoing risk that the respondent would commit a serious sexual offence and perhaps a life-threatening offence.[25] The primary judge noted that it was relevant that there was “no means for reading the respondent’s mind as to the extent to which he experiences the onset and controls of the influence of deviant fantasies” and that it was “possible that even his treating psychologist would be unable to detect some dangerous development in that respect”. The primary judge then observed that “the importance of ongoing therapy as provided by Dr Madsen is just that: it would be therapeutic for him to develop or further develop strategies for managing this risk.”[26] The primary judge also acknowledged the consideration that the potential consequences of further offending could be “most serious”.[27]
[24][2014] QSC 77 at [43].
[25][2014] QSC 77 at [44].
[26][2014] QSC 77 at [45].
[27][2014] QSC 77 at [46].
The primary judge held that the opinions of Dr Lawrence and Dr Grant, which overall were supportive of an order for supervised release, should be given substantial weight. The primary judge acknowledged that the opinions admitted that it was possible that the respondent had not yet developed the motivation and ability to control his sexual and other behaviours, but noted that this was contrary to Dr Lawrence’s and Dr Grant’s own perceptions about the respondent and that Dr Lawrence had explained that her view was assisted by her clinical knowledge and skills.[28] The primary judge regarded it as remarkable that the psychiatrists had changed their views since the previous review such that each believed that “the level of risk is moderate and able to be “contained” (as Dr Grant put it) by an appropriate supervision order”, and the primary judge observed that this too was now the effect of Dr Madsen’s evidence.[29] After acknowledging that it was for the Court to determine questions of fact about the respondent’s willingness and ability to manage his aberrant behaviour with the assistance of appropriate supervision and as to the extent of the risk of re-offending, and that the Court was not bound to accept the evidence of the three professionals, the primary judge found that there was no reason not to accept their evidence. In that respect the primary judge noted that each of the professionals had had the benefit of assessing or treating the respondent for some years, that each had substantially revised earlier opinions, and that Dr Lawrence’s evidence had particular weight because of her very long experience in assessing the respondent.[30]
[28][2014] QSC 77 at [47].
[29][2014] QSC 77 at [48].
[30][2014] QSC 77 at [49].
The primary judge concluded as follows:
“[50]Section 30(4) of the Act provides that the paramount consideration is the need to ensure adequate protection of the community. The court must consider whether that protection can be reasonably and practicably managed by a supervision order: s 30(4)(b)(i). The effect of the opinions of at least each of the psychiatrists is that that protection of the community can be reasonably and practicably managed by a supervision order. But again, this is a question for the court. It is a question upon which the Attorney-General bears the onus, as was said in 2010 in the respondent’s case in the Court of Appeal … This question ultimately requires a value judgment by the court about what risk should be accepted against the alternative of the deprivation of a person’s liberty.
[51]Upon the evidence which I have discussed, I am persuaded that adequate protection of the community can be reasonably and practicably managed by a supervision order. Section 30(4)(b)(ii) requires the court to consider whether requirements under s 16 of the Act can be reasonably and practicably managed by Corrective Services officers. There was no argument about this matter. In particular, it was not argued for the Attorney-General that there would be some management difficulty in relation to the conditions of supervision which are required by s 16.
[52]For these reasons I am persuaded to rescind the continuing detention order and make an order for the respondent’s supervised release. There was no argument about the terms of the supervision order being according to a draft handed up by counsel for the respondent. There will be an order according to that draft.”
The test on appeal from a decision under s 30(3) of the Act
Section 31 of the Act confers a right of appeal upon the Attorney-General or a prisoner in relation to whom a decision of the court under the Act has been made. Section 43(1) describes the nature of the appeal as an appeal by way of re-hearing. Without limiting the powers that the Court of Appeal has in its civil jurisdiction,[31] section 43(2) confers upon the Court of Appeal various powers, including all of the powers and duties of the court that made the decision appealed from, the power to draw inferences of fact, not inconsistent with the findings of the court, and the power, on special grounds, to receive further evidence as to questions of fact.
[31]The Act, s 43(3).
In Attorney-General (Qld) v Lawrence,[32] Muir JA (with whose reasons Fraser and White JJA agreed) discussed the applicable legal principles in an appeal under these provisions:
[32][2011] QCA 347 at [27] – [33].
“[27]This is an appeal from orders made in the exercise of a discretion by a judge based on findings of fact made by the judge. An appellate court is not empowered to set aside such orders merely because they were not ones the appellate court would have made had it been exercising the discretion. Before an appellate court can interfere it must be shown that the primary judge acted on a wrong principle, failed to take a material consideration into account, took into account an immaterial consideration or that the result “is unreasonable or plainly unjust.”
[28]In considering the validity of the primary judge’s findings it is necessary for this Court to make due allowance for the benefits enjoyed by the primary judge in seeing the witnesses and in presiding over a trial in which the evidence, both oral and written, unfolded over time and was subjected to contemporaneous scrutiny and analysis.
[29]In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ, discussing the circumstances in which an appellate court should interfere with a trial judge’s findings of fact, said:
“… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
… In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.”
[30]After referring to the nature of an appeal by way of re-hearing, their Honours said:
“The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.”
[31]In Devries v Australian National Railways Commission, Brennan, Gaudron and McHugh JJ said:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
[32]Gleeson CJ, Gummow and Kirby JJ, in their reasons in Fox v Percy, referred to Devries as one of three cases in which the High Court had reiterated:
“... its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.”
[33]Their Honours observed that those three decisions “were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.”
The Attorney-General challenged the description of an appellate court’s powers in the first quoted paragraph. That paragraph reflects the well known passage in House v The King[33] which Muir JA cited. The Attorney-General argued that it “applies the rubric of House too emphatically”[34] and that, for the purposes of a decision under s 30(3) of the Act to release a prisoner on a supervision order, if the Court of Appeal considering the matter at first instance would have come to the view that a supervision order would not have been appropriate in view of the provision in s 30(4)(a) that the paramount consideration is the need to ensure adequate protection of the community, then it will be no answer to an Attorney-General’s appeal that it was open to the primary judge to come to a different view.
[33](1936) 55 CLR 499 at 505.
[34]Appellant’s amended outline of argument, at [12].
That argument should not be accepted. As the Attorney-General accepted, the Attorney-General’s appeal can succeed only upon error by the primary judge being demonstrated.[35] In Attorney-General for the State of Queensland v Yeo[36] Muir JA explained why the principles in House v The King concerning appellable error were applicable in an appeal of the present kind:
[35]See Attorney-General for the State of Queensland v Yeo [2010] QCA 69 at [41] per Muir JA (McMurdo P and Chesterman JA agreeing), citing Fox v Percy (2003) 214 CLR 118, Norbis v Norbis (1986) 161 CLR 513, and Attorney-General v Francis [2007] 1 Qd R 396. See also Coal& Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 – 204 [13] – [14].
[36][2010] QCA 69 at [42] – [44].
“[42]As the assessments the primary judge was required to make “call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the Order involves the exercise of a judicial discretion”. The circumstances in which an order made in the exercise of a judicial discretion may be interfered with by an Appellate Court are well settled.
[43]In the joint reasons of Mason and Deane JJ in Norbis v Norbis, it was said:
“The principles enunciated in House v The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.” (citation omitted)
[44]In House v The King, Dixon, Evatt and McTiernan JJ explained the nature of "appellable error" as follows:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
The Attorney-General referred to statements by Campbell JA in R v Ford[37] to the effect that some decisions which may be described as “discretionary” in particular senses of that term[38] do not attract the constraints on appeal described in House v The King and the mere fact that a decision requires the weighing and balancing of a variety of factors does not necessarily preclude an appeal court from being in as good a position as a trial judge to make the decision.[39] As a general proposition that seems uncontroversial, but an order made under s 30(3) of the Act is “discretionary” in the sense in which that term was used in House v The King. Section 30(3) provides that in the defined circumstance the court “may” make either a continuing detention order or a supervision order and, as was held in Attorney-General v Francis[40] (which was applied in Hocking v Attorney-General for the State of Queensland[41]), the decision whether to make such an order “call[s] for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right.”[42] The considerations which require such value judgments may not be limited to those which are specified in s 30(4), but those specified considerations plainly do involve value judgments about which no particular opinion may be regarded as uniquely right. The principles in House v The King concerning appellable error apply in this appeal.
Ground (a): the discretion of the primary judge under Section 30(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) miscarried by reason that the primary trial judge failed to take into account in assessing whether the community could be adequately protected by the release on condition…that it would be difficult, if not impossible, absent the respondent’s self-report, to assess whether the respondent would experience deviant sexual fantasies if and when released into the community
[37](2009) 201 A Crim R 451 at 475 – 476 [78] and 478 [84] (Howie and Rothman JJ found it unnecessary to consider these matters).
[38]See Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 at 138 – 140 [37] – [40].
[39]As to the latter statement, see also Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 at [31] – [36].
[40][2007] 1 Qd R 396 at 402 [34].
[41][2012] QCA 65 at [59], [64].
[42]Norbis v Norbis (1986) 161 CLR 513 at 518.
Under appeal ground (a) the Attorney-General argued that the primary judge failed to take into account the difficulty or impossibility, absent the respondent’s self-reporting, of assessing whether the respondent would experience deviant sexual fantasies. The primary judge did take that consideration into account. The primary judge found in terms that it was relevant that there was “no means for reading the respondent’s mind as to the extent to which he experiences the onset and controls of the influence of deviant fantasies” and that it was “possible that even his treating psychologist would be unable to detect some dangerous development in that respect”: see [18] of these reasons. This ground of appeal appears to overlap to an extent with appeal grounds (c) – (e), so that the discussion relating to those grounds is also relevant here.
Ground (b): the discretion of the primary judge under Section 30(4) of the Act miscarried by reason that the primary judge failed to take into account, in the assessment of whether the community could be adequately protected [by] the respondent’s release on condition having regard to the extent of the risk and the catastrophic consequences of the risk materialising
Under appeal ground (b), the Attorney-General argued that the risk to which the community would be exposed by the respondent’s release was the commission of an offence which could have catastrophic consequences. The primary judge took this relevant consideration into account in many places in the reasons, including in the primary judge’s express reference to the relevance of the consideration, discussed earlier in the reasons, “of the potential consequences of further offending” which “could be most serious”: see [18] of these reasons.
Ground (c): there was no basis upon which the learned primary judge could have found the supervision order would adequately protect the community; Ground (d): the decision is (i) contrary to the evidence, (ii) unsupported by the judge erred in making an order for the release, on condition, of the respondent pursuant to s 30(3) of the Actevidence and (iii) unreasonable; Ground (e) on the evidence, the learned primary
Appeal ground (e) does not identify any particular error beyond those asserted in appeal grounds (c) and (d). In relation to these grounds, the Attorney-General’s arguments may be summarised as follows. The Attorney-General relied upon the adverse assessments by the psychiatrists of the respondent’s mental state in previous reviews under the Act, including the most recent review before that by the primary judge. The Attorney-General argued that the primary judge failed to properly consider evidence that any improvement in the respondent’s reported condition depended solely upon what he told the treating psychiatrists (and psychologists), that any improvement was not capable of objective assessment, and that there was no way to ascertain whether or not changes observed during such assessments were truthful, lasting and durable. The Attorney-General argued that the primary judge did not properly take into account any unreliability of the respondent’s reporting, that the primary judge should have entertained doubts about whether or not the stated improvement was genuine, and that in the absence of evidence by the respondent himself the primary judge was required to rely upon the impressions of the psychiatrists and psychologists of the respondent. The Attorney-General argued that: the respondent’s release would expose the community to an unknown and unknowable risk of the commission of an offence which could have catastrophic consequences; that there could be no supervision of the respondent because manifestation of the risk (by the deviant fantasies) would be wholly internalised and incapable of objective assessment; and that self-disclosure was relied upon to ensure compliance but self-disclosure might not always be in the respondent’s interests and in the past he had been motivated to act in his own interests.
The Attorney-General argued that, on the evidence, supervising Corrective Services officers would be unable to identify matters which objectively would indicate a heightening of the risk presented by reactivation of the respondent’s deviant sexual fantasies, the primary judge did not properly consider how the supervision order could be effective in such circumstances in discharging the “statutory requirements of s 30(4) of the Act”,[43] and the primary judge erred by failing to have adequate regard to the absence of objective criteria to ascertain whether the respondent’s risk of re-offending was heightened by a reoccurrence of deviant sexual fantasies by placing too much weight upon the improvement in the respondent’s presentation as perceived by the examining psychiatrists. The Attorney-General argued that it was unreasonable for the court not to have recognised that adequate protection of the community could not be ensured by the release on supervision of a sexual sadist with anti-social personality disorder who was at a moderate risk of the commission of extremely serious offences, which could possibly lead to death.
[43]Appellant’s amended outline of argument, at [31].
To address these arguments it is necessary first to mention three important conclusions reached by the primary judge which the Attorney-General did not challenge. First, the Act does not contemplate that a supervision order should be “risk free”. The Act did not permit the primary judge to proceed on the basis that the paramount consideration is the need to ensure “the protection” of the community. As the primary judge pointed out, the Act instead requires that paramount consideration be given to the need to ensure the “adequate” protection of the community (see [9] of these reasons). Secondly, the Attorney-General bears the burden of proving that the community will not be adequately protected if a prisoner is released on supervision (see [17] of these reasons). Thirdly, there had been a “marked shift” in the opinions of Dr Lawrence and Dr Grant, who, together with the remaining professional witness, Dr Madsen, now supported release on supervision (see [18] of these reasons).
Furthermore, Dr Grant and Dr Lawrence gave unchallenged evidence that there were no conditions in the supervision order which were inappropriate and that no suitable conditions had been omitted.[44] As was also submitted for the respondent, there was a rational explanation for the significant reduction in the risk of reoffending which the professional witnesses found; Dr Lawrence – who had a remarkably lengthy experience of assessing the respondent’s mental state – attributed the improvement to Dr Madsen’s reasonably intensive therapy, which had resulted in the strategies adopted by the respondent being “internalised”, and to the moderation of the respondent’s psychopathic personality disorder as he aged (which was consistent with evidence that this does occur in such cases). Clearly, the expert evidence was markedly more favourable to the respondent than the evidence which had resulted in continuing detention orders at the earlier hearings under the Act.
[44]Transcript, 14 February 2014, at 1-32 and 1-47.
The Attorney-General emphasised his argument that there was no logical explanation of how adequate protection of the community could be ensured or reasonably and practically managed when there was no way of being sure that the respondent would truthfully report any sexual fantasies he experienced. The primary judge did not overlook that issue. In making the value judgments whether “adequate” protection of the community could be ensured under s 30(4)(a) and reasonably and practically managed under s 30(4)(b)(i), the primary judge acknowledged the evidence that even the respondent’s treating psychologists might be unable to detect the dangerous onset of deviant sexual fantasies involving a risk that the respondent would commit a serious sexual offence. However the primary judge also took into account the psychiatrists’ evidence of the usefulness of ongoing therapy (as provided for in the supervision order, particularly in paragraphs (xvii) – (xx)). Furthermore, whilst the primary judge correctly acknowledged the possibility that the respondent had not sufficiently developed the motivation and ability to control his sexual behaviours, the primary judge accepted the evidence to the contrary effect given by Dr Lawrence and Dr Grant.
Contrary to the Attorney-General’s argument, the absence of any more or less foolproof way of verifying the truth of future reports by the respondent about his state of mind – including whether he was experiencing any sexual fantasy – does not itself mean that it was not open to the primary judge to find that adequate protection of the community could be ensured and reasonably and practicably managed under the supervision order. The psychiatrists did not suggest that the terms of the supervision order providing for ongoing therapy were designed to secure certainty about the state of the respondent’s mind. That could not be a realistic proposition in any case. The importance for the psychiatrists of the provisions of the supervision order requiring the respondent to submit to psychiatric and psychological assessment and treatment was instead that it “would be therapeutic for [the respondent] to … further develop strategies for managing this risk [the risk of a dangerous development in the onset of deviant fantasies]” (see [18] of these reasons). The primary judge carefully analysed the evidence, including the expert evidence on that issue, and was persuaded that adequate protection of the community could be ensured and reasonably and practicably managed by the supervision order which contained those provisions for ongoing therapy (see the conclusions in [50] – [51] of the primary judge’s reasons, quoted in [20] of these reasons).
Evidence of risk
However that reasoning was critically dependent upon a conclusion that the respondent’s mental state had already improved to such an extent that upon release into the community the respondent could adequately manage the risk of a dangerous development in the onset of deviant fantasies, such that he would be able to do so in the future with the benefit of continuing therapy. In that respect it is necessary to consider the arguments for the Attorney-General that the primary judge failed to properly consider that the experts’ evidence of an improvement in the respondent’s mental state depended solely upon the truthfulness of the respondent’s statements to those experts and that, having regard to the unreliability of the respondent’s reporting, in the absence of evidence by the respondent himself the primary judge erred by not finding that the respondent’s release would expose the community to an unknown and unknowable risk of the commission of an offence which could have catastrophic consequences.
Ground (f): the learned trial judge failed to give detailed reasons for the making of the supervision order pursuant to Section 30(3) of the Act
Although that conclusion means that the appeal must be allowed, it is appropriate to consider the remaining ground of appeal.
Section 17 of the Act requires a court which makes a continuing detention order, an interim detention order, a supervision order, or an interim supervision order to give “detailed reasons for making the order” at the time when the order is made. The summary in [8] – [20] of these reasons reveals that the primary judge did give detailed reasons for making the supervision order. The Attorney-General argued, however, that the primary judge’s reasons for making the supervision order were inadequate because they did not explain how a supervisor could adequately detect the presence of aberrant fantasies if the respondent did not report them and because the reasons did not identify any mechanism by which the supervisor could, by enquiry of the respondent, identify whether the respondent was experiencing such fantasies.
The Attorney-General’s argument assumed that the primary judge’s order was premised upon an assumption that supervisors would possess some more or less foolproof way of verifying the presence or absence of a particular state of the respondent’s mind. That assumption was incorrect. The primary judge’s reasons upon this point were to the effect that adequate protection of the community could be ensured and reasonably and practicably managed by a supervision order because of the expert witnesses’ evidence of a demonstrated improvement in the respondent’s mental state (including his willingness to discuss, and his wish and ability to regulate his response to, the development of sexual fantasies) and of the usefulness of ongoing therapy to maintain and further improve the respondent’s mental state (such as would be provided under provisions of the supervision order). That very brief summary of the primary judge’s reasons does not do justice to the primary judge’s much more extensive analysis, but it is sufficient to explain why the Attorney-General’s argument should not be accepted.
Disposition and orders
In the result, the appellant has demonstrated that the learned primary judge fell into error, and that, on the evidence, the only appropriate order was a continuing detention order. The orders are as follows:
1. The appeal be allowed.
2. The orders of the learned primary judge made on 2 May 2014 be set aside.
3. The respondent, Mark Richard Lawrence, continue to be subject to the continuing detention order made on 3 October 2008.
2
12
1