Attorney-General (Qld) v Penningson - [2019] QSC 271

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Penningson [2019] QSC 271

PARTIES:

THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
PAIS WANMAN PENNINGSON

(respondent)

FILE NO/S:

SC No 2031 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2019

JUDGE:

Davis J

ORDER:

THE COURT, being satisfied to the requisite standard that the respondent, Pais Wanman Penningson, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:

1. The decision made by Burns J on 24 June 2016 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, be affirmed; and

2. The respondent be released on 6 November 2019 under supervision for five years until 6 November 2024 on an order in terms of the schedule to these reasons.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent has been detained on a continuing detention order for three years – where at the second annual review one year ago the continuing detention order was affirmed – where the respondent was subject to examination by psychiatrists for the purposes of the third annual review – where the parties agreed that adequate protection of the community could be ensured by a supervision order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSOA) – where the respondent conceded the need for a supervision order under Division 3 of Part 2 of the DPSOA – whether the respondent should continue to be subject to the continuing detention order

Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 16, s 27, s 30

Attorney-General for the State of Queensland v Fardon [2019] QSC 002, cited
Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, followed
Attorney-General (Qld) v Penningson [2016] QSC 146, related
Attorney-General (Qld) v Penningson (unreported Dalton J 30 October 2017), related
Attorney-General (Qld) v Penningson [2018] QSC 263, related
Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, followed
Fardon v Attorney-General (Qld) (2004) 223 CLR 575, followed

Nigro v Secretary to the Department of Justice (2013) 41 VR 359, cited

COUNSEL:

M Maloney for the Applicant

A E Loode for the Respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the Applicant

Legal Aid Queensland for the Respondent

The respondent is the subject of a continuing detention order made under s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”).
Continuing detention orders must be reviewed.[1] This is the third review.
[1] Dangerous Prisoners (Sexual Offenders) Act 2003, Part 3.
Background
The respondent was born…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] QSC 271
Decision Date: 5 November 2019

CaseChat Overview and Summary

The respondent, Pais Wanman Penningson, was subject to a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). This case involved the third annual review of his detention order. The central issue was whether Penningson should continue to be subject to the continuing detention order or if he could be released under a supervision order. The court had to consider the risk of Penningson reoffending and whether adequate community protection could be ensured by a supervision order.

The court examined the evidence provided by psychiatrists, Dr Arthur and Dr Harden, who assessed Penningson’s risk of sexual recidivism. Both psychiatrists concluded that Penningson's risk was high if he were unsupervised, but it would reduce significantly if he were placed under a supervision order. The court also considered the evidence from Ms Monson, who detailed the treatment and support Penningson had undergone and would continue to receive. The court found that the risk to the community could be adequately managed if Penningson were released under a supervision order with appropriate support and treatment.

The court affirmed the decision that Penningson was a serious danger to the community without a Division 3 order. However, it found that the risk could be sufficiently mitigated by a supervision order. Therefore, the court ordered Penningson’s release under supervision for five years, starting on 6 November 2019, with specific conditions to ensure community protection.

The final orders of the court were to affirm the previous decision that Penningson was a serious danger to the community and to release him on supervision for five years starting on 6 November 2019, under the conditions outlined in the schedule to the court’s reasons.

Orders

Orders of the court

THE COURT, being satisfied to the requisite standard that the respondent, Pais Wanman Penningson, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:

1. The decision made by Burns J on 24 June 2016 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, be affirmed; and

2. The respondent be released on 6 November 2019 under supervision for five years until 6 November 2024 on an order in terms of the schedule to these reasons.

Background

Background to the litigation

Continuing detention orders must be reviewed.[1] This is the third review.[1] Dangerous Prisoners (Sexual Offenders) Act 2003, Part 3.Background The respondent was born on 29 January 1996. He is of Papua New Guinean and Torres Strait Islander heritage. A continuing detention order was made by Burns J on 24 June 2016.[2] That order was reviewed by Dalton J on 30 October 2017[3] and reviewed again by me on 5 November 2018.[4] In both 2017 and 2018, the continuing detention order was affirmed.[2] Attorney-General (Qld) v Penningson [2016] QSC 146.[3] Attorney-General (Qld) v Penningson (unreported Dalton J 30 October 2017).[4] Attorney-General (Qld) v Penningson [2018] QSC 263. The respondent’s history of offending is described in the earlier judgments[5] as is his medical state, including various diagnoses.[6][5] Attorney-General (Qld) v Penningson [2018] QSC 263 at [5]-[8].[6] At [12] and [24]-[25]. When the matter was last reviewed, significant problems with releasing the respondent on a supervision order included:(i)his underlying risk factors were largely untreated because he had not completed appropriate programs;(ii)because of his intellectual limitations, group programs were unsuitable;(iii)again, because of his limitations, he would require significant support in the community. On the occasion of the last review of the continuing detention order, an affidavit was received under the hand of Jolene Monson (Ms Monson). Ms Monson is the acting manager of the High Risk Offender Management Unit (HROMU) in Corrective Services and is involved in the management of prisoners such as the respondent. She swore that arrangements had been made for individual treatment to be provided to the respondent by a psychologist, Tracy Richards. Ms Monson swore that the individual treatment with Ms Richards commenced on 17 August 2018.The current position The respondent has undergone further treatment with Ms Richards. Psychiatrists, Doctors Arthur and Harden examined the respondent and prepared reports. Dr Arthur opined:1. the respondent’s unmodified risk of sexual recidivism remains moderately high;2.if released on supervision, the respondent will need significant levels of support because of his intellectual disabilities and other issues; and3.if released on supervision, the respondent should have treatment from a mental health team and “culturally appropriate community supports”. Dr Harden’s opinion is that the respondent’s unmodified risk of sexually reoffending is “at least moderate-high and possibly high”. However, “if he were to be placed on a supervision order in the community, in my opinion the risk of sexual recidivism would reduce to low to moderate”. Dr Harden, like Dr Arthur, emphasised the need for personal care and support in the community. What was proposed by the respondent was that he be released on supervision to live with his mother and family. A detailed assessment of that proposal was completed at the direction of Ms Monson which concluded that such an arrangement was unsuitable.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Both Fardon and Francis were cases concerned with the making of orders under s 13 of the Act. For the reasons I have already explained, the statements of principle are equally apposite to a review under s 30. Consideration The applicant seeks an order under s 30(1) affirming the decision of Burns J made on 24 June 2016 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act. That affirmation of the order made on 24 June 2016 must only be made upon “acceptable, cogent evidence”[12] and must be made “to a high degree of probability”.[13][12] Section 30(2)(a).[13] Section 30(2)(b). Here, the uncontested evidence of the two psychiatrists, Dr Arthur and Dr Harden, who are well experienced in this area, is that the respondent’s risk of reoffending sexually,[14] if unsupervised is high. That evidence should be accepted and is of sufficient weight to affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order.[15][14] Which I take to be a reference to the risk of committing a “serious sexual offence” (s 13(2) and definition of “serious sexual offence” and s 30(1)).[15] Section 30(1) and (2). Both parties urge the making of a supervision order in the terms which appear as a schedule to these reasons. In exercising the discretion given by s 30(3) of the Act, I have turned my mind to the mandatory considerations prescribed by s 30(4). The evidence here, which I accept, is that the risk is significantly reduced where the respondent is released on a supervision order to live in suitable accommodation and is provided with the appropriate levels of support and treatment. I accept the evidence of Ms Monson that appropriate accommodation has been identified and is available. I accept her evidence that Corrective Services is in a position to provide the treatment and support I have outlined earlier. The supervision order, by its terms, requires the respondent to follow directions of a Corrective Services’ officer[16] and I accept Ms Monson’s evidence that Corrective Services will implement the plan that she has outlined in her evidence for the respondent’s accommodation, treatment and management.[16] Section 16(1)(b). I am satisfied that the adequate protection of the community can be ensured by releasing the respondent on a supervision order in terms appearing in the schedule.Orders I make the following orders:1.The decision made by Burns J on 24 June 2016 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, be affirmed; and 2.The respondent be released under supervision on 6 November 2019 for five years until 6 November 2024 on an order in terms of the schedule to these reasons. You are being released from prison but only if you obey the rules in this supervision order. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison.

CITATION:	Attorney-General (Qld) v Penningson [2019] QSC 271
PARTIES:	THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v PAIS WANMAN PENNINGSON (respondent)
FILE NO/S:	SC No 2031 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	4 November 2019
JUDGE:	Davis J
ORDER:	THE COURT, being satisfied to the requisite standard that the respondent, Pais Wanman Penningson, is a serious danger to the community in the absence of an order pursuant to Division 3 of the *Dangerous Prisoners (Sexual Offenders) Act* 2003 (the Act), ORDERS THAT: 1. The decision made by Burns J on 24 June 2016 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, be affirmed; and 2. The respondent be released on 6 November 2019 under supervision for five years until 6 November 2024 on an order in terms of the schedule to these reasons.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent has been detained on a continuing detention order for three years – where at the second annual review one year ago the continuing detention order was affirmed – where the respondent was subject to examination by psychiatrists for the purposes of the third annual review – where the parties agreed that adequate protection of the community could be ensured by a supervision order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSOA) – where the respondent conceded the need for a supervision order under Division 3 of Part 2 of the DPSOA – whether the respondent should continue to be subject to the continuing detention order Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 16, s 27, s 30 Attorney-General for the State of Queensland v Fardon [2019] QSC 002, cited Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, followed Attorney-General (Qld) v Penningson [2016] QSC 146, related Attorney-General (Qld) v Penningson (unreported Dalton J 30 October 2017), related Attorney-General (Qld) v Penningson [2018] QSC 263, related Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, followed Fardon v Attorney-General (Qld) (2004) 223 CLR 575, followed Nigro v Secretary to the Department of Justice (2013) 41 VR 359, cited
COUNSEL:	M Maloney for the Applicant A E Loode for the Respondent
SOLICITORS:	G R Cooper, Crown Solicitor for the Applicant Legal Aid Queensland for the Respondent