Attorney-General (Qld) v S

Case [2021] QSC 193

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v S [2021] QSC 193

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
S
(respondent)

FILE NO/S:

BS No 2012 of 2015

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

10 August 2021

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2021

JUDGE:

Williams J

ORDER:

THE COURT, being satisfied to the requisite standard that the respondent 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, ORDERS THAT:

1. The decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed; and

2.       The respondent continue to be subject to the continuing detention order made on 9 June 2015.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the respondent was detained under a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) – where the applicant applied for the order to be reviewed under section 27(2) of the DPSO Act – where psychiatrists previously opined that the respondent was a moderate to high risk of reoffending sexually if released under a supervision order – where the respondent refused to be assessed by psychiatrists for the purpose of the review – where psychiatrists considered that the drafting of adequate conditional release orders would only be possible if the respondent engaged with assessment – whether the respondent is a serious danger to the community in the absence of a Division 3 order – whether adequate protection of the community can be ensured by the respondent’s release on a supervision order – whether the respondent should be released on a supervision order or the continuing detention order ought to be maintained

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

Attorney-General for the State of Queensland v Anderson [2020] QSC 142, cited
Attorney-General for the State of Queensland v S [2019] QSC 327, cited
Attorney-General (Qld) v S [2015] QSC 157, cited
Attorney-General (Qld) v S [2017] QSC 32, cited
Attorney-General (Qld) v S [2018] QSC 89, cited
Attorney-General (Qld) v S [2020] QSC 164, cited

COUNSEL:

M Maloney for the applicant
The respondent appeared on his own behalf

SOLICITORS:

Crown Law for the applicant
The respondent appeared on his own behalf

  1. The application is made pursuant to s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act), that the Supreme Court of Queensland review the continuing detention order made by PD McMurdo J on 9 June 2015, affirmed by Brown J on 13 March 2017, and further affirmed by Lyons SJA on 30 April 2018, Wilson J on 13 May 2019 and Williams J on 1 June 2020 (fifth review).

  2. The respondent…

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Details
AGLC
Attorney-General (Qld) v S [2021] QSC 193
Case
[2021] QSC 193
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v S involved the application for review of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act). The applicant sought to have the order reviewed under section 27(2) of the DPSO Act, considering the respondent's refusal to engage in psychiatric assessments and treatment programs. The primary legal issues before the court were whether the respondent posed a serious danger to the community in the absence of a Division 3 order, and if adequate protection of the community could be ensured by the respondent’s release on a supervision order.

The court considered the extensive evidence provided by psychiatrists, including their opinions that the respondent presented a moderate to high risk of reoffending if released under a supervision order. The court found that the respondent's refusal to participate in assessments and treatment programs significantly impacted the ability to draft conditional release orders. The court determined that the evidence was sufficient to satisfy the high standard of proof required by section 30(2) of the DPSO Act. Consequently, the court affirmed the previous decision that the respondent remained a serious danger to the community and that adequate protection of the community could not be ensured by his release on a supervision order.

The court ordered that the decision made on 9 June 2015, affirming that the respondent was a serious danger to the community, be upheld. It further ordered that the respondent continue to be subject to the continuing detention order made on the same date.

Orders

Orders of the court

THE COURT, being satisfied to the requisite standard that the respondent 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, ORDERS THAT:

1. The decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed; and

2. The respondent continue to be subject to the continuing detention order made on 9 June 2015.

Background

Background to the litigation

Further at paragraph 10, his Honour helpfully summarised the process that is to be undertaken under s 30:“[10] The process under s 30 involves the following steps:(a)determination of whether the respondent is a serious danger to the community in the absence of a Division 3 order;(b)if so, the court must determine whether adequate protection of the community can be ensured by the respondent’s release on a supervision order;(c)if so, then release of the respondent on supervision ought to be preferred to the maintenance of the continuing detention order; and (d)if not, then the continuing detention order ought to be maintained.”Background to continuing detention order and previous reviews PD McMurdo J summarised the relevant factual background as at June 2015 as follows:“[2] In May 2001 the respondent was sentenced to several terms of imprisonment amounting to a period of 16 years which expires on 10 June 2015. He was sentenced to 10 years imprisonment for maintaining a sexual relationship with a child with circumstances of aggravation over a six month period in 1988-1999. He was sentenced to concurrent terms of five and three years on a number of offences of assault occasioning bodily harm and the indecent treatment of a child who was under 12 years. He was sentenced to a cumulative term of six years for grievous bodily harm. Nearly two years of pre-sentence custody had been served. He was declared to be a serious violent offender.[3] These offences were committed against the respondent’s then partner and her young son. The offences were summarised by McPherson JA, in dismissing the respondent’s appeal against conviction and application for leave to appeal against sentence, as follows:[19] [19]R v S [2002] QCA 38.‘The victim of the physical assaults was at the time his de facto wife. Most of them took place after she had, at his insistence, performed indecent acts which the applicant filmed for the purpose of setting up a pornographic business. Some of those acts consisted of performing acts of multiple sex with other adults. The assaults, some of which involved the use or threat of use of a dangerous instrument such as a garden fork, were carried out by the applicant because he was dissatisfied with the standard of the complainant's performance during those indecent acts. One of the persons with whom she was forced to commit some of the sexual acts was her own nine year old son, who was also the victim of the sexual offences committed against the child to which I have referred. To crown this career of appalling behaviour, the applicant finally subjected the woman complainant to a prolonged and savage beating inflicting grievous bodily harm on her, including brain damage, fractures to facial bones and a severe injury to her left ear requiring plastic surgery. In the course of his submissions in this Court the applicant, it may be noted, admitted that he had committed that assault causing grievous bodily harm. … He showed no remorse whatever for what he has done. The learned sentencing Judge described his behaviour as depraved and despicable. Those are strong words, but they are in my opinion fully justified. In the 20 years in which I have been on this Court, I have not seen a case in which the conduct of the accused was worse than this.’[4] The respondent has always maintained that he did not commit sexual offences against the child. He sought to explain his violent assaults upon his partner as attempts to protect the son from sexual misconduct by her.[5] He was born in 1973 and is now 41 years of age. Prior to the matters already mentioned, he had a criminal history for offences of violence, dishonesty and breaking and entering a dwelling house, for which he received various terms, including one of three years imprisonment for which he was required to serve 12 months. The offence of breaking and entering a dwelling house with intent was committed in October 1992. The sentencing judge then remarked:‘I regard this as a very serious offence. Here we have a decent woman asleep in her own home where she should be safe. You come in the early hours of the morning and subject her to a terrifying ordeal. You say you went there for money, but from what she tells the police even if that were so your mind changed towards sexual matters. You told her to remove her knickers. She managed to escape you and she was punched as she eluded you.’[6] There are several recorded breaches during the respondent’s time in prison. Most involved disobeying the lawful direction of a corrective services officer. At least one involved an assault on another prisoner. Another, in 2013, involved an assault on a visitor.[7] He has completed a number of rehabilitative programs as follows:· Anger Management Core Program- completed 23 July 1997;· Substance Abuse Education Program- completed 28 October 1997;· Operate a Personal Computer- completed 9 December 2008; · Operate a Word Processing Application - completed 5 January 2009;· Operate a Spreadsheet Application- completed 19 January 2009; · Operate a Database Application- completed 3 February 2009; · Operate a Presentation Package- completed 20 February 2009; · Transitions Programs- completed August 2011; · Work Safely in the Construction Industry- completed 23 November 2011; · Present a Positive Image - completed 5 November 2012; · Apply Job Search and Interview- completed 29 October 2012; and · Stepping Up Program - completed 15 April 2013.[8] However he has not engaged in programs to address his sexual offending. If he is detained as a result of this application he will be waitlisted for the Getting Started: Preparatory Program (the “GS:PP”), which is described in the evidence as ‘a mandatory preparatory program designed to motivate offenders to participate and address their offending in a more intensive treatment program …’. It is not a treatment program as such. The records of Corrective Services indicate that in June 2012 he was offered a place in this program which he declined, stating that he was innocent in relation to his sexual offence convictions. There is a further record that in March 2013 he began but did not complete the GS:PP. There is also a record of the respondent being offered the GS:PP in May 2014, when again he maintained his innocence of any sexual offence and refused to attend any sexual offending programs. [9] Were he to complete the GS:PP, he could then be considered for what is described as an intervention program, such as the High Intensity Sexual Offending Program (HISOP), the Cognitive Self Change High Intensity Violent Offending Program (CSCP) or the Pathways High Intensity Substance Abuse Program.” (Footnotes omitted)

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

The applicant’s position is as follows:“54. The position remains as it was when the matter came before the court in the fourth annual review in 2020. 55. The respondent presents as an untreated sexual offender. He has limited or no insight into his condition and the steps he needs to take to address his risk. He is aware of the importance of the meaningful participation in programs offered by Corrective Services. This was clearly an issue in the 2015, 2017, 2018, 2019 and 2020 hearings. The respondent denies the circumstances which gave rise to his incarceration. He has not demonstrated any emotional or intellectual commitment to participation in any programs which would serve to minimise the risk. He continues to refuse to participate in any treatment, discussions or risk assessment processes which may be of benefit to him.56. On the evidence of the psychiatrists, the respondent needs to meaningfully participate in a high intensity sexual offender treatment program or in individual treatment prior to his release into the community. If he did meaningfully participate in such program or treatment, it would provide his supervisors with more information about the offending pathways which the respondent is likely to traverse prior to the commission of any offence. It would enable supervision to be an effective tool in providing adequate serious social protection to the community. 57. Absent such participation, it is impossible, it is submitted, for the court to be satisfied that adequate protection to the community could be reasonably and practicably ensured by a supervision order.58. Taking into account all the evidence, the preference for a supervision order has been displaced. It cannot be found in the circumstances presented by the respondent’s presentation that adequate protection of the community is ensured by his release on supervision. 59. Accordingly, an order pursuant to s 30(3)(a) of the Act, ought be made.”Consideration The position of the respondent continues to be unchanged since the original application in 2015 and the reviews that took place in 2017, 2018, 2019 and 2020. The respondent remains an untreated sex offender.Whether the respondent is a serious danger to the community in the absence of a Division 3 order? Based on the evidence relied upon by the applicant, including the reports of Dr Arthur and Dr Moyle and the oral evidence they gave at the hearing, I am satisfied that there is acceptable, cogent evidence which satisfies me to the high degree of probability required pursuant to s 30(2) of the DPSO Act that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act. The psychiatric evidence, which I accept, identifies a moderate to high risk of reoffending and any offence, if committed, would constitute a sexual assault on an adult female or child with the risk of psychological damage and/or physical injury to any victim. In the circumstances, I am satisfied that the respondent presents a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made on 9 June 2015 ought to be affirmed.Whether adequate protection of the community can be ensured by the respondent’s release on a supervision order?