Attorney-General (Qld) v S

Case [2015] QSC 157

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v S [2015] QSC 157

PARTIES:

ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
S

(respondent)

FILE NO/S:

SC No 2012 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2015

JUDGE:

Philip McMurdo J

ORDER:

Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the respondent be detained in custody for an indefinite term for control, care or treatment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS — ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS — DANGEROUS SEXUAL OFFENDER – GENERALLY — where respondent convicted of multiple violent and sexual offences and declared a serious violent offender — where respondent was sentenced to several terms of imprisonment amounting to 16 years which was to expire on 10 June 2015 — where respondent diagnosed with antisocial personality disorder, polypharmacy abuse and alcohol abuse/dependence, reaching the criteria for psychopathic personality disorder and possibly meeting the criteria for sexual sadism — whether respondent should be released under supervision or be subject to a continuing detention order under s 13 of the DangerousPrisoners (SexualOffenders) Act 2003  (Qld) (‘the Act’) — whether respondent “serious danger to the community” for purposes of the Act where psychiatrists opined that the respondent was a high risk of reoffending if released under a supervision order — where respondent denied his sexual offending and did not engage in necessary treatment programs to address his sexual offending whilst in prison — where the Attorney-General discharged the relevant burden of proving that only a continuing detention order would provide adequate protection to the community — where the task was to consider whether the community could be adequately protected by a continuing detention order — where that involved a consideration of the risk which has content not only from findings of fact about the prisoner, but from what constitute real possibilities — where the respondent was detained under a continuing detention order

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

Attorney-General v DGK [2011] QSC 73, cited
Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, followed
Attorney-General v Sutherland [2006] QSC 268, cited
R v S[2002] QCA 38, considered
Turnbull v Attorney-General (Qld)[2015] QCA 54, considered
Yeo v Attorney-General (Qld) [2012] 1 Qd R 276; [2011] QCA 170, followed

COUNSEL:

J B Rolls for the applicant

M Green for the respondent

SOLICITORS:

Crown Law for the applicant

Howden Saggers Lawyers for the respondent

  1. The Attorney-General applies for a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which I will call the Act.

  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…

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Details
AGLC
Attorney-General (Qld) v S [2015] QSC 157
Case
[2015] QSC 157
Decision Date

CaseChat Overview and Summary

The case involves the Attorney-General of Queensland as the appellant and S, the respondent, who was convicted of multiple violent and sexual offences. S was declared a serious violent offender and sentenced to several terms of imprisonment amounting to 16 years, which was to expire on 10 June 2015. S was diagnosed with antisocial personality disorder, polypharmacy abuse and alcohol abuse/dependence, reaching the criteria for psychopathic personality disorder and possibly meeting the criteria for sexual sadism. The court had to decide whether S should be released under supervision or be subject to a continuing detention order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

The central issue was whether S posed a serious danger to the community such that only a continuing detention order would provide adequate protection. The court had to consider the risk which had content not only from findings of fact about S, but from what constituted real possibilities. The psychiatrists opined that S was a high risk of reoffending if released under a supervision order. S denied his sexual offending and did not engage in necessary treatment programs while in prison. The court found that the Attorney-General had discharged the relevant burden of proving that only a continuing detention order would provide adequate protection to the community.

The court considered the evidence from three psychiatrists, Dr Sundin, Dr Grant and Dr Beech. Dr Sundin opined that S represented a substantial risk of both sexual and violent offending and needed to participate in several treatment programs. Dr Sundin also highlighted S's longstanding issues in relation to poor anger controls and sexually deviant attitudes towards women. Dr Beech found that the proposed conditions of a supervision order would be difficult to perform. The court concluded that S's offending behaviour, his antisocial personality, the possibility of sadism or paedophilia, his denial of his sexual offending and the fact that he had not engaged in necessary treatment programs presented an unacceptable risk that he would commit a serious sexual offence if released without a division 3 order.

The court ordered that S be detained in custody for an indefinite term for control, care or treatment under s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The court found that a continuing detention order was necessary to provide adequate protection to the community.

Orders

Orders of the court

Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the respondent be detained in custody for an indefinite term for control, care or treatment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. The evidence of the psychiatrists There is evidence from three psychiatrists, Dr Sundin, who prepared a report in April 2014 as requested by Crown Law, and Dr Grant and Dr Beech, who were appointed by order of the Court under s 8(2)(a) of the Act. I go first to the report and evidence of Dr Sundin. On 28 March 2014, Dr Sundin met the respondent at the Wolston Correctional Centre and spent an hour attempting to engage him in an interview, but the respondent refused to participate. The respondent repeatedly asserted to Dr Sundin that he was completely innocent of all of his offences, particularly his sexual offences. He said that his actions which constituted his non-sexual offences were a justifiable response of a young man subjected to a racist culture. On 23 April 2014, Dr Sundin wrote her report, having reviewed the files of the Office of the Director of Public Prosecutions, Queensland Corrective Services and the Queensland Parole Board, as well as transcripts of the sentencing hearings. She wrote that she had been hampered by being unable to interview the respondent, but had been able to provide an opinion by the breadth of the material supplied to her, which amounted to more than 5,000 pages. She wrote that in her opinion, the respondent clearly satisfied the DSMIV-TR criteria for:“. Antisocial Personality Disorder, meets the criteria for Psychopathy. Polypharmacy abuse (cannabis, amphetamines, heroin). Alcohol abuse/dependence …” She continued:“In addition I think it is highly likely that [S] meets the criteria for Sexual Sadism. The material provided indicates that for a period of months and possibly even years, [S] engaged in sexually arousing behaviours which involved real acts in which the psychological and physical suffering (including humiliation of the victim) was sexually exciting to him. [S] acted on these sexual urges with a non-consenting person and the sexual urges caused marked distressed and interpersonal difficulty. My reading of the material suggests that [S] found the violence not only instrumental in its coercive component but also sexually arousing.” Under the heading “Risk Assessment” Dr Sundin wrote as follows:“181.From a risk assessment perspective, I am of the opinion that [S] represents a substantial risk of both sexual and violent offending.182.On the Violence Risk Appraisal Guide (VRAG), I gave [S] a raw score of 17. This places him in Category 7. Offenders in this category are said to have a 55% risk of violent recidivism at seven years and a 64% risk of violent recidivism at 10 years.183.On the Static-99 (Hanson and Thornton 1999) an assessment guide used to assist clinicians in identifying the risk of sexual recidivism for males over the age of 18 who are known to have committed at least one sexual offence, I gave [S] a raw score of five. This places him in a moderate to high category group of offenders and suggests that he is at a moderate to high risk for future sexual recidivism.…185.In my opinion on all of these criteria, [S] is clearly a person of significant concern.186.I disagree entirely with the opinion tendered by Dr Freeman to the Queensland Parole Board in his suggestion that [S] could be released from prison without participation in a sexual offenders’ treatment programme.187.In my opinion, [S] needs to participate in not only a High Intensity Sexual Offenders’ Programme but also in a Violent Offenders’ Treatment Programme. He needs to participate in the Pathways Programme for individuals with significant adverse effects from substance abuse.188.He is not a person who can be safely released into the community without the benefits of a very high level supervision order. Such an order would need to be informed by information obtained from participation in such programmes.189.Until [S] has participated in such programmes (hopefully with some degree of success) and gained some better insight into his own pattern of offending behaviour and his high risk factors then he is a person who in my opinion needs to continue to be detained in prison for the safety of the community.190.Finally, I also flag that there are elements of sexual violence in this man’s history going back to 1992. It was only through the courage and determination of his victim on that occasion that she was not the subject of a sexual assault. This suggests to me that [S] has very longstanding issues in relation to his poor anger controls and his sexually deviant attitudes towards women .191.Finally, I note with considerable concern the fact that as recently as late 2013, [S] deemed it not only appropriate to physically assault a visitor in prison but to continue to verbally assault a person with whom he maintained contact via the telephone. To me this is indicative that there has been very little change in this man’s grossly disturbed cognitions and potential capacity for violence.”

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Dr Beech was asked to consider the respondent’s proposed conditions of a supervision order. He said that the proposed conditions were “fine” but there would be difficulties in the performance of them.[20][20] T 1-35.Consideration The respondent’s counsel did not challenge the evidence of any of the psychiatrists and it is conceded on the respondent’s behalf that the court would be satisfied that the respondent would pose a serious danger to the community if released without a division 3 order. But it is submitted for the respondent that adequate protection of the community could be provided by a supervision order. I am satisfied that the respondent is a serious danger to the community in the absence of a division 3 order.[21] It is clear, in my view, that there is an unacceptable risk that he would commit a serious sexual offence if released from custody without any such order.[22] The respondent’s offending behaviour, his antisocial personality, the possibility that there is in his case an element of sadism or paedophilia, his denial of his sexual offending and the fact that he has not engaged in necessary treatment programs together combine to present that unacceptable risk.[21] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(1).[22] Ibid s 13(2). The question then is whether he should be detained or released under supervision. Counsel of the Attorney-General cited a recent decision of the Court of Appeal, Turnbull v Attorney-General (Qld).[23] In that case, as in the present one, the prisoner had not undergone the HISOP. Morrison JA described evidence to the effect that there were “important gaps” in what was known of that prisoner’s motivations and desires and that more needed to be known before it could be said that “his risk is one that can be managed”. In his conclusion, those “unknown factors” prevented “the conclusion that adequate protection of the community could be ensured under a supervision order”.[24] [23] [2015] QCA 54.[24] Ibid 10 [40]. Morrison JA (with the agreement of the other members of the court) said that before making a supervision order rather than a detention order, “the court has to reach a positive conclusion that the supervision order will provide the adequate protection”.[25] [25] Ibid 9 [36]. Other judgments of the Court of Appeal have expressed the present question somewhat differently. In Attorney-General (Qld) v Lawrence,[26] Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof:[27]“[I]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.”Similarly, in Yeo v Attorney-General (Qld),[28] Margaret McMurdo P (with whom White JA agreed) said:[29]“[73]Under s 13(6), the paramount consideration in determining whether to order a continuing detention order or a supervision order is the need to ensure adequate protection of the community. This requires the judge to make a value judgment based on the evidence. It is impossible to eliminate all risk of criminal offending, including offending against children, from a community. A judge must determine what is adequate protection of the community in all the circumstances (Attorney-General v Sutherland [2006] QSC 268, [28]-[30]; Attorney-General v DGK [2011] QSC 73, [28]). The respondent has not persuaded me that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers. It follows that I must release the appellant on an appropriate supervision order.”[26] [2010] 1 Qd R 505; [2009] QCA 136.[27] Ibid 512 [33].[28] [2012] 1 Qd R 276; [2011] QCA 170.[29] Ibid 301 [73].