Attorney-General (Qld) v Valence

Case [2018] QSC 265

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Valence [2018] QSC 265

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
KERRY PATRICK VALENCE

(respondent)

FILE NO:

No 2941 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2018

JUDGE:

Davis J

ORDER:

THE COURT, being satisfied to the requisite standard that the respondent, Kerry Patrick Valence, has contravened requirements 31 and 32 of the supervision order made on 21 November 2016, ORDERS THAT, pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003:

1.           The supervision order made on 21 November 2016 be rescinded.

2.           The respondent be detained in custody for an indefinite term for care, control and 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 a supervision order was made with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where it was alleged that the respondent had contravened a requirement of the supervision order – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the applicant sought orders with respect to the respondent under s 22 of the Act – where the contravention was admitted by the respondent – where the applicant had not committed any further serious sexual offences – whether the adequate protection of the community could, despite the contravention of the order, be ensured by the existing supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3, s 5, s 13, s 22

Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited

Attorney-General (Qld) v Fardon [2013] QCA 64, cited

Attorney-General v Francis [2007] 1 Qd R 396, cited

Attorney-General v Lawrence [2010] 1 Qd R 505, cited

Attorney-General (Qld) v Yeo [2008] QCA 115, cited

Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited

Kynuna v Attorney-General (Qld) [2016] QCA 172, cited

LAB vAttorney-General [2011] QCA 230, cited

Turnbull v Attorney-General (Qld) [2015] QCA 54, cited

COUNSEL:

J Rolls for the applicant

V Trafford-Walker for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. The Attorney-General seeks orders under s 22 of the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) (the Act) consequent upon an alleged breached by the respondent of the supervision order made by Flanagan J on 21 November 2016 (the supervision order).

    Statutory context

  2. The Act provides for the continued detention or supervised release of “a particular class of prisoner”.[1] The objects of the Act are twofold, namely the protection of the community and the control, care and treatment of certain prisoners to facilitate their rehabilitation.[2] The prisoners the subject of the Act are those serving a term…

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AGLC
Attorney-General (Qld) v Valence [2018] QSC 265
Case
[2018] QSC 265
Decision Date

CaseChat Overview and Summary

In the case of Attorney-General (Qld) v Valence, the Attorney-General sought orders in relation to Kerry Patrick Valence, a person previously convicted of serious sexual offences against children, under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The primary issue for the court was whether the adequate protection of the community could be ensured by the existing supervision order, despite the respondent's contravention of the order.

The respondent admitted to contravening the supervision order by having contact with children without reporting it as required. The court considered the psychiatric evidence which suggested that the respondent remained at high risk of further sexual offending against children, and that the contraventions represented predatory grooming behaviour. The court noted that the respondent had refused sexual offender therapy programs and anti-libidinal medication, which were considered effective forms of treatment for recidivist offenders. The court concluded that the risk of reoffending could only be substantially reduced by a supervision order amounting to some form of house arrest, monitoring and escorted movements, which the respondent had refused to participate in.

The court rescinded the supervision order made on 21 November 2016 and ordered that the respondent be detained in custody for an indefinite term for care, control and treatment. The court found that the adequate protection of the community could not be ensured by the existing supervision order, despite the respondent's contravention of the order.

Orders

Orders of the court

THE COURT, being satisfied to the requisite standard that the respondent, Kerry Patrick Valence, has contravened requirements 31 and 32 of the supervision order made on 21 November 2016, ORDERS THAT, pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003:

1. The supervision order made on 21 November 2016 be rescinded.

2. The respondent be detained in custody for an indefinite term for care, control and treatment.

Background

Background to the litigation

The issue under s 22 of the Act is not whether there is an unacceptable risk that the respondent will breach the supervision order. The issue is whether there is an unacceptable risk that he will commit a serious sexual offence.Background to the present application The respondent was born on 15 June 1957. He is therefore presently 61 years of age. The respondent has a criminal history both in New South Wales and Queensland. Serious offences of a sexual nature were committed in New South Wales in 1975 and again in 1980. His criminal history in Queensland commenced in 1996. Between 1996 and 2000 the respondent appeared in the Emerald Magistrates Court on three occasions and was dealt with for various offences: wilful and unlawful destruction of property in the night-time,[16] possession of a dangerous drug,[17] refusal to leave premises when required by the licensee and being drunk and disorderly.[18] Between 1999 and 2004, the respondent offended sexually against two young boys. Between September 2003 and March 2004, he was also convicted for various offences under the Bail Act 1980 (Qld) and fined in the Magistrates Court.[16] 30 September 1996. [17] 7 April 1997.[18] 17 November 2000 The sexual offending in New South Wales and Queensland was described by White J (as her Honour then was) when making a continuing detention order,[19] against the respondent on 13 August 2009,[20] as follows:“It is convenient to start with the respondent's relevant prior criminal history. He is now aged 52. Some sexual offending occurred in New South Wales in 1975 and 1980 when the respondent was aged 18 and 23 respectively. The criminal history describes the offences as buggery and indecent assault on a male and assault with intent to commit buggery. He was bound over to be of good behaviour in 1975 and in 1980 sentenced to two years' imprisonment which was deferred on him entering into a recognisance and under supervision. In 1970 the victim was about 12 and in the 1980 offences, the victim eight years.In the latter case, after an encounter in the caravan park showers, the respondent invited the boy back to his caravan. In both cases the respondent denied penetration but admitted physical contact with the boys to ejaculation. He has numerous other offences involving excessive consumption of alcohol and possession of illegal drugs. The history supports a long-existing problem with alcohol and unlawful drugs of various kinds. The current offences concern two boys aged about 10 years and the offences were separated by some years.The first offence occurred in 1999 and 2000 against a boy with whose family the respondent was friendly. On one occasion he grabbed the boy's penis through clothing. On the second, despite resistance, the respondent engaged in fellatio on the boy and threatened to kill him if he revealed the assault. The later offence occurred in 2004 when the respondent was on bail for the earlier offences when he was befriended by a family and when in the home fondled the boy's penis after pulling down his pants. The respondent tended to attribute initiating conduct to the boy.”[21][19] Section 13(5).[20] Attorney-General for the State of Queensland v Valance [2009] QSC 255.[21] At 4.

Evidence

Evidence Before The Court

The respondent was interviewed by police on 21 December 2017 and made admissions to having had contact with A and J. He said that A had come to his house to play Xbox and he had rubbed A’s back and may have touched his leg. He had no prior permission to have contact with the children and had not made the disclosures to G and K or a corrective services officer as required by conditions 31 and 32 of the supervision order.The psychiatric evidence Dr Beech expressed the following opinions:“Kerry Valence is a 60-year-old single man who has three sentencing dates for sexual offences against male children. He was last convicted in 2006 on three charges of indecent treatment against two children in separate incidents. Mr Valence has paedophilia with an attraction to male children. He has been consistently assessed at being at moderate-high to high risk of re-offending: salient issues are the history of recidivism, the sexual deviance, and distorted thinking around children, consent and boundaries. Important dynamic factors include his lack of supports in the community and an earlier ambivalence about release. He had refused sexual offender therapy programs but had been involved in intensive individual therapy. His relapse prevention plan consisted mainly of avoiding contact with children.Mr Valence was released on a supervision order in November 2016. He went first to contingency accommodation at the Wacol precinct. In August 2017 he moved to live in sole accommodation in Toowoomba. By the end of December 2017 he had returned to custody following contraventions of the supervision order. The contraventions involved him befriending the family of three children, two of whom were boys aged 14 and eight years. He gave them gifts. He went to their house on three occasions. The 14-year-old boy came to his residence alone on four occasions. The eight-year-old boy was left in his care alone on one occasion. The mother of the children has said that Mr Valence sought the company of her 14-year-old son. That boy has said that, in addition to providing gifts, Mr Valence sat close to him, came to his room unannounced, and touched his leg. Mr Valence attempted to provide a massage to the boy, and may in fact have massaged the boy.Mr Valence has said he did not report these contacts, as he was required, because he knew that he would be in trouble. He offers as explanation, and in mitigation, that he allowed the contact because they were initiated by the others, he was simply being friendly, and refusal would have been suspicious. He says that there was no risk because he had no sexual urges or indecent intentions.In my opinion, Mr Valence’s explanations and excuses are at the very least insightless. I believe it is highly likely that his behaviour represented predatory grooming and as Justice Cosgrove[34] mentioned, his actions could be seen as a precursor to other behaviour. In my opinion, for a sexual offender whose central plank of re-offending prevention was to “avoid a situation where a situation can happen”, the contraventions represent egregious behaviour that occurred within a few months of being given the opportunity to establish and maintain contact with children.In my opinion, Mr Valence remains at high risk of further sexual offending against children. It is very difficult now to say to what extent, if any, a supervision order could reduce that risk. If he were to be released to the Wacol precinct, and supervised closely there, I think the opportunity for offending could be significantly reduced, particularly if there was stringent monitoring and surveillance. This would provide a moderate reduction in the short and perhaps medium term. In the longer term, I think that this risk reduction would start to dissipate as he moved through various curfews and restrictions, moved about the community, and was able to find opportunities to offend. Realistically, as in this case, once he moved from the precinct the risk would escalate again. To the extent that a supervision order could substantially reduce the risk, I think it would have to amount to some form of house arrest, monitoring and escorted movements. Mr Valence has eschewed intensive group therapy, probably the most effective form of treatment for recidivist offenders. The individual intensive therapy has explored the paedophilia, but the central strategy has failed. He has refused anti-libidinal medication.In my opinion, it is probably now time to return to the advice of Professor James[35] in 2009 who said:“…in my opinion, the generally high risks are demonstrated by the dynamic considerations, and should be considered valid. I consider it unlikely that Mr Valence will make any progress or act in any way to reduce the risk of reoffending, unless he completes the appropriate SOTP[36] prior to his discharge from prison.”In my opinion, the risk now could be reduced by Mr Valence’s participation in a high intensity sexual offender treatment program augmented possibly by anti-libidinal medication.”[34] A reference to Cosgrove SM.[35] Who examined the respondent for the application for Division 3 orders in 2009.[36] A reference to sexual offender treatment programs.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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