Attorney-General v Friend (No. 2)

[2011] QSC 226

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General v Friend [No. 2] [2011] QSC 226

PARTIES:

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

FILE NO:

BS 883 of 2006

DIVISION:

Trial

PROCEEDING:

Applications

DELIVERED ON:

24 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 and 24 June 2011

JUDGE:

Fryberg J

ORDERS:

1.   The respondent be released from custody; and

2.   The respondent be subject to the continuing supervision order.

CATCHWORDS:

Criminal Law – Sentence – Sentencing Orders – Orders and Declarations Relating to Serious or Violent Dangerous Sexual Offenders – Dangerous Sexual Offender – Generally –
application under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – contravention of a supervision order – respondent satisfied s 22(2) that on the balance of probabilities adequate community protection is afforded by the supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 ss 20, 22

COUNSEL:

A Scott for the applicant

J Godbolt for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

HIS HONOUR:  I have before me a prisoner who has been brought
before the Court pursuant to a warrant issued under section 20
of the Dangerous Prisoners (Sexual Offenders) Act 2003.

I must now deal with him pursuant to section 22 of that Act.
That is because on the uncontested evidence he has contravened
a requirement of the supervision order which was made in
respect of him.  It is necessary to make some reference to the
contravention.

The warrant, Exhibit 1, identifies the contraventions as being
a failure to advise an authorised Corrective Services officer
of any repeated contact with the parent of a child under the
age of 16.

The circumstances of that breach are set out first in two
statements taken by police officers from persons who have not
been identified, and which I find would be troublesome for
that reason but for the fact that there has been no objection
to the fact that the names of the witnesses have been blanked
out.  They are the parents of three children, all under the
age of 15.

They state in their statements that they met the prisoner in
company with another man who was known to one of them, and who
was also a person subject to a supervision order.  They were
not aware the prisoner was the subject of such an order and it
appears they were not aware the other man was, either.

They were lied to by the other man as to the reason that he
was wearing an ankle bracelet.  They were, it seems, aware
that they were associating with persons who had been in
prison.  They state that on one occasion the other man, whose
name is Ray, turned up and had his friend, the prisoner, with
him.  On that occasion the prisoner was talking about swapping
tables and chairs for tables and chairs owned by the maker of
the statement.  It was, as the prisoner describes it, a
business type of discussion. The prisoner had no contact with the children and the parent’s reference to him on that first meeting is very brief. 

The statement also shows that on a subsequent occasion he came to the house by himself.  He spoke about some meat that was going to be given to another person and then said that he had come around to see the tables they had spoken about.  Their
children were at home but there was no contact with them.
Whether any deal was done in relation to the tables and chairs
is unclear but it seems from the statement of the other parent
that the prisoner was told that the parents would have to talk
to another person about the proposed swap. Some proposals were made for future dealings in regard to the chairs.  There is nothing in the material to suggest that the conduct was, in any way, grooming and the two occasions to which I have referred were the only two occasions where there was contact.

The prisoner has deposed that he noticed on the occasion that he first met the parents, an old antique table which the woman said she wanted to get rid of.  She said she wanted a glass topped table and chairs and the prisoner said perhaps he could arrange something.  He had an interest in doing up antique furniture and was interested in the table and had a table he thought she would be interested in.

On a subsequent occasion he went to the residence to find out
if they were willing to swap as discussed, spoke to the
parents outside the residence again and did not speak to the
children or enter the residence.  He subsequently left a chair
which was part of a set of chairs for them to look at and a
note containing his phone number.  There was a subsequent
telephone call that same day regarding the furniture and he
was to bring it over.  He was apprehended for breach of the
order before that happened.

In effect, therefore, these were two contacts and they were as
he describes.  He has not been cross-examined and there was no
suggestion that any of his affidavit is not the truth.

His psychiatric reports indicate that, in the absence of a
supervision order, he is at high risk of re-offending.  The
reports also indicated that risk would be moderated were he
the subject of strict supervision and conditions in a
supervision order and that was the course that was taken
toward the end of last year.  The judgment of Mullins J on
that occasion reflected a finding that the supervision order
was the appropriate order to be made at that time.

Her Honour revisited the matter in May this year when, on the
application of the prisoner, the order was varied by the
deletion of one of the conditions.  There is nothing in the
evidence which indicates that there has been any change
in the prisoner's psychiatric status nor any change in the
risk of his re-offending.

It is, however, of concern that he should have breached the
order.  He says in his affidavit that he did not report his
contact with the two parents because it was a limited contact
and not ongoing and was of a business-like nature.  It was not
a matter of friendship.  He says he did not realise he was
obliged to report contact of that nature.  I find that a very
suspicious proposition.  Had he been cross-examined about it I
would have watched his reactions with interest.

Be that as it may, it is a story that will work only once.  He
must realise that these orders are extensive, they have a lot
of paragraphs, and every one of them is important.  Every one
of them must be complied with and complied with strictly.  The
breaches which have been committed are not trivial breaches, I
accept the Attorney-General's submission in that regard.

They are not, in my judgment, sufficient to warrant the
continued detention of the prisoner.  In my judgment he has
satisfied the onus which lies upon him under section 22(2).
That is, he has demonstrated on the balance of probabilities
that adequate protection of the community can, despite the

contravention of the order, be and should be served by the existing order.  There is no need for any amendment under subsection (7).

For that reason, I am not prepared to make the sort of order
contemplated by section 22(2). The consequence of that will
be that the order remains in place.  There is no need to amend
it to comply with section 16 as those conditions are already
in the order.

It must, however, be realised that because of the requirement
to strictly adhere to these conditions, any further breach is
likely to engender a different belief in any judge of this
Court.  It is most unlikely a further breach of any sort would
be treated as other than evidence, when combined with the
evidence of this breach, of a willingness to treat the order as something that is only optional.  Such an attitude would be
one in this prisoner which would mean inevitably that the
Court could not be satisfied that he should not be detained,
that is that the supervision order should not be rescinded.
In other words, the outcome this time is unlikely to
happen again if there is any further breach.

I order that the prisoner be released from custody but subject
to the continuing supervision order.