Attorney-General v Sutherland

Case [2006] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:  Attorney-General for the State of Queensland v Sutherland
[2006] QSC 268
PARTIES:  ATTORNEY-GENERAL FOR THE STATE OF
QUEENSLAND
(applicant)
v
PAUL VINCENT SUTHERLAND
(respondent)
FILE NO/S:  3524 of 2006
DIVISION:  Trial Division
PROCEEDING:  Trial
ORIGINATING 
COURT: 		 Supreme Court of Queensland
DELIVERED ON:  27 September 2006
DELIVERED AT:  Brisbane
HEARING DATE:  5 September 2006
JUDGE:  McMurdo J
ORDER:  Paul Vincent Sutherland be subject to a supervision order
for a period of 20 years subject to the conditions in
paragraph 41 or such other conditions as fixed by further
order of the court
CATCHWORDS:  CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS – QUEENSLAND – where the respondent is due to be released in September 2006 – where the applicant applied for a final order pursuant to
s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the respondent should remain in custody under a continuing detention order or be released under a supervision order – whether there is an unacceptable risk to the community that the respondent will commit a serious sexual offence if released from custody
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld),
s 13, s 13(1), s 13(3), s 13(4), s 13(4)(c), s 13(4)(d),
s 13(4)(e), s 13(4)(f), s 13(4)(g), s 13(4)(h), s 13(5),
s 13(7)
Attorney-General (Qld) v Francis [2006] QCA 324,
discussed
Fardon v Attorney-General (Qld) [2004] HCA 46, cited
COUNSEL:  M Maloney for the applicant T A Ryan for the respondent
SOLICITORS:  C W Lohe Crown Solicitor for the applicant
Legal Aid Queensland for the respondent

  1. McMURDO J: This is an application by the Attorney-General for final orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The application, at least as filed, seeks a continuing detention order or alternatively a supervision order. On the respondent’s behalf it is conceded that there is a case made out for a supervision order but not otherwise.

    The prisoner’s criminal history and circumstances

  2. The prisoner was born on 26 December 1957, so that he is now almost 49. His current period of imprisonment commenced on 6 February 1989 when he was then 32. He is due to be released on 29 September 2006. That period of imprisonment relevantly comprises two terms: a term of 11 years for an offence of manslaughter and a cumulative term of nine years for an offence of rape.

  3. The prisoner was born in Brisbane. When he was aged two his parents separated and he and his older brother went with his mother to live in Scotland for two years. At the end of that time, they were sent back to Australia to live with their father. He and his brother then lived from time to time with various members of his extended family. One of those family members, a woman, sexually abused him over some years from when he was about eight until he was about 12. He left school at 15 but did not…

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AGLC
Attorney-General v Sutherland [2006] QSC 268
Case
[2006] QSC 268
Decision Date

CaseChat Overview and Summary

The case of Attorney-General v Sutherland involved an application by the Attorney-General for a final order under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in relation to the respondent, Sutherland, who was due to be released from prison in September 2006. The legal issue before the court was whether Sutherland posed a significant risk to the community if released under supervision or if a continuing detention order was necessary to ensure adequate protection of the community. The court was required to assess the risk of Sutherland re-offending based on the psychiatric evidence and other relevant factors.

The court considered the psychiatric evidence, which indicated that Sutherland had an anti-social personality disorder, also known as psychopathy, and was at a significant risk of re-offending. However, the court noted that the psychiatrists did not advocate for Sutherland's continued detention, and that the level of risk was a matter for judicial determination. The court also considered other factors, such as Sutherland's good behaviour in prison, his ability to take responsibility for his child, and the doubt as to his employability. The court found that although Sutherland's anti-social personality disorder made him more likely to offend, there were mitigating factors that suggested he had matured during his time in custody and was likely to be more stable than he was in 1987. The court also noted that Sutherland would be subject to a strict regime if released under supervision.

The court concluded that the risk of Sutherland re-offending was substantial but not unacceptable, and that a supervision order would be appropriate to ensure adequate protection of the community. The court ordered that Sutherland be subject to a supervision order for a period of 20 years subject to certain conditions.

Orders

Orders of the court

Paul Vincent Sutherland be subject to a supervision order

for a period of 20 years subject to the conditions in

paragraph 41 or such other conditions as fixed by further

order of the court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

With the exception of that last mentioned matter, and the two breaches involving cannabis, the prisoner’s behaviour in prison has been good. There are no events of violence and he has been given certain duties and work within the prison which demonstrate his good behaviour and the trust which the prison authorities have seen fit to place in him. He has undertaken a number of courses whilst in prison. He has not undertaken the sexual offenders treatment program, because he was considered to be ineligible apparently for the fact that one of his victims had died. Psychiatric evidence Three psychiatrists have examined him in the past year and each gave oral evidence in addition to his or her report. Two of them, who are Dr Lawrence and Dr Beech, were appointed by an earlier order made under s 8[2]. The third is Dr Grant who saw the prisoner on 31 August 2005. Each says that the prisoner has no mental illness but that he has an anti-social personality disorder, i.e. psychopathy. Dr Lawrence, in expressing what she says is her “firm opinion that he is a psychopath in the Cleckley sense of the word” expresses her “entire agreement” with the views of Dr Atkinson, another psychiatrist who examined the prisoner in November 1999. Dr Atkinson then wrote: “There is a narcissistic quality about him which, combined with his aggressive, sadistic power plays, and lack of empathy towards females, leads me to conclude that he is in fact a dangerous, superficial, sexually sadistic psychopath.” But Dr Lawrence qualifies her agreement with Dr Atkinson, in saying that she cannot say whether the prisoner is sadistic, there being “no direct evidence of it but I cannot discount the possibility.” [2] On 24 May 2006 Although the psychiatrists substantially agree in those respects, there is some difference between them as to the relative risk of re-offending. Dr Lawrence assesses that risk “both clinically and actuarily” as “high”. In oral evidence, when asked whether a supervision order would be “appropriate” Dr Lawrence said: “Yes. I think the risks will remain very considerable and high but they – they would be the – that would be the best approach to minimising the risks of offending.” That was not a retraction of her written opinion that the risk was high. Nor was that opinion qualified by answers given by her in cross-examination to the effect that there were some good indicators as to the risks of re-offending from his behaviour in prison and his displays of parental responsibility towards the child with whom he has been in regular contact. Dr Lawrence gave this oral evidence: “My concern is that I believe that Mr Sutherland qualifies as a psychopath. Psychopaths can learn to moderate and control their behaviour to an extent but the underlying condition, that’s attitudes and emotional approach to things, to life and other people doesn’t necessarily change. That condition of psychopathy is also a significant contributor to the offending behaviour that led to this man’s incarceration. Therefore, that sort of risk is going to continue virtually life long. Mr Sutherland is a man almost, shall we say, in the prime of his life, and, therefore, I think the potential risks are going to continue for a considerable period of time. Certainly the next 10 years will be a period of, shall we say, greater risk or higher risk for the community than one would imagine the ensuing 10 years would be.” Dr Lawrence recommended that if he is released under supervision, that the supervision continue for 20 years.

Decision

Reasons for decision

It is unnecessary to set out here the results of the various tests employed by the psychiatrists. According to those tests the respondent is at a significant risk of re- offending. But those tests do not measure those prospects of re-offending in a regime of supervised release as is proposed. Conclusion There is a substantial risk, according to any of the psychiatric evidence. Some of the psychiatrists consider that the risk is no more than what they describe as moderate. Others, and in particular Dr Lawrence, see the risk as higher than that. The respondent’s counsel points out that no psychiatrist advocates his continuing detention. In that respect this case is different from some others, in which psychiatrists have so advocated. Of course it is not for any witness to say whether the risk is unacceptable or that adequate protection of the community requires a certain result, that being the matter for judicial opinion. Nevertheless, the fact that in this case, unlike some others, no psychiatrist advocates continuing detention is of some significance. Undoubtedly the prisoner’s anti-social personality disorder makes him more likely to offend and the fact that his disorder has contributed to the commission of serious crimes is obviously significant. He has a poor level of personal support, in the sense of an absence of friends and relations to help him lead a proper life. A further relevant factor is the doubt as to his employability, although that is not such a significant matter as the others already mentioned. And there is much which is not known about the prisoner, such as any propensity for sadism and the extent of his sexual drive by now. He claims to have little sexual drive but his statements are not reliable. Against those factors, he is very likely to have matured in the 17 years in which he has been in custody. He has no mental illness and is of high intelligence, so that he is well aware of the potential consequences of criminal behaviour. Although his personal life does not have at present the benefit of friendships and associations, it is likely to be more stable than in late 1987. In prison he has demonstrated an ability to make advances in his life: to learn work skills, to assume positions of trust in the prison environment and to save money. Most importantly, he would be subject to a very strict regime if released under the supervision orders which are proposed. Counsel for the Attorney-General was unable to advance any submission as to why a continuing detention order was necessary. It is appropriate that I record this exchange in the course of her argument: Ms Maloney: “I would note that the application remains as one for continued detention or, in the alternate, a supervision order in relation to the matter. Given the psychiatric evidence, obviously I would suggest that a Court would, in this matter, be likely to consider a supervision order rather than a continuing detention order. … But is there any evidence that the adequate protection of the community cannot be ensured by the supervision order, that instead it requires a continuing detention order? Ms Maloney: I would suggest not”.

Ratio Decidendi

Legal Principle Established

The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty. The risk in this case: relevant considerations In deciding whether a prisoner is a serious danger to the community as mentioned in s 13(1), the court must have regard to the considerations described by s 13(4). I have already discussed the reports prepared by the psychiatrists under section 11, which are the reports of Dr Lawrence and Dr Beech. I accept that the prisoner adequately co-operated in their examinations. I have also considered any other medical, psychiatric, psychological or other assessment relating to the prisoner. I have considered the various assessments made by the employees of the Department of Corrective Services which for the most part related to whether the prisoner should undergo certain courses. I have not found any material amongst those assessments which is significant for present purposes. As to the consideration in s 13(4)(c) I have discussed already the prisoner’s anti- social personality disorder which is evidenced by, amongst other things, the absence of any accepted responsibility for his crimes, or as Dr Grant described it, his “steadfast unwillingness to come to terms with his responsibility for the rape offence and to some extent his limited acceptance of responsibility for Paula Peters’ death”. And as Dr Grant also said, the offending behaviour itself indicates a lack of empathy towards women in sexual situations and a potential for sexual violence. As to 13(4)(d) there is something of pattern of offending in that each of the crimes which were committed within months of one another and had those characteristics as Dr Grant described. The prisoner has participated in all rehabilitation programmes offered to him. As to any other efforts he has made to “address the cause or causes of the prisoner’s offending behaviour” (s 13(4)(e)), he has not made any other efforts of significance. This is because he denies his offending behaviour in relation to one offence and he adheres to a version in relation to the other offence which would not have involved any conduct which required something to be addressed. As to s 13(4)(f) the prisoner’s participation in rehabilitation programmes has not had a positive effect on the prisoner which is of present significance, because it has not affected his anti-social personality disorder. Dr Grant wrote that it is likely that the risk of sexually violent behaviour has been reduced not only by the lapse of many years and a process of maturation but also by some education in those years. I am not persuaded that education has significantly affected the risk that comes from this man’s psychopathy. I do accept that it is likely that the risk has been reduced by the lapse of time and a process of maturation.