Lansbury v Honourable Joan Sheldon, Attorney-General

[1996] QCA 495

IN THE COURT OF APPEAL	[1996] QCA 495
SUPREME COURT OF QUEENSLAND

Appeal No. 6924 of 1996

Brisbane
[Lansbury v. Attorney-General]

BETWEEN:

KEITH LANSBURY

(Applicant) Appellant

AND:

THE HONOURABLE JOAN MARY SHELDON -

ATTORNEY-GENERAL

(Respondent)	Respondent
Fitzgerald P. Thomas J. White J.

Judgment delivered 6 December 1996

Separate reasons of each member of the Court; all concurring as to the orders made.

APPEAL DISMISSED; NO ORDER AS TO COSTS.

CATCHWORDS:	CIVIL - application for judicial review of a decision of the Governor-in-Council refusing the appellant’s application for conditional release for indeterminate detention - appellant convicted for disabling in order to facilitate the commission of an indictable offence and indecent dealing with a girl under 14 years - prior convictions (including other offences of a sexual nature) - elderly and frail appellant - whether the appellant’s claim to liberty outweighs the risk he continues to pose to females.
Criminal Law Amendment Act 1945, s. 18 Mental Health Act 1974, s. 46A
Counsel:	Mr D. Kent for the appellant. Mr R. Hanson Q.C., with him Mr B. Thomas for the respondent.
Solicitors:	Prisoners Legal Service for the appellant. Crown Solicitor for the respondent.

Hearing Date: 20November1996
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6924 of 1996

Brisbane

Before Fitzgerald P.

Thomas J.

White J.

[Lansbury v. Attorney-General]

BETWEEN:

KEITH LANSBURY

(Applicant) Appellant

AND:

THE HONOURABLE JOAN MARY SHELDON -

ATTORNEY-GENERAL

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 6 December 1996

This is an appeal from a judgment in the Trial Division on 25 July 1996 dismissing an application for judicial review of a decision of the Governor-in-Council on 25 January 1996 refusing the appellant’s application for conditional release from indeterminate detention pursuant to sub-s. 18(5) of the Criminal Law Amendment Act 1945 and s. 46A of the Mental Health Act 1974. The appellant seeks orders that his appeal be allowed, that the decision of the Governor-in-Council be set aside, and that the Attorney-General tender advice to the Governor-in-Council with respect to the release of the appellant formulated according to law within a reasonable time and pay the appellant’s costs.

The appellant was born on 7 July 1925 and is aged 71 years.
On 7 March 1988, when he was 63, he was sentenced to be
detained at Her Majesty’s pleasure pursuant to s. 18 of the
Criminal Law Amendment Act following his conviction on 10
September 1987 of disabling in order to facilitate the
commission of an indictable offence and indecent dealing
with a girl under 14 years. He has other convictions over
the period commencing from 7 March 1973 for aggravated
assault on a female or a female child (three convictions),
deprivation of liberty (two convictions), wilful exposure
and behaving in an offensive manner. The offences of
deprivation of liberty, like the offence of disabling, were
associated either actually or potentially with improper
sexual behaviour towards young females. The judge below
stated that the circumstances of the offences “reveal what
might be described as a predatory attitude towards young
females”. The appellant has served nine years and eight
months in prison in relation to the offences of which he was
convicted on 10 September 1987 without any indication
concerning whether, and if so when, he will or might be
released, and it was accepted by the Attorney-General that,

had he been sentenced to a specified term of imprisonment,

the likely period has now elapsed.

The letter from the Attorney-General dated 25 January 1996 which communicated the decision not to release the appellant listed the “evidence and other material” before the Governor-in-Council, and stated “findings ... on material questions of fact” and the “Reasons for Decision”. The “findings ... on material questions of fact” included the following:

“(c) Mr Lansbury is being treated for his inability to exercise proper control over his sexual instincts by being prescribed the drug Depo-Provera at a dosage of 150 mg every ten days;

(d)  Mr Lansbury is regularly assessed by psychiatrists and reports as listed above have been made concerning his condition;

(e)  Dr Edwards in his reports refers to studies concerning the treatment of persons with an inability to control their sexually deviant behaviour with the drug Depo-Provera. Dr Edwards concludes that such studies indicate that 15% of such persons will re-offend even if they are actually involved in a treatment program;

(f) Dr Wareing in his report of 18 September 1995
has referred to a number of Mr Lansbury’s
physical disorders and in doing so made the
following comment:-
‘These physical disorders remain under

investigation by Dr Kerr but make it less likely that he would be able to entrap a future victim, although his manner of entrapment tended to be to spin a plausible story initially’

(g)  Dr Reddan in his report has indicated that Mr Lansbury receives the drug Depo-Provera on a dose of approximately 150 mg every ten days.

He also indicates that Mr Lansbury has not undertaken any other programs in the prison in relation to his sexual offending.”

The “Reason for Decision” were as follows:

“Dr Edwards consistently rates the likelihood of persons such as Mr Lansbury re-offending at 15% even if they are receiving Depo-Provera treatment.

In making a determination on the release of Mr Lansbury regard must be had to both the rights of Mr Lansbury and to the principle that society must be protected. After carefully considering the evidence detailed above, it is considered that society would not be adequately protected if Mr Lansbury was released either conditionally or unconditionally at this time.

Finally, I would indicate that today I have referred to the Queensland Community Corrections Board, the above material concerning Mr Lansbury.

I have requested the advice of the Board:

(a) Generally in respect of Mr Lansbury’s case, bearing in mind the terms of s. 18 of the Criminal Law Amendment Act 1945 and s. 46A of the Mental Health Act 1974; and

(b) On the basis that in the future the Governor in Council may determine to grant Mr Lansbury leave of absence under s. 46A of the Mental Health Act 1974, what terms and conditions would the Board suggest as appropriate bearing in mind the statutory and management regimes presently in place.

Given that further medical reports will be prepared in respect of Mr Lansbury I considered that the receipt of such advice from the Queensland Community Corrections Board may also be of assistance to me in any further considerations of this matter.”

In his submissions, the appellant accepted that he has not completed a Sexual Offenders’ Treatment Program, but emphasised his age and frailty and stated that the doctors “express doubts as to how much longer he has to live”. Particular reliance was placed upon reports dated 18 September and 3 October 1985 from two psychiatrists, Dr C.R. Wareing and Dr J.G. Reddan. Dr Wareing considered that it would be appropriate for the appellant to be released conditionally subject to a six monthly review and report, and set out a “Provisional Management Plan”. Dr Reddan’s report contained the following passage:

“... He has now been on Depot Provera [sic] for some years with adequate suppression of his hormonal levels and it would seem that his interest in sexual matters and his ability to perform sexually are now nonexistent. There is no evidence that he is incapable of controlling himself. ...

Taking into account the longitudinal history, the nature of the offences and his current situation, there is no reason why Mr Lansbury could not be safely placed in the community with appropriate safeguards and conditions. The chances of Mr Lansbury committing a serious offence in the future are extremely low. Mr Lansbury should remain on Depot Provera or Androcur indefinitely.

In Dr Moyle’s letter of 15 September 1995 he requested that I consider several possible options in the future. Of the three options suggested, it is my opinion that Mr Lansbury should continue to be managed under a Courts authority by the Queensland Corrective Services Commission. In this way he could be monitored by a Senior Community Corrections Officer, the same way other parolees are monitored in the community.”

The appellant’s argument was similar to the argument which was addressed to the Court in Pollentine, which was heard on the same day and in which judgment is being given today. There are however differences in the facts of the two cases, as was noted by the Trial Division Judge who heard both matters. His Honour observed that the medical assessments in relation to the appellant are “at least from some aspects perhaps more favourable to those applying to Pollentine”. His Honour also stated:

“The [appellant] has participated in activities designed to moderate his behaviour while in prison and since 14 December 1988 has been on a drug regime which suppresses his testosterone production and sex drive. Because of his age, [the appellant] is becoming physically infirm, hence less able to overpower a victim.”

These matters were also noted by the Governor-in-Council, as appears from the extracts from the Attorney-General’s letter of 25 January 1996 which are set out above.

Counsel for the Attorney-General has drawn reference to additional factors, namely:

“(a) the medical opinion indicated that serum testosterone level is not the sole determinant of sexual or sexually aggressive behaviour. Social, psychological and other organic factors are also important;

...

(c)  the [appellant] has provided inconsistent accounts in relation to his most serious conviction of choking to facilitate an indictable offence;

(d)  [the appellant’s] modus operandi did not require force and was to choose girls of 12 to13 years as they were more gullible than mature girls. He posed as a store detective and used strips of clothing to restrain his victims.”

Nonetheless, the decision of the Governor-in-Council not to release the appellant is perhaps less understandable than the decision not to release Pollentine, having regard especially to the appellant’s age. However, for reasons similar to those expressed in the judgment of Pollentine, neither the decision nor the reasons for decision of the Governor-in-Council in the present case reveal error. It was open to the Governor-in-Council not to be satisfied that the appellant’s claim to liberty outweighed the risk which he continues to pose to females, especially young females.

It is again noted that additional information is being sought to enable a further opportunity for the appellant’s release to be considered.

The appeal should be dismissed, but no order made as to costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6924 of 1996

Brisbane

Before Fitzgerald P
Thomas J
White J

[Lansbury v. Attorney-General]

BETWEEN:

KEITH LANSBURY

(Applicant) Appellant

AND:

THE HONOURABLE JOAN MARY SHELDON

- ATTORNEY-GENERAL

(Respondent) Respondent

REASONS FOR JUDGMENT - THOMAS J

Judgment delivered 6 December 1996

I agree with the reasons of the President. For the reasons stated in Pollentine, published

today, I wish to emphasise the urgency of introducing a proper regulatory scheme concerning the

release, and if necessary the return to custody of such offenders. It is very difficult to understand

why there has been no replacement of regulations that were repealed seven years ago.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6924 of 1996

Brisbane

Before Fitzgerald P.

Thomas J.

White J.

[Lansbury v. Attorney-General]

BETWEEN:

KEITH LANSBURY

(Applicant) Appellant

AND:

THE HONOURABLE JOAN MARY SHELDON -

ATTORNEY-GENERAL

(Respondent) Respondent

REASONS FOR JUDGMENT - WHITE J.

Judgment delivered 6 December 1996

I agree with the reasons of the President and the orders proposed by him. I agree with the concerns expressed by Thomas J.