Thompson v Attorney-General (Qld)

Case [2018] QCA 172

SUPREME COURT OF QUEENSLAND

CITATION:

Thompson v Attorney-General (Qld) [2018] QCA 172

PARTIES:

PAUL THOMPSON
v(appellant)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(respondent)

FILE NO/S:

Appeal No 10881 of 2017
SC No 13108 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2017] QSC 79

DELIVERED ON:

31 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2018

JUDGES:

Fraser and McMurdo JJA and Mullins J

ORDERS:

1.     Application for extension of time to appeal granted.

2.     Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the respondent was successful in obtaining an order for the appellant to be detained on the conclusion of his sentence pursuant to division 3 of part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the trial judge erred in being satisfied that the appellant is a serious danger to the community in the absence of a division 3 order – where the appellant argued the trial judge failed to give enough weight to the low level of his sexual offending, his health problems and the benefit he gained from completing a prison program

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

Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, considered
Attorney-General (Qld) v Thompson [2017] QSC 79, related

COUNSEL:

The appellant appeared on his own behalf
B H P Mumford for the respondent

SOLICITORS:

The appellant appeared on his own behalf
G R Cooper, Crown Solicitor for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Mullins J and the orders proposed by her Honour.

  2. McMURDO JA:  I agree with Mullins J.

  3. MULLINS J:  Mr Thompson who appears for himself appeals against the finding made by the learned trial judge on 12 May 2017 that he is a serious danger to the community in the absence of an order pursuant to division 3 of part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) and the order that he be the subject of a continuing detention order under the Act: Attorney-General (Qld) v Thompson [2017] QSC 79 (the reasons). As his notice of appeal was filed outside the period of time to appeal as of right, he also applies for an extension of time for leave to appeal.

  4. The ground of appeal set out in the notice of appeal is that the trial judge erred in being satisfied to the requisite standard that Mr Thompson is a serious danger to the community in the absence of a division 3 order. The errors identified in supporting affidavits and further written material filed in the court by Mr Thompson can be summarised as:

    (a)he was disadvantaged by his legal representatives having only three days to prepare for the hearing before the trial judge which precluded adequate challenge of the evidence adduced…

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Details
AGLC
Thompson v Attorney-General (Qld) [2018] QCA 172
Case
[2018] QCA 172
Decision Date

CaseChat Overview and Summary

The appellant, Mr Thompson, appealed against a decision of the trial judge to make an order for him to be detained after the conclusion of his sentence under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The primary legal issue before the court was whether the trial judge erred in being satisfied that Mr Thompson was a serious danger to the community in the absence of a division 3 order. Mr Thompson argued that the trial judge failed to give enough weight to the low level of his sexual offending, his health problems, and the benefit he gained from completing a prison program.

The court found that the trial judge did not err in concluding that Mr Thompson was a serious danger to the community. The court held that the trial judge had considered the appellant’s arguments and had given them appropriate weight. The court found that the trial judge’s conclusion was supported by the evidence of the psychiatrists, who assessed Mr Thompson’s risk of reoffending as high. The court held that the trial judge was entitled to be satisfied that Mr Thompson was a serious danger to the community, given his history of sexual offending, lack of insight into the seriousness of his past offending, and his impulsive and unpredictable nature.

The appeal was dismissed, and the application for an extension of time to appeal was granted.

Orders

Orders of the court

1. Application for extension of time to appeal granted.

2. Appeal dismissed.

Background

Background to the litigation

Mr Thompson prepared all materials on his own behalf for the appeal.Mr Thompson’s background and criminal history Mr Thompson was 68 years old at the hearing before the trial judge. Mr Thompson trained as a teacher and worked in various private schools teaching English, mathematics and, occasionally, music. He was last employed as a teacher in about 2003. The trial judge summarised Mr Thompson’s criminal history at [14] of the reasons:“He has numerous previous convictions for acts of public exhibitionism such as ‘streaking’ at sporting venues and in other public places, and an array of other convictions including for offences of dishonesty and relatively minor acts of violence. Of primary concern though on the hearing of this application are his previous convictions for sexual assaults on adolescent males. These offences followed a pattern – the respondent would contrive a scenario to justify searching the person of his victims and, whilst doing so, would indecently assault them. Each of these assaults involved sexual touching or fondling; none escalated to oral, vaginal or anal intercourse. The respondent was interfered with in the same way, and after the same pretence, when he was nine years of age. The respondent persists in euphemistically referring to his past offending in this regard as ‘searches’ and has very little (if any) insight into the serious potential for psychological harm that can be caused by such assaults.” Mr Thompson’s criminal history commenced in New South Wales in 1971 with a conviction for wilful and obscene exposure. There were another 16 convictions in New South Wales for that offence between 1975 and 1994. He was also convicted of commit indecent act on a male person in 1971, 1975, 1976 and 1978; indecent exposure in 1971 and 1983; indecent assault in 1972 and 1978; common assault in 1977 and 1985; cause serious alarm (undressing in a motor vehicle) in 1980; cause serious alarm (exposing his penis) in 1981; offensive behaviour (exposing his genitals) in 1986; commit act of indecency on a person aged under 16 in 1992; and indecent act in 1994. There were other minor offences for which he was convicted that were not of the same nature as the majority of his offending in New South Wales for exhibitionism and indecent assault of males. Mr Thompson was convicted in the Northern Territory on the one occasion in 1996 for indecent exposure, offensive behaviour in a public place, and indecently dealing with a child under 15 years of age. Mr Thompson’s Western Australian criminal history began in 1989 with a conviction for wilful exposure. Apart from minor offending that was not sexually related, he was convicted of seven counts of aggravated indecent assault in 1991 and failure to comply with child offender reporting obligations in 2006. Mr Thompson’s criminal history in Queensland commenced in 2009 with two convictions for failing to comply with reporting obligations in July 2007 and January 2008 under the Child Protection (Offender Reporting) Act 2004 (Qld). There were four breaches of the Bail Act 1980 (Qld) in 2009 and 2010, shoplifting offences on three occasions between 2009 and 2010, various street offences under the Summary Offences Act 2005 (Qld) between 2009 and 2011, common assault in 2010, creating a disturbance/nuisance on a train/railway/other passenger vehicle operated by the railway in 2010, and assaults occasioning bodily harm in 2010.

Evidence

Evidence Before The Court

Mr Thompson made no complaint about the conduct of the case on his behalf during the hearing before the trial judge.The psychiatrists’ evidence Psychiatrist Dr Harden interviewed Mr Thompson on 20 May 2016 and prepared a risk assessment report for the purpose of a potential application under the Act. Dr Harden scored Mr Thompson using a number of assessment instruments which measure static risk factors which will not change regardless of any intervention or improvement in the person. Mr Thompson scored 6 on STATIC 99R that placed Mr Thompson in the high risk category relative to other adult male sex offenders. Mr Thompson had a score of 20 out of a possible score of 26 on the Stable 2007 which placed him in the high needs group in terms of dynamic risk. On the Sex Offender Risk Appraisal Guide (SORAG), Mr Thompson scored 19 which placed him in category 6 for which people in that category in the study populations had a 58 per cent risk of violent or sexually violent reoffending at seven years and a 76 per cent rate at 10 years. On the Hare Psychopathy Checklist, Mr Thompson had an overall score of 30 which was the cut off for psychopathic personality features. On the SVR-20, Mr Thompson was positive for 13 items out of 20 which placed him generally in a high risk category on this measure of Sexual Violence Risk. Dr Harden diagnosed Mr Thompson as having a severe personality disorder with marked histrionic, narcissistic, antisocial and obsessional features, exhibitionism, and paedophilia (nonexclusive, attracted to boys). The trial judge quoted from the opinion section of Dr Harden’s report at [36] of the reasons. In summary, Dr Harden assessed Mr Thompson’s unmodified risk of sexual reoffence in the community in the high range and noted that his greatest risk factors were his paedophilic interest in boys, his impulsivity and his fixed personality issues. Dr Harden considered that if Mr Thompson were placed on a supervision order in the community, the risk of sexual recidivism would be reduced to low to moderate. For the purpose of the hearing, Mr Thompson was assessed by another two psychiatrists, Dr Grant and Dr Phillips. Prior to giving evidence at the hearing, Dr Harden was provided with the reports of Dr Phillips and Dr Grant and additional medical and correctional material. (All the medical and correctional material which the psychiatrists were asked to consider was before the trial judge.) As a result of reviewing the additional material, Dr Harden also reviewed his opinion and his evidence was set out at [38] of the reasons. In summary, Dr Harden remained of the view that Mr Thompson’s unmodified risk of sexual reoffence in the community by contact offending against boys is high, but that successful supervision of Mr Thompson in the community might be difficult, due to the pattern of accommodation difficulties reflected in the medical records, and that might make the supervision order less effective at reducing risk. In particular, Dr Harden noted that Mr Thompson’s persistent and significant accommodation difficulties called into question how well Mr Thompson would cope on a supervision order in living with other people in the precinct accommodation. Dr Harden was of the view, however, that he was “slightly less pessimistic than both Dr Grant and Dr Phillips” about Mr Thompson’s possibility of success on the supervision order, as the structure imposed by the supervision order would make it much more difficult for Mr Thompson to offend.

Decision

Reasons for decision

Dr Phillips also examined the additional medical and correctional records provided to the other psychiatrists and revised her opinion against Mr Thompson being able to be managed on a supervision order, expressing the view (set out at [34] of the reasons) that he would pose challenges to supervision arising out of his marked personality dysfunction and sexual deviance, so the likelihood was that he would not comply with directions from those who were supervising him.The trial judge’s decision on the threshold issue The trial judge set out at [50] of the reasons that, on the evidence, Mr Thompson is a person to whom the Act applies on the basis of his diagnosed severe personality disorder, exhibitionism and paedophilia, with an attraction to underage males, his long history of sexual offending against adolescent males culminating in the offending committed on 25 January 2013 upon his release from custody on 14 January 2013 and the index offences then committed on 13 and 14 December 2013, after his next release from custody on 4 December 2013, and that his condition was untreated. For the additional reasons set out at [51] of the reasons, the trial judge was satisfied that Mr Thompson was a serious danger to the community in the absence of a division 3 order:“Each of the psychiatrists who examined the respondent for the purposes of this application expressed the opinion that the respondent’s unmodified risk of reoffending if released from custody is high. As Dr Harden said, the respondent’s ‘short, medium and long-term prognosis from the point of view of interpersonal function and risk of reoffending is poor.’ He lacks insight into the seriousness of his past offending and its impact on his many victims. At least until relatively recently, he was inclined to minimise the seriousness of his offending. Although I am prepared to accept that none of his past offences escalated to oral, vaginal or anal intercourse, each such offence had the real potential to cause serious and lasting psychological harm. Furthermore, the respondent has struggled in recent years to live independently and it remains very much in prospect that, if he is released into the community, he may well decide to commit another serious sexual offence in order to be returned to custody. He is impulsive and, to a significant degree, unpredictable.”Late change in legal representation Apart from Mr Thompson’s assertion that his legal representatives had only three days to prepare for the hearing before the trial judge, it is not apparent from the material before the trial judge when the change in legal representation precisely occurred. That it did occur shortly before the hearing was reflected in this exchange between the trial judge and Mr Ryan:“HIS HONOUR: Yes. Can I just say before you start, the court’s very grateful to you and Mr Saggers for coming into this so late. Thank you.MR RYAN: Thank you, your Honour. May I say as well, though – and I’ve said this to Mr Thompson yesterday – that the fact that we’ve come into the matter at a late time, we feel that we’re well prepared to argue this matter ---HIS HONOUR: There’s no doubt about that.MR RYAN: --- and we’re well and truly across it. So we haven’t – neither Mr Saggers or myself have been disadvantaged by us coming in at that stage.”

Ratio Decidendi

Legal Principle Established

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