Van De Wetering v Attorney-General (Qld)

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SUPREME COURT OF QUEENSLAND

CITATION:

Van De Wetering v Attorney-General (Qld) [2024] QCA 222

PARTIES:

PETER JOHN VAN DE WETERING
(appellant)
v
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 13616 of 2023
SC No 7009 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2023] QSC 216 (Muir J)

DELIVERED ON:

13 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2024; Appellant’s further submissions filed 11 October 2024; Respondent’s further submissions filed 14 October 2024

JUDGES:

Mullins P and Henry and Williams JJ

ORDERS:

1.   Appeal allowed.

2.   Set aside the order made by the primary judge on 29 September 2023.

3.   Remit the originating application filed on 12 June 2023 for the division 3 order to the Trial Division for rehearing.

4. The appellant be released from prison pursuant to s 43(4)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) on an interim supervision order that requires him to follow the rules set out in paragraphs 1 to 36 of annexure A to these reasons until the determination of the application for the division 3 order, or earlier order.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the Attorney-General applied for a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) to detain the appellant in custody for an indefinite term or that the appellant be released from custody subject to a supervision order – where it was conceded by the appellant at the hearing before the primary judge that the appellant is a serious danger to the community in the absence of a division 3 order – where the primary judge was satisfied that the adequate protection of the community could not be managed by the appellant’s release on a supervision order – where the appellant put forward a draft supervision order – where the respondent did not put forward a draft supervision order for the appellant – where the primary judge focused on the concerns of the psychiatrists who expressed a preference for more information about the appellant’s motivation for the subject offences where the appellant had not undertaken a sex offender treatment program whilst serving the sentence – where there was no expert evidence on a supervision order proposed by the respondent for the appellant and consideration by the primary judge of the statutory scheme for contraventions or anticipated contraventions of a supervision order with the consequent motivations for the appellant to comply with the supervision order – whether the primary judge failed to take account of relevant considerations for the purpose of the decision under s 13(5) of the Act

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the Attorney-General applied for a continuing detention order under the Dangerous Prisoners (Sexual…

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Details
Case
[2024] QCA 222
Decision Date

CaseChat Overview and Summary

In Van De Wetering v Attorney-General (Qld), the appellant, who had completed his sentence for serious sexual offences, appealed against the decision of the primary judge who made a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Attorney-General had applied for the order to detain the appellant in custody for an indefinite term or for his release from custody subject to a supervision order. The appellant conceded that he was a serious danger to the community in the absence of a division 3 order. The primary judge was satisfied that adequate protection of the community could not be managed by the appellant’s release on a supervision order. The Court was required to determine whether the primary judge failed to take account of relevant considerations for the purpose of the decision under s 13(5) of the Act, and whether the Court should make an interim detention order or interim supervision order pending the rehearing of the application for a division 3 order.

The court considered that the key to the primary judge’s conclusion was the presence of ‘important gaps’ or ‘uncertainties’ around the material facts known about the appellant’s motivations and desires, such that more needed to be known before it could be said that it was likely that the appellant’s risk was one that could be managed under a supervision order. The primary judge had considered the evidence of two psychiatrists, who expressed a preference for more information about the appellant’s motivation for the subject offences. The court found that the primary judge had considered the relevant factors and had reached a reasonable conclusion that a supervision order would not ensure adequate protection of the community from the risk that the appellant would commit a serious sexual offence, if released from custody on a supervision order. The court also found that there were developments in respect of the appellant’s circumstances since the hearing before the primary judge and that both parties submitted that the originating application should be remitted to the Trial Division for rehearing.

The court allowed the appeal, set aside the order made by the primary judge, and remitted the originating application for the division 3 order to the Trial Division for rehearing. The court made an interim supervision order that required the appellant to follow certain rules until the determination of the application for the division 3 order, or earlier order. The court held that the primary judge had not failed to take account of relevant considerations and that the appellant should be released from prison on an interim supervision order.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order made by the primary judge on 29 September 2023.

3. Remit the originating application filed on 12 June 2023 for the division 3 order to the Trial Division for rehearing.

4. The appellant be released from prison pursuant to s 43(4)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) on an interim supervision order that requires him to follow the rules set out in paragraphs 1 to 36 of annexure A to these reasons until the determination of the application for the division 3 order, or earlier order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The records of QCS show that the appellant takes a low dose of an antipsychotic medication and prescription medication for depression and anxiety. He has been a model or exemplary prisoner in terms of his general behaviour during his time in custody and been consistently employed. The appellant was assessed in the prison system for his outstanding criminogenic needs. It was recommended that he participate in the Getting Started Preparatory Program (GS:PP) followed by the Medium Intensity Sexual Offender Program (MISOP). On 12 July 2019, the appellant declined to be placed on the wait list for group sexual offender treatment programs. He maintained that refusal to participate when offered to be wait listed in 2021 and 2022 and again refused to participate in the GS:PP on 14 April 2023.Psychological and psychiatric evidence adduced before the primary judge The primary judge summarised the psychological and psychiatric evidence that was adduced for the purpose of the application at [57]-[87] of the reasons. For the purpose of dealing with the grounds of appeal it is necessary to refer to some aspects of this evidence. The appellant had engaged clinical psychologist Dr Oertel for eight sessions of treatment between 28 August and 19 December 2019. The treatment focused on the link between the appellant’s antecedents and the subject offences and his coping and mood management. The primary judge noted (at [58] of the reasons) that Dr Oertel had observed that while the appellant admitted to the subject offences he sought to “minimise aspects of his sexual offending behaviour”. There is no challenge to the primary judge’s conclusion (at [60]) that Dr Oertel’s report was of little assistance in the consideration of whether adequate protection of the community could be reasonably and practically managed by a supervision order. Forensic psychiatrist, Dr Brown, was engaged by the Crown Solicitor to undertake a risk assessment and prepare a report for the purpose of a potential application under the Act. Dr Brown’s written report dated 15 March 2023 was based on interviews with the appellant via video link on 10 and 24 February 2023 for a total of two hours and a brief of evidence provided by the Crown Solicitor which included QCS records in relation to the appellant. Dr Brown recorded the appellant’s reasons for the subject offences set out in his application for release on parole as intending to kidnap the victim for ransom but he became angry when he found there was no money, so he digitally raped the victim. He also said his “brain was scattered due to marijuana smoking and mental illness”. Dr Brown recorded the appellant’s explanation to her of the subject offences that he was unable to find employment and was frustrated that farmers preferred to employ backpackers rather than Australian workers, so he planned to rape a backpacker to scare backpackers away. He advertised for a nanny, created a fake email account, attempted to disguise himself, used a false name and obtained Stilnox from a drug dealer that he used in attempting to drug the victim with a laced chocolate. The appellant told Dr Brown that the offence was not sexually motivated.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The key to the primary judge’s conclusion is stated (at [111] of the reasons) as:“In the present case, there are ‘important gaps’ or ‘uncertainties’ around the material facts known about the [appellant’s] motivations and desires such that more needs to be known before it can be said that it is likely that the [appellant’s] risk is one that can be managed under a supervision order: See Turnbull v Attorney-General for the State of Queensland [2015] QCA 54 at [40] per Morrison JA; Attorney-General for the State of Queensland v S [2015] QSC 157 at [36], [39] and [40] per P McMurdo J (as he then was). The consequence to the community if the risk manifests itself are severe.” (footnotes included)Ground 3 – Did the primary judge fail to have regard to relevant considerations in making the s 13(5) decision? It is convenient to deal first with ground 3. There was no challenge by the appellant to the primary judge’s identification (at [105](j) of the reasons) that the victim of any future offending would likely be an adult female who may be a stranger or casual acquaintance and the offending may occur after a protracted period which was a reflection of the mode in which the subject offences were committed and the psychiatrists’ opinions about the mode of any future offending. The submissions made in respect of ground 3 should be considered in the context of the nature of any anticipated future offending by the appellant. Section 13(6) of the Act provides:“In deciding whether to make an order under subsection (5)(a) or (b)—(a)the paramount consideration is to be the need to ensure adequate protection of the community; and(b)the court must consider whether—(i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and(ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.” Although the matters set out in s 13(4) of the Act are relevant to the threshold issue decided under s 13(1), those matters will still have relevance to the decision under s 13(5). As recognised by the primary judge at paragraphs (a), (b) and (c) of [103] of the reasons, a continuing detention order should be made only if a supervision order will not ensure adequate protection of the community from the risk that the appellant will commit a serious sexual offence, if released from custody on a supervision order. There are four considerations relied on by the appellant for ground 3. The considerations in paragraphs (a), (b) and (c) of ground 3 relate to the terms of the proposed supervision order for the appellant and can be dealt with together. It was not suggested before the trial judge or on this appeal that the requirements referred to in s 13(6)(b)(ii) would be an impediment, if a supervision order were made in respect of the appellant. There was no concern that the QCS did not have the resources to provide the supervision and monitoring in accordance with the requirements under s 16 of the Act if a supervision order were imposed on the appellant. See Francis at [37]. The focus of the hearing before the primary judge was the effectiveness of a supervision order (in abstract) in reducing the risk of serious sexual offending committed by the appellant to an acceptable level.