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Attorney-General v Robinson

 

[2017] QSC 332

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General for the State of Queensland v Robinson [2017] QSC 332

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

NIGEL PATRICK ROBINSON

(respondent)

FILE NO/S:

BS 4096 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

22 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2017

JUDGE:

Jackson J

ORDER:

  1. The order of the court is that subject to inclusion of any of the requirements under s 16(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 not already included in the supervision order made by Bond J on 15 June 2015, the respondent be released from custody subject to the requirements of the supervision order.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where respondent contravened supervision order – where application pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether adequate protection of the community could be ensured by release under the existing supervision order – where applicant released under existing supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 20, s 22, s 43AA

COUNSEL:

B Mumford for the applicant

T Ryan for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Cridland Hua Lawyers for the respondent

Jackson J:

  1. This is an application for final orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“DPSOA”) on an application for an order to rescind a current supervision order following a finding of contravention of the order.  The question is what orders should be made under ss 22(2) and (7).
  2. On 15 June 2015, Bond J ordered that the respondent be released from custody subject to a supervision order, until 15 June 2020 (“current supervision order”). 

Current contravention

  1. Condition 14 of the current supervision order required that the respondent must respond truthfully to enquiries by Queensland Corrective Services (“QCS”) officers about his whereabouts and movements generally.
  2. On 15 May 2017, Thomas J found that the respondent contravened Condition 14, because he did not respond truthfully to enquiries by QCS officers about his whereabouts and movements.[1] 
  3. On 11 November 2016, the respondent advised a QCS officer that he intended to travel by bicycle from the address where he lives at Wacol to the Inala Shopping Centre. The respondent’s movements were tracked by the GPS anklet that he was required to wear as part of the conditions of the current supervision order.
  4. On 12 November 2016, at 10.47 am, the respondent passed a house at Wau Road, Darra, presumably on his way to the shopping centre.  At about that time, a man riding a bicycle passing the house, called out to an adult female who was in the front yard: “Hello beautiful”.
  5. On 12 November 2016, between 1.40 pm and 1.48 pm, the respondent returned to the house at Wau Road, Darra, presumably on his way back from the shopping centre to his residence.  At about that time, the adult female who lived at the house heard a knocking at her door and looked through the window. She observed that the person knocking at the door was the same man who rode passed her property and called out “Hello beautiful” earlier in the day.  A few minutes later, the man rang the doorbell. She did not answer the door.
  6. On 14 November 2016, the respondent spoke to a QCS officer. He said that on 12 November 2016 as he rode his pushbike through Darra he was attacked by a magpie.   A lady called out to him to take shelter under her tree in her front yard.  He waited there for a while until he could no longer see the magpie. 
  7. The inconsistency between the facts previously stated and the respondent’s version of what happened was the basis of the finding by Thomas J that the respondent did not respond truthfully to enquiries by QCS officers about his whereabouts and movements and the respondent thereby contravened a requirement of the current supervision order. 
  8. The remaining question is whether under s 22(2) of the DPSOA the respondent satisfies the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the current supervision order with any amendments under s 22(7) of the DPSOA.

The index offences and previous continuing detention and supervision orders

  1. The respondent was born on 20 January 1979 and accordingly is currently 38 years of age.
  2. On 17 February 1998, he was convicted in respect of one count of deprivation of liberty and one count of rape of a nineteen year old woman on 10 May 1997 and one count of deprivation of liberty and one count of indecent assault with circumstances of aggravation of a child under 12 years of age, on 13 November 1997. He was ordered to be imprisoned for periods accumulating to eleven years.
  3. On 26 May 1998, the Court of Appeal reduced the periods of imprisonment for those offences to an accumulated period of nine years.[2]
  4. On 1 November 2006, Lyons J found that the respondent was a serious danger to the community in the absence of an order under Div 3 of the DPSOA and ordered that the respondent be detained in custody for an indefinite term for control, care or treatment.[3]
  5. On 10 February 2009, the respondent was convicted of one count of attempted rape of a 27 year old woman on 4 October 1997, and ordered to serve a period of imprisonment of 18 months to be suspended for 2 years after serving 6 months.
  6. Also on 10 February 2009, the respondent was convicted of one count of common assault on a female member of staff in prison and ordered to be imprisoned for six months, to be served concurrently.
  7. On 15 July 2009 Daubney J made an order that the respondent be released from custody subject to a supervision order.[4] 
  8. Between 14 May 2010 and 30 May 2014 there were numerous proceedings brought by the applicant against the respondent for non-compliance with conditions of the supervision order and numerous convictions of the respondent for offences of contravening the supervision order, summarised as follows.
  9. On 1 May 2010, the respondent was returned to custody on a warrant.[5]
  10. On 20 May 2010, P McMurdo J ordered that the respondent be released upon the supervision order, pending the final decision.[6]
  11. On 2 June 2010, the applicant applied for an order that the supervision order be rescinded for contraventions. A Lyons J ordered that the respondent be detained in custody under s 21 of the DPSOA. 
  12. On 20 May 2011, the respondent was convicted in the Magistrate’s Court at Richlands of 10 offences of contravening a supervision order, but no further penalty was imposed.[7]
  13. On 24 August 2011, the respondent was dealt with for breach of the suspended sentence imposed on 10 February 2009 and the period of suspension was extended for 12 months.
  14. On 16 December 2011, Byrne SJA, upon the hearing of the contravention application filed on 2 June 2010, ordered that the respondent be released upon the supervision order, as amended.
  15. In May 2012, the respondent was returned to custody on a warrant.[8]
  16. On 16 May 2012, the applicant applied for an order that the supervision order be rescinded for contraventions.  P McMurdo J ordered that the respondent be released from custody upon the supervision order, pending the final decision.[9]
  17. On 3 December 2012, the respondent was ordered to be released on the supervision order, as amended.
  18. On 11 December 2012, the respondent was convicted in the Magistrates Court at Richlands of an offence of contravening a relevant order and ordered to be imprisoned for three months, to be suspended for 12 months.[10]
  19. In April 2013, the respondent was returned to custody on a warrant.[11]
  20. On 5 April 2013, the applicant applied for an order that the supervision order be rescinded, for contraventions.  Boddice J ordered that the respondent be detained in custody until the final decision.[12]
  21. On 5 August 2013, Fryberg J ordered the respondent’s release from custody on the supervision order, as amended.[13]
  22. In December 2013, the respondent was returned to custody on a warrant.[14]
  23. On 9 December 2013, the applicant applied for an order that the supervision order be rescinded, for contraventions.  Atkinson J ordered that the respondent be detained in custody until the final hearing.[15]
  24. On 31 January 2014, the respondent was convicted in the Magistrates Court at Richlands of four offences of contravening a relevant order and ordered to be imprisoned for four months to be suspended for 12 months.[16]
  25. On 20 March 2014, the respondent was convicted in the Magistrates Court at Richlands of two offences of contravening a relevant order and ordered to be imprisoned for a period of six months with a parole release date of 20 May 2014.[17]  As well, the suspended sentence imposed on 11 December 2012 was fully activated to be served concurrently.
  26. On 4 July 2014, on the final hearing of the application filed on 3 December 2013, Boddice J found that the respondent had contravened four of the conditions of the first supervision order.[18]  Condition 10 required that whilst housed at any contingency or temporary accommodation he comply with any rules or regulations in place at the accommodation.  It was found that the respondent accessed the internet whilst housed at the Wacol precinct without prior approval in breach of Condition 10.  Condition 14 required that the respondent must respond truthfully to enquiries by QCS officers about his whereabouts and movements generally.  It was found that the respondent responded untruthfully as to the nature of his association in 2013 with each of two women and as to his whereabouts and movements in breach of Condition 14.  Condition 16 provided that the respondent must disclose to a QCS officer upon request the name of each person with whom he associated and respond truthfully to requests for information from a QCS officer about the nature of the association, address of the associative known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour.  The respondent was held to have breached Condition 16 in relation to his association with each of the two women.  Condition 41 of the first supervision order required that the respondent must notify the supervising QCS officer of all personal relationships entered into by the respondent, including those with intellectually disabled persons.  It was held that the respondent breached Condition 41 by failing to notify as to his personal relationships with each of the two women.
  27. Boddice J rescinded the supervision order and made a continuing detention order.[19]
  28. On 15 June 2015, on the first annual review, Bond J rescinded the continuing detention order[20] and ordered that the respondent be released from custody on the current supervision order subject to 38 conditions.[21]
  29. Between 15 June 2015 and today there have been further proceedings brought by the applicant against the respondent for non-compliance with conditions of the supervision order and further convictions of the respondent for offences of contravening the supervision order, summarised as follows.
  30. On 29 January 2016, the Magistrates Court at Richlands ordered that no conviction be recorded and imposed no punishment for one offence of contravening a relevant order.
  31. On 4 August 2016, the Magistrates Court at Richlands ordered that the respondent be convicted of one offence of contravening a relevant order and ordered the respondent to be imprisoned for two months, to be suspended for three years.[22]
  32. On 13 December 2016, the applicant was returned to custody upon a warrant.[23]
  33. On 20 December 2016, the applicant applied for an order rescinding the current supervision order.  Mullins J ordered that the respondent be detained in custody until the final decision.[24]
  34. On 12 January 2017, the Magistrates Court at Richlands ordered that the respondent be convicted of serious assault of a police officer whilst armed with a weapon and ordered that the respondent be imprisoned for 12 months with a parole release date of 12 April 2017.
  35. The overall summary of these facts is that after his initial release on a supervision order on 15 July 2009, the respondent was returned to custody for contraventions of the supervision order then re-released on a supervision order on five occasions, until 14 July 2014, when the supervision order was rescinded.  After being released again on the current supervision order on 15 June 2015, the respondent was returned to custody for a contravention of the order on 13 December 2016, where he has remained until today.

Contraventions relied upon

  1. The contravention found by Thomas J on 15 May 2017 is the specific contravention under ss 20 and 22 of the DPSOA that calls for a decision whether to rescind the current supervision order and make a continuing detention order or to order that the current supervision order continue subject to possible amendment under s 22(7). 
  2. However there are other contraventions relied upon by the applicant in relation to the question whether the adequate protection of the community can, despite the contraventions, be ensured by the current order as amended under s 22(7).
  3. The applicant relies on 56 notices of contravention given by the applicant to the respondent in the period from June 2015 to December 2016.  None of them resulted in an application for a warrant under s 20 of the DPSOA except for the contravention on 12 November 2016 that became the subject of the application filed on 20 December 2016. 
  4. As well, although contravention of a supervision order is an offence, if made without a reasonable excuse, under s 43AA(1) of the DPSOA, with two exceptions the respondent has not been prosecuted for an offence in relation to the 56 possible contraventions.
  5. The applicant relies on the 4 August 2016 conviction of the respondent for an offence under s 43AA of the DPSOA.  The offence was a contravention of Condition 16 of the current supervision order that the respondent must disclose to a QCS officer upon request the name of each person with whom he associated and respond truthfully for requests for information from a QCS officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour.
  6. The circumstances of the contravention were that over a period of two months in early 2016 the respondent received telephone calls from a woman in prison.  The calls were described as constituting “phone sex”.  When asked about their content by QCS officers the respondent untruthfully said that they were about family matters.  At the time QCS officers asked the respondent about the content of the calls, the officers were in possession of prison “Arunta” audio recordings of the calls and knew exactly what was contained in them.
  7. Finally, the applicant relies on the 12 January 2017 conviction of an offence of serious assault of a police officer.  That offence was not an offence of a sexual nature and therefore did not constitute a contravention of the current supervision order. 
  8. The circumstances were that following the issue of the warrant based on the contravention of 12 November 2016, the respondent was arrested by police on 13 December 2016.  In the course of his arrest, the respondent threatened violence by picking up a knife but was disabled by the use of a taser.  The account of the circumstances in the evidence does not suggest that the respondent made any attempt to lunge at police with the knife.

Psychiatric and psychological evidence

  1. On 15 May 2017, Thomas J ordered that the respondent undergo examinations by two psychiatrists,[25] being Dr Josephine Sundin and Dr Scott Harden.
  2. On the hearing of the application Dr Sundin’s report dated 26 May 2017 and Dr Harden’s report dated 21 June 2017 were tendered and each gave oral evidence supplementing their reports. 
  3. This oral evidence was directed to addressing the respondent’s subsequent progress as set out in the report of Nicholas Smith, forensic psychologist, dated 24 September 2017 and more recent information from Mr Smith in three emails sent on 9 November 2017, 24 November 2017 and 8 December 2017. 
  4. As well there are three reports of Teresa Wood, forensic psychologist, dated 3 August 2016, 21 October 2016 and 18 January 2017. 
  5. Dr Sundin saw the respondent on 26 May 2017.  She then found the respondent very concerning.  Her concerns were based in his continuing oppositional and antiauthoritarian attitude and high frequency of contraventions of the supervision order over the prior two years.  She considered that he demonstrated a proclivity to be deceptive with regard to the sexual contacts he had been making with women in the community.  She considered that the November 2016 contravention suggested continuing sexual preoccupation and the respondent’s preparedness to approach an isolated woman.
  6. In Dr Sundin’s view, while it is now many years since the respondent has committed a sexual offence, he continues to demonstrate an ongoing sexual preoccupation.  She is concerned that he is a man who is vulnerable to regressing and becoming preoccupied with sexually violent fantasies, which he has demonstrated a past capacity to act out.  This is matched with a pattern of impulsivity and immaturity and general hostility towards his supervision order.  Dr Sundin’s view is that the respondent has failed to understand that there is a reasonable and valid concern as to the risk that he poses to the community.  She opines that he needs to demonstrate maturation and consistency in taking personal responsibility before the court could have a reasonable level of confidence that the risk he poses to the community has abated.  He represents an unsatisfactory unmodified risk to the community and is a moderate to high risk of committing a serious sexual violence offence, likely against a vulnerable female.  The risk would be increased if he were in the setting of emotional collapse, resumption of abusive intoxicating substances or an increased sexual preoccupation demonstrated by accessing pornography.
  7. Dr Sundin’s report focussed on the extent of the respondent’s non-compliance with his supervision order.  I note that her analysis of his noncompliances did not distinguish between those that might relate to the risk of committing a serious sexual offence, as opposed to numerous non-compliances that evidence an oppositional attitude towards compliance with the conditions of his supervision order and regular conflict with QCS officers about that subject matter and the extent of the constraints of the supervision order.
  8. In my view, Dr Sundin’s report combines a number of factors, some of which are of more relevance to the question to be decided than others.  For example, she highlighted that the respondent’s attitudes towards supervision means that it becomes a surveillance order and staff are required to check on him regularly because they cannot accept the truthfulness of his responses to the questions.  Instead it is likely that he is seeking contact with people and not disclosing his background to the persons contacted or his activities to staff. 
  9. In my view, it is important to keep in view that the only relevant question is the risk of the respondent committing a serious sexual offence.  If the respondent’s contrariness causes him to contravene conditions of his supervision order, and that leads to both proceedings against him for an offence of contravening the order and tighter surveillance and more trouble for QCS officers, those are prices to be paid for being subject to and costs of administering the DPSOA system but, in my view, that does not necessarily reflect an increased risk of the respondent committing a serious sexual offence.
  10. On the other hand, some of the factors highlighted by Dr Sundin are more directly relevant.  First, the respondent’s primary diagnosis is of anti-social personality disorder with elevated scores for psychopathy with a co-morbid diagnosis of substance use disorder for cannabis, although there is no suggestion of relapse into substance abuse since the respondent was first released into the community in 2009.
  11. Second, the respondent has a history of a paraphilia diagnosed as sexual sadism, although Dr Sundin wondered whether it might come closer to biastophilia.  However, there is no recent indication of the respondent’s continued preoccupation with either paraphilia.  The respondent denies any current sexual fantasies around controlling or inflicting pain on vulnerable females or males.  However, there is strong evidence that he persistently lies and is not forthcoming in interviews about his sexual contacts with women, so it is clear that it is difficult to make any reliable assessment of his present or prediction of his future focus.  Against that, the respondent has been a long-term sufferer of Type I diabetes.  He claims that the medication for his condition has led to erectile dysfunction and loss of interest in sex.
  12. Another factor of concern to Dr Sundin is that the respondent’s activations are marked with a pattern of impulsivity and immaturity. 
  13. In her report, Dr Sundin recommended that consideration be given to a continuing detention order on the footing that further therapy be instituted with the respondent.  She suggested that the Court might decide to set a timeline of six months for review of the respondent’s progress.  However, a process of that kind is not part of the court’s function or powers.  If a continuing detention order is made, it is not the court that directs what treatment is available to a prisoner whilst subject to a continuing detention order.  If a continuing detention order is made, the court does not have the power to review the case after six months.
  14. Dr Sundin’s recommendations, as expressed in her report, are understandable and cautious.  After her report was made, she received the report of Mr Smith and his emails of 9 November, 24 November and 8 December 2017.  Whilst continuing to express caution in her oral evidence, Dr Sundin expressed the opinion in oral evidence based on the material from Mr Smith that it is suitable and appropriate for the respondent to be on a supervision order, subject to him being required to continue his therapy with Mr Smith.
  15. Dr Harden’s report covers much of the same ground.  He details three of the six consensual sexual relationships the respondent has had during the periods he has been in the community on a supervision order since 2009.  One of them extended over a period of almost four-and-a-half-years, although it was clearly not exclusive on either side.  A significant point to be made is that during those periods, the respondent has not committed a sexual offence let alone a serious sexual offence.  Indeed, apart from the offence of serious assault of a police officer on 13 December 2016 when he was arrested on a warrant to be returned to custody, for contravening the current supervision order, the respondent’s offending during all the periods of release on the current and previous supervision order has been confined to contraventions of the supervision orders.
  16. Dr Harden expressed the view that it appears likely that the respondent is of approximately average intelligence.  None of the other reports supports that view.  It does appear that the respondent’s speech is fluent.  However, there is no real indication in terms of academic achievement or vocational attainment or otherwise that would suggest to me that the respondent should be regarded as being of average intelligence.  He does not appear to have achieved any milestone at secondary school.  He was expelled from more than one, suggesting behavioural problems.  He had worked for a total of only two weeks before he was imprisoned at about 18 years of age.  There is no evidence that he reached any vocational milestone during his initial 12 years in prison.  On his current return to prison from December 2016, he has been employed in the metal or fabrication workshop, but only as a floor sweeper or cleaner, on the footing that he does not have the skills or aptitude to do any other work.
  17. Dr Harden also laid considerable emphasis upon the respondent’s extremely poor compliance with supervision and poor relationships with supervising staff both in the community and in custody.  More importantly, in my view, he plainly views the respondent as having maintained a level of sexual preoccupation over the years.  Dr Harden observed that the respondent’s expressed lack of interest in sex and lack of sexual drive is inconsistent with him managing to have had some kind of sexual contact with at least six women since the beginning of his supervision order in 2009.
  18. Dr Harden’s diagnosis was mostly consistent with that of Dr Sundin.
  19. In terms of the risk of committing a serious sexual offence, Dr Harden considered the most important risk factors to be the respondent’s likely deviant sexual arousal, his pattern of activity that demonstrates preoccupation with sexual activity, his non-compliance with supervision restrictions in the community, his severe personality dysfunction including psychopathic features and his constantly seeking out potentially vulnerable females of the community.
  20. Dr Harden’s opinion is that although the respondent’s risk of sexual recidivism is most likely reduced to moderate on a supervision order, the reduction is diminished because of his persistent non-compliance and seeking out of sexual outlets that transgress the boundaries of his supervision order.
  21. Dr Harden recommends that if released into the community or continued in custody the respondent should have ongoing psychological therapy with an appropriately skilled practitioner.  He also recommends an appropriate group program unless the group program organisers believe he is unsuitable.
  22. Dr Harden took into account Mr Smith’s reports and the recent emails, but reaffirmed that his concerns remained regardless of the fact that Mr Smith appeared to have engaged the respondent in a therapeutic process.  He raised the possibility that the respondent may be exerting power or attempting to exert power by being deceptive as a response to the control of a supervision order and QCS officers.
  23. Dr Harden agreed that the respondent’s contravention of the previous supervision order by not truthfully disclosing his contacts with two women with whom he engaged in sexual activity in 2013 involved no suggestion that there was any non-consensual behaviour involved.
  24. On the other hand, Dr Harden opined that the November 2016 contravention of the current supervision order may be more concerning in some ways because it involved attempted contact with a stranger.  Although he accepted that one explanation of the events was an attempt to strike up a friendship or relationship, he cautioned that one cannot know for sure that the respondent’s motivation was not coercive sexual activity.
  25. Mr Smith’s report shows that he has been consulting with the respondent from 20 July 2017 until the present.  There were five treatment sessions between 20 July and 14 September 2017.  There were further sessions on 9 November 2017, 23 November 2017 and 7 December 2017.  All these sessions have occurred whilst the respondent is in prison.  The recent trend is encouraging.  Mr Smith describes the respondent as becoming increasingly settled and forward focussed and presenting as reasonable and motivated in his attitude towards complying with a future supervision order. 
  26. I do not ignore, however, that during more recent sessions the respondent must have been aware that the hearing of this application was approaching, and that the question of his continued non-compliance with the conditions of supervision orders was at the forefront of the questions to be considered.
  27. As to further engagement in a sexual offender treatment program, as recommended by Dr Harden, Mr Smith was of the view that more time was probably required before any commencement of a program.  In Mr Smith’s opinion, the respondent presents as a man who has had little control over his own life and health, who is highly reactive to situations where he has little power or control and easily falls into a mindset where he is powerless and a victim.
  28. Ms Woods engaged in treatment sessions with the respondent from 17 May 2016 until 13 December 2016 (the day on which he was returned to custody).  Her reports dated 3 August 2016, 21 October 2016 and 18 January 2017 deal with that period.  They are broadly consistent with the opinions expressed by Mr Smith and Drs Sundin and Harden.
  29. The respondent reported to Ms Woods that his sexual interest or sex drive has reduced significantly since he commenced some medications for his diabetes.  Her observation was that consistently with that he did not present as unduly sexually preoccupied, whilst noting historically he sought out sexual stimulus whilst he has been subject to the supervision order that could well reflect a degree of sexual preoccupation.
  30. Both Mr Smith and Ms Woods made detailed assessments of the factors that motivate the respondent and which may increase the relevant risks.  They identify the needs for a clear structured plan to progress on a supervision order in the community, the advantages of targeting small specific behaviours with beneficial consequences or rewards, the need for the respondent to have some involvement or control over whether or not he progresses, for example from a stage 1 to stage 2 curfew, and that the respondent’s feelings of disempowerment trigger his negative responses.

Conditions of the current supervision order

  1. It is difficult to avoid the suspicion that, to some extent, the respondent’s maladaptive responses to the supervision orders in the past have been affected by the regime imposed by the orders in his case.
  2. The High Risk Offender Management Unit of QCS which oversees the supervision and surveillance of persons released under supervision orders focuses on community protection and reducing the risk of reoffending.  It provides contingency accommodation at Wacol, inter alia, for persons released on supervision orders.  While some initial support is offered on a case-by-case basis, a person on a supervision order is expected to live independently and is responsible for reintegration activities in accordance with the conditions of the order.  QCS does not provide an intensive personal support program and does not include activities such as escorted leave.  All persons subject to a supervision order are expected to maintain their own activities in the community within the limits of their order conditions.
  3. In the case of the respondent, that has been a highly restrictive set of conditions and directions.  He has lived only at Wacol whilst on a supervision order.  He has never had a job and does not appear to have had prospects of getting one.  Although he had one longer on and off again consensual sexual relationship with one woman, he was not permitted to go to a hotel or motel with her for the night.  His curfew directions appear to have been extremely tight throughout.  He is subject to a monitoring direction in the form of wearing a monitoring device at all times.  He must notify all personal relationships entered into, disclose upon request the name of any person with whom he associates, submit and discuss a schedule of his planned and presupposed activities on a weekly basis or as otherwise directed, make complete disclosure of the terms of the supervision order and the nature of his past offences to any person nominated by QCS officers, seek written permission prior to joining or attending any club, organisation or group, always abstain from the consumption of alcohol, submit to any form of drug and alcohol testing, attend and submit to any assessment treatment program or course as directed, not access any pornographic images in any format, advise the details of any mobile telephone (and not use regularly more than one mobile telephone). There are many other restrictions contained in the 38 conditions of the current supervision order.
  4. In short, the regime is much more onerous than that imposed upon a prisoner serving a current term of imprisonment in the community on a parole order, for example.  It is not, and does not aspire to be, a system under which a person such as the respondent is provided with the means or opportunity to progress to a more normal existence.  It would be a mistake to think of it as rehabilitative in purpose.

Conclusions

  1. The question whether the respondent satisfies the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention of the existing order, be ensured by the existing order, as it may be amended, necessarily is a question of opinion informed by the circumstances, particularly the contravention in question, and having regard to the wider context of the purposes of the DPSOA and the operation of the relevant order.
  2. It should not be forgotten that in this case the respondent has been in custody for over a year since being returned to custody for the contravention in question.  If an order is made that the current supervision order be rescinded and a continuing detention order is made, the hearing for the first review of the continuing detention order would not be required to be completed for two more years.[26]
  3. Among the relevant factors, in my view, it is significant that despite his many contraventions of the current and previous supervision orders, the respondent has not committed a sexual offence or apparently engaged in any or any threatened non-consensual sexual activity since his first release in 2009.
  4. Second, in my view, it is significant that despite the respondent’s many contraventions of the current and prior supervision orders, the orders have operated in fact to significantly reduce the risk of the respondent committing any serious sexual offence. 
  5. Third, in my view, despite the respondent’s continued attitudes of disinformation and resistance to the operation of the current and previous supervision orders, the November 2016 contravention does not, by itself, significantly indicate that the risk of the respondent committing a serious sexual offence has increased.
  6. Fourth, in my view, the early 2016 contravention by failing to answer truthfully about the phone sex conversations with the woman in prison also does not, in my view, significantly indicate that the risk of the respondent committing a serious sexual offence has increased.
  7. Fifth, in my view, the many other alleged contraventions of the current supervision order do not significantly indicate an increased risk of him committing a serious sexual offence, in any direct sense.
  8. Last, in my view, it is not necessary to descend in any detail to earlier contraventions of the previous supervision order that antedate the current supervision order.
  9. In my view, the respondent has satisfied the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention on 12 November 2016 as found by Thomas J, be ensured by the existing order.
  10. I will hear the parties as to any further order or amendment of the existing supervision order.

Footnotes

[1] Attorney-General for the State of Queensland v Robinson [2017] QSC 107.

[2] R v Robinson; ex parte Attorney-General [1999] 1 Qd R 670.

[3] Attorney-General v Robinson [2006] QSC 328; Dangerous Prisoners (Sexual Offenders) Act (Qld), s 13(5)(a).

[4] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 30(3)(b).

[5] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 20.

[6] Attorney-General v Robinson [2010] QSC 261.

[7] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 43B.

[8] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 20.

[9] Attorney-General v Robinson [2012] QSC 154.

[10] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 43AA.

[11] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 20.

[12] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 21(2)(a).

[13] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 22(2).

[14] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 20.

[15] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 21(2)(a).

[16] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 43AA.

[17] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 43AA.

[18] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 22(2).

[19] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 22(2)(a).

[20] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 30(5).

[21] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 30(3)(b).

[22] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 43AA.

[23] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 20.

[24] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 21(2)(a).

[25] Dangerous Prisoners (Sexual Offenders) Act (Qld), s 22(3).

[26] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27(1A).

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Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Robinson

  • Shortened Case Name:

    Attorney-General v Robinson

  • MNC:

    [2017] QSC 332

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    22 Dec 2017

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 332 22 Dec 2017 -

Appeal Status

No Status