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  • Unreported Judgment

Attorney-General v Kemp

 

[2018] QSC 26

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General for the State of Queensland v Kemp [2018] QSC 26

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
MICHAEL SHANE KEMP
(respondent)

FILE NO/S:

SC No 9502 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane – 12 February 2018

DELIVERED EX TEMPORE ON:


12 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2018

JUDGE:

Boddice J

ORDERS:

Delivered ex tempore 12 February 2018:

A supervision order for the period of 8 years is granted. Conditions as per draft as amended.

CATCHWORDS:

Criminal law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Dangerous sexual offender – Generally – where an application is made for a continuing supervision order pursuant to the Dangerous Prisoners (Sexual Offenders) Act – where the respondent was convicted of rape and attempted rape – where alcohol was a factor in the respondent’s offending – where the respondent had previously engaged in substance misuse – where the respondent possesses psychopathic personality traits – where the imposition of a supervision order renders the risk of sexual reoffending in the future no longer unacceptable – where supervision order conditions amended to avoid being unduly onerous

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 13(4), s 13(5)(b)

COUNSEL:

P Clohessy for the applicant

T G Zwoerner for the respondent

SOLICITORS

Crown Law for the applicant

Legal Aid Queensland for the respondent

  1. BODDICE J:  The Attorney General for the State of Queensland seeks orders pursuant to section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003, to have the respondent, Michael Shane Kemp, the subject of a continuing detention order for an indefinite term for care, treatment or control, or, alternatively, for an order that the respondent be released from custody, subject to a supervision order for a period of 10 years.
  2. The Attorney accepts that, based on the material placed before the Court, whilst the respondent represents a serious danger to the community in the absence of an order being made pursuant to the Act, such danger can be rendered no longer unacceptable by the imposition of an appropriate supervision order.
  3. The respondent does not contest that the evidence would support a finding that he represents a serious danger to the community in the absence of a supervision order.
  4. The respondent, however, submits that the evidence does not support a requirement for such a supervision order to be for longer than five years.  The respondent also submits there are conditions in the proposed draft supervision order which are unnecessary in order to address the risk presented by the respondent in respect of serious sexual offending in the future.
  5. The respondent was born on 6 May 1970.  He is presently 47 years of age.  He is indigenous.  He has a past criminal history.  On 14 March 2008, the respondent was convicted and sentenced to 10 years imprisonment for two counts of rape, both being declared serious violent offences, and six months for one count of indecent act in a public place.  The sentences were ordered to be served concurrently.  Allowing for some 14 days of pre-sentence custody declared as time served under those sentences, the respondent is due for release on 27 February 2018.  The respondent has a past, relevant criminal history, pre-dating those offences.  In 1987, the respondent was convicted of the offence of attempted rape.  He was sentenced to six years imprisonment.
  6. Those offences represent the only sexual offences on the respondent’s criminal history.  Accordingly, the respondent has committed serious sexual offences on two separate occasions, some 20 years apart.  The offence in 1987 was committed by the respondent when he was aged 16 years.  The victim was a 17 year old female.  She was knocked unconscious by the respondent who continued to assault her violently before dragging her into a yard in Rockhampton, where he sexually interfered with her whilst she was unconscious.  The victim suffered significant injuries, including a broken jaw, fractured cheekbones, a broken nose and missing teeth.  Significantly, for present purposes, the respondent was affected by alcohol at the time of that offence.
  7. The offences in 2008 occurred in the following circumstances.  The respondent forcibly removed the complainant from a motor vehicle.  She was forced to lie on a mattress which had been removed from that vehicle.  The respondent engaged in sexual intercourse with her, despite her protestations.  After that first act, the respondent forced the complainant, again, onto the mattress, and had sexual intercourse with her against her consent.
  8. The respondent was 32 years of age at the time of that offence.  The female complainant was 16 years of age.  She was known to the respondent.  It was noted at sentence that the respondent had not demonstrated any remorse for his conduct.  The convictions followed a trial by jury.
  9. The respondent comes from a large family.  It would seem that, throughout his childhood, the family moved on a number of occasions.  He had, as role models, an alcoholic father who engaged in violent behaviour with others, although not towards his mother.  The respondent’s mother was not a person who used alcohol.
  10. The respondent has a limited education.  He attended the Rockhampton Special School until grade 10.  He did not complete that level of schooling.  Thereafter, he had a varied employment history; little of that was by way of paid employment, but it did involve a variety of occupations.
  11. The respondent has a significant past history of substance abuse.  He has used alcohol extensively in the past, and alcohol was a factor in his prior offending.  He has reported to the psychiatrist that he also has used other illicit drugs from time to time, but not to any significant extent.  His relevant history is one of significant binge drinking of alcohol, and heavy cannabis use.
  12. The respondent reports having suffered a head injury at about the age of 8 or 9.  For a time, he was prescribed anti-epileptic medication.  He is hepatitis positive, as a consequence of his illicit drug use.  He has, in the past, been prescribed antidepressants.
  13. The respondent’s history in custody is one that generally has been of good behaviour.  He had a breach in 2016 in respect of a positive urine sample, as well as a number of incidents between 2009 and 2016, of either failing drug tests or having prohibited articles, and medical emergencies.  More recently, his behaviour has been very compliant with the requirements of that centre.  He has engaged in work, and his attitude is said to be reasonable.
  14. This is significant, having regard to his earlier time in custody, when he was noted to be a person who refused to follow a direction, engaged in fighting with others, and abused officers.  Indeed, he was, in 1990, convicted of escaping from legal custody.  The respondent has undertaken programs whilst in custody.
  15. That is also a recent development in the respondent’s history.  Earlier in his incarceration, the respondent was offered but refused placement in sexual offending programs.  In 2017, the respondent accepted a placement within the Getting Started preparatory program for sexual offending.  He completed that program with the report noting he demonstrated increasing insight into his sexual offending and accepted partial responsibility for his conduct.  The report also noted, however, that he continued to minimise events and showed limited empathy for his victim.
  16. The respondent did not proceed to complete a sexual offenders treatment program.  He continued to maintain his innocence.  He has, however, undertaking a number of vocational courses whilst in custody.
  17. The respondent has been the subject of psychiatric assessments by Dr McVie, Dr Beech and Dr Grant.  Dr McVie provided a report for the purposes of the commencement of this application.  Dr Beech and Dr Grant provided reports pursuant to orders made by this Court in relation to the hearing of this application.
  18. In Dr McVie’s opinion, the respondent did not suffer from a major mental illness.  He did evidence psychopathic personality traits.  He also met the diagnostic criteria for antisocial personality disorder.  He had an extensive history of substance abuse, and therefore met the criteria for substance use disorder.
  19. Dr McVie undertook a risk assessment using a number of risk assessment tools.  Dr McVie considered the respondent’s sexual violence was chronic, but not escalating, but noted there was the use of physical and possible psychological coercion in his conduct.  Denial remained a significant factor, as well as minimisation of his responsibility for his offending behaviour.
  20. In Dr McVie’s opinion, the respondent does have significant underlying psychopathic traits, but does not have a paraphilic disorder.  In her opinion, the respondent presents a significant risk of re-offending with general and sexual violence.
  21. Dr Grant interviewed the respondent on 16 November 2017.  Dr Grant opines that the respondent satisfies the diagnostic criteria for antisocial personality disorder with borderline psychopathic personality disorder, as well as past substance misuse disorder.  That substance disorder involved cannabis, alcohol and amphetamines.  In Dr Grant’s opinion, there was insufficient evidence to make a diagnosis of paraphilia.  Dr Grant noted that both victims were young females.  However, the first victim was older than the respondent was at the time of the offences.
  22. Dr Grant also applied risk assessment tools.  In Dr Grant’s opinion, the respondent presents a significant risk of reoffending in the future.  However, that risk could be reduced by a combination of treatment as well as the imposition of a supervision order.  Dr Grant noted the respondent has improved significantly in recent times in his performance whilst in custody.
  23. Dr Beech interviewed the respondent on 27 October 2017.  In his opinion the respondent has an anti-social personality disorder.
  24. Dr Beech also undertook risk assessments.  In his opinion, there had been a mellowing over time of the respondent’s risk of further sexual offences.  This had mellowed from high to now being moderate or below moderate.  Dr Beech noted, however, that if the respondent were to reoffend it would likely occur during a period of substance misuse and idleness.  The likely victim would be female with a sense of sexual entitlement coming to the fore.  In the event the respondent was rebuffed there was a risk the respondent would resort to violence or intimidating behaviour.  Dr Beech considered that risk could be reduced by the imposition of a supervision order.
  25. The regime established by the Act is intended to provide for the imposition of orders in relation to persons who are prisoners, having committed prior sexual offending, who are found by this Court to continue to be a serious danger to the community in the absence of such an order.  The Court may only make such a finding if the Court is satisfied by cogent, compelling and acceptable evidence that the respondent will, in the absence of such an order, commit a serious sexual offence in the future, namely, a sexual offence involving violence or one against children.  An unacceptable risk is a risk which would result in the likelihood of the commission of such an offence in the future.
  26. In determining whether the respondent represents a serious danger to the community, this Court must have regard to a number of factors set out in section 13(4) of the Act.  Those factors including the opinions of the psychiatrists, the respondent’s past history, including his criminal history, his participation in programs, his behaviour whilst in custody and the risks the respondent would commit another serious sexual offence if released into the community, including the need to protect members of the community from that risk and any other relevant matter.
  27. Having considered the material, I am satisfied the evidence placed before me is sufficiently cogent, compelling and acceptable to satisfy me that the respondent would, in the absence of an order under the Act, represent a serious danger to the community.  The respondent has committed two instances of sexual offending in the past, many years apart.  They have involved forcing sexual activities on young female complainants.  They have included levels of violence.  I am satisfied that if the respondent was not subject to an order under the Act there is an unacceptable risk the respondent would commit a serious sexual offence in the future.
  28. Notwithstanding that finding, I am satisfied on the evidence that there is no need for the respondent to be detained in custody in order to address that risk.  I am satisfied the risk can be rendered no longer unacceptable by the imposition of a supervision order.  The respondent has shown improvement in his attitude and his approach in more recent times.  He has now been in custody for a significant period of time.  The assessment of all of the psychiatrists is that the respondent’s ongoing risk can be rendered no longer unacceptable by the imposition of a supervision order.  I accept the opinions of those psychiatrists in relation to that matter.
  29. There are, however, two matters that require specific consideration.  First, the length of any supervision order.  The Attorney-General submits the order should be for a period of ten years, having regard to the risk presented by the respondent and, in particular, his current age.
  30. There is support for that position in the opinion expressed by Dr Beech who notes that the respondent’s position is chronic and is likely to remain a significant risk, at least, until the age of 55.  The respondent is currently 47 years of age.  Dr Grant does not share that concern.  Dr Grant considers an order of five years duration would be sufficient having regard to the factors referred to in Dr Grant’s report, including the respondent’s performance in more recent times.  Dr McVie, in her report, would seem to support that position.
  31. Having considered the material, I am satisfied there is a need for the order to be longer than five years.  Dr Beech makes pertinent points in relation to why that is the case.  However, there is no need for the order to be ten years.  Instead, I am satisfied the supervision order should be for a period of eight years.  Dr Beech provided compelling reasons why there is a concern to look at the age up to 55.  I propose therefore to make a supervision order of eight years duration.
  32. The second matter is the question of conditions.  There are a number of conditions in dispute.  The respondent accepts much of the order as proffered by the Attorney-General.  The respondent, however, submits condition 14 is unnecessary.
  33. Condition 14 provides that the respondent not reside at a place by way of short term accommodation, including overnight stays, without the permission of a Corrective Service’s Officer.  The respondent submits that condition is onerous and unnecessary having regard to the fact that he may wish to visit his tribal lands.
  34. I do accept that condition 14 in its present form is unduly onerous.  It allows the respondent to obtain the permission of the Corrective Services Officer.  It is entirely in accord with the structure of the supervision order that the respondent ought not to be allowed to stay in short term accommodation without a Corrective Services Officer first knowing of his intention to do so.  I am satisfied condition 14 ought to remain as it will provide a protection from the risks presented by the respondent.
  35. The respondent submits condition 21 ought not to be included in the order.  The Attorney-General accepts that is the case.  I am satisfied that condition 21 ought to be deleted.
  36. The respondent submits that condition 27, in its present form, is unduly onerous.  It provides that the respondent is not to visit premises licenced to supply or serve alcohol without the prior written permission of a Corrective Services Officer.  Both Dr Beech and Dr Grant express concerns in relation to condition in its present form.
  37. Whilst both Dr Beech and Dr Grant accept that alcohol intoxication was a significant factor in the respondent’s prior offending, they note that such a condition would significantly limit the respondent’s ability to attend premises even if he was not intending to drink alcohol thereby limiting his ability to reintegrate back into society with family and friends.  I accept there is substance to that submission.
  38. However, there is also substance in the Attorney-General’s submission that there is a need for Corrective Services Officers to have an ability to limit the respondent’s attendance on such premises having regard to his past use of alcohol and its relationship to his offending.  That concern can be met by rephrasing condition 27 to provide that the respondent is not to visit premises licenced to supply or serve alcohol if directed not to do so by a Corrective Services Officer.
  39. The respondent submits that condition 36 is also unduly onerous.  It provides that the respondent is to allow any other device, including a telephone or camera, to be randomly examined.  If applicable, account details and/or phone bills are to be provided upon the request of a Corrective Services Officer.
  40. I do not accept that condition is unduly restrictive.  It is consistent with the structure of the supervision order that the Corrective Services Officer have the ability to monitor and assess what the respondent has been doing.  It is a relevant matter in the ongoing risk for the Corrective Services to be able to do so.  That should include his use of devices.  I am satisfied it is appropriate for condition 36 to remain in the order.
  41. The remaining condition in dispute is condition 15.  It provides that the respondent is not to commit an indictable offence during the period of the order.  The respondent submits that is unduly onerous.  It ought, instead, to read that the respondent not commit an indictable offence involving sexual offending and/or violence.
  42. I do not accept that condition 15, in its present form, is unduly onerous.  The respondent presents a risk to the community, necessitating the imposition of a supervision order.  It is not at all unreasonable in those circumstances that a specific condition of that order be that he not commit an indictable offence during the period of the order.
  43. The Court, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to provision 3 of the Act orders that pursuant to section 13(5)(b) of the Act, upon release from custody the respondent be subject to the conditions set out in the amended supervision order until 27 February 2026.
  44. The amended supervision order will be to delete paragraph 21 and to amend paragraph 27 so that it reads:  not visit premises licenced to supply or serve alcohol if directed not to do so by a corrective services officer.
  45. Subject to those amendments, I make orders in terms of the draft which I initial and place with the papers.

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Kemp

  • Shortened Case Name:

    Attorney-General v Kemp

  • MNC:

    [2018] QSC 26

  • Court:

    QSC

  • Judge(s):

    Boddice J

  • Date:

    12 Feb 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 26 12 Feb 2018 -

Appeal Status

No Status