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Attorney-General v Hunter

 

[2018] QSC 108

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General (Qld) v Hunter [2018] QSC 108

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

BENJAMIN ANTHONY HUNTER

(respondent)

FILE NO/S:

No 9584 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

18 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2018

JUDGE:

Davis J

ORDER:

THE COURT, being satisfied to the requisite standard that the respondent, BENJAMIN ANTHONY HUNTER, has contravened a requirement of the supervision order made by Justice Douglas on 6 March 2017, ORDERS THAT:

1.  The respondent, BENJAMIN ANTHONY HUNTER, be released from custody and continue to be subject to the supervision order made by Justice Douglas on 6 March 2017, but amended as follows:

(a) The following conditions are added:

(35) except in the case of medical emergencies, nominate and attend only one general practitioner and consent to the release of information from that medical practitioner to both his treating psychiatrist and psychologist and a Corrective Services officer;

(36) notify a Corrective Services officer of his attending any general practitioner other than that notified in accordance with requirement (35) within two (2) business days of his having done so;

(37) attend only one psychiatrist as directed by a Corrective Services officer;

(38) except with prior written approval from a Corrective Services officer, not own, possess or regularly utilise more than one mobile phone;

(b) The following amendments are made to existing conditions:

(i) the word “as” is removed from requirement (14) so as to read:

(14) reside at a place within the State of Queensland approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;

(ii) requirement (24) is omitted entirely and replaced with:

(24) disclose to a Corrective Services officer the name of any medical practitioner he consults and disclose all prescriptions and over the counter he obtains;

(iii) requirement (25) is omitted entirely and replaced with:

(25) only take prescription drugs prescribed by, and at the dosage and frequency directed by, his nominated general practitioner or other specialist medical practitioner;

(iv) requirement (30) is omitted entirely and replaced with:

(30) obtain prior approval of a Corrective Services officer before accessing a computer or the internet;

2. The reports prepared by Dr Josephine Sundin and Dr Andrew Aboud for the purpose of this application be provided by Queensland Corrective Services to the respondent’s nominated general practitioner, his treating psychiatrist, and psychologist.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a supervision order was made with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where it was alleged that the respondent had contravened requirements of the supervision order – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the applicant sought orders with respect to the respondent under s 22 of the Act – where the contravention was admitted by the respondent – where the applicant had not committed any further serious sexual offences – whether the adequate protection of the community could, despite the contravention of the order, be ensured by the existing supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3, s 5, s 13, s 20, s 22

Drugs Misuse Act 1986 (Qld) s 9

Drugs Misuse Regulation 1987 (Qld) sch 1

Penalties and Sentences Act 1992 (Qld) s 161B

Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited

Attorney-General (Qld) v Fardon [2013] QCA 64, cited

Attorney-General v Francis [2007] 1 Qd R 396, cited

Attorney-General v Lawrence [2010] 1 Qd R 505, cited

Attorney-General (Qld) v Yeo [2008] QCA 115, cited

Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited

Kynuna v Attorney-General (Qld) [2016] QCA 172, cited

LAB v Attorney-General [2011] QCA 230, cited

Turnbull v Attorney-General (Qld) [2015] QCA 54, cited

COUNSEL:

B Mumford for the applicant

C Smith for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant

Legal Aid Qld for the respondent

  1. The Attorney-General sought orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) consequent upon breaches by the respondent of a supervision order made by Douglas J on 6 March 2017 (the supervision order).

Statutory context

  1. The Act provides for the continued detention or supervised release of “a particular class of prisoner”.[1]  The objects of the Act are twofold, namely the protection of the community and the control, care and treatment of certain prisoners to facilitate their rehabilitation.[2]  The prisoners the subject of the Act are those serving a term of imprisonment for a “serious sexual offence”[3] which is “an offence of a sexual nature … involving violence” or “an offence of a sexual nature … against a child”.[4]
  2. Part 2 of the Act provides that the Attorney-General may apply to the Court for either a continuing detention order[5] or a supervision order.[6]  A continuing detention order requires the detention in custody of the prisoner beyond the date of expiry of the sentence which they are then serving.  A supervision order provides for the release of the prisoner under supervision notwithstanding the expiry of the sentence.
  3. A critical provision is s 13.  Section 13 has significance to the present application as the provisions which deal with breaches of supervision orders[7] adopt terms and concepts included in s 13.  The section is in these terms:

“13  Division 3 orders

  1. This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).
  1. A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—
  1. if the prisoner is released from custody; or
  1. if the prisoner is released from custody without a supervision order being made.
  1. On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—
  1. by acceptable, cogent evidence; and
  1. to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.

  1. In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

(aa) any report produced under section 8A;

  1. the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
  1. any other medical, psychiatric, psychological or other assessment relating to the prisoner;
  1. information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
  1. whether or not there is any pattern of offending behaviour on the part of the prisoner;
  1. efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
  1. whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
  1. the prisoner’s antecedents and criminal history;
  1. the risk that the prisoner will commit another serious sexual offence if released into the community;
  1. the need to protect members of the community from that risk;
  1. any other relevant matter.
  1. If the court is satisfied as required under subsection (1), the court may order—
  1. that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
  1. that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
  1. In deciding whether to make an order under subsection (5)(a) or (b)—
  1. the paramount consideration is to be the need to ensure adequate protection of the community; and
  1. the court must consider whether—
  1. adequate protection of the community can be reasonably and practicably managed by a supervision order; and
  1. requirements under section 16 can be reasonably and practicably managed by corrective services officers.
  1. The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
  1. Therefore:
  1. the test under s 13 is whether the prisoner is “a serious danger to the community”[8];
  1. that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”[9] if no order is made;
  1. if that conclusion is reached, then a supervision order (as opposed to a continuing detention order) can only be made where the adequate protection of  the community can be ensured by the making of a supervision order;[10]
  1. where “adequate protection of the community” can be ensured by a supervision order, then the making of a supervision order ought to be preferred to the making of a continuing detention order.[11]
  1. Breaches of a supervision order have consequences under s 22 of the Act.  That provision is as follows:

22 Court may make further order

  1. The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).
  1. Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—
  1. if the existing order is a supervision order, rescind it and make a continuing detention order; or
  1. if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.
  1. For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—
  1. act on any evidence before it or that was before the court when the existing order was made;
  1. make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order—

(i)in the nature of a risk assessment order, subject to the restriction under section 8(2); or

(ii)for the revision of a report about the released prisoner produced under section 8A;

  1. consider any further report or revised report in the nature of a report of a type mentioned in section 8A.
  1. To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).
  1. If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.
  1. For applying section 11 to the preparation of the report—
  1. section 11(2) applies with the necessary changes; and
  1. section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.
  1. If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—
  1. must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and
  1. may otherwise amend the existing order in a way the court considers appropriate—

(i)to ensure adequate protection of the community; or

(ii)for the prisoner’s rehabilitation or care or treatment.

  1. The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”
  1. A hearing under s 22 of the Act is the result of a process begun by the issue of a warrant under s 20.  That provision provides for a magistrate to issue a warrant for the arrest of the prisoner where the magistrate is satisfied upon sworn complaint that a police office or Corrective Services officer “reasonably suspects [the] prisoner is likely to contravene, is contravening, or has contravened, a requirement of the … supervision order …”.[12]
  2. By s 22, once a contravention is proved, the Court shall rescind the supervision order and make a continuing detention order[13] unless the prisoner satisfies the Court that their continuation on supervision in the community will ensure the adequate protection of the community.[14]  It is well established that the concept of “the adequate protection of the community” in s 22(7) has the same meaning as it bears in s 13.[15]  Therefore, a prisoner facing an application under s 22 must prove that the supervision order will ensure adequate protection of the community by removing unacceptable risk that they will commit a serious sexual offence. 
  3. The issue under s 22 of the Act is not whether there is an unacceptable risk that the respondent will breach the supervision order in the future.  The issue is whether there is an unacceptable risk that he will commit a serious sexual offence.[16]

Factual background

  1. The respondent was born on 10 May 1989 at Mt Gambier in South Australia.
  2. In the period of 2004 to 2006, the respondent was dealt with on numerous occasions in the Children’s Court in South Australia.  Those offences were mainly offences of dishonesty and driving offences.
  3. However, in 2004, the respondent was placed on a good behaviour bond and probation by the Adelaide Youth Court for one count of false imprisonment and one count of indecent assault.  The young complainant was at a bus stop.  She dropped her mobile telephone, which was snatched by the respondent who ran off to a public toilet near the bus top.  The complainant pursued the respondent in order to retrieve the telephone.  The respondent placed the telephone in a cubicle obviously in order to lure the complainant inside that cubicle.  When the complainant entered the cubicle the respondent followed her inside and locked the door behind her thus trapping the complainant who fell to the floor.  The prosecution described what happened next as that the respondent:

“… sat on her legs, just above her knees, and restrained both of her hands with his left hand over both of her wrists, and with his other hand he then unzipped her jacket with his right hand, and put his hand under her T-shirt and under the bikini top bra that she was wearing and began to fondle her left breast.” 

After a struggle, the complainant escaped.

  1. The respondent spent three months in a youth detention centre before being placed on a good behaviour bond and probation.  At the time of the commission of those offences, the respondent was almost 15.
  2. In August 2007 and March 2008, the respondent, now an adult for the purposes of the criminal law of Queensland as it then stood, was convicted in the Magistrates Court at Rockhampton of offences against the Drugs Misuse Act 1986 (Qld).  Those convictions attracted fines.
  3. Then, in February 2008, the respondent committed a violent sexual attack upon a 65 year old hermaphrodite who was known to him.  The victim had undergone surgery and identified as female.  The victim suffered severe injuries, namely an intracerebral haemorrhage, spinal fractures at C6, C7 and T1, a fractured hyoid bone, a laceration above the right eye, a haematoma of the right pinna, bilateral periorbital haematomas, abrasions and contusions to the backs of the both elbows, the back of her left hand, her left hip and the front of her right knee, bruising to the face and neck, a full thickness laceration to her labia and abrasions to the vagina.  Medical opinion was to the effect that the fracture of the hyoid bone was caused by severe compression of the throat.
  4. The respondent was convicted on his plea of guilty of one count of doing grievous bodily harm with intent to do grievous bodily harm, one count of rape and one count of attempted rape (the index offences).  He was sentenced to an effective term of nine years’ imprisonment and a serious violent offence declaration[17] was made on each of the counts of rape and attempted rape.  The index offences formed the basis of the supervision order, which was made in 2017.  The respondent was released to a residential facility called “The Wacol Residential Precinct”.
  5. The conditions of the supervision order which are relevant to the present alleged contraventions are:

“The respondent must …

  1. comply with every reasonable direction of a correct services officer that is not directly inconsistent with a requirement of the order.

  1. not commit an indictable offence during the period of this order.

  1. abstain from the consumption of alcohol and illicit drugs for the duration of the order.

  1. notify a corrective services officer of any computer or other device connected to the internet that the respondent regularly uses or has used.”
  1. On 17 March 2017, the respondent received a written direction from a corrective services officer to the following effect:
  1. Requiring him to provide a list of all computers, telephones or other devices that have internet capability;
  1. Prohibiting the creation or accessing of any social media website or application without first obtaining approval from Corrective Services;
  1. That the rules of the Wacol Residential Precinct prohibit internet access.
  1. In August 2017, Corrective Services ascertained that the respondent had created and was using a Facebook account.  It became apparent that he was also accessing dating sights on the internet and had the use of both a second mobile phone and a laptop computer without prior notification.  That behaviour breached conditions 7 and 30 of the supervision order.
  2. On 14 September 2017, the respondent submitted to urinalysis testing, as he was required to do under condition 23 of the supervision order.  He disclosed on that occasion that he was prescribed Tramadol, Somac and Champix, all prescription medications.  However, the urinalysis returned a positive result for methylamphetamine (a dangerous drug[18]).  The respondent then admitted that he had been given methylamphetamine by a friend and took the drug by injecting it.  Possessing a dangerous drug is an indictable offence[19] and the commission of that offence constituted a breach of condition 9 of the Supervision Order.  The consumption of methylamphetamine constituted a breach of condition 22 of the supervision order.  The respondent has admitted the breaches.
  3. A warrant was issued pursuant to s 20 of the Act and the respondent was returned to custody on 21 September 2017.
  4. The breaches were admitted by the respondent and I find the breaches proved.

Psychiatric evidence

  1. Two psychiatrists examined the respondent, prepared reports and gave evidence before me; Dr Sundin and Dr Aboud.  Both doctors are registered to practice as specialist psychiatrists.  Both doctors have a good deal of experience in the field of forensic psychiatry and in particular with persons the subject of proceedings under the Act.  I accept that they have the necessary expertise to express the opinions which they have expressed.
  2. Dr Sundin examined the respondent in 2016, in the course of the proceedings which lead to the supervision order being made.  She also examined him in early 2018.  She diagnosed the respondent as suffering:
  1. Substance Use Disorder (cannabis, opiates, benzodiazepines, alcohol and amphetamines) currently in remission whilst incarcerated;
  1. Anti-Social Personality Disorder (elevated score but does not meet full criteria for psychopathy);
  1. Avoidant personality traits;
  1. Gender Dysphoria.
  1. Dr Sundin found no evidence that the respondent suffers from any paraphilia and, despite his assertions of suffering post-traumatic stress disorder, she found no evidence that he suffered from such a disorder.
  2. Dr Sundin in her report opined:

“[The respondent] has not been in the community long enough for his risk assessment to have modified.  He remains an unacceptable risk to the community in the absence of close supervision.  His risk of serious sexual violence escalates substantially with abuse of intoxicants.”

  1. Later:

“His pattern of breaches is entirely consistent with his personality disorder.  His proclivity to regress into abuse of licit and illicit substances has made community management even more difficult and I recommend that when he is next released into the community that an even tighter set of rules be imposed around prescription of medications for him.”

  1. And later:

“Tramadol is a drug of abuse for this man and should not be prescribed.  It is not indicated for the management of his lower back discomfort which has previously been successfully managed with non-pharmacological strategies.  Should pain management become an issue there are several non-addictive alternatives that could be prescribed.

I would recommend that [the respondent] be referred to a psychiatrist with expertise in addiction so that this clinician can work in concert with Dr Smith.[20]  General practitioners would be wise to abstain from prescribing any potentially addictive drug to this man without consultation with the supervising psychiatrist.”

  1. And later:

“Given the evident immaturity and anti-authoritarian attitudes demonstrated by (the respondent) he is likely to be a ‘frequent flyer’ through the system until he matures and gains greater insight.

On the positive side he has not reoffended and the supervision order is serving its purpose in protecting the community.

I therefore respectfully recommend to the Court that [the respondent] be returned to the community under the auspices of a supervision order with the modifications I have suggested.”

  1. Proposed amendments to the Supervision Order were drafted and were available at the hearing before me.  What was proposed was the addition of four further conditions, namely:

“(35) except in the case of medical emergencies, nominate and attend only one general practitioner and consent to the release of information from that medical practitioner to both his treating psychiatrist, psychologist and a corrective services officer.

  1. notify a corrective services officer of his attending any general practitioner other than that notified in accordance with requirement (35) within two (2) business days of his having done so.
  1. attend only one psychiatrist as directed by a corrective services officer.
  1. except with prior written approval from a corrective services officer not own, possess or regularly utilise more than one mobile telephone.”
  1. It was then proposed to delete the existing conditions 24, 25 and 30 and replace them with the following;

“(24) Disclose to a corrective services officer the name of any medical practitioner he consults and disclose all prescriptions and over the counter medications he obtains;

  1. Only take prescription drugs prescribed by, and at the dosage and frequency directed by, his nominated general practitioner or other specialist medical practitioner;
  1. Obtain prior approval of a corrective services officer before accessing a computer or the internet.”
  1. Dr Sundin supported the additions to, and amendment of, the supervision order.
  2. In her evidence, Dr Sundin explained that her reference to the respondent being a likely “frequent flyer” was that he was likely, because of his personality type, to breach orders.  However, risk of committing a serious sexual offence would be likely to elevate only where the breaches of the supervision order were of a particular type, primarily the ingestion of intoxicants.  She was concerned that the respondent may obtain access to inappropriate prescription medications by approaching general practitioners who were not aware of his history.  The additional conditions and the amendments to the Supervision Order are suitable, she opined, in order to tighten the supervision of the respondent and avoid access to intoxicants and the temptations of the internet.
  3. Ms Smith, who appeared for the respondent, cross-examined Dr Sundin on the necessity for the continued presence of condition 26 of the Supervision Order, which is in terms:

“(26) not visit premises licenced to supply or serve alcohol, without the prior written permission of a corrective services officer.” 

  1. Ms Smith’s point was that such a condition was superfluous because of the requirements of condition 18 of the Supervision Order.  That is in terms:

“(18) submit to and discuss with a corrective services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed.”

  1. Ms Smith put to Dr Sundin that any visit to licenced premises would have to be the subject of the planned activities submitted pursuant to condition 18.  Condition 26 may, Ms Smith suggested, restrict the respondent’s general social interaction at harmless venues such as licenced cafes (as opposed to nightclubs and taverns, for instance).  Dr Sundin preferred the condition to be maintained.
  2. Dr Aboud’s evidence largely accorded with Dr Sundin’s.
  3. In his interview with Dr Aboud, the respondent made various disclosures.  Of particular importance was:

“I came to see the supervision order as an obstacle.  I lost respect for the reasonable directions I was being given.”

  1. And later, the respondent made a disclosure about the prescribed drug Tramadol.  The respondent told Dr Aboud:

“I probably need to be more involved in rehabilitation programmes next time … something that will help me stay away from drugs.  I actually need to stay away from opiates altogether … I was using the Tramadol as another form of drug.  I’ll talk to Nick Smith and see what he thinks.  I need to be occupied, and have things in my life, so I’m not bored.  I found myself thinking about drugs a lot … and the opiate replacement was really about my mood, and that’s what I’ve used drugs for my whole life … to regulate my mood and calm me.”

  1. Dr Aboud diagnosed the respondent with Mixed Personality Disorder (with predominantly anti-social and borderline traits) and Polysubstance Dependence (prior daily cannabis, regular injected amphetamines and opiates, regular use of prescription sedatives, binge drinking of alcohol).  Dr Aboud raised the possibility of Gender Identity Disorder and the possibility of Sexual Sadism.  Dr Aboud thought the respondent did not suffer a psychotic disorder or a mood disorder.  In his report Dr Aboud opined that at the time of the respondent’s arrest on 21 September 2017 his risk of sexually reoffending was clearly escalating.  However, he thought that the risk of reoffending would again be reduced to low to moderate if he were released on a supervision order.
  2. Dr Aboud opined in his report:

“A final and important matter, for the attention of both his supervising case manager and treating psychologist, is the need to reframe the supervision order in [the respondent’s] perspective from ‘an obstacle’ to ‘a support’.  In doing this he would be more likely to respect the decisions he is given, and be able to manage his emotional reactions more appropriately, and without resorting to sarcasm, talking back or verbal aggression.”

  1. Dr Aboud in his evidence supported tighter restrictions upon the respondent generally, and in particular restrictions designed to supervise his access to prescription drugs.  Dr Aboud agreed with the proposed additions and amendments to the supervision order.
  2. Ms Smith cross-examined Dr Aboud as to the desirability of removing condition 26 and Dr Aboud was firmly of the view that condition 26 ought to remain.  Dr Aboud’s view on condition 26 was (quite rightly) that the condition was not an absolute prohibition upon the respondent attending licenced premises.  The condition operates so that the respondent’s presence at licenced premises can only be with the prior consent of Corrective Services.  Dr Aboud’s point is that the rehabilitation of the respondent largely depends upon him learning to interact with those supervising him.  Dr Aboud saw condition 26 as a condition requiring the respondent to interact with Corrective Services in order to obtain consent to attend licenced premises.  He sees this as an advisable requirement.
  3. In the end, both doctors recommended the release of the respondent on the Supervision Order as proposed to be amended.

Counsel’s submissions

  1. Mr Mumford, who appeared for the Attorney-General, put his position that the Court should rescind the Supervision Order and order the continued detention in custody of the respondent, or alternatively order his release under the Supervision Order as amended.  Mr Mumford fairly acknowledged the evidence of the psychiatrists that the respondent could be managed in the community with a supervision order.  Mr Mumford drew attention to the danger of an escalated risk of sexual reoffending if the respondent resorted to substance abuse.  In the end, Mr Mumford’s position was that the onus was upon the respondent to prove that his release back into the community on a Supervision Order provided adequate protection for the community.  That submission was legally correct.
  2. Ms Smith pressed for the release of the respondent on a Supervision Order.  She took no issue with the proposed amendment to condition 24 provided there was provision for medical emergency or unforeseen circumstances.  That is built into the proposed condition.  Ms Smith submitted that proposed condition 25 was unnecessary given that condition 24 would mean that only one doctor would be available to prescribe medication.  For the reasons she put to the two doctors, Ms Smith submitted that condition 26 ought to be removed from the supervision order.  She made no submissions about the other proposed amendments to the supervision order.

Discussion

  1. I have previously recorded that I find the breaches proved.  Consequently, the onus falls upon the respondent to satisfy 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 a supervision order as amended.[21]
  2. Here, there has clearly been difficulties in having the respondent comply with all the terms of the supervision order.  However, he has not reoffended by committing a sexual offence.  As earlier observed the “adequate protection of the community” is protection from the commission of a serious sexual offence.  The fact that the respondent may even be likely to commit breaches of the order in the future is not directly to the point.
  3. Both experienced psychiatrists opine that the respondent can be managed in the community upon the existing supervision order with the proposed additions and amendments.
  4. I accept that evidence.  I find that the respondent has discharged the onus upon him under s 22 of the Act. 
  5. I also accept the evidence of the doctors that the elimination of substance abuse by the respondent is key to the protection of the community.  This is done by the addition of proposed conditions 35, 36, 37 and the redrafted conditions 24 and 25.  It is also appropriate to tighten the conditions of the order preventing access to the internet.  This can be done by adding proposed condition 38 and amending condition 30 as proposed.
  6. Condition 26 of the Supervision Order ought remain.  I accept Dr Aboud’s evidence that conditions, such as 26, which require interaction between the respondent and Corrective Services officers are desirable.
  7. There is a typographical error in condition 14 and that ought to be corrected.
  8. The reports of Dr Sundin and Dr Aboud should be provided to thos treating him.

Orders

  1. THE COURT, being satisfied to the requisite standard that the respondent Benjamin Anthony Hunter has contravened a requirement of the supervision order made by Justice Douglas on 6 March 2017, ORDERS THAT:
    1. The respondent, BENJAMIN ANTHONY HUNTER, be released from custody and continue to be subject to the supervision order made by Justice Douglas on 6 March 2017, but amended as follows:
      1. The following conditions are added:
  1. except in the case of medical emergencies, nominate and attend only one general practitioner and consent to the release of information from that medical practitioner to both his treating psychiatrist and psychologist and a Corrective Services officer;
  1. notify a Corrective Services officer of his attending any general practitioner other than that notified in accordance with requirement (35) within two (2) business days of his having done so;
  1. attend only one psychiatrist as directed by a Corrective Services officer;
  1. except with prior written approval from a Corrective Services officer, not own, possess or regularly utilise more than one mobile phone;
  1. The following amendments are made to existing conditions:
  1. the word “as” is removed from requirement (14) so as to read:
  1. reside at a place within the State of Queensland approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
  1. requirement (24) is omitted entirely and replaced with:
  1. disclose to a Corrective Services officer the name of any medical practitioner he consults and disclose all prescriptions and over the counter medication he obtains;
  1. requirement (25) is omitted entirely and replaced with:
  1. only take prescription drugs prescribed by, and at the dosage and frequency directed by, his nominated general practitioner or other specialist medical practitioner;
  1. requirement (30) is omitted entirely and replaced with:
  1. obtain prior approval of a Corrective Services officer before accessing a computer or the internet;
  1. The reports prepared by Dr Josephine Sundin and Dr Andrew Aboud for the purpose of this application be provided by Queensland Corrective Services to the respondent’s nominated general practitioner, his treating psychiatrist, and psychologist.

Footnotes

[1] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3.

[2]  Section 3 and see generally Fardon v Attorney-General (Qld) (2004) 223 CLR 575.

[3]  Section 5(6).

[4]  Sections 2 and the Schedule (Dictionary).

[5]  Sections 13, 14 and 15.

[6]  Sections 13, 15 and 16.

[7]  Primarily see section 22.

[8]  Section 13(1).

[9]  Section 13(1) and (2).

[10]  Section 13(6).

[11] Attorney-General v Francis [2007] 1 Qd R 396 at [39]; Attorney-General (Qld) v Yeo [2008] QCA 115; Attorney-General v Lawrence [2010] 1 Qd R 505; LAB v Attorney-General [2011] QCA 230; Attorney-General for the State of Queensland v Ellis [2012] QCA 182; Attorney-General (Qld) v Fardon [2013] QCA 64.

[12]  Section 20(1).

[13]  Section 22(2).

[14]  Section 22(7).

[15] Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]; see also Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36].

[16] Attorney-General (Qld) v Francis [2012] QSC 275 at [64]-[67].

[17]  Pursuant to Penalties and Sentences Act 1992 (Qld) s 161B.

[18] Drugs Misuse Regulation 1987 (Qld) sch 1.

[19] Drugs Misuse Act 1986 (Qld) s 9.

[20]  A psychologist treating the respondent.

[21]  Section 22(7).

Close

Editorial Notes

  • Published Case Name:

    Attorney-General (Qld) v Hunter

  • Shortened Case Name:

    Attorney-General v Hunter

  • MNC:

    [2018] QSC 108

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    18 May 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 108 18 May 2018 The respondent, having contravened a requirement of the supervision order previously ordered under the Dangerous Prisoners (Sexual Offenders) Act 2003, ordered to be released from custody and continue to be subject to the supervision order (as amended): Davis J.

Appeal Status

No Status