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Attorney-General v Cooney

 

[2018] QSC 290

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General (Qld) v Cooney [2018] QSC 290

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

PETER RAYMOND COONEY

(respondent)

FILE NO:

No 6776 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

7 December 2018

Orders made 13 November 2018 

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2018

JUDGE:

Davis J

ORDER:

Orders made 13 November 2018:

THE COURT being satisfied to the requisite standard that the respondent, Peter Raymond Cooney, has contravened requirements 7, 38 and 40 of the supervision order made on 27 November 2017, ORDERS THAT, pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003:

  1. That requirement 38 of the supervision order made on 27 November 2017 be amended as follows:-

38.  obtain the prior written approval of a Corrective Services officer before accessing a computer or the internet or internet capable device;

  1. The respondent be released from custody and be subject to the supervision order made on 27 November 2017, 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 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 a requirement 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 22

Attorney-General for the State of Queensland v Cooney [2017] QSC 291, related

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:

J Tate for the applicant

C M A O’Connor for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant

Andersen Fredericks Turner Lawyers for the respondent

  1. [1]
    The Attorney-General sought orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) consequent upon a breach by the respondent of a supervision order made by Atkinson J on 27 November 2017 (the supervision order).
  2. [2]
    On 13 November 2018, I made orders releasing the respondent on these terms:

“THE COURT being satisfied to the requisite standard that the respondent, Peter Raymond Cooney, has contravened requirements 7, 38 and 40 of the supervision order made on 27 November 2017, ORDERS THAT, pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003:

  1. That requirement 38 of the supervision order made on 27 November 2017 be amended as follows:-
  1. obtain the prior written approval of a Corrective Services officer before accessing a computer or the internet or internet capable device;
  1. The respondent be released from custody and be subject to the supervision order made on 27 November 2017, as amended.”
  1. [3]
    After making those orders, I indicated that I would publish reasons at a later time.  Such a course does not offend s 17 of the Act.[1]

Statutory context

  1. [4]
    The Act provides for the continued detention or supervised release of “a particular class of prisoner”.[2] 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.[3] The prisoners the subject of the Act are those serving a term of imprisonment for a “serious sexual offence”[4] which is “an offence of a sexual nature … involving violence” or “an offence of a sexual nature … against a child”.[5]
  2. [5]
    Part 2 of the Act provides that the Attorney-General may apply to the Court for either a continuing detention order[6] or a supervision order.[7] 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. [6]
    A critical provision is s 13. Section 13 has significance to the present application as the provisions which deal with breaches of supervision orders[8] adopt terms and concepts included in s 13. The section is in these terms:

“13  Division 3 orders

  1. (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. (2)
    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. (a)
    if the prisoner is released from custody; or
  1. (b)
    if the prisoner is released from custody without a supervision order being made.
  1. (3)
    On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—
  1. (a)
    by acceptable, cogent evidence; and
  1. (b)
    to a high degree of probability;

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

  1. (4)
    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. (a)
    the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
  1. (b)
    any other medical, psychiatric, psychological or other assessment relating to the prisoner;
  1. (c)
    information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
  1. (d)
    whether or not there is any pattern of offending behaviour on the part of the prisoner;
  1. (e)
    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. (f)
    whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
  1. (g)
    the prisoner’s antecedents and criminal history;
  1. (h)
    the risk that the prisoner will commit another serious sexual offence if released into the community;
  1. (i)
    the need to protect members of the community from that risk;
  1. (j)
    any other relevant matter.
  1. (5)
    If the court is satisfied as required under subsection (1), the court may order—
  1. (a)
    that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
  1. (b)
    that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
  1. (6)
    In deciding whether to make an order under subsection (5)(a) or (b)—
  1. (a)
    the paramount consideration is to be the need to ensure adequate protection of the community; and
  1. (b)
    the court must consider whether—
  1. (i)
    adequate protection of the community can be reasonably and practicably managed by a supervision order; and
  1. (ii)
    requirements under section 16 can be reasonably and practicably managed by corrective services officers.
  1. (7)
    The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
  1. [7]
    Therefore:
  1. (i)
    the test under s 13 is whether the prisoner is “a serious danger to the community”[9];
  1. (ii)
    that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”[10] if no order is made;
  1. (iii)
    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;[11]
  1. (iv)
    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.[12]
  1. [8]
    Breach of a supervision order has consequences under Division 5 of Part 2 of the Act.  Section 20 provides, relevantly:

“20 Warrant for released prisoner suspected of contravening a supervision order or interim supervision order

  1. (1)
    This section applies if a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the released prisoner’s supervision order or interim supervision order.
  1. (2)
    The officer may, by a complaint to a magistrate, apply for a warrant for the arrest of the released prisoner directed to all police officers and corrective services officers to arrest the released prisoner and bring the released prisoner before the Supreme Court to be dealt with according to law.
  1. (3)
    The magistrate must issue the warrant, in the approved form, if the magistrate is satisfied the grounds for issuing the warrant exist.
  1. (4)
    However, the warrant may be issued only if the complaint is under oath.
  1. (6)
    The warrant may state the suspected contravention in general terms.…”
  1. [9]
    Section 22 provides:

22 Court may make further order

  1. (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. (2)
    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. (a)
    if the existing order is a supervision order, rescind it and make a continuing detention order; or
  1. (b)
    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. (3)
    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. (a)
    act on any evidence before it or that was before the court when the existing order was made;
  1. (b)
    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—
  1. (i)
    in the nature of a risk assessment order, subject to the restriction under section 8(2); or
  1. (ii)
    for the revision of a report about the released prisoner produced under section 8A;
  1. (c)
    consider any further report or revised report in the nature of a report of a type mentioned in section 8A.
  1. (4)
    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. (5)
    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. (6)
    For applying section 11 to the preparation of the report—
  1. (a)
    section 11(2) applies with the necessary changes; and
  1. (b)
    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. (7)
    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. (a)
    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. (b)
    may otherwise amend the existing order in a way the court considers appropriate—
  1. (i)
    to ensure adequate protection of the community; or
  1. (ii)
    for the prisoner’s rehabilitation or care or treatment.
  1. (8)
    The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”
  1. [10]
    Proceedings upon a contravention or likely contravention of a supervision order are commenced by the issue of a warrant under s 20.  In practice, the Attorney-General files an application seeking orders under s 22.[13]
  2. [11]
    By s 22, once a contravention is proved, the Court shall rescind the supervision order and make a continuing detention order[14] unless the prisoner satisfies the Court that their continuation on supervision in the community will ensure the adequate protection of the community.[15]   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.[16] 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. [12]
    The issue under s 22 of the Act is not whether there is an unacceptable risk that the respondent will breach the supervision order. The issue is whether there is an unacceptable risk that he will commit a serious sexual offence.[17]

Background to the present application

  1. [13]
    The respondent was born on 9 April 1978.  He is currently 40 years of age.
  2. [14]
    The respondent has a long criminal history dating back to 1996.  In December 1996, he was convicted in the Rockhampton Magistrates Court of wilful damage and arson.  He was placed on probation for three years and sentenced to six months’ imprisonment, wholly suspended for 12 months.  In December 1999, the respondent was convicted of a Commonwealth offence of using the postal service to menace, harass or cause offence and was placed on a recognizance to be of good behaviour for 12 months.  The respondent has been convicted of many offences of unlawful stalking.  His first conviction occurred in the Brisbane District Court on 16 May 2003.  That offence consisted of the respondent sending letters to a man to the effect that he, the respondent, had molested the man’s son and demanding that the man allow the respondent to molest his son again.  He was convicted and placed on probation for 3 years together with some community service.
  3. [15]
    Apart from a conviction in the Rockhampton Magistrates Court on 8 March 2010 under the Summary Offences Act 2005 (Qld) for trespass, the respondent had no further convictions until 25 May 2011.
  4. [16]
    In the Rockhampton Magistrates Court on 25 May 2011, the respondent was convicted of one charge of unlawful stalking, two charges of breach of bail and a Commonwealth offence of using a carriage service to menace, harass or cause offence.  Over the period of the offending, the respondent was being cared for by a male employee of a care and respite centre.  The respondent stalked the carer’s wife.  He was placed on probation in relation to the stalking and bail offences and placed on a recognizance in relation to the Commonwealth offence.
  5. [17]
    On 14 July 2011, the respondent was convicted of further offences including offences of stalking.  The complainants were the male carer and the carer’s wife.  The respondent spent some time in custody before being dealt with.  He was sentenced to various terms of imprisonment and a parole release date of 14 September 2011 was fixed.  Taking into account the time served, the respondent served a period of about 3 months imprisonment. 
  6. [18]
    On 22 November 2011, the respondent was again convicted of various offences including three charges of stalking.  The complainant on one of the charges was the male carer who had been the complainant in the earlier offences.  The second complainant was a man who the respondent had met in prison.  The respondent asserted that he had a sexual relationship with that man.  The third respondent was a former sexual partner of the man with whom the respondent asserted he had a sexual relationship.  The respondent was sentenced to a term of imprisonment of two years with a parole eligibility date of 22 March 2013.
  7. [19]
    On 2 March 2015, the respondent was convicted of “serious sexual offences”,[18] which led to the making of the supervision order by Atkinson J on 27 November 2017.[19]
  8. [20]
    Those offences were committed between April and July 2014.  There were several counts of indecent treatment of a child under 16 years, four counts of stalking and a Commonwealth offence of conducting a bomb hoax.  The count of conducting the bomb hoax was not a serious sexual offence.  The other offences were.  The stalking charges concerned the respondent sending text messages to a 14 year old male.  Those text messages contained sexual references.  Indecent photographs were electronically sent to the boy and that constituted the indecent treatment charges.  Although, no physical violence was involved, the offences were offences “of a sexual nature … against a child”.[20]  They were “serious sexual offences” as defined by the Act.  The respondent was sentenced to various terms of imprisonment and a parole eligibility date of 21 June 2015 was set by the sentencing Judge.
  9. [21]
    On 23 May 2015, the respondent was convicted of one count of attempted stealing and an offence against the Bail Act 1980.  Those offences occurred before the respondent was sentenced on 23 April 2015.  He was sentenced to wholly suspended terms of imprisonment.
  10. [22]
    On 27 February 2017, the respondent was sentenced to nine months’ imprisonment in the District Court at Brisbane for conducting a bomb hoax from prison.  On 13 April 2017, the suspended sentences imposed on 23 April 2015 were activated.
  11. [23]
    The Attorney-General made application for orders under the Act.  In imposing the supervision order, Atkinson J found that the respondent was a serious danger to the community in the absence of a s 13 order, but that adequate protection of the community could be ensured by releasing the respondent on a supervision order.[21] Relevantly here, the supervision order contains the following conditions:

“The respondent must:

1. …

  1. comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;

  1. obtain the prior written approval of a Corrective Services officer before accessing a computer or the internet;

  1. supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords;

…”

The contraventions

  1. [24]
    When the respondent was released on the supervision order, he took up residence at The Precinct at Wacol.  Upon induction at The Precinct he was given directions including that (in summary):
  1. (i)
    he must not access social media without prior approval; and
  2. (ii)
    he provide a list to Corrective Services of all devices controlled by him that have internet capability.
  1. [25]
    Investigations revealed that the respondent had accessed social media by use of some device and had contacted a young man in Devonport, Tasmania.  He had sent that young man sexually explicit messages.  The young man was not a child.  He was 19 years of age.  In the messages, the respondent told the young man that he, the respondent, had been in a relationship with another man who had a four year old daughter who the respondent planned to molest.
  2. [26]
    A warrant was issued under s 20 of the Act and the respondent was taken into custody.  He was charged with four offences against s 43AA of the Act alleging the current breaches of the supervision order.  The respondent pleaded guilty to those charges in the Richlands Magistrates Court on 14 August 2018.  He was sentenced to six months’ imprisonment on each charge with a parole release date fixed at 14 October 2018.
  3. [27]
    In the course of the current breach proceedings, the respondent was examined by psychiatrists, Dr Timmins and Dr Harden.  They were two of the three psychiatrists who gave evidence at the hearing before Atkinson J which resulted in the supervision order being made, the other being Dr Arthur.  For the present proceedings, Dr Timmins and Dr Harden produced risk assessment reports.

The psychiatric evidence

  1. [28]
    In a written report Dr Timmins confirmed the diagnoses recorded in her earlier report, namely:
  • Paedophilia (sexually attracted to males, non-exclusive type);
  • Personality Disorder, Not Otherwise Specified (dependant, borderline and anti-social traits);
  • Polysubstance Abuse (in sustained remission in a controlled environment); and
  • Likely borderline intellectual impairment.
  1. [29]
    On the question of risk Dr Timmins said:

“In summary, I am of the opinion that Mr Cooney’s risk of sexual reoffending is HIGH if released into the community without a supervision order in place.

He was released to community under a Supervision order in December 2017.

He has breached his supervision order very quickly after release with use of his mobile phone to access the Internet. He appears to have hidden the use of his mobile phone from Corrective services for the three months he was in the community. This behaviour has led to him breaching his Supervision order.

The community Supervision order did not effectively assist to control that particular issue.

Fortunately, before further sexual or violent offences were committed Mr Cooney was placed back in custody due to breaching his order. He also did not return to illicit substance or alcohol use.

If he does offend it is likely to be against a person with whom he has a relationship with [sic] but Mr Cooney perceives the relationship to be more than it actually is in reality. He will then perceive rejection and revert to revenge behaviours, involving acquaintances of the person by contacting them in a threatening manner. These contacts may or may not involve children.

Alternatively, he may engage in contact offending against young boys.

There is a risk of psychological coercion involved in the offending and the potential for Mr Cooney to inflict a high degree of harm to the victim, including physical harm.”[22]

And later:

“His risk may be modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003. He would most likely fall into a MODERATE to HIGH risk category.

If released back into the community at this time the order is likely to continue with the reduction of his risk to moderate to high and will serve to limit his offending behaviour but it is likely he will continue along the same pattern of behaviour and thus breach his order.”[23]

  1. [30]
    Dr Harden in his report opined as follows:

“At the time of assessment Peter COONEY was a 40-year-old man who had been convicted of an index cluster of sexual and other offences and then following release on a supervision order has breached that order by making online threats to sexually assault the four-year-old daughter of a man who he thought he was in a romantic relationship with. He has done this following the breakdown of the “relationship” and in the context of interpersonal conflict with the man.

This pattern of behaviour was consistent with his long-standing personality disorder and inability to tolerate perceived rejection that [sic] resorting to dysfunctional patterns of behaviour…

Significant psychosexual disturbance appears to be present, he describes adult homosexual orientation, but persistently makes threats of a paedophilic nature, has previously “confessed” to paedophilic offending that was unsubstantiated and has now touched a prepubertal male child. His sexual and emotional relationships have been characterised by their brevity and emotional tumult.

His consistent response over the years to feeling upset or slighted by others is to seek vengeance by means of stalking or other malevolent behaviour which has taken the form of making sexual threats to their children or directly to the victim. He escalated from this to touching an eight-year-old male on the genital area in a public toilet after following the child into the toilet.

Despite being subject to recurrent sanctions such as court appearances, community orders, incarceration and similar he has persisted in the stalking type behaviour and general harassment of others. There is a concerning pattern of escalation.

He has few strengths and has coped poorly with being on a supervision order in terms of cooperating with supervising authorities because of his generally deceptive behaviour with regard to his online presence resulting in the social media messages threatening to sexually assault a four-year-old girl.”[24]

  1. [31]
    Again, on the question of risk Dr Harden expressed this view:

“His ongoing unmodified risk of sexual re-offence in the community after considering all the available data is in my opinion still in the HIGH range compared to the recidivism rate of sexual offenders generally.

His greatest risk factors are his poor problem-solving with regard to interpersonal conflicts, dysfunctional interpersonal relationships and inability to manage associated emotion, antisocial attitudes towards others that allow him to persistently undertake harmful activities toward them and his pattern of grievance based thinking. It is unclear to what extent paedophilic attraction might also underpin some of this behaviour.

It is now my opinion that if he were to be placed on a supervision order in the community, in my opinion the risk of sexual recidivism would most likely be reduced to moderate have [sic] yet that his deliberate deception of supervising staff may reduce the effectiveness of the supervision order in reducing risk and the risk therefore of sexual recidivism might be somewhat higher than moderate.

Note that I previously suggested that he may struggle to be compliant with the strictures of a supervision order and this has proven to be the case.”[25]

  1. [32]
    Both doctors gave evidence and were cross-examined.  Dr Timmins noted that while the respondent was at The Precinct in Brisbane he was under the treatment of a psychologist, Dr Hatzipetrou, which was beneficial to him.  For various reasons which are unnecessary to detail, if the respondent is detained he will not have access to Dr Hatzipetrou.
  2. [33]
    Dr Timmins gave evidence:

“One of the proposals is that the supervision order as its currently in place be amended to have a new or a varied clause 38, which would read:

…obtain the prior written approval of a Corrective Services officer before assessing the internet or internet capable device. 

Would that go some way towards ameliorating the concerns that you’ve mentioned?I think it’s certainly a point where it can be effectively managed maybe a little bit better from Corrective Services point of view, yes.

Would you otherwise see the supervision order as providing the necessary trip wires to ensure the safety of the community?If you look for – at his contact sexual offences, then, yes, I think it is providing a barrier to him going into that and we’re able to catch him and to put him back into custody before he does that if that’s the case..”[26]

  1. [34]
    Dr Timmins thought that any stalking type offending (likely to lead to sexual offending against children) would follow the establishment of a relationship or at least, a perceived relationship.  In this respect, her evidence was:

“You indicated in your previous report – and you conveniently summarised it in your current report at page 5, line 182 – this observation, it is that Mr Cooney’s stalking behaviour was complex and involved a sexual element.  He met the criteria for a rejected stalker type.  His victims had a relationship with Mr Cooney which may have been sexual in nature such as with the carer in prison.  Reconciliation was his initial motivation as he attempted to re-establish the relationship.  Revenge becomes a secondary motivation when he does not get what he desires out of his attempts to re-establish the relationship.  His revenge behaviours do not involve actual violence but threats of violence.  He again uses various forms of communication to ensure the victim was aware of his anger and hostility.  So, Dr Timmins, as understand it, is it the case if Mr Cooney were to reoffend by way of this stalking type behaviour, you would expect a number of things to be present if that was going to occur that would include, firstly, that Mr Cooney would have a relationship with a person, likely an adult from what we’ve seen on the history.  Do you agree with that?Relationship or perceived relationship.”[27]

  1. [35]
    This is of some significance because the supervision order contains conditions designed to detect any relationship which the respondent might establish.  The current breaching behaviour was of course, detected and acted upon by those supervising the respondent.
  2. [36]
    Dr Harden, in his evidence said:

“You indicate without an order, the supervision order, that you consider his risk of future serious sexual offending as high, and with an order, it reduces to low – sorry, to medium.  In this case, we seem to have the ongoing behaviour of internet stalking, inappropriate messaging, but not at this point contact offences.  Do you see – how do you understand the risk of future contact offences in the presence of an order?   I think the risk of contact offences is less than the risk of, you know, the inappropriate and sexualised use of various kinds of stalking behaviours, including electronic.  So the contact offences – I mean, we really only had the one sort of contact offences and they looked to me to be impulsive and disinhibited in the context of intoxication. 

From your perspective, is the supervision order providing the necessary trip wires to protect the community from the contact offences?   Yes, with regard to the contact offences I believe it is.”[28]

The parties’ submissions

  1. [37]
    Ms O’Connor, who appeared for the respondent, submitted that the respondent had discharged the onus under s 22(7) of the Act and should be released back on the supervision order.  It is unnecessary to repeat Ms O’Connor’s detailed and careful submissions.  In essence, she submitted that the central object of the Act was the protection of the public against the commission of serious sexual offences.  The supervision order, even though being contravened, had operated to intercept the concerning behaviour of the respondent.  She accepted that the supervision order ought to be amended to extend the scope of condition 38. 
  2. [38]
    Mr Tate conceded, quite properly, that the respondent has discharged the onus upon him but condition 38 of the supervision order ought to be amended and its scope enlarged.

Disposition

  1. [39]
    The respondent requires ongoing treatment which is available at The Precinct.  The respondent is clearly a person who is a serious danger to the community in the absence of a division 3 order.  While the supervision order was breached by the respondent, and that has consequences under the Act, those breaches did not involve the commission of any serious sexual offence or for that matter, any sexual offence of any nature.  The supervision order performed its task in that, through the various controls imposed upon the respondent by it, Corrective Services identified the concerning behaviour and acted upon it.
  2. [40]
    Adequate protection of the community can be ensured other than by the continued detention of the respondent and in those circumstances his release on supervision ought to be preferred over his continued detention.
  3. [41]
    The amendment of condition 38 adds a little to the control by Corrective Services over the respondent.  As already observed, there was no opposition to the amendment to the supervision order. 
  4. [42]
    For those reasons, I ordered that notwithstanding the contravention of the supervision order the respondent ought to be released on supervision but with condition 38 of the supervision order amended.

Footnotes

[1]Attorney-General v Yeatman [2018] QSC 70 at [28]–[31].

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

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

[4]  Section 5(6).

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

[6]  Sections 13, 14 and 15.

[7]  Sections 13, 15 and 16.

[8]  Primarily see section 22.

[9]  Section 13(1).

[10]  Section 13(1) and (2).

[11]  Section 13(6).

[12]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.

[13]Attorney-General (Qld) v Sands [2016] QSC 225.

[14]  Section 22(2).

[15]  Section 22(7). 

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

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

[18]  Section 5(6).

[19]Attorney-General for the State of Queensland v Cooney [2017] QSC 291.

[20]  Section 2 and Schedule, definition of “serious sexual offence”.

[21]Attorney-General for the State of Queensland v Cooney [2017] QSC 291 at [1], [4].

[22]  Affidavit of Dr Evelyn Timmins, filed 24 October 2018, ex ET-2 at 38–9.

[23]  At 39.

[24]  Affidavit of Dr Scott Harden, filed 29 October 2018, ex SH-2 at 19-20.

[25]  At 21. 

[26]  Transcript of the hearing at 1-8.

[27]  At 1-11.

[28]  At 1-21.

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Editorial Notes

  • Published Case Name:

    Attorney-General v Cooney

  • Shortened Case Name:

    Attorney-General v Cooney

  • MNC:

    [2018] QSC 290

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    07 Dec 2018

Litigation History

No Litigation History

Appeal Status

No Status