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Attorney-General v Gray

 

[2019] QSC 43

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General for the State of Queensland v Gray [2019] QSC 43

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

MAXWELL EDWARD GRAY

(respondent)

FILE NO/S:

No 7877 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 March 2019

Orders made on 12 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2019

JUDGE:

Davis J

ORDER:

THE COURT, being satisfied to the requisite standard that the respondent, Maxwell Edward Gray, has contravened a requirement of the supervision order made by Justice P. Lyons on 2 December 2010 as amended by Justice A. Lyons on 20 June 2016, ORDERS THAT:

  1. The respondent, Maxwell Edward Gray, be released from custody and continue to be subject to the supervision order made by Justice P. Lyons on 2 December 2010 as amended by Justice A. Lyons on 20 June 2016.

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) (the Act) – where it was alleged that the respondent had contravened a requirement of the supervision order respondent under Division 3 of Part 2 of the Act – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the respondent has been the subject of proceedings under Division 5 of Part 2 of the Act on six prior occasions – where the applicant sought orders with respect to the respondent under s 22 of the Act – 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 2, s 3, s 5, s 13, s 14, s 15, s 16, s 17, s 22

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

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

Attorney-General v Yeatman [2018] QSC 70, cited

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

Attorney-General for the State of Queensland v Gray [2016] QSC 141, related

Attorney-General for the State of Queensland v Gray [2017] QSC 260, related

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

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

J Benjamin for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid Queensland 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 an alleged breach by the respondent of a supervision order made by P. Lyons J on 2 December 2010 and amended by A. Lyons J on 20 June 2016 (the supervision order).
  2. [2]
    On 12 February 2019, I made orders releasing the respondent on these terms:

“THE COURT, being satisfied to the requisite standard that the respondent, Maxwell Edward Gray, has contravened a requirement of the supervision order made by Justice P. Lyons on 2 December 2010 as amended by Justice A. Lyons on 20 June 2016, ORDERS THAT:

  1. The respondent, Maxwell Edward Gray, be released from custody and continue to be subject to the supervision order made by Justice P. Lyons on 2 December 2010 as amended by Justice A. Lyons on 20 June 2016.”
  1. [3]
    After making those orders I stated 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).
  2. (2)
    A prisoner is a serious danger to the community as mentioned in  subsection (1) if there is an unacceptable risk that the prisoner commit a serious sexual offence—
    1. if the prisoner is released from custody; or
    2. if the prisoner is released from custody without a supervision order being made.
  3. (3)
                  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
    2. 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—
    1. (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;
    2. any other medical, psychiatric, psychological or other assessment relating to the prisoner;
    3. information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
    4. whether or not there is any pattern of offending behaviour on the part of the prisoner;
    5. efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
    6. whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
    7. the prisoner’s antecedents and criminal history;
    8. the risk that the prisoner will commit another serious sexual offence if released into the community;
    9. the need to protect members of the community from that risk;
    10. any other relevant matter.
  1. (5)
    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
    2. that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
  2. (6)
    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
    2. the court must consider whether –
      1. adequate protection of the community can be reasonably and practicably managed by a supervision order; and
      2. requirements under section 16 can be reasonably and  practicably managed by corrective services officers.
  3. (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];
  2. (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;
  3. (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]
  4. (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.[13]
  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.[14]
  2. [11]
    By s 22, once a contravention is proved, the Court shall rescind the supervision order and make a continuing detention order[15]unless the prisoner satisfies the Court that their continuation on supervision in the community will ensure the adequate protection of the community.[16]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.[17]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.[18]

Background to the present application

  1. [13]
    The respondent was born on 16 January 1962.  He has just recently turned 57 years of age.  He is of Pacific Islander descent.
  2. [14]
    The respondent has a criminal history dating back to the late 1970’s.  Of particular significance, he was convicted of rape in 1984.  The victim there was a 17 years old young woman.  In 1997, he was convicted of further offences of rape and was sentenced to a term of imprisonment of 14 years.  Those were the offences which ultimately attracted an order under the Act.
  3. [15]
    On 2 December 2010, P. Lyons J found that the respondent was a serious danger to the community if released without an order under Division 3 of Part 2 of The Act.  His Honour released the respondent on a supervision order which is to expire on 16 January 2021.
  4. [16]
    Since being released on supervision the respondent has breached the supervision order and been the subject of proceedings under Division 5 of Part 2[19]on six prior occasions.  This is his seventh breach.  The earlier breaches occurred in May 2011, May 2012, November 2013, May 2014, April 2015 and October 2017.  All the breaches apart from the one committed in April 2015 were breaches of condition (xxiii) of the supervision order which requires the respondent to abstain from the consumption of illicit drugs and alcohol.  The 2015 breach was a contravention of requirement (xiv) which requires the respondent not to commit any indictable offences. 
  5. [17]
    The 2015 breach involved the respondent using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). That offence arose from a domestic situation and the circumstances are fully described in the judgment of A. Lyons J in Attorney-General for the State of Queensland v Gray.[20]The entire breach history is described by her Honour in the later decision of Attorney-General for the State of Queensland v Gray.[21]
  6. [18]
    The result of each of the various breach proceedings was that the respondent was released back on the supervision order.  In one case the supervision order was amended.

The contravention

  1. [19]
    The respondent was arrested on a warrant issued pursuant to s 20 of the Act alleging that he had committed two indictable offences both on 4 November 2017 and essentially arising out of single series of events.  What was alleged against the respondent was one count of assault against s 339(1) of the Criminal Code and one count of unlawful possession of a weapon (category A, B or M) against s 50(1)(c)(iii) of the Weapons Act.  On 20 December 2017, the charge of assault was dismissed and on 18 January 2018 the respondent pleaded guilty to the unlawful possession of a weapon charge.
  2. [20]
    Originally, the application for orders under s 22 relied on the commission of both offences and a breach of condition (xxiii) (consumption of illicit drugs) but ultimately, the Attorney-General proceeded on a second amended application where the only contravention of the supervision order relied upon was the possession of a weapon.
  3. [21]
    The facts of the commission of the Weapons Act offence, which are admitted by the respondent arise from a response by police to a complaint by the respondent’s then partner, KS.  KS made a complaint of assault against the respondent.  Police then searched the residence and located a rifle on a bed.  The rifle was covered by some clothing.
  4. [22]
    The respondent explained to police that the firearm was an old rifle that had been owned by his grandfather.  The respondent accepted that the rifle had probably never been registered and he could not offer any explanation or excuse for possessing it.

The Psychiatrist’s evidence

  1. [23]
    The respondent has been the subject of psychiatric examination by various psychiatrists appointed to prepare risk assessment reports pursuant to The Act.[22]Dr Ken Arthur, consultant psychiatrist examined the respondent for the purposes of the present breach proceedings.[23]Dr Arthur’s current diagnoses are as follows:

“He fulfils the diagnosis for an Antisocial Personality Disorder.  There is insufficient evidence to support a diagnosis of a Paraphilia.  He also has an Alcohol and Cannabis Misuse Disorder, currently in remission in jail.  It is likely that he has experienced episodes of a Drug-Induced Psychosis in the past although I cannot wholly discount a low-grade psychotic illness.  It is possible that he has some form of cognitive impairment, although the aetiology of this is unclear.”[24]

  1. [24]
    As to risk, Dr Arthur opined in his report:

“Whilst prisoner Gray’s risk of sexual recidivism has reduced over the time of his supervision order, it remains in the moderate range.  I am satisfied that the current supervision order is sufficient to identify any return to substance use in a timely manner.  He remains in treatment with Dr Madsen[25] who is well placed to monitor his mental state for any signs of psychotic relapse.

It is my opinion that his risk of sexual recidivism if released from custody on his current supervision order would be reduced from moderate to low.”[26]

The parties’ submissions

  1. [25]
    It was submitted on behalf of the respondent that he should be released back into the community on a supervision order without further amendment.  There was no opposition to that course on behalf of the Attorney-General.

Disposition

  1. [26]
    The issue is whether the respondent has satisfied the Court that the adequate protection of the community can be ensured by the existing supervision order whether amended or otherwise.  What is relevant is a consideration of the protection of the community from the commission by the respondent of a serious sexual offence.  The Act does not seek to protect against general offending.  The propensity of the respondent to breach any supervision order, while relevant, is only relevant to his risk of committing a serious sexual offence.
  2. [27]
    Here, the respondent has not committed a serious sexual offence for over 20 years.  While for some of that time he has of course been in custody, he has also been in the community for lengthy periods.
  3. [28]
    While the supervision order has been breached by the respondent on numerous occasions, those breaches have not resulted in him committing a serious sexual offence.
  4. [29]
    There is no suggestion that the unlawful possession of the firearm which constitutes the present breach was motivated by any plan to commit a serious sexual offence.
  5. [30]
    Dr Arthur’s opinion is that the respondent’s risk if released on a supervision order is low.  I accept that evidence.

Conclusion

  1. [31]
    I find the breach proven.  I find that the respondent has proved that the adequate protection of the community can, despite the contravention, be ensured by the existing supervision order, as previously amended.
  2. [32]
    For those reasons, I ordered that the respondent be released back onto the supervision order.

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]  There is no subsection (5).

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

[15]  Section 22(2).

[16]  Section 22(7). 

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

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

[19]  Which contains ss 20 and 22 set out earlier.

[20]  [2016] QSC 141.

[21]  [2017] QSC 260.

[22]  Dr James Lawrence report 16 November 2009; Dr Donald Grant report 11 September 2010; Dr Scott Harden reports 26 November 2010 and 1 June 2016.

[23]  His report 18 November 2018, Exhibit “KA-2” to his affidavit CKI 194.

[24]  Paragraph 250 of Dr Arthur’s report.

[25]  A psychologist treating the respondent.

[26]  Paragraph 270-271 of Dr Arthur’s report. 

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Gray

  • Shortened Case Name:

    Attorney-General v Gray

  • MNC:

    [2019] QSC 43

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    01 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 43 01 Mar 2019 Determination of contravention of supervision order: Court satisfied that contravention occurred; pursuant to ss 22(2) and 22(7) of the Dangerous Prisoners (Sexual Offenders) Act 2003, respondent released from custody subject to the supervision order made by Justice P Lyons on 2 December 2010 as amended by Justice A Lyons on 20 June 2016: Davis J.

Appeal Status

No Status