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Attorney-General v Holroyd

 

[2019] QSC 39

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General for the State of Queensland v Holroyd [2019] QSC 39

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

JEFFREY CHARLES HOLROYD

(respondent)

FILE NO/S:

No 10567 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 March 2019

Orders made 19 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2019

JUDGE:

Davis J

ORDER:

  1. The respondent be released from custody and continue to be subject to the order made by Flanagan J on 20 February 2017, with the following amendment:
  1. amend order (2) by omitting the words “22 February 2022” currently in the supervision order and inserting the following underlined words to read:

“(2) The respondent be subject to the following conditions until 19 February 2024

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 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 applicant sought orders with respect to the respondent under s 22 of the Act – where the applicant conceded that the adequate protection of the community could be ensured by releasing the respondent back into the community on a supervision order  under Division 3 of Part 2 of the Act – where the contravention was admitted by the respondent – 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, s14, s 15, s 16, s 22

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

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

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

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

Attorney-General (Qld) v KAH [2019] QSC 36, 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:

M Maloney for the applicant

K Prskalo for the respondent

SOLICITORS:

G R Cooper, 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 Flanagan J on 20 February 2017 (the supervision order).
  2. [2]
    On 19 February 2019, I made orders releasing the respondent on these terms:

“THE COURT, being satisfied to the requisite standard that the respondent, Jeffrey Charles Holroyd, has contravened the order of Flanagan J dated 20 February 2017, ORDERS THAT:

  1. The respondent be released from custody and continue to be subject to the order made by Flanagan J on 20 February 2017, with the following amendment:
    1. amend order (2) by omitting the words “22 February 2022” currently in the supervision order and inserting the following underlined words to read:

‘(2) The respondent be subject to the following conditions until 19 February 2024.’”

  1. [3]
    After making those orders I indicated that I would publish reasons at a later time.  Section 17 of the Act is not offended by such a course.[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 offence sin 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]
  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:

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 is an Indigenous man who was born on 14 March 1975.
  2. [14]
    The respondent had a compromised childhood and two alcoholic and violent parents.[19]He lived in the community of Pormpuraaw in North Queensland on the coast of the Gulf of Carpentaria.
  3. [15]
    The respondent has a significant criminal history including offences of extreme violence.  In 2001, he was sentenced to a period of three and half years imprisonment after stabbing his uncle and he has served short periods of imprisonment for offences of violence committed while intoxicated.[20]  
  4. [16]
    On 31 January 2012, the respondent was convicted in the District Court at Cairns of rape[21]and common assault.[22]He was sentenced to an effective head sentence of six years imprisonment.[23]These offences (the index offences) were “serious sexual offences” which ultimately resulted in orders being made against him under the Act.  The respondent, while intoxicated, detained and then raped his former girlfriend by penetrating her with both his fingers and penis in her anus and vagina.[24]
  5. [17]
    While in prison, the respondent completed the sexual offenders’ program for Indigenous males and was then released on the supervision order.
  6. [18]
    On 25 September 2017, the respondent was arrested on a warrant issued pursuant to s 20 of the Act.  He was found to have breached condition five of the supervision order (comply with a curfew direction), condition seven (comply with every reasonable direction of a Corrective Services Officer), condition 22 (not visit public parks without the prior written approval of a Corrective Services Officer) and condition 24 (not to consume alcohol).
  7. [19]
    The consumption of alcohol was clearly a contributing factor in the 2017 contraventions.
  8. [20]
    On 11 June 2018, Atkinson J ordered the release of the respondent back into the community on the supervision order.
  9. [21]
    The current contraventions occurred on 10 and 11 October 2018.  The particulars attached to the application are:

“SUPERVISION ORDER REQUIREMENTS ALLEGED TO HAVE BEEN CONTRAVENED

  1. (5)
    comply with curfew direction or monitoring directions;
  1. (24)
    abstain from the consumption of alcohol and illicit drugs for the duration of this order

FACTUAL BASIS OF CONTRAVENTION

The respondent is subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 made by Justice Flanagan on 20 November 2017.

The supervision order contains requirements (5) and (24) which require the respondent to comply with a curfew direction or monitoring directions and to abstain from the consumption of alcohol and illicit drugs for the duration of the supervision order respectively.

At approximately 8.40pm on 10 October 2018, QCS officers conducted a home visit at the respondent’s residential address.  At approximately 8.42pm and 9.02pm, Queensland Corrective Services (QCS) officers directed the respondent to provide samples of his breath and performed breath tests on the respondent, which returned readings of blood alcohol concentration (BAC) of 0.103 and 0.074 respectively.  The respondent made no disclosures to the QCS officers of his alcohol use.

Further, at approximately 10.16pm and 10.36pm on 10 October 2018, QCS officers further directed the respondent to provide samples of his breath and performed breath tests on the respondent, which returned readings of BAC of 0.179 and 0.205 respectively.  The respondent made no admission to the QCS officers of his alcohol use. 

Subsequently on 10 October 2018 and as a result of the outcomes of the breath tests conducted, the respondent was verbally directed and placed on a 24 hour curfew.

On 11 October 2018, at approximately 2.28am, the QCS Central Monitoring Station (CMS) was alerted that the respondent had left his residential address, where the respondent was required to be present, pursuant to the 24 hour curfew direction.

On 11 October 2018 and subsequent to the above alert received:-

  1. (a)
    CMS unsuccessfully attempted to contact the respondent by phone;
  1. (b)
    At approximately 2.38am, QCS escalated the matter to Queensland Police Service (QPS); and
  1. (c)
    At approximately 4.46am, QCS received a notification from QPS that the respondent was located and taken into police custody.”

The Psychiatrists’ evidence

  1. [22]
    Dr Harden in his report provided the following diagnoses:

“In my opinion he meets criteria for Alcohol Abuse and Dependence in Remission Because Of Incarceration.

It is still my opinion that he has a Personality Disorder Not Otherwise Specified with antisocial features.

I do not think there is evidence that he has a paraphilia.”[25]

  1. [23]
    As to risk assessment Dr Harden opined:

“The actuarial and structured professional judgment measures I administered would suggest that his future risk of sexual reoffence is Moderate to High.

My assessment of this risk is based on the combined clinical and actuarial assessment.  This assessment takes into account all information made available to myself.

The critical issues in this man are substance intoxication (particularly alcohol), his poor problem-solving, negative emotional reactions, failure to cooperate with supervision and lack of stable accommodation and pro-social networks.

His risk would still be decreased significantly by guaranteeing abstinence from alcohol use.  I am most concerned about alcohol use, although he should abstain from all intoxicating substances.

I do not believe that and other episodes of alcohol intoxication represent an increased longer term risk of recidivism.  The supervision order appears to have played an appropriate role in intervening at a time of acutely increased risk associated with alcohol intoxication and emotional distress.

In my opinion a supervision order would still reduce his risk of sexual reoffending in the community to moderate to low.”[26]

  1. [24]
    Dr Harden’s recommendation were:

“If he is released on a supervision order I recommend that the current conditions be maintained.

I recommend that he continue to have individual psychological treatment focusing on his sexual offending and substance misuse

I recommend that he continue to be required to be abstinent from alcohol and drug use and undergo an appropriate random testing regime if he is on a supervision order.

I do wonder whether a trial of medications that are sometimes used to decease craving for alcohol such as naltrexone or acamprosate might be a useful consideration in this man’s long-term management.  I also wonder whether an attempt at attendance at Alcoholics Anonymous might be useful for this man.

He should have support in obtaining further training or employment.”[27]

  1. [25]
    Dr Moyle diagnosed an Antisocial Personality Disorder and an Alcohol Use Disorder.[28]As to risk, Dr Moyle said:

“122. The risk is moderately high that he will seriously injure a woman in a variety of ways including wounding (although this seems to be against men primarily).  I think the risk will continue for the foreseeable future.  I would normally be looking for a 10 year order as I see little likelihood that he will rapidly develop a trusting relationship and follow a prosocial development plan, maintaining a supportive and non-offending peer network, with connections with the Aboriginal Men’s Groups, and an emotionally useful connection with his therapist who may nonetheless try and help him cope with just the appointments and supervision, and then move on slowly to exploring sexual and violent impulses and give treatment if needed.  There is no mental illness.  There is no intellectual disability.  There is no dementia.  Therefore, there is no reason why he couldn’t learn other than his entrenched drive to antisocial acting out behaviour and avoidant drinking if upset.  The higher the PCL the slower the less well are the lessons learned.  It is possible with age he will mellow and we may have seen that start in jail.  He will need to be monitored closely as he will try to con and manipulate supervisors and urine and breath testing is essential for drugs and alcohol.”[29]

  1. [26]
    And specifically on the risk of commission of a sexually violent offence:

“125. In answer to the questions it is my opinion that the risk of sexually violent offending against an available women is moderately high without a supervision order and higher if he consumes alcohol while feeling let down angry or dejected especially by a woman with whom he wishes a loving relationship.  A supervision order with tight restrictions on his drinking and meeting with intoxicated women (his abandoning mother was alcohol dependant and violently antisocial before her untimely death).  With an emphasis on supporting him away from the peers he so enjoys being around and his victims with the help of local aboriginal men he may start to befriend those who do not use alcohol and find other activities to enjoy and alternatives to self-interest directing his impulsive  behaviours overriding the rights of others.  While he settles slowly adjusting to life away from the precinct with positive and achievable reintegration plan he may learn to not fear the move away from a caring environment.  He has lead a largely dysfunctional life so it may take some time for him to find a good life he wishes to live.  An experienced clinical psychologist with Drug and alcohol program assistance will be helpful.  He needs close monitoring to stay away from locations where intoxicated women are likely to gather.  I think that the likelihood if neighbour are drinking increases that he will drink.  The supervisors were alert to this so I think the risk is no higher than the last release on a supervision order.  It would of course help if he felt there was an need for help to live a prosocial sober life rather than see authorities as simply depriving him of valued activities he enjoys.”[30]

  1. [27]
    As to the orders which should be made Dr Moyle said:

“126. The reasons he is under the act remain in my opinion that he has a serious disorder of personality function where he doesn’t comprehend the rights of others and will express his violent urges or sexual urges at times without considering the wishes of others using power to override their resistant or threats given his reputation for violence in Far North Queensland.  I think a 5 year               order will be the minimum required as change tends to be slow with uncommitted violent men who have some psychopathic traits than those who can be reflective and question their motives.”[31]

  1. [28]
    And later:

“127. My only caveats is that I don’t have direct evidence of the nature of the offences at the time of the sexual offence, the nature of the violence.  I’m relying on the information supplied.  Similarly I don’t have the report from the psychologist seeing him at the time be breached.  My opinions may change should there be signs of a more positive commitment, better living arrangements, better support network, and willingness on his part to cooperate, living a prosocial lifestyle under the care of his accommodation and relationship with his therapist.  The more we can set up the structure around him with the Aboriginal elders and counsellors, his psychologist, the better the outlook, and it should improve once he gradually gets another lady and forms a stable relationship.”[32]

  1. [29]
    The reference by Dr Moyle to “a 5 year order will be the minimum required …” has been taken by both parties, correctly I think, as recommending that the respondent be released on a supervision order with a duration of five years from the time of release.  The duration of the supervision order was five years from 20 February 2017 so Dr Moyle is effectively recommending a two year extension to the duration of the supervision order.
  2. [30]
    The applicant referred Dr Moyle’s report to Dr Harden who responded as follows:

“I have now read the report of Dr Moyle and re-read my report.

This is a man who has a very long history of alcohol use and violent behaviour towards others as an adult.  He is now in his 40s but continues to contravene with alcohol.  He has committed only one known sexual offence in 2012 against an ex-partner while intoxicated.  He has now been out on the supervision order approximately two years and during this time he had 2 contraventions for alcohol use.  Alcohol use has been substantial on both occasions.

Alcohol intoxication is his single strongest risk factor with regard to sexual offending recidivism.

He has three years remaining on his current supervision order.

It is a finely balanced question, but after consideration I think that I would have a slight preference for an additional period of supervision to make the total period of supervision yet to be had five years.  My reasoning for this is that it would require a minimum of two or three years of highly compliant, alcohol free, prosocial behaviour to integrate him into the community and reduce his risk of alcohol abuse and further sexual offence recidivism.  Three years is possibly a long enough period for this to occur but five years would give me more confidence.

If he continues to contravene by consuming alcohol then he may require even more time on supervision for the same effect.”[33]

  1. [31]
    Neither doctor was called for cross-examination. 

The respective positions of the parties.

  1. [32]
    Ms Maloney who appeared for the applicant conceded that the adequate protection of the community could be ensured by releasing the respondent back into the community on a supervision order.  Given the psychiatrists’ evidence, that concession was sensibly and properly made.  However, she submitted that the supervision order ought to be amended to extend the period of supervision to 19 February 2024.
  2. [33]
    Ms Prskalo for the respondent admitted the contravention.  Again, that concession was sensibly and properly made.  She submitted that the respondent ought to be released back into the community on the supervision order without any amendment, that is, without any extension of the period of supervision.  In support of that stance, Ms Prskalo relied on the principle that “the liberty of the subject be constrained to no greater extent than is warranted by the statute which authorise such constraint.”[34]Ms Prskalo then submitted that the evidence of Dr Moyle and Dr Harden as to the need to extend the period of supervision was ambiguous at best and did not support the making of such an order.

Disposition

  1. [34]
    Section 13(5) provides that the Court may order the prisoner “be released from custody subject to the requirements it considers appropriate.”  By s 13A the Court must determine the duration of the supervision order.  The primary concern of the Court at that point is to make an order which ensures “the adequate protection of the community” which, in the context of the Act means protection from the commission of a serious sexual offence.  When making a supervision order, the Court must then predict the point in time when the prisoner will cease to be an unacceptable risk of committing a serious sexual offence unless on a supervision order.[35]
  2. [35]
    Section 22(7) authorises the Court to “amend the existing order in a way the Court considers appropriate … [relevantly here] … to ensure adequate protection of the community.”  Section 22(7) contemplates the amendment of the order so as “to ensure adequate protection of the community” which may in an appropriate case require an amendment to the duration of the supervision order.[36]
  3. [36]
    I accept that the evidence of Dr Moyle and Dr Harden in support of the application of the applicant to extend the duration of the order is not particularly strong.  Dr Harden did not, in his report, suggest that the supervision order ought to be extended.  In giving his opinion as to the suggestion, once it was raised by Dr Moyle, he said that it was “a finely balanced question” but one for which he had a “slight preference for an additional period of supervision” and that three years (the period left on the supervision order before amendment) “is possibly a long enough period [of abstinence].” 
  4. [37]
    Dr Moyle placed a caveat on his opinion.  Importantly, he said “I don’t have the report from the [treating] psychologist seeing him at the time he breached.” 
  5. [38]
    On an application for orders under s 13 there is a heavy onus upon the applicant.  The applicant must prove “that the prisoner is a serious danger to the community.”[37]That must be achieved “by acceptable, cogent evidence”[38]and “to a high degree of probability.”[39]However, if, once the applicant has discharged that burden and obtained a supervision order, it is then breached by the prisoner, the onus shifts to him to satisfy the Court “that the adequate protection of the community can, despite the contravention … be ensured by a supervision order.”[40]On a proper construction of s 22(7) of the Act, the onus which falls upon the prisoner can only be discharged by reference to the terms of the proposed supervision order upon which he is to be released.  In other words, the onus is upon the respondent to prove, relevantly to the current argument, that “the adequate protection of the community can … be ensured by a supervision order” with a duration to 22 February 2022.
  6. [39]
    The respondent has failed to do that.  The respondent’s general criminal offending has invariably involved the consumption of alcohol.  The index offences involved the consumption of alcohol; so did the 2017 contraventions.  The current contravention involved the consumption of alcohol.  The two psychiatrists have both opined that the risk of commission by the respondent of a serious sexual offence increases upon the consumption of alcohol by him.
  7. [40]
    The evidence of the two psychiatrists is that the extension of the supervision order to 19 February 2024 is, to summarise their views, desirable, and meets the risk posed by the respondent’s alcohol consumption.  In the absence of any other evidence on the topic, the respondent cannot discharge the onus to prove that if he is released upon a supervision order expiring on 22 February 2022, that order provides adequate protection to the community.
  8. [41]
    The respondent can though, given the psychiatrists’ evidence, discharge the onus of demonstrating that his release upon a supervision order expiring on 19 February 2024 does provide adequate protection of the community notwithstanding the contravention.
  9. [42]
    For those reasons I made the orders.

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]  Affidavit of Scott Harden report exhibit SH2 page 5.

[20]  Affidavit of Liang Chai Ling exhibit CLC-3; report of Dr Robert Moyle page 8.

[21] Criminal Code Act 1899 (Qld) s 349.

[22] Criminal Code Act 1899 (Qld) s 335.

[23]  Affidavit of Kimberley Alison Thers CRI 30, exhibit page 9.

[24]  Dr Harden’s report page 8.

[25]  Dr Harden’s report dated 5 February 2019 page 22.

[26]  Dr Harden’s report dated 5 February 2019 page 22.

[27]  Dr Harden’s report dated 5 February 2019 page 23.

[28]  Dr Moyle’s report dated 4 February 2019 page 19.

[29]  Dr Moyle’s report dated 4 February 2019 page 25.

[30]  Dr Moyle’s report page 25-26, transcribed verbatim with typographical errors.

[31]  Dr Moyle’s report page 26.

[32]  Dr Moyle’s report page 26.

[33]  Supplementary affidavit of Liang Chai Ling exhibit LCL-4.

[34] Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39].

[35] Attorney-General (Qld) v KAH [2019] QSC 36.

[36]Attorney-General (Qld) v Van Dessel [2007] 2 Qd R 1 at [31]-[32]; Bickle v Attorney-General (Qld) [2016] 2 Qd R at [21]-[25]. All generally support the proposition.

[37]  Section 13(7).

[38]  Section 13(3)(a).

[39]  Section 13(3)(b).

[40]  Section 22(7).

Close

Editorial Notes

  • Published Case Name:

    Attorney-General (Qld) v Holroyd

  • Shortened Case Name:

    Attorney-General v Holroyd

  • MNC:

    [2019] QSC 39

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    01 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 39 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 on 20 February 2017 with amendments: Davis J.

Appeal Status

No Status