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  • Unreported Judgment

Attorney-General v Brown

 

[2019] QSC 73

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Troy Brown [2019] QSC 73

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

TROY JIMMY CHARLES BROWN

(respondent)

FILE NO/S:

BS No 422 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2019

JUDGE:

Jackson J

ORDER:

The order of the court is that:

  1. Pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and remain subject to the supervision order made on 24 April 2014, 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 the respondent was subject to examination by psychiatrists for the purposes of the application – where the respondent breached conditions of past supervision order – whether the respondent should be released into the community under a new supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22, s 43AA

COUNSEL:

J Rolls for the applicant

T Zwoerner for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

JACKSON J:

  1. [1]
    This is an application by the Attorney-General for relief under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). Section 22 provides that if the court is satisfied on the balance of probabilities that the respondent has contravened a requirement of the supervision order, then unless the respondent satisfies the court on the balance of probabilities that adequate protection of the community can be ensured despite the contravention, the court must rescind the supervision order and make a continuing detention order.
  2. [2]
    The respondent is 38 years of age. His criminal history is summarised in the table set out in paragraph 3 of the applicant’s amended outline of submissions, as follows: 

Date

Description of Offence

Sentence

6.09.1994

Lockhart River CC

 

Break & enter dwelling house with intent

 

Wilful damage to property (2 chgs)

 

Break, enter & steal (3 chgs )

 

Break, enter & steal (3 chgs )

 

Break & enter place with intent (2 chgs)

 

Break & enter dwelling house with intent

 

Stealing

 

Convictions recorded

 

Probation 12 months

 

Restitution $1296.05

 

 

 

 

 

3.10.1995

Cairns DC

Break & enter dwelling house with intent in the night-time (26.07.95)

Rape (26.07.95)

 

Stealing (26.07.95)

On each charge:

Conviction recorded, detained 5 years

 

Conviction recorded, detained 6 months

Detention to take effect on and from 26.07.95

All terms of detention are to be served concurrently

 

1.11.1999

Cairns CC

Indecent assault (16.07.95)

Stealing (on about 18.07.95)

Stealing (20.07.95)

 

Convictions recorded

Detained 6 months

 

14.07.1999

Cairns MC

Possession of property suspected of being tainted property (on 09.03.99)

Convicted & sentenced 14 days imprisonment

Concurrent with present sentence

 

9.09.2000

Cairns MC

Bail Act failure to appear (on 04.09.00)

No conviction recorded

Fined $325

 

9.09.2000

Mareeba MC

VAG Act Use insulting words (on 22.08.00)

No conviction  recorded

Fined $325

In default imprisonment 13 days

 

22.09.2000

Cairns MC

Obstruct police officer (2 chgs on 21.09.00)

On each charge: convicted & fined $300

 

5.02.2001

Mareeba MC

Breach bail undertaking (on 29.01.01)

 

Common assault

Imprisonment 5 days

 

Fined $225 in default imprisonment 6 days

 

Cairns Magistrates Court

16.03.2001

Behave in a disorderly manner (on 26.02.01)


 

Contravene direction or requirement (on 05.09.00)

 

Common assault

 

 

Breach bail undertaking (2 chgs on 5 & 12.03.01)

Fined $100

In default imprisonment 2 days

 

Fined $50

In default imprisonment 1 day

 

Fined $300

In default imprisonment 6 days

 

On each charge:

Convicted & sentenced 14 days imprisonment

 

15.05.2001

Cairns MC

 

Consume liquor on a road (on 23.04.01)

Convicted & fined $100

In default imprisonment 2 days

 

 

4.10.2001

Cairns MC

Behave in a disorderly manner (on 14.09.01)

Behave in a violent manner (on 19.09.01)

 

Bail Act Fail to appear (on 28.09.01)

On each charge:

Probation 6 months

 

Imprisonment 1 month

 

16.10.2001

Cairns MC

Behave in an indecent manner (on 27.09.01)

Convicted & fined $50

 

 

7.11.2001

Cairns MC

Bail Act Fail to appear (on 02.11.01)

Behave in a violent manner (on 06.11.01)

Behave in a disorderly manner (on 01.11.01)

 

On each charge:

Imprisonment 1 month

 

21.12.2001

Cairns MC

 

Behave in a disorderly manner (on 20.12.01)

Convicted & sentenced

Imprisonment 1 month

7.02.2002

Cairns MC

 

Bail Act Breach bail undertaking (on 05.02.02)

Convicted & not further punished

20.02.2002

Cairns MC

Behave in a disorderly manner (on 04.02.02)

 

Obstruct police officer (on 04.02.02)

 

Behave in a disorderly manner (on 05.02.02)

 

Obstruct police officer (on 05.02.02)

 

Contravene direction or requirement (on 17.02.02)

Obstruct police officer (2 chgs on 17.02.02 & 16.02.02)

 

Breach of Domestic Violence Order (2 chgs on 31.01.02 & 17.02.02)

 

Breach bail condition (between 8 & 14.02.02)

 

Breach of Domestic Violence Order (on 01.02.02)

 

Behave in a disorderly manner (on 22.01.02)

 

Imprisonment 8 weeks

 

Imprisonment 7 days

 

Imprisonment 8 weeks concurrent

 

Imprisonment 7 days

 

On each charge

Imprisonment 7 days concurrent

 

 

Imprisonment 1 month concurrent

 

 

Imprisonment 14 days

 

Imprisonment 1 month concurrent

 

Imprisonment 8 weeks concurrent

 

20.03.2002

Cairns MC

 

VAG use insulting words (on 18.01.02)

 

Assault police officer (on 05.02.02)

 

Imprisonment 7 days

 

Imprisonment 2 months

21.06.2002

Cairns MC

Use insulting words (on 30.05.02)

 

Behave in a disorderly manner (on 30.05.02)

 

Behave in a disorderly manner (on 06.06.02)

 

On each charge:

 

Fined $100 in default imprisonment 6 days

 

 

 

28.10.2002

Mareeba MC

 

Stealing (on 27.06.02)

Fined $500

 

6.02.2003

Cairns DC 

 

Rape (on 27.06.02)

 

Robbery with actual violence – use personal violence (on 27.06.02)

 

Imprisonment 7 years

 

Imprisonment 4 years

 

Time spent in pre-sentence custody be deemed as time already served under this sentence – 214 days

 

Defendant declared to be convicted of two serious violent offences

 

17.12.2014 Townsville MC

Contravention of a supervision order between 25.06.2014 and 19.08.2014 and contravention of a supervision order between 23.07.2014 and 22.08.2014

Conviction recorded, fined $200.00 in respect of each offence

21.01.2016

Townsville MC

Contravention of supervision order on 14.04.2015

Conviction recorded, fined $300.00

10.05.2017

Townsville MC

Contravention of supervision order on 10.04.2017

Conviction recorded, fined $500.00

24.05.2018

Townsville MC

Contravention of a supervision order on 09.02.2018 and contravention of a supervision order on 07.03.2018

Conviction recorded, fined $500.00

25.09.2018

Townsville

MC

Contravention of a supervision order between 02.05.2018 and 30.07.2018

Conviction recorded, sentenced to 3 months imprisonment to be suspended for 18 months

  1. [3]
    The respondent’s history of orders made under the Act is as follows. On 10 June 2009, Martin J ordered that the respondent be detained in custody for an indefinite term, for care, control or treatment. On 22 June 2011, Daubney J affirmed the order of Martin J and ordered that the respondent continue to be subject to the continuing detention order. On 12 November 2012, Henry J affirmed the order of Martin J and ordered that the respondent continue to be subject to the continuing detention order. On 24 April 2014, on the next review, Lyons J ordered that the respondent be released from custody, subject to a supervision order. The supervision order was for a period of 10 years.
  2. [4]
    In October 2014, the respondent was returned to custody on the ground that he had breached the supervision order, namely the requirement that he abstain from consumption of alcohol and illicit drugs. On 27 January 2015, Daubney J found that the respondent had contravened the supervision order, but ordered that he be released from custody and continue to be subject to the supervision order. In July 2015, the respondent was returned to custody. It was alleged he had breached condition 18 of the supervision order, requiring him to disclose upon request the name of each person with whom he associates, condition 22, which required him to abstain from the consumption of alcohol and illicit drugs and condition 33, not to visit parks without permission. On 2 December 2015, Applegarth J found that the alleged contraventions were made out, but ordered the respondent be released from custody and that he continue to be subject to the supervision order. On 3 August 2017, the respondent was arrested and returned to custody. It was alleged that he breached condition 22 of the supervision order that he abstain from consumption of alcohol and illicit drugs, by ingesting cannabis. On 15 November 2017, it was found that the respondent had contravened the supervision order by ingesting cannabis on or about 10 April 2017, 24 April 2017, and 29 May 2017. It was ordered that he continue to be subject to the supervision order, which was amended by the addition of a requirement that the respondent attend to examination and assessment by a psychiatrist, to assess the appropriateness of the respondent being prescribed antiandrogen medication.
  3. [5]
    Condition 24 of the supervision order requires the respondent to submit to any form of drug and alcohol testing order.
  4. [6]
    The current contraventions begin with alleged contraventions of condition 22 of the supervision order, that the respondent abstain from the consumption of illicit drugs.
  5. [7]
    On 9 February 2018, 12 February 2018, and 7 March 2018, the respondent submitted urine samples pursuant to requests. Confirmatory testing indicated all samples were positive for cannabis. The respondent was charged with the offence of the contravention of a relevant order, contrary to section 43AA of the Act, and on 24 May 2018, he appeared at the Townsville Magistrates Court and was convicted on his own plea of guilty and fined $500.
  6. [8]
    On 2 May 2018, 15 May 2018, 21 May 2018, 12 June 2018, 18 July 2018, and 30 July 2018, the respondent submitted urine samples pursuant to requirement. Confirmatory testing indicated all samples provided were positive for cannabis. On 25 September 2018, the respondent appeared in the Townsville Magistrates Court, charged with contraventions of a relevant order, contrary to section 43AA of the Act. The respondent was convicted on his own plea of guilty and was sentenced to three months imprisonment, wholly suspended for a period of 18 months.
  7. [9]
    The circumstances of the alleged contraventions concerning breach of condition 24 of the supervision order, requiring the respondent to submit to any form of drug and alcohol testing, are as follows.
  8. [10]
    On 28 September 2018, the respondent was directed on three occasions – 10:30 am, 10:56 am, and 1:29 pm – to provide a urine sample for testing. No sample was provided. At 2:07 pm on the same day, the respondent was again directed to provide a sample. The sample provided was not considered to be valid because it was found to have a temperature of 33 degrees, that being outside the accepted range. At 2:50PM on 28 September 2018, the respondent was again directed to provide a urine sample. The respondent refused to provide the sample.
  9. [11]
    Further psychiatric evidence has been gathered for the purpose of the hearing of the present application under s 22.
  10. [12]
    Dr Sundin interviewed the respondent at the Lotus Glen Correctional Centre, on 14 January 2019, and has provided a report, dated 17 January 2019. She has previously provided reports to the court related to the respondent on seven occasions. On this occasion, Dr Sundin noted that on mental state examination, the respondent’s IQ appeared to be in the low to average to borderline range. She noted that the dominant theme of the interview involved projection by the respondent of responsibility for his behaviour in the community onto QCS staff, and a resentment of the cannabis prohibition requirement in the supervision order. Dr Sundin considered that the respondent’s presentation was consistent with a man of low intellect and prominent psychopathic traits. She noted that the failure by QCS staff to immediately react to the early positive urinary drug screens may have reinforced or has reinforced the respondent’s attitudes of non-compliance and an entitlement to pursue his own agenda. She considered that the respondent has been quite happy to ignore the supervision order’s requirement, in relation to cannabis. Dr Sundin noted that a degree of positive impression management was present and that the respondent underestimated the seriousness of the breaches.
  11. [13]
    Dr Sundin considers that the respondent remains likely to sexually re-offend. It would be an act of opportunistic sexual violence involving an adult stranger, occurring in the course of another serious offence or at the time when the respondent was intoxicated by substances such as alcohol or cannabis. She does not differentiate between alcohol and cannabis in her report. Dr Sundin expressed a concern that the respondent rejects responsibility for his progress or the lack of it in the community onto others. In her view, he has misinterpreted efforts at engagement as a flawed or inadequate response by QCS. However, she notes the respondent has not returned a positive breath test for alcohol, has remained engaged with his clinical psychologist, and has recently enjoyed vocational training. He has not sexually re-offended. Taking these matters into account, Dr Sundin considers that the supervision order is serving its purpose in modifying the potential risk the respondent’s release presents and suggests that the respondent could be returned to the community under the current supervision order, with more frequent and randomised urinary drug screening.
  12. [14]
    A second report has been obtained from Dr Arthur and is dated 18 January 2018. He assessed the respondent at Lotus Glen on 7 December 2017. He had available to him the material that is identified in his report, which is dated 18 January 2019. Dr Arthur noted that the respondent was generally cooperative, although at times, appeared guarded. Sometimes he avoided questions for no apparent reason. He considered the respondent’s presentation was not consistent with the previous estimation of his IQ. He noted the respondent attended the interview without difficulty and displayed good reactive and expressive English language skills and anticipated questions.
  13. [15]
    Dr Arthur noted a minimisation of hostility by the respondent directed towards QCS. He noted that when managed in the community, the respondent had proven to be a management challenge. He remained reluctant to discuss his past sexual offending and, in Dr Arthur’s view, overstated the contribution of alcohol. Dr Arthur noted that the respondent denies problematic behaviours in the face of clear evidence to the contrary and is not a reliable historian.
  14. [16]
    Dr Arthur noted that the respondent’s previous sexual offence or offences have been impulsive and opportunistic. In his view, future offences are likely to occur in the context of intoxication associated with sexual arousal, possibly coupled with emotional states such as loneliness, anger or feeling slighted or rejected. The risk of contact offences is high, in Dr Arthur’s view, with associated psychological and physical harm. The imminence of sexual violence is difficult to predict in the respondent’s case. However, Dr Arthur noted that the ongoing use of cannabis does not appear as directly associated with any increased risk of sexual violence but is relevant to the respondent’s limited capacity to comply with conditions of the supervision order and to control his behaviour.
  15. [17]
    Dr Arthur expressed some concern at reports of ongoing sexual preoccupation and unsupervised contact by the respondent with women in the community. He noted the respondent is a young man with an intact sexual drive keen to pursue casual sexual liaisons and opined that any resistance by a person to the respondent’s advances may lead to frustration and anger, increasing the risk of sexual attack. In Dr Arthur’s view, the respondent has developed little insight into the drivers of his sexual offending.
  16. [18]
    Dr Arthur noted that the supervision order has been reasonably effective with reducing victim access and monitoring the respondent’s level of sexual preoccupation and emotional state. The respondent’s impulsiveness and disregard of consequences of his actions, however, indicate he requires a high degree of monitoring and supervision. Dr Arthur was not confident the respondent would comply with the conditions of his order if left unsupervised. In his view, the respondent should continue with individual therapy, and he also indicated that the use of anti-androgens should be explored. Further, in his view, the respondent may benefit from a trial of other medications, which he identified and which may reduce impulsivity. Nevertheless, Dr Arthur considered that with stringent application of the existing order, the respondent’s risk of offending would be reduced from high to moderate.
  17. [19]
    The applicant submits that the evidence demonstrates the respondent has, on at least nine occasions, breached condition or requirement 22 of his supervision order, that he abstain from the consumption of alcohol and illicit drugs, and also that he has breached, on four occasions, condition or requirement 24, that he submit to any form of drug and alcohol testing. In my view, that finding should be made.
  18. [20]
    Consequently, the applicant submits the onus is placed on the respondent, under s 22 of the Act, to demonstrate that the adequate protection of the community is able to be ensured by his release on the supervision order. The applicant submits that although the evidence is such that it is likely that the respondent will contravene any supervision order to which he is subject, the onus on him has been discharged that he is able to demonstrate adequate protection against the commission of a serious sexual offence is ensured by his release on the supervision order. I accept these submissions.
  19. [21]
    The history that I have recounted demonstrates that since he was released on a supervision order in 2014, over the ensuing period of something less than five years, the respondent has contravened conditions or requirements of the supervision order on numerous occasions, leading to four episodes to date when he has been returned to detention or prison, on each occasion for a period of approximately four or five months respectively. The pattern of non-compliance is a repeating one. In particular, the pattern has a very strong and, it seems, until now, a continuing theme of non-compliance by the respondent of the condition or requirement that he abstain from the consumption of alcohol and illicit drugs by the respondent’s ingestion of cannabis.
  20. [22]
    The evidence to date does not engage particularly on the question whether the respondent’s use of cannabis is something that increases his risk of serious sexual offending in any specific way, but the reports to which I referred do generally support that conclusion, and the psychiatrists were not cross-examined on the question. For present purposes, in my view, given the way in which the proceeding has been conducted, it should be accepted and I find that the respondent’s non-compliance with condition 22 is a relevant risk-increasing factor.
  21. [23]
    Notwithstanding that, the Attorney’s submission is sensibly made, in my view, with respect, that the respondent should be again released on the supervision order. Dr Sundin expresses the view that it should be administered on a zero-tolerance basis. That is a matter for QCS, in my view, but in the present circumstances, it seems that notwithstanding the respondent’s failure to appreciate that continued contraventions of that condition or the associated condition that he provide samples for the purpose of drug testing must inevitably return him to prison for periods of some length, the order that should be made is the one that has been proposed by the applicant.
  22. [24]
    The respondent’s submissions have accepted that by contravening the requirements of conditions 22 and 24, the respondent has breached the supervision order, as alleged by the applicant, and that, given the evidence otherwise, including the reports of Drs Sundin and Arthur, it would be appropriate for the respondent to be released into the community on the supervision order. In short, the respondent supports the submissions which have been advanced by the applicant, in particular, in the outline of submissions in writing.
  23. [25]
    For those reasons, in my view, the appropriate findings are that the court is satisfied to the requisite standard that the respondent has contravened conditions 22 and 24 of the supervision order made on 24 April 2014, as amended on 15 November 2017, and that the court orders that, pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and remain subject to the supervision order made on 24 April 2014, as amended.
Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Troy Brown

  • Shortened Case Name:

    Attorney-General v Brown

  • MNC:

    [2019] QSC 73

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    04 Mar 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 73 04 Mar 2019 Attorney-General's application for relief under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”): respondent released from custody subject to the supervision order made on 24 April 2014, as amended: Jackson J.

Appeal Status

No Status