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Attorney-General v Bennett

 

[2020] QSC 141

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Bennett [2020] QSC 141

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

WILLIAM HENRY BENNETT

(respondent)

FILE NO:

BS No 5182 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

Orders made on 22 May 2020, reasons delivered on 29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2020

JUDGE:

Davis J

ORDER:

The court being satisfied to the requisite standard that the respondent, William Henry Bennett, has contravened the requirements of the supervision order made by Justice Dalton on 9 November 2015 and as amended by Justice Boddice on 29 August 2016, Chief Justice Holmes on 26 March 2018 and Justice Ryan on 30 September 2019, orders that:

  1. The respondent, William Henry Bennett, be released from custody before 12.00 pm on 10 June 2020 and continues to be subject to the supervision order made by Justice Dalton on 9 November 2015 and as amended by Justice Boddice on 29 August 2016, Chief Justice Holmes on 26 March 2018 and Justice Ryan on 30 September 2019.

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 contravened the supervision order made on 9 November 2015 under the Dangerous Prisoners (Sexual Offenders) Act 2003 by consuming and possessing illicit drugs – where the respondent pleaded guilty in the Magistrates Court to contravening the supervision order and failing to dispose of a syringe – where the respondent has not committed a serious sexual offence while subject to the supervision order – where the evidence of the psychiatrists is that alcohol and drug use is a relevant risk factor – where the evidence of the psychiatrists is that the respondent’s risk can be adequately managed under the existing supervision order, provided the respondent engage in therapy with a psychiatrist specialising in addiction – whether the respondent should be released subject to the requirements of the existing supervision order

Criminal Code, s 351

Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 8, s 11, s 13, s 16, s 16B, s 20, s 22, s 43AA(2)

Attorney-General for the State of Queensland v Fardon [2018] QSC 193, cited
Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited
Attorney-General v Phineasa [2013] 1 Qd R 305, cited
Attorney-General (Qld) v Sands [2016] QSC 225, cited
Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited

COUNSEL:

B Mumford for the applicant

S Robb for the respondent

SOLICITORS:

GR Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    The respondent is a prisoner who is the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) by Dalton J on 9 November 2015.  That order placed the respondent on supervision until 17 November 2020.  The term of the supervision order has since been extended to expire on 17 November 2024.[1]
  2. [2]
    The applicant alleged that the respondent breached the terms of the supervision order and she sought orders under s 22 of the DPSOA as a consequence.
  3. [3]
    On 22 May 2020, I made the following orders and reserved my reasons for so doing:

“The court being satisfied to the requisite standard that the respondent, William Henry Bennett, has contravened the requirements of the supervision order made by Justice Dalton on 9 November 2015 and as amended by Justice Boddice on 29 August 2016, Chief Justice Holmes on 26 March 2018 and Justice Ryan on 30 September 2019, orders that:

  1. The respondent, William Henry Bennett, be released from custody before 12.00 pm on 10 June 2020 and continues to be subject to the supervision order made by Justice Dalton on 9 November 2015 and as amended by Justice Boddice on 29 August 2016, Chief Justice Holmes on 26 March 2018 and Justice Ryan on 30 September 2019.”
  1. [4]
    These are my reasons for making the orders which I did.

History

  1. [5]
    The respondent was born in February 1979.  He is presently 41 years of age. 
  2. [6]
    The respondent has a significant criminal history commencing with drug convictions in the Ipswich Childrens Court just before his 17th birthday.  He was placed on probation in March 1997 upon conviction of a series of offences of breaking and entering dwelling houses.  There were some other minor convictions and then on 28 November 1997 he was sentenced to an effective sentence of four years’ imprisonment upon conviction of charges of breaking and entering with intent, stealing, unlawful assault and indecent assault. 
  3. [7]
    In the District Court in July 2000, the respondent was convicted of a number of offences which had occurred between August 1996 and January 1997, including two counts of wilfully setting fire to a building.  He was sentenced to a term of imprisonment of eight years but eligible for release on parole after serving 18 months.
  4. [8]
    On 20 April 2011, in the Beenleigh District Court, the respondent was sentenced to an effective term of imprisonment of six years for counts of sexual assault, including assault with intent to commit rape.[2]  That offending was described by psychiatrist Dr Michael Beech, in his report of 6 August 2016, in these terms:

“The 2011 conviction was for a 2009 incident which had occurred relatively shortly after Mr Bennett’s release from prison. He followed a female student from the train station. He engaged her in conversation and then dragged her from the footpath and threw her to the ground. He ripped her clothes and when she attempted to cry out he punched her twice to the face. He grabbed at her breasts. He removed his pants but she bit him and he ran away. Mr Bennett admitted that he had intended to rape the woman.”

  1. [9]
    It was the convictions in 2011 upon which the initial application for orders under the DPSOA was based.
  2. [10]
    In preparation for making an application, psychiatrist Dr Josephine Sundin was engaged by the applicant and prepared a risk assessment report.  Based primarily on that report, Bond J on 17 June 2015 set the application for Division 3 orders for hearing and appointed psychiatrist Doctors Michael Beech and Donald Grant to examine the respondent and prepare reports.[3]
  3. [11]
    The doctors prepared reports and Dalton J had the evidence of the three psychiatrists before her when her Honour made the supervision order on 9 November 2015.
  4. [12]
    The respondent’s criminal history demonstrates an inability to comply with probation orders.  He also was convicted in September 1997 of breaching bail conditions.  He has been unable to comply with the terms of his supervision order.
  5. [13]
    In January 2016, the respondent contravened a condition of his supervision order prohibiting him from ingesting illicit drugs.  He was returned to custody on 18 January 2016 after testing positive to the presence of tetrahydrocannabinol in his blood.  On 29 August 2016, Boddice J found the contravention proved and released the respondent back to the community on the supervision order which his Honour amended.
  6. [14]
    The respondent then unlawfully removed his monitoring device and was charged under s 43AA(2) of the DPSOA.  He pleaded guilty to that offence on 3 March 2017 in the Magistrates Court at Townsville, was sentenced to 12 months’ imprisonment and the supervision order was extended until 17 November 2021.  On 26 March 2018, the contravention constituted by removing the monitoring device was found by Holmes CJ to be proved and her Honour ordered his release back to the community on the supervision order which his Honour amended.
  7. [15]
    On 31 May 2018, the respondent was again returned to custody on an allegation that he had breached the supervision order.  On this occasion, he failed a drug test, tested positive for buprenorphine and had also accessed pornographic websites contrary to a condition of the order.  That conduct constituted offences against s 43AA of the DPSOA to which he pleaded guilty on 6 September 2018.  On 11 December 2018, Bradley J found the contravention proved but released the respondent back to the community on the supervision order.
  8. [16]
    In April 2019, the respondent tested positive for the consumption of methylamphetamine and amphetamine and was returned to custody.  On 1 October 2019, Ryan J released the respondent back to the community on the supervision order which her Honour extended to 17 November 2024.
  9. [17]
    On 9 December 2019, the respondent was returned to custody upon the current contraventions.  They were described in the present application in these terms:

“On 1 October 2019, the respondent was issued with a reasonable direction in accordance with requirement (26) of his supervision order, which states that he must ‘submit to any form or drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer’. The respondent acknowledged the receipt of that reasonable direction and by signing, indicated his intention to comply.

On 5 December 2019, at approximately 11:23 am, the respondent was directed by QCS staff to provide a sample of urine for testing as per requirement (26) of his supervision order. The respondent repeatedly stated he could not provide a urine sample for testing. He requested to be returned to custody but did not state the reason why. He denied illicit substance use.

The respondent eventually admitted to intravenously using methamphetamine (‘ice’) the previous day. A needle injection mark was observed on the respondent’s arm.

On his 6th attempt, the respondent provided a sample of urine for testing. The test returned a presumptive positive result for methamphetamines and buprenorphine. The urine sample has been transported to the Sullivan Nicolaides Laboratory for confirmatory testing, the results of which are outstanding.

Upon the respondent’s arrest on 6 December 2019, the respondent was found to be carrying a small bottle wrapped in a condom and tape which he was going to conceal in his body. It contained two cut down syringes, a bud of THC (cannabis) and a strip of subutex. Upon enquiry, the respondent declined to comment on the source of the drugs. Additionally, a small yellow sharps container, which appeared to contain multiple needles, was also located in the drawer of the respondent's belongings next to his medication.”

  1. [18]
    On 21 January 2020, the respondent pleaded guilty in the Richlands Magistrates Court to an offence of breaching the supervision order[4] and offences against the Drugs Misuse Act 1986 being a failure to dispose of a syringe.  He was sentenced to terms of imprisonment to be released on parole on 3 March 2020.
  2. [19]
    The respondent admitted the breaches of the supervision order as alleged in the applicant’s application.
  3. [20]
    For the purposes of the current application, the respondent was examined by Dr Josephine Sundin who prepared a report dated 24 February 2020, and Dr Scott Harden who prepared a report dated 30 April 2020.

Statutory context

  1. [21]
    Where a prisoner is subject to a supervision order under the DPSOA[5] and is reasonably suspected by a police officer or a corrective services officer to be “likely to contravene, is contravening, or has contravened a requirement of [the supervision order]”, a warrant may be issued under s 20 of the DPSOA to arrest the released prisoner and bring him before this court.  That occurred here.
  2. [22]
    Jurisdiction is then given by s 22 of the DPSOA for this court to make orders consequent upon the breach.  Section 22 provides, relevantly, as follows:

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. [23]
    While it is the presence of the released prisoner who has been brought to court under the warrant issued under s 20 which vests jurisdiction in the court to make orders under s 22, the practice of the applicant is to file an application for orders.  That application then contains particulars of the contravention or likely contravention.[6]  That is what occurred here and the particulars are admitted.
  2. [24]
    Where, as here, the contravention is admitted, the onus falls upon the respondent to demonstrate “that the adequate protection of the community can, despite the contravention … be ensured by a supervision order …”.  The notion of “adequate protection of the community” arises first in the DPSOA in s 13.  Section 13 is as follows:

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).” (emphasis added)
  1. [25]
    The effect of s 13 is:
    1. (a)
      the court must consider whether the prisoner is a “serious danger to the community in the absence of a Division 3 order”;[7]
    2. (b)
      a prisoner is a “serious danger to the community” where there is an unacceptable risk that the prisoner will commit a “serious sexual offence” in the absence of an order;[8]
    3. (c)
      a “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence …”;[9]
    4. (d)
      orders under Division 3 are:
      1. a continuing detention order;[10]
      2. a supervision order;[11]
    5. (e)
      if there is a finding that the prisoner is a serious danger to the community in the absence of a Division 3 order, then the court may:
      1. make no order;
      2. make a continuing detention order;
      3. make a supervision order;[12]
    6. (f)
      in determining what, if any order to make, “the paramount consideration is to be the need to ensure adequate protection of the community” from the commission by the prisoner of a “serious sexual offence”;[13]
    7. (g)
      if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;[14]
    8. (h)
      if the adequate protection of the community can be ensured by a supervision order, then supervision ought to be preferred to the making of a continuing detention order.[15]
  1. [26]
    In context, the onus which is cast upon the respondent by s 22(7) is to prove that despite the contravention adequate protection of the community against the commission by the respondent of an offence of a sexual nature involving violence can be provided by the supervision order if he is released.
  2. [27]
    The respondent has breached the supervision order on numerous occasions.  Consideration of future compliance with the supervision order is only useful to the extent that it is relevant to the statutorily prescribed tests.[16]  The aim of the legislation is to provide adequate protection of the community from the commission by the respondent of a “serious sexual offence”.  Any risk of future breach of the supervision order must be considered relevantly to that risk.

The psychiatric evidence

  1. [28]
    Doctor Sundin diagnosed the respondent as follows:

“I consider he meets DSM V criteria for:

  • Cluster B Personality Disorder, primarily borderline and anti-social traits, moderate to severe intensity
  • Substance Use Disorder (alcohol, cannabis, amphetamines, and heroin); not in remission, recent abuse of opioids and amphetamines both whilst incarcerated and in the community.
  • Sexual Sadism

Mr Bennett has been diagnosed with epilepsy arising out of a traumatic brain injury in 1997. I note that he is prescribed an anti-epileptic medication topiramate. He remains vulnerable to seizures.”[17]

  1. [29]
    Doctor Harden’s diagnosis is:

“Personality disorder, severe, mixed type (predominantly borderline with antisocial, dependent and avoidant elements).

Polysubstance abuse.

Possible paraphilia associated with coercive sexual contact with female strangers.”[18]

  1. [30]
    As to risk and recommendations, Dr Sundin:

“Mr Bennett is a 40-year-old man with a significant history of sexual and non-sexual offending leading to lengthy periods of incarceration as an adult. He appears to have been out of gaol for less than 2 years as an adult. He is quite institutionalised. He has viewed prison as a safe haven. He has repeatedly breached community supervision.

He has been involved in opportunistic sexual offences, with intoxication at the time of offending a relevant risk factor. The index offence occurred after many hours of retaliatory fantasies when Mr Bennett acted out his anger at a vulnerable victim. Mr Bennett was in a heightened emotional state of anger and felt out of control when the index offence occurred. Over time, there was an escalation in the severity of his offences. As recently as 2018 he was engaging with violent pornography.

He has been repeatedly deceptive about his use of illicit substances and accessing of prescribed medications via other prisoners. He is deceptive in his disclosures to case managers and in his claims regarding abstinence. He cannot be relied on to be honest in his disclosures.

He relies on illicit substances and alcohol to modulate his mood. He has made minimal effort at internalising the strategies for emotional self-regulation taught to him by Nick Smith.[19] He acknowledges utilising/manipulating mental health issues as a justification for continued substance abuse.

He continues to demonstrate poorly controlled emotional self-regulation, unresolved anger and avoidant coping. He experiences feelings of personal inadequacy, genital inadequacy and sexuality fluidity/identity diffusion.

I consider that Mr Bennett represents an unmodified moderate to high risk for future sexual offending.

Future victims are likely to be post-pubescent female strangers with the offence occurring either in an unplanned manner or as an act of retaliation at a time when Mr Bennett has regressed, and his behaviour is disinhibited by the consumption of licit or illicit substances.

There is a risk that a future victim who was less capable of self-defence could be the subject of a completed rape and/or would be at risk for physical violence.

The risk for future offending is heightened by relapse into abuse of mood-altering substances, emotional regression, fractured intimate relationships, feeling vulnerable and insecure and seeking a return to gaol as a safe place.

It is clear that the current system of monitoring both in and out of prison is not detecting this prisoner’s ongoing substance abuse. This is of concern given the correlation between substance abuse, intoxication and elevations in his risk for sexual recidivism. I suggest consideration be given to subjecting him to a higher frequency/random urinary drug screening programme in prison and in the community so that ongoing substance abuse is detected earlier.”[20]

And:

“I recommend that Prison Mental Health Services be asked to review this man while he is still incarcerated to consider a trial of a mood stabilising medication and/or an SSRI anti-depressant in the hope that this might settle some of the instability of his mood that arises from his personality disorder and which contributes to his breach behaviours.

I consider that Mr Bennett represents an unmodified moderate to high risk for future sexual offending. I consider that a supervision order has reduced his risk somewhat, but I will not feel confident that there is any enduring reduction of his risk profile while he continues to abuse mood altering substances and is deceptive about his abuse and cravings. I concur with Nick Smith’s suggestion that Mr Bennett be referred to an addiction specialist immediately post release.

If the Court determines that Mr Bennett can be released under a supervision order he should be required to abstain from alcohol, abstain from illicit substances, attend a consultant psychiatrist experienced in treatment of addictions and continue therapy with Mr Smith to address his avoidance/emotional regulation/core identity issues and to develop prosocial supports and activities. He should participate in an alcohol and drug education/intervention programme within the community.”[21] (emphasis added)

  1. [31]
    As to risk and recommendations, Dr Harden:

“The actuarial and structured professional judgement measures I administered in combination with my clinical assessment would suggest that his future risk of sexual reoffence is Well Above Average (High).

If he were to reoffend it would be likely to be while intoxicated with substances (most likely amphetamines) and an assault on a stranger female in a semipublic environment. The use of physical violence is likely.

My assessment of this risk is based on the combined clinical and actuarial assessment.

The critical risk issues for this man are his substance abuse, severe personality disorder associated with emotional instability and probable deviant arousal to coerced sexual contact with a female stranger.

Supervision and intervention consistent with a supervision order in my opinion will likely still reduce the risk to low to moderate due to the supervisory conditions of the order. Although this contravention is concerning given that he was taking amphetamines it is less concerning than the previous contravention where he was taking amphetamines while circulating in the community (driving without a license) under circumstances that might represent offence paralleling with his previous sexual assaults.”[22]

And:

“If released into the community he should return to psychological therapy with Mr Smith.

Mr Smith has correctly identified coping and emotion regulation deficits leading to substance misuse as a dysfunctional coping strategy and treatment should progress towards these targets.

I agree with Mr Smith’s recommendation that the involvement of a psychiatrist with special interest in addiction might be of assistance in his management in the community.”[23] (emphasis added)

Conclusion and determination

  1. [32]
    As already observed, on 6 September 2018 the respondent pleaded guilty to offences of contravening the supervision order.  One of those contraventions concerned possessing pornographic material.  That could, in one sense be regarded as an offence of a sexual nature.  It is not on any account a “serious sexual offence” as it did not “involve violence”.  In fact, it did not involve any physical interference by the respondent with anyone.
  2. [33]
    The last “serious sexual offences” committed by the respondent were those arising from his conduct in November 2009 and which resulted in the sentence being imposed upon him in the District Court on 20 April 2011.  Since November 2009, the respondent has been in the community only sporadically but the fact remains that he has not committed a serious sexual offence for over a decade.
  3. [34]
    There is some criticism by Dr Sundin of the drug and alcohol screening regime undertaken by Queensland Corrective Services with respect to the respondent.  However, his drug and alcohol use has been detected and acted upon.
  4. [35]
    Even though the respondent has not committed a serious sexual offence since 2009, the breaches of the supervision order are serious.  This is because the psychiatrists, whose evidence I accept, opine that alcohol and drug use are risk factors escalating the prospects of sexual offending.
  5. [36]
    While in custody since his last arrest, the respondent completed the Medium Intensity Substance Intervention Program (MISI).[24]  MISI is a program designed to assist participants to recover from substance abuse and maintain abstinence.  Part of the course is the preparation by the participant of a relapse prevention plan where the participant articulates techniques and steps that he will take to maintain abstinence from alcohol and illicit drugs.  The respondent prepared a relapse prevention plan and obtained a certificate of completion from the coordinators of the course.[25]
  6. [37]
    Daniel Bear is the acting manager of the High Risk Offender Management Unit (HROMU).  HROMU is a unit of Queensland Corrective Services which oversees the supervision and surveillance of prisoners released on supervision orders under the DPSOA.  Mr Bear swears as follows:
  1. “[23]
    HROMU has made enquiries with Dr Gregory Apel, a psychiatrist specialising in substance addiction, and he is available to provide treatment to the respondent.
  2. [24]
    The first available appointment is on 12 June 2020. This appointment has been arranged to occur whether the respondent is in custody or in the community.
  3. [25]
    I am informed and believe that, following this initial appointment, in conjunction with QCS, Dr Apel will devise a treatment schedule for the respondent.”
  1. [38]
    I was told in the course of argument that Corrective Services would require the respondent to undertake treatment with Dr Apel upon his release.  There is ample statutory power in Corrective Services officers to make that requirement of the respondent.  Section 16B of the DPSOA provides:

16B Other directions

  1. (1)
    A corrective services officer may give a released prisoner a reasonable direction about—
  1. (a)
    the prisoner’s accommodation; or

Example—

a direction that the released prisoner may only reside at a place of residence approved by a corrective services officer

  1. (b)
    the released prisoner’s rehabilitation or care or treatment; or

Example—

a direction that the released prisoner participate in stated treatment programs

  1. (c)
    drug or alcohol use by the released prisoner.
  1. (2)
    A direction under subsection (1) may relate to a matter even though the relevant order imposes a requirement about the matter, either generally or specifically.
  1. (3)
    However, the direction must not be directly inconsistent with a requirement of the order.”
  1. [39]
    The supervision order contains conditions which also empower Corrective Services officers to make such a direction.  The supervision order requires the respondent to:

“(15) comply with any reasonable direction under section 16B of the Act given to the respondent;

  1. (16)
    comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order; …
  1. (30)
    attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
  1. (31)
    permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;
  1. (32)
    attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate.”
  1. [40]
    I find that the adequate protection of the community is ensured by the release of the respondent on the supervision order provided he is receiving ongoing treatment for the relevant risk factor which is alcohol and drug abuse.  That treatment is available from 12 June 2020.  I ordered he be released back into the community on the supervision order on 10 June 2020 to enable him a couple of days to settle before commencing treatment with Dr Apel.
  2. [41]
    For those reasons, I made the orders which I did.

Footnotes

[1]  Order of Ryan J, 1 October 2019.

[2]Criminal Code, s 351.

[3]Dangerous Prisoners (Sexual Offenders) Act 2003, ss 8 and 11.

[4]Dangerous Prisoners (Sexual Offenders) Act 2003, s 43AA.

[5]  Sections 13(5)(b) and 16.

[6]  Burns J approved of such a procedure in Attorney-General (Qld) v Sands [2016] QSC 225 at [4].

[7]  Section 13(1).

[8]  Section 13(2).

[9]  Section 2 and Schedule (Dictionary). As to the term “involving violence” see Attorney-General v Phineasa [2013] 1 Qd R 305 at 312-16, [23]-[45].

[10]  Section 13(5)(a).

[11]  Section 13(5)(b).

[12]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597, [34].

[13]  Section 13(b).

[14]Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39].

[15]Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39].

[16]Attorney-General for the State of Queensland v Fardon [2018] QSC 193 at [76].

[17]  Report dated 24 February 2020, page 6.

[18]  Report dated 30 April 2020, page 20.

[19]  The respondent’s treating psychologist.

[20]  Report dated 24 February 2020, pages 9-10.

[21]  Report dated 24 February 2020, pages 8-9.

[22]  Report dated 30 April 2020, page 20.

[23]  Report dated 30 April 2020, page 20.

[24]  Affidavit of N Byrne, sworn 20 May 2020.

[25]  Affidavit of N Byrne, sworn 20 May 2020, exhibits NB1 and NB2.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Bennett

  • Shortened Case Name:

    Attorney-General v Bennett

  • MNC:

    [2020] QSC 141

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    29 May 2020

Litigation History

No Litigation History

Appeal Status

No Status