Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •   Notable Unreported Decision

Attorney-General v YCJ

 

[2020] QSC 237

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v YCJ [2020] QSC 237

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

YCJ

(respondent)

FILE NO:

BS No 10343 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

Orders made on 26 June 2020, reasons delivered on 21 August 2020

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2020

JUDGE:

Davis J

ORDERS:

  1. Order (3) of the order of North J made on 18 December 2019 be rescinded.
  2. Pursuant to s 21(2)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody between 9.00 am and 11.00 am on 29 June 2020 and be subject to supervision on the requirements of the supervision order of Chief Justice Holmes on 4 April 2016, until the application filed on 18 December 2019 is finally decided.

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 4 April 2016 pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) – where this is the first contravention of the supervision order – where the contraventions were undisclosed contact with children under 16, including the respondent’s daughter, without the prior approval of correctives services – where both psychiatrists assessed the respondent’s risk on supervision as moderate or below – where neither psychiatrist gave an opinion which would justify the continuing detention of the respondent – where the only issue which remained in contention was whether the supervision order ought to be extended – where the final hearing of the application was set for 13 July 2020 – whether there was “exceptional circumstances” pursuant to s 21(4) of the DPSOA justifying release of the respondent pending final hearing of the application

Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 20, s 21, s 22, s 43AA

Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited
Attorney-General (Qld) v Fardon [2013] QCA 64, cited
Attorney-General v Francis [2007] 1 Qd R 396, followed
Attorney-General for the State of Queensland v Holroyd [2020] QSC 187, followed
Attorney-General v Lawrence [2010] 1 Qd R 505, cited
Attorney-General (Qld) v Sands [2016] QSC 225, cited
Attorney-General (Qld) v Yeo [2008] QCA 115, cited
LAB v Attorney-General [2011] QCA 230, cited

COUNSEL:

M Maloney for the applicant

J Lodziak for the respondent

SOLICITORS:

GR Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    On 4 April 2016, Holmes CJ ordered that the respondent be released from custody on a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).[1]  Breaches of the supervision order were alleged against the respondent.  When the matter came before me on 26 June 2020 the application for orders consequent upon the breaches[2] was due to be heard on 13 July 2020.
  2. [2]
    On 26 June 2020, I made the following orders:
  1. Order (3) of the order of North J made on 18 December 2019 be rescinded.
  2. Pursuant to s 21(2)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody between 9.00 am and 11.00 am on 29 June 2020 and be subject to supervision on the requirements of the supervision order of Chief Justice Holmes on 4 April 2016, until the application filed on 18 December 2019 is finally decided.
  1. [3]
    These are my reasons for making those orders.

History

  1. [4]
    The respondent was born in September 1967.  He has a significant criminal history.
  2. [5]
    In 1986, the respondent was sentenced to 10 years’ imprisonment upon conviction of one count of manslaughter.  He was released on parole but in 1995 he was convicted after a trial in the District Court sitting at Ipswich of one count of deprivation of liberty and one count of wilfully exposing a child under the age of 12 to an indecent act.  Those offences were committed when the respondent entered the girls’ toilets at an Ipswich primary school, found a seven year old girl in a cubicle and kept her there while he exposed his erect penis to her and ejaculated.  He was sentenced to 18 months’ imprisonment on each count to be served concurrently but to be served cumulatively upon the unexpired period of imprisonment for which he was then on parole.
  3. [6]
    In April 2011, in the District Court at Brisbane, the respondent was convicted of sexual offences against a child who was between six and seven years of age over the time of the offending.  The victim was a friend of the respondent’s child.  The victim came to visit the respondent’s child.  On two occasions he licked the child’s vagina.  On another occasion he touched her vagina and placed her hands on his exposed penis.  He was convicted of one count of maintaining an unlawful sexual relationship with a child and four counts of indecent treatment with circumstances of aggravation that she was under 12 years of age and under his care.  He was sentenced to five years’ imprisonment for the count of maintaining an unlawful sexual relationship and lesser, concurrent terms of imprisonment for the counts of indecent treatment.
  4. [7]
    Based on the 2011 convictions, the Attorney-General brought an application under the DPSOA and that resulted in the supervision order being made.
  5. [8]
    Relevantly here, the supervision order contained conditions (17) and (26) which required the respondent to:

“(17) disclose to a Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;

  1. (26)
    not establish or maintain any supervised or unsupervised contact including undertaking any care of children under 16 years of age without prior written approval of a Corrective Services officer, except in the case of the respondent’s son. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children.”
  1. [9]
    It was alleged that the respondent breached those two conditions.  He was arrested pursuant to s 20 of the DPSOA on 17 December 2019 and brought before the court in Townsville the next day.  His arrest gave jurisdiction to the court to make orders if a contravention of the supervision order is proved.[3]  While the filing of an application is not necessary, that procedure was approved as a sensible one by Burns J in Attorney-General (Qld) v Sands[4] and an application was filed in this case. 
  2. [10]
    In the written application, the applicant alleges the following breaches of conditions (17) and (26):

“Since January 2019, the respondent has been identified to go through periods of elevated risks with significant concerns identified across changes in behaviours, increases in alcohol consumption, emotional collapse, and sexual pre-occupation. In August 2019, Queensland Police Service (QPS) and the respondent’s Senior Case Manager (SCM) undertook a device examination as per requirement 37 of his Supervision Order. During this time it was identified that the respondent had in his possession a USB with a video depicting two female children on a couch in underwear only. On 26 September 2016, the respondent was issued a reasonable direction as per requirement 7 of his Supervision Order, which stated that he must ‘Not collect or retain any material that contains images of children without prior approval from an authorised corrective services officer, and to dispose of such material if directed to do so by an authorised by a corrective services officer’.

Further conversations with the respondent identified he had been engaging in intrusive deviant thoughts for the previous six weeks and had been masturbating to the video content.

Due to the breach of the Reasonable Direction, the respondent was referred to the QPS under s43AA for Contravention of relevant order under the Act. He appeared in the Townsville Magistrates Court on 20 September 2019 where he was sentenced to six months imprisonment, suspended for 18 months.

Since his release to the Supervision Order, the respondent has verbalised his desire to have contact with his daughter, ‘YC’. In 2016, in liaison with the Department of Child Safety, the respondent was approved to have supervised contact with YC through Relationships Australia. Prior to the commencement of the second session, the respondent breached the conditions by arriving early which resulted in having unapproved and unsupervised contact with YC. The supervised contact with Relationships Australia was cancelled as a result.

In March 2019, the respondent again requested to have contact with YC, however this was not approved as the Department of Child Safety were not supportive and highlighted that the child’s mother, N, was not identified to be a protective person for the contact to occur.

On 26 November 2019, during a case management meeting, the respondent reported an increase in sexual pre-occupation. He reported he had a dream which consisted of him grooming a child victim. The respondent denied being aroused upon waking up from this dream; however it was highlighted that this dream had escalated from previous reoccurring dreams where he had been chasing a child.

On 10 December 2019, the respondent commenced anti-libidinal/anti-anxiety medication.

On 13 December 2019, information was received from the respondent’s treating psychologist, Kylie Lavers, which indicated that the respondent was potentially having contact with a 6 year old female child at his place of work and his daughter ‘YC’ (now aged 10). On this date, this information was referred to the QPS.

On 16 December 2019, the QPS interviewed the respondent’s co-worker ‘NK’ regarding her daughter ‘M’. NK reported to the QPS that over the course of two years, the respondent has had contact with M on approximately 10 occasions at their workplace, [address redacted], where the respondent works as a Chef. NK advised this contact consisted primarily of the respondent saying ‘hello’ to M, providing them meals when they dined at the establishment, and asking how M was. The respondent has never reported to QCS having any form of direct contact with M.

On 16 December 2019, the QPS interviewed the respondent’s wife, N, and daughter, YC. YC advised QPS she has been having contact with the respondent via text message and Snapchat with the most recent contact being on 15 December 2019. The QPS spoke with N, who confirmed knowledge of this contact for approximately six months. During the course of his Supervision Order, the respondent has not disclosed this contact.

In light of the above, the respondent’s SCM[5] has completed frequent mobile phone examinations; when undertaking these examinations, the SCM reviews Call Logs, Facetime Logs, SMS Logs, and all applications on the device. The most recent mobile phone examination was completed on 16 December 2019 and did not detect the Snapchat application, or any text messages to YC.”[6]

  1. [11]
    The respondent has admitted the contraventions and has pleaded guilty to charges brought under s 43AA of the DPSOA based upon the contraventions.
  2. [12]
    By the time the matter came before me on 26 June 2020, risk assessment reports had been received from psychiatrists, Dr Scott Harden and Dr Michael Beech, as well as from psychologist, Ms Kylie Lavers.
  3. [13]
    Based on the risk assessment reports and the evidence that appropriate accommodation was available for the respondent as and from 29 June 2020, Mr Lodziak of counsel for the respondent made application for an order releasing the respondent.  I made an order releasing him from that date back onto the supervision order.[7]

Statutory context

  1. [14]
    A warrant may issue for the arrest of a released prisoner where “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 …”.[8]
  2. [15]
    Once the prisoner is arrested, he must be brought before the court.  Section 21 of the DPSOA is then engaged.  It provides:

21 Interim order concerning custody generally

  1. (1)
    This section applies if a released prisoner is brought before the court under a warrant issued under section 20.
  1. (2)
    The court must—
  1. (a)
    order that the released prisoner be detained in custody until the final decision of the court under section 22; or
  1. (b)
    release the prisoner under subsection (4).
  1. (3)
    The released prisoner may, when the issue of his or her custody is raised under subsection (2), or at any time after the court makes an order under that subsection detaining the prisoner, apply to the court to be released pending the final decision.
  1. (4)
    The court may order the release of the released prisoner only if the prisoner satisfies the court, on the balance of probabilities, that his or her detention in custody pending the final decision is not justified because exceptional circumstances exist.
  1. (5)
    If the court adjourns an application under subsection (3), the court must order that the released prisoner remain in custody pending the decision on the application.
  1. (6)
    If the court orders the released prisoner’s release, the court must order that the prisoner be released subject to the existing supervision order or existing interim supervision order (each the existing order) as amended under subsection (7).
  1. (7)
    For subsection (6), 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 amend the existing order to include any other requirements the court considers appropriate to ensure adequate protection of the community.” (emphasis added)
  1. [16]
    Final determination of the contravention proceedings is regulated by s 22.  That provides:

22 Court may make further order

  1. (1)
    The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).
  1. (2)
    Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must
  1. (a)
    if the existing order is a supervision order, rescind it and make a continuing detention order; or
  1. (b)
    if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.
  1. (3)
    For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—
  1. (a)
    act on any evidence before it or that was before the court when the existing order was made;
  1. (b)
    make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order—
  1. (i)
    in the nature of a risk assessment order, subject to the restriction under section 8(2); or
  1. (ii)
    for the revision of a report about the released prisoner produced under section 8A;
  1. (c)
    consider any further report or revised report in the nature of a report of a type mentioned in section 8A.
  1. (4)
    To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).
  1. (5)
    If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.
  1. (6)
    For applying section 11 to the preparation of the report—
  1. (a)
    section 11(2) applies with the necessary changes; and
  1. (b)
    section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.
  1. (7)
    If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—
  1. (a)
    must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and
  1. (b)
    may otherwise amend the existing order in a way the court considers appropriate—
  1. (i)
    to ensure adequate protection of the community; or
  1. (ii)
    for the prisoner’s rehabilitation or care or treatment.
  1. (8)
    The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).” (emphasis added)
  1. [17]
    Section 22 refers to “the adequate protection of the community”.[9]  That is a concept which is significant in the making of final orders under Division 3 of Part 2 of the DPSOA.  The pivotal section in Division 3 is s 13, which provides:

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—
  1. (aa)
    any report produced under section 8A;
  1. (a)
    the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
  1. (b)
    any other medical, psychiatric, psychological or other assessment relating to the prisoner;
  1. (c)
    information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
  1. (d)
    whether or not there is any pattern of offending behaviour on the part of the prisoner;
  1. (e)
    efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
  1. (f)
     whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
  1. (g)
    the prisoner’s antecedents and criminal history;
  1. (h)
    the risk that the prisoner will commit another serious sexual offence if released into the community;
  1. (i)
    the need to protect members of the community from that risk;
  1. (j)
    any other relevant matter.
  1. (5)
    If the court is satisfied as required under subsection (1), the court may order—
  1. (a)
    that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
  1. (b)
    that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
  1. (6)
    In deciding whether to make an order under subsection (5)(a) or (b)—
  1. (a)
    the paramount consideration is to be the need to ensure adequate protection of the community; and
  1. (b)
    the court must consider whether—
  1. (i)
    adequate protection of the community can be reasonably and practicably managed by a supervision order; and
  1. (ii)
    requirements under section 16 can be reasonably and practicably managed by corrective services officers.
  1. (7)
    The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
  1. [18]
    Section 13 operates in this way:
    1. (a)
      The test under s 13 is whether the prisoner is “a serious danger to the community”.[10]
    2. (b)
      That initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”[11] if no order is made.
    3. (c)
      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.[12]
    4. (d)
      Where the “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.[13]
  2. [19]
    On 26 June 2020, I found that “exceptional circumstances” existed which enlivened the jurisdiction to release the respondent under s 21(4) of the DPSOA.  In exercise of that discretion, I made the order.

Reasons for making the order

  1. [20]
    As I reasoned in Attorney-General for the State of Queensland v Holroyd,[14] having regard to the context and purpose of s 21(4) of the DPSOA, “exceptional circumstances” justifying interim release will usually be demonstrated where the court can be satisfied that the adequate protection of the community can be ensured by the release of the prisoner notwithstanding that the issues relevant to the contravention have not been fully ventilated at a final hearing.[15]  The medical evidence shows that to be the position here. 
  2. [21]
    Kylie Lavers, who is the respondent’s treating psychologist, reported as follows:

Ongoing presentation between 02/09/2019 and the 10/09/2019:

[The respondent] consistently presented to his appointments in a punctual manner and was easily engaged. As the sessions progressed [the respondent] became more and more anxious about various occurrences, thoughts, past incidents and things that could possibly occur. [The respondent] reported having difficulty sleeping, racing thoughts, decreased appetite, heart racing, sweating, trembling, nausea and irritability. [The respondent] was observed during sessions to sweat, have difficulty concentrating, catastrophise, jump to conclusions, have psychomotor agitation, require assistance to control his breathing and or be instructed in other physiological de-arousal strategies.

Upon exploring [the respondent’s] anxiety he initially reported that he was ‘petrified of returning to jail’. [The respondent] had been found with a USB containing a video clip of children playing that were only partially clothed. [The respondent] was due to appear in Court on a charge for possession of CEM[16] on the 20/09/2019. As this date approached [the respondent] became more anxious. [The Respondent] was able to engage in implementing physiological de-arousal strategies as well as cognitive strategies. [The Respondent] was not returned to custody however this only briefly reduced his anxiety for approximately one week. [The Respondent] was sentenced to 6m[17] incarceration suspended for 18m.

During the reporting period, [the respondent] reported having difficulty, at various times, with his anxiety regarding his business..., accidently breaching his orders and approval for family members to attend his residence.

[The respondent] also reported that on two separate occasions he had meetings with his CM[18] and a detective who he referred to as ‘Chewie’. He reported that one of these meetings occurred in his home and that he felt very intimidated. He reported that he felt as though he was being interrogated. He had recently been breath tested by surveillance and blown over the limit and breached his order. He reported that ‘Chewie’ was threatening to send him to jail.

During this reporting period [the respondent] reported that stress is a trigger for relapse of sexual offending. He reported that this is what lead to him having the USB with the video clip of half clothed children. He reported that he had recorded it from a show on SBS.

[The respondent] reported that he is stressed about ‘things from his past that may pop up’. He declined to elaborate. He reported that he is stressed about not being able to have N, F, E and J attend his residence. He reported that they were approved to attend his previous residence and initially came to his current residence however not long after he transferred to his new Case Manager he was informed that the correct permissions were not in place for his family members to attend his residence. His son S is the only person that has been approved to attend his residence.

[The respondent] has disclosed that he longs for affection. He disclosed that he enjoyed developing a relationship with, laying with, caressing, being close to pre-pubescent females. He disclosed that he misses this. He disclosed that when he was 6/7 years old, he was friends with a young girl, ‘my little friend’ who lived next door to him. He reported that they ‘experimented sexually’. He reported that he awoke one day, and she was gone. He reported that he has never gotten over this and that he ‘longs to recreate the feelings’ he had with her. He reported that his own family was not affectionate, he was sexually abused as a child and that his mother left when he was young. [The respondent] was very teary when recounting this.

[The respondent] reported that he has been experiencing dreams/nightmares that involve him chasing female children along a never-ending veranda and when he is just about to catch the child he explodes. He reported that he also dreams that he is floating in water above a waterfall, then he falls, begins to drown before waking. Finally, he reported that he dreams that he is emotionally drained and tired, and he can see a victim in his peripheral vison, and he has the same feeling when grooming a victim and has urges. He reported that on all occasions he awakes feeling scared, angry, lost and temporarily disorientated.

[The respondent] disclosed that he has deviant sexual thoughts that he becomes aroused to. He reported that he has a distinct inappropriate fantasy of the ultimate relationship which he is aware can never come to fruition. He reported that he would like to specifically address this and learn strategies to manage.

Anti-libidinal medication:

[The respondent] was provided with psychoeducation regarding anti-libidinal medication. [The respondent] reported that he was told by ‘Dr Bob’ that this medication was ‘not necessary’ and that you ‘should not put anything into your body that is not natural’. I challenged this with [the respondent], in that everybody is different. In future sessions I provided further Psychoeducation from various sources in different formats. As [the respondent’s] anxiety continued to increase I provided him with Psychoeducation on Selective Serotonin Reuptake Inhibitors (SSRI’s) and the combined Anti-anxiety and Anti-libidinal effects that it has.

After some time considering this information, asking questions and seeking further information from myself, [the respondent] decided that he would speak with his G.P about the various types of Anti-Libidinal medications as well as antianxiety medication. As such I wrote a letter to [the respondent’s] G.P. [The respondent] saw his G.P and decided to start taking an SSRI for the purposes of an Antianxiety and anti-libidinal. [The respondent] has only recently begun this medication on the 10/12/2019.

Gains during intervention and treatment.

[The respondent] has engaged well with me and has begun disclosing, the deviant sexual thoughts and urges he has been experiencing. As such [the respondent] has engaged well with the physiological de-arousal techniques and CBT to target his anxiety. This in turn is having a positive impact on his levels of stress. [The respondent] has also engaged. in DBT, particularly the Wise Mind - Risky Mind dialectic and mindfulness. [The respondent] has predominantly used the mindfulness to assist him in being aware of which of the eight sensory inputs may be useful in assisting him to feel physiologically satisfied (generally proprioceptive and spatial orientation).

[The respondent] has recently begun SSRI medication intended to target his anxiety and one that is known to decrease libido.

Assessment of current risk of sexual re-offending

[The respondent] is currently engaging well with me and is actively engaged in intervention for both anxiety and deviant sexual thoughts and urges. He is currently experiencing a great deal of anxiety and stress which is a known, and recognised by [the respondent], relapse trigger. [The respondent] is actively seeking strategies from myself and implementing such.

It does appear however that [the respondent’s] anxiety is being perpetuated by something that he is not willing to disclose. From sessions with [the respondent] and meetings with his Case Manager it would appear that he is currently fearful of being charged with historical offences reported by his step children, possible ongoing contact with his 10 year old daughter, and ongoing contact with a female child in his current workplace.

Currently [the respondent] poses a moderate risk of recidivism. His Case Manager is investigating the ongoing contact with the female child at his workplace. [The respondent] would benefit from returning to weekly sessions.”[19] (emphasis added)

  1. [22]
    Doctor Harden’s views were:

OPINION

[The respondent] is a 52-year-old man who has a series of sexual offences against prepubertal female children. He has been convicted of some of these and also has had other charges that did not proceed and possible uncharged activities. There are two confirmed victims but it is likely on his account that there were others.

He describes long-standing deviant sexual arousal focused on prepubertal females (about seven years of age and blonde haired). He has found this sexual drive a struggle to manage. The origin of this paraphilia seems to be associated with both his history of being sexually abused by a female when he was about seven years of age and by a sexual touching relationship with a girl of about seven years of age when he was also about seven years of age.

He initially appeared to do well on the supervision order obtaining work, moving independently into the community and building prosocial activities. Over 2019 he appeared to develop more difficulties and was in possession of a video of young girls (not illegal), describing to supervising staff increased deviant sexual thoughts and then had contact with the female child of a co-worker as well as unauthorised electronic communication with his daughter. Both the child of the co-worker and his daughter are in his age range of attraction to female children.

He has undertaken two sexual offending treatment programs over the years. The most recent one provided a good outcome report that identifies the significant ongoing risks and deviant sexual arousal. Since then he has had regular psychological therapy with forensic psychologists experienced in dealing with sexual offenders. He had started on an antidepressant/antianxiety medication fluoxetine sometimes used in treatment of sexual offenders with deviant sexual arousal in late 2019. Apparently this medication has not been continued in custody.

He has other significant criminal history including the unlawful killing of his child as an infant and more recently fraud offences. He describes a pattern of being emotionally dysregulated, impulsive and aggressive when he was younger with this having moderated somewhat in later years.

He had a very unfortunate upbringing and was a victim of physical, sexual and probably emotional abuse throughout his childhood.

He has had chaotic emotional relationships with adult women and has fathered a number of children over the years although his most recent serious relationship appears to have resolved into a relatively stable supportive friendship.

He has spent a substantial period of his life in custody although when he has been in the community he has been able to make adjustment in terms of usual employment as a chef and able to make and sustain intimate relationships which are usually truncated by his return to custody.

He does not appear to have had significant substance abuse problems. He has some ongoing community supports. He continues to talk of the need for assistance in the community in remaining offence free and has insight into the difficulty of safely managing his paraphilia.

Diagnoses

He meets diagnostic criteria for Paedophilia (deviant sexual attraction to prepubertal children), non-exclusive type predominantly attracted to females.

He has previously met criteria for Antisocial Personality Disorder, in my opinion he no longer meets criteria for this because of a degree of maturation.

Risk

His ongoing unmodified risk of sexual re-offence in the community is in my opinion still in the high range. While his time in the community (over 3½ years) is sufficient to decrease his risk to some extent the nature of the contravention is concerning and does involve his offence pathway.

His greatest risk factor is his paraphilic interest in prepubertal girls. This paraphilic arousal is likely to persist.

The alcohol intoxication is not as critical a risk factor as is seen in some individuals but instead acts as a further disinhibiting agent making it more likely that he might act on internal emotional drivers.

If he were to be returned to the same supervision order in the community it is still my opinion that the risk of sexual recidivism would be reduced to moderate or below.

Recommendations

If released into the community he should have ongoing psychological therapy.

It would be appropriate for him to consider libido lowering medications to decrease his paraphilic drives.

He should have no unsupervised contact with girls under 16 years of age.

He should be allowed to have supervised contact with those of his own children who are still minors. In my opinion there is no requirement for alcohol conditions on the supervision order.

In my opinion the supervision order should be extended for a further five years given the concerning nature of this contravention and his problems managing his paraphilia.”[20] (emphasis added)

  1. [23]
    In Dr Beech’s opinion:

OPINION

[The respondent] is a 52-year-old man who was released in 2016 on a supervision order. He had been sentenced in 1995 on charges of deprivation of liberty and wilfully exposing a child to an indecent act. In 2011 he was convicted on charges of maintaining an unlawful relationship with a child and indecent treatment. The latter conviction related to him befriending the young daughter of an employee at his cafe and grooming the child.

[The respondent] has described longstanding fantasies of an idealised romantic relationship with a young girl that goes back to his childhood years. They come to the fore particularly when he is stressed, feels isolated or lonely, or has difficulties in his interpersonal relationships. In the fantasy he seeks out affection and sexual contact with children to ameliorate the negative emotions he feels. He has difficulties in his adult relationships particularly because of his avoidant personality style, a tendency to withhold information, and his tendency to avoid support. Those personality vulnerabilities arose in the context of his own troubled childhood, which included sexual abuse. He completed a sexual offender treatment program in 1997 and again in 2013. The fantasies and his personality vulnerabilities were noted. Warning signs for re-offending included the emergence of sexual thoughts or fantasies, being in places that children frequented, and access to potential victims.

To his credit, [the respondent] seemed to have good insight into his offending and to engage with treatment both in a group and individual setting to deal with his emotional difficulties, address his personality style and interpersonal relationship problems, and to monitor and suppress the emergence of sexual fantasies.

Following his release, again to his credit, he has sought employment, engaged in psychological treatment, and monitored and journalled his thoughts, feelings and behaviours. He has been generally compliant with supervision up until 2019. The material indicates, I believe, that he has faced many stressors during his time in the community and these difficulties have led to the emergence of the fantasies; he has continued to lapse into these deviant fantasies to cope with his emotions, loneliness, and perceived rejection. He has continued a platonic relationship with his former partner and her mother. I think this is an ambivalent relationship and the material generally indicates in my opinion that NC, while probably supportive, has limited insight and is not a particularly protective support over the long term. [The respondent] has struggled in the community - he becomes anxious and stressed, has problems adjusting to changes, and can easily feel overwhelmed. He is able to use social and psychological supports to address this, but there are tendencies to hold the emotions in, withdraw from supports, become less open, and resort to fantasies. There is no indication of sexual preoccupation but neither are there indications that he has been able to expand upon his social supports and networks; instead, existing supports at times can be a source of stress for him.

In prison, prior to his release, he had contact with his young daughter. On release, he sought to resume that but the restrictions of his supervision order and the concerns of QCS[21] and DOCS[22] meant that the supervised contact needed to be arranged. Eventually, this appears to have been sorted out but it foundered quickly when he and NC breached the protocols around supervised access that had been implemented. From there, I think there was a protracted course of reengagement. My interpretation of the material is that NC held up the process by her limited engagement with DOCS and the lack of support to allow their daughter YC appropriate counselling and preparation. Clearly, this would have presented a difficult family dynamic because [the respondent] could have contact with his son, his former partner, his older daughter, and his mother inlaw but not with his younger daughter, YC.

Through 2019, in the course of business, interpersonal, logistic and other stresses, there is evidence that [the respondent’s] deviant fantasies re-emerged as a way of coping. Again, to his credit, he seems to have been open at times about this and sought strategies to address it. However, the contraventions and other material indicate that he also sought to minimise or withhold important information.

There are three areas of concern: firstly, he downloaded and retained on a USB a film clip of young children in underwear. Before that, there are indications of other focus on child images. I think this demonstrates poor insight, a lapse of judgement, and a resort to his fantasies to deal with emotional problems. Secondly, he had illicit contact using an electronic device with YC. While this may be understandable to some extent, it occurred over a substantial period, was not disclosed, and seems to have occurred with at least the tacit approval of NC. Thirdly, notwithstanding the need to restrict access to children, he somehow came into repeated contact with the young child of an employee where he worked. It is difficult to know how far to take this - there is a hint that is an offence-paralleling behaviour; it was not disclosed; and again, it showed poor insight and judgement.

[The respondent] is aware of the need to address his emotional difficulties and the fantasies. Prior to his return to custody, he had continued with psychological counselling and had started medication. Both have ceased while he is in prison. In my opinion, the risk of re-offending at this point remains high. While [the respondent] can do well in the community when things are going well for him, as in 2011 when there are difficulties he resorts to fantasies, his judgement lapses, and he comes in contact with children. He is able to engage in psychological treatment for this, but under stress he tends to withdraw again. He has social supports but I think, again as in 2011, they can also be a source of strain for him and not particularly protective.

It is my opinion that the risk remains high, and the lapses and contraventions point to an enduring risk despite the structure of the supervision order and his engagement in psychological treatment. I believe that a supervision order substantially reduces the risk although to some extent that risk reduction relies upon his honesty, disclosures, insight and judgement, and compliance. It is concerning that he withheld information from his case manager despite the availability of supports to him. However, I think a supervision order would reduce the risk of offending to below moderate by surveillance, monitoring, treatment provision, and the general reduction in his contact with children.

I would recommend now that the option of medication is pursued with him. I think he should be referred for specialist assessment and management. While an SSRI medication might be helpful, the benefits and effects need to be properly explored and his response to it needs to be properly gauged. I should be done in conjunction with psychological intervention so that progress can be properly monitored. Alternatively, there may be other medications that might be more appropriate given the nature of his offending.

The nature of these contraventions is concerning enough that I believe the supervision order should be extended for another five years. During that time, medical and psychological treatment could be instituted and the fantasies could be again addressed so that [the respondent] has greater insight, judgement and skills to manage them. I think there should be an additional focus simply on stress management, avoidant personality style, and anxiety. I believe there needs to be work done around his relationship with NC. It would be appropriate to arrange indirect contact with YC but I agree that NC is not a particularly protective factor, and would need to be independently supervised.”[23] (emphasis added)

  1. [24]
    Upon the final hearing of the breach proceeding, the respondent bears the onus of proving “… that the adequate protection of the community can, despite the contravention … be ensured by a supervision order …”.[24]  If the respondent fails to meet that onus, then the supervision order must be rescinded and a continuing detention order made.[25]
  2. [25]
    The medical evidence supports the conclusion that the respondent will discharge the onus upon him and ought to be released on supervision when the contravention proceeding is finalised.  The applicant sensibly recognises this.  In the applicant’s written submissions:

“59. The psychiatric evidence in these proceedings is clear and supports the contention that the respondent’s risk of sexual recidivism can be managed by a supervision order. The evidence on the issue of the duration of the supervision order as a result of the contravention supports the view that the order should remain in place for a period of 5 years from the determination of the proceedings.”

  1. [26]
    The only real issues on the final contravention hearing is whether the period of supervision ought to be extended, and if so, by how long. 
  2. [27]
    Here, I found that “exceptional circumstances” existed for the purposes of s 21(4) of the DPSOA and that those circumstances ought to lead to the respondent’s release on supervision pending finalisation of the breach proceedings.  Those circumstances are:
    1. (a)
      The contraventions of the supervision order did not involve the commission of a sexual offence.
    2. (b)
      When confronted with being in possession of the video depicting female children, the respondent made disclosure to supervisors of deviant thoughts.
    3. (c)
      He also made honest disclosures of sexual preoccupation on 26 November 2019.
    4. (d)
      The contact by the respondent with his daughter and his daughter’s friend involved harm to neither.
    5. (e)
      The application for release under s 21(4) was made when all evidence to be relied upon at the final contravention hearing had been prepared and filed.[26]
    6. (f)
      The respondent’s treating psychologist, Ms Lavers, reported that the respondent was engaging well with her, making proper disclosures and only poses a moderate risk of recidivism.
    7. (g)
      Doctors Harden and Beech, both very experienced psychiatrists in the area of forensic risk assessment, thought that the supervision order would reduce risk of offending to below moderate.
    8. (h)
      The applicant had the opportunity to consider and assess the evidence in the case and conceded that at the final hearing the respondent should be released back into the community on the supervision order.
    9. (i)
      The only real issue in contention is whether the period of the supervision order ought to be extended.
  3. [28]
    For those reasons, I released the respondent back on the supervision order pending final determination of the contravention proceedings.

Footnotes

[1]Pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5)(b).

[2]Pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003, ss 20 and 22.

[3]Sections 20 and 22.

[4][2016] QSC 225 at [4].

[5]Supervising Case Manager.

[6]CFI 19; reproduced complete with any errors.

[7]Dangerous Prisoners (Sexual Offenders) Act 2003, s 21(2)(b).

[8]Section 20.

[9]Section 22(2) and (7).

[10]Section 13(1).

[11]Section 13(1) and (2).

[12]Section 13(6).

[13]Attorney-General v Francis [2007] 1 Qd R 396 at 405, [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.

[14][2020] QSC 187.

[15]At paragraph [32] and see the authorities examined at paragraphs [27]-[31].

[16]A reference to Child Exploitation Material.  The charge, though, was in fact brought under s 43AA of the Dangerous Prisoners (Sexual Offenders) Act 2003, which creates an offence of breaching a supervision order.

[17]Six months.

[18]Case Manager.

[19]Affidavit of K Lavers sworn on 10 January 2020 (CFI 25).

[20]Report of Dr Harden, 24 June 2020, pages 19-21.

[21]Queensland Corrective Services.

[22]Department of Child Safety.

[23]Report of Dr Beech, 16 June 2020, pages 12-14.

[24]Section 22(7).

[25]Section 22(2).

[26]Apart from the usual updated material from Queensland Corrective Services.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v YCJ

  • Shortened Case Name:

    Attorney-General v YCJ

  • MNC:

    [2020] QSC 237

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    21 Aug 2020

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.