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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v Sagiba  QSC 254
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
FRANK CYRIL SAGIBA
BS No 10429 of 2009
Supreme Court of Queensland at Brisbane
Orders made on 10 August 2020, reasons delivered on 21 August 2020
10 August 2020
(a) amend order 2 by omitting the words “13 January 2020” and inserting the following underlined words so as to read, “the respondent be subject to the following conditions until 10 August 2025”.
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 16 December 2009 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) – where the applicant seeks orders under s 22 of the DPSOA to extend the period of the supervision order for a further five years – where the supervision order expired on 13 January 2020 – where the respondent pleaded guilty in the Magistrates Court to breaches of the supervision order and domestic violence offences – where the domestic violence offences were of a “sexual nature” but were not sexual offences – where the respondent has contravened the supervision order on prior occasions, primarily by consuming illicit substances – where psychiatrists opine that the respondent’s risk of committing a sexual offence if not subject to a supervision order is high – where the risk factors which were present in 2009 remain – whether the adequate protection of the community can be ensured by the release of the respondent subject to a supervision order on the existing terms but extended for a further five years
Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 20, s 21, s 22, s 43AA, sch 1
Attorney-General for the State of Queensland v DXP  QSC 77, followed
J Rolls for the applicant
S Robb for the respondent
GR Cooper, Crown Solicitor for the applicant
Legal Aid Queensland for the respondent
- The respondent has been the subject of a supervision order made by Fryberg J pursuant to s 13(5)(b) the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) since 16 December 2009. It was amended on 25 February 2013 and 8 October 2013 and was to expire on 13 January 2020.
- The applicant alleges that the respondent has contravened that order and seeks orders under s 22 of the DPSOA.
- The respondent is an Indigenous man of Torres Strait Islander heritage. He was born on 31 October 1979 and is now 40 years old. His childhood was prejudicial and involved exposure to acts of domestic violence.
- The respondent has a lengthy criminal history. There have been two significant episodes of sexual offending.
- In 1998, there were three incidents over a period of a little over three weeks. On each occasion, the respondent broke into houses occupied by women and sexually assaulted them. He was convicted and sentenced to an effective term of four years’ imprisonment.
- In 2002, there were two incidents over a period of a month. On each occasion, he broke into houses occupied by women and assaulted them. On the first of these occasions, the respondent grabbed his victim by the neck and sexually assaulted her. On the second occasion, he attacked the occupant of the house while she was asleep. He indecently assaulted her and raped her by digitally penetrating her. He was convicted of various offences, including rape and was sentenced to seven years’ imprisonment.
- It was the 2002 offences which formed the basis of the supervision order made in 2009.
- The respondent has breached the supervision order on numerous occasions, most commonly by the ingestion of substances. None of the past contravention proceedings involved the commission of sexual offences. The dates that he was dealt with for contravening the supervision order and the nature of the breaches can be summarised as follows:
4 October 2010
25 February 2013
Consumption of illicit substances
8 October 2013
Failure to comply with curfew
6 February 2014
2 February 2015
Consumption of illicit substances
30 May 2016
Failure to comply with curfew
18 August 2016
31 July 2017
- The respondent has not committed a serious sexual offence for 18 years.
- On 2 January 2020, the respondent was arrested on a warrant issued under s 20 of the DPSOA. On 7 January 2020, he was brought before the Court and was ordered to be detained pursuant to s 21(2) of the DPSOA until the application was finally determined.
- The current contraventions are particularised in the applicant’s application as follows:
“SUPERVISION ORDER REQUIREMENTS
ALLEGED TO HAVE BEEN CONTRAVENED
- (6)not commit an offence of a sexual nature
- (16)comply with every reasonable direction of an authorised Corrective Services officer that is not directly inconsistent with a requirement of this order
- (17)respond truthfully to enquiries by authorised Corrective Services officers about his whereabouts and movements generally
- (20)disclose to an authorised Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to requests for information from an authorised 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
- (25)abstain from illicit drugs
FACTUAL BASIS OF CONTRAVENTION
The respondent is subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’) made by Fryberg J on 16 December 2009, as amended by Dalton J on 25 February 2013 and as further amended by Jackson J on 8 October 2013.
The order contains 31 requirements to be in force until 13 January 2020.
On 2 January 2020, the respondent submitted a sample of urine for analysis as per requirement (26) of his supervision order and a presumptive positive result for methylamphetamine, amphetamine and cannabis was identified. At the time of testing, the respondent made no admission of alcohol or illicit drug use. He denied any changes to his prescribed medication. The sample for 2 January 2020 was sent to Sullivan Nicolaides Pathology (‘SNP’) for confirmation testing. Confirmatory results were received from SNP which indicated that on 2 January 2020:
- (a)cannabis was detected at a level of 1794 ug/L;
- (b)amphetamine was detected at a level of 1708 ug/L; and
- (c)methylamphetamine was detected at a level of 2716 ug/L.
These readings are well above the Australian cut-off of 15 ug/L for cannabis and 150 ug/L for amphetamine and methylamphetamine.
On or about 2 January 2020, information was received by the Queensland Police Service (‘QPS’) alleging the respondent had engaged in acts of domestic violence against a female unknown to Queensland Corrective Services (‘QCS’) at his residence on 27 December 2019. The QPS were investigating a charge of assault occasioning bodily harm allegedly committed by the respondent. In particular the QPS advised:
- (a)A statement had been taken that morning from a female complainant in relation to an incident involving the respondent on 27 December 2019.
- (b)The complainant had been discharged from hospital. She has significant bruising of which the QPS have photos and medical records.
- (c)The complainant alleges she slept overnight at the respondent's residence from 25 December 2019 to 27 December 2019 and on 27 December 2019 he put her in a headlock, strangled and punched her and attempted to prevent her from leaving the house.
- (d)The complainant said that she met the respondent on an internet dating application named ‘Air G’ about five months ago and, apart from knowing the respondent wears an electronic monitoring device, was not aware of his sexual offending. The respondent told the complainant he wore the electronic monitoring device due to old break and enters.
- (e)The initial complaint mentioned a possible sexual assault however the complainant stated the respondent did not sexually assault her but did state he was going to rape her.
On 3 January 2020, the respondent was charged with one count of assault occasioning bodily harm and one count of deprivation of liberty under the Criminal Code and four counts of the offence of relevant order under s 43AA of the Act. The respondent was given a notice to appear on 24 January 2020 at the Magistrates Court at Ipswich.”
- The contraventions are admitted. However, the respondent’s admission to the breach of condition (6), that he “not commit an offence of a sexual nature”, is on the basis that there was a sexual element to the offences but that they were not sexual offences.
- On 20 March 2020, the respondent pleaded guilty to five counts of contravening the supervision order under s 43AA(2) of the DPSOA, as well as one count of assault occasioning bodily harm and one count of deprivation of liberty. The offences of assault and deprivation of liberty were domestic violence offences which were committed against the same woman with whom the respondent was in a relationship. The respondent was sentenced to two years imprisonment on the assault charge and 12 months imprisonment on the deprivation of liberty charge, with a parole release date of 13 August 2020.
- Final determination of contravention proceedings is governed by s 22 of the DPSOA which provides:
“22 Court may make further order
- (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).
- (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—
- (a)if the existing order is a supervision order, rescind it and make a continuing detention order; or
- (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.
- (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—
- (a)act on any evidence before it or that was before the court when the existing order was made;
- (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—
- (i)in the nature of a risk assessment order, subject to the restriction under section 8(2); or
- (ii)for the revision of a report about the released prisoner produced under section 8A;
- (c)consider any further report or revised report in the nature of a report of a type mentioned in section 8A.
- (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).
- (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.
- (6)For applying section 11 to the preparation of the report—
- (a)section 11(2) applies with the necessary changes; and
- (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.
- (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—
- (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
- (b)may otherwise amend the existing order in a way the court considers appropriate—
- (i)to ensure adequate protection of the community; or
- (ii)for the prisoner’s rehabilitation or care or treatment.
- (8)The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”
- Section 22 refers to “the adequate protection of the community”. That concept appears in Division 3 of Part 2 in the DPSOA. The pivotal section in Division 3 is s 13, which provides:
“13 Division 3 orders
- (1)This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).
- (2)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—
- (a)if the prisoner is released from custody; or
- (b)if the prisoner is released from custody without a supervision order being made.
- (3)On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—
- (a)by acceptable, cogent evidence; and
- (b)to a high degree of probability;
that the evidence is of sufficient weight to justify the decision.
- (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;
- (a)the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
- (b)any other medical, psychiatric, psychological or other assessment relating to the prisoner;
- (c)information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
- (d)whether or not there is any pattern of offending behaviour on the part of the prisoner;
- (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;
- (f)whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
- (g)the prisoner’s antecedents and criminal history;
- (h)the risk that the prisoner will commit another serious sexual offence if released into the community;
- (i)the need to protect members of the community from that risk;
- (j)any other relevant matter.
- (5)If the court is satisfied as required under subsection (1), the court may order—
- (a)that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
- (b)that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
- (6)In deciding whether to make an order under subsection (5)(a) or (b)—
- (a)the paramount consideration is to be the need to ensure adequate protection of the community; and
- (b)the court must consider whether—
- (i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and
- (ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.
- (7)The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
- Section 13 operates in this way:
- (a)The test under s 13 is whether the prisoner is “a serious danger to the community”.
- (b)That initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence” if no order is made.
- (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.
- (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.
- The respondent bears the onus of satisfying the court on the balance of probabilities that adequate protection of the community can be ensured by a supervision order despite his contraventions of the existing order.
- The power to vary a supervision order under s 22(7) includes a power to extend the term of the order where that is necessary to ensure the adequate protection of the community. The period over which a supervision order operates should equate to the period over which adequate protection of the community requires it.
- The respondent’s supervision order expired on 13 January 2020. This Court is empowered to make orders under s 22 despite the supervision order which is said to have been contravened having expired. In Attorney-General for the State of Queensland v Marama (No 2), Applegarth J stated:
“Section 22, itself, defines the existing order in terms which can apply to an order which existed at the time of the contravention, but expired by the time of the final hearing. Any other interpretation would have apparently inconvenient consequences. It would, for example, deprive the Court of jurisdiction to hear and determine a contravention proceeding where either a very serious contravention, or a trivial contravention, occurred in the last few days of a supervision order. Given the way in which existing order is defined in s 22(1), the context in which that section appears, and the Act’s purposes, I consider that the applicant is correct in submitting that where proceedings have been commenced under s 20, the Court remains empowered to make orders under s 22, notwithstanding that the original supervision order has expired after commencement of the breach proceedings.
Such an interpretation seems consistent with the objective of the Act, and clear words would be required to displace the jurisdiction of the Court. It should not, for example, be assumed that the Court’s jurisdiction is displaced where a contravention, perhaps even a relatively trivial one, justified the Court, at the final hearing, extending the term of the supervision order. To deprive the Court of that jurisdiction would deprive it of the power to extend a supervision order, even one which had earlier expired, so as to provide for the adequate protection of the community and to enhance the individual’s rehabilitation, or care, or treatment.
- Dr Sundin interviewed the respondent and provided a report dated 21 July 2020. Dr Sundin diagnosed the respondent as follows:
“Using the diagnostic and classificatory system of the American Psychiatric Association, I consider that Mr Sagiba meets diagnostic criteria for:
- Mixed Personality Disorder- anti-social and narcissistic personality traits;
- Substance Use Disorder; most recent abuse of methamphetamine/cannabis;
- Unspecified Bipolar Affective Disorder;
- Dr Sundin assessed the respondent’s risk of committing a serious sexual offence without a supervision order as moderate but opined that the risk factors which were present in 2009 continue to be present:
“Mr Sagiba has received very high levels of psychiatric, psychological and medical intervention over the 10 years that he has been in the community. He has undertaken sex offender treatment programmes, drug intervention programmes, sex offender maintenance programmes and drug and alcohol rehabilitation outpatient programmes.
Nonetheless, he has repeatedly abused substances within the community and the observation he made to Dr Grant several years ago that he has this repeating pattern of self-sabotage has been clearly evident during his most recent two years within the community.
It appears that the most insightful comment Mr Sagiba has made recently, was that had he not been under a supervision order that he likely would have committed a series of rapes.
Despite his vivid criticisms of the supervision order and his at times combative engagement with case managers; the comments made in 2019 by Mr Sagiba appear to indicate an awareness that the supervision order has been proving useful and has been vitally necessary in containing the risk that Mr Sagiba poses for future sexual recidivism.
In my opinion, the observation proffered by Dr Donald Grant in his report of July 2017, his conclusion remains relevant and accurate. He expressed the opinion that a supervision order reduces the risk by imposing external control on Mr Sagiba’s behaviours.
Dr Grant was concerned that:
‘If Mr Sagiba fails to internalise insights and behavioural controls it is likely that further difficulties with complying with supervision will persist and I would be pessimistic that by expiration of the current order in 2020 he would be significantly changed and therefore significant risk of reoffending would persist thereafter.’
It is 11 years since I last assessed Mr Sagiba, and the observations made by Dr Grant are in my opinion pertinent and relevant to Mr Sagiba’s current presentation.
In my opinion, he has not developed an internal locus of control, he does not have any great insight into the contributions from his attitudes to his high-risk factors. Consistent with his primary diagnosis of a severe personality disorder, he continues to displace responsibility for management of these risk factors onto others.
In my opinion, Mr Sagiba’s unmodified risk for sexual recidivism is now moderate given that he has not committed a further sexual offence in 18 years.”
- As to risk and recommendations, Dr Sundin opined:
“In my opinion, Mr Sagiba continues to represent a moderate unmodified risk for both future sexual and violent recidivism. The risk is that he would physically assault an intimate partner and rape her if she refused his sexual demands. There is a risk that if he became intoxicated and/or he was frustrated in an intimate partner relationship that he would act out his anger and frustration and then rape a stranger female.
I respectfully recommend that his supervision order should be extended by a further 5 years. Although Mr Sagiba has not re-offended by way of committing a rape in the last 10 years, many of the attitudes and risk factors that underpinned his sexual offending do not appear to have greatly ameliorated.”
- Dr Harden also assessed the respondent and provided a report dated 27 July 2020. Dr Harden has assessed the respondent on multiple previous occasions.
- Dr Harden diagnosed the respondent as follows:
“I have previously given him a diagnosis of Bipolar Disorder not otherwise specified (under DSM IV-TR). These features do not seem to have recurred and this remains in remission.
I have previously given him a diagnosis of Alcohol Abuse and dependence and Marijuana abuse, both in remission because of incarceration and these remain accurate in my opinion.
He has a Personality Disorder Not Otherwise Specified with antisocial and narcissistic features.
I have said in the past that he most likely previously met diagnostic criteria for the Paraphilia of Voyeurism which may be in remission following treatment in the sexual offender program, no evidence has been provided that this has recurred during his time in the community.” (emphasis in original)
- As to risk, Dr Harden expressed this view:
“The actuarial and structured professional judgement measures and other information available suggest that his future risk of sexual reoffence is high.
From the point of view of risk assessment, as far as the science informs us, the most recent criminal convictions for violence and threats of sexual violence towards his sexual partner count as a sexual offence.
In my opinion the monitoring and supports associated with a supervision order continue to reduce his risk of recidivism to moderate.” (emphasis in original)
- Dr Harden recommended:
“1. That he be monitored in the community by means of a supervision order for a further five years from the time of this report.
- That he continue to be required to be abstinent from alcohol and drug use and undergo an appropriate random testing regime.
- That he continue in an individual program for sex offender treatment and mental health followup with his psychologist and psychiatrist.
- That he be involved in group and individual maintenance therapy regarding substance abuse and domestic violence in the community.”
- In summary, Dr Harden considered that the respondent’s risk of committing a sexual offence is high without a supervision order. If the respondent were subject to a supervision order, Dr Harden considered the risk would be moderate.
- Neither doctor was called for cross-examination.
- The applicant’s submission is that the community would not be adequately protected upon the respondent’s release unless the respondent was subject to a supervision order expiring on 10 August 2025.
- The respondent submits that he has discharged the onus cast upon him under s 22(7) of the DPSOA, but concedes that he can only do so if the supervision order is extended so as to expire on 10 August 2025.
- I accept that the offences to which the respondent pleaded guilty on 20 March 2020 were not “serious sexual offences”.
- A consideration of the “adequate protection of the community” is a consideration of protection not from general offending, or even protection from sexual offending, but protection from the commission by the respondent of a “serious sexual offence”.
- The evidence of Dr Sundin and Dr Harden is that, while the respondent has not committed a sexual offence over the 10 year period of the supervision order, the risk factors remain. Both psychiatrists have opined that the risk of the respondent committing a serious sexual offence increases upon the consumption of illicit substances. They both opine that the supervision order has acted to modify that risk. I accept the evidence of the psychiatrists.
- The respondent has not demonstrated that the adequate protection of the community can be ensured by his release without him being subject to supervision. He has, though, discharged the onus of proving that the adequate protection of the community can be ensured by his release subject to a supervision order on the existing terms but extended to 10 August 2025.
- For those reasons, I ordered that the respondent be subject to a supervision order for a further five years from the date of the hearing.
Attorney-General for the State of Queensland v Sagiba  QSC 439.
CFI 231; reproduced complete with any errors.
Respondent’s outline of submissions at .
Being three days after the matter was heard and the orders made.
Section 22(2) and (7).
Section 13(1) and (2).
Attorney-General v Francis  1 Qd R 396 at 405, ; Attorney-General (Qld) v Yeo  QCA 115; Attorney-General v Lawrence  1 Qd R 505; LAB v Attorney-General  QCA 230; Attorney-General for the State of Queensland v Ellis  QCA 182; Attorney-General (Qld) v Fardon  QCA 64.
Attorney-General for the State of Queensland v Van Dessel  2 Qd R 1 at 9, ; Attorney-General v Foy  QSC 304 at ; Bickle v Attorney-General  2 Qd R 523 at 538-539.
Attorney-General for the State of Queensland v KAH  3 Qd R 329; Attorney-General for the State of Queensland v DXP  QSC 77 at .
 QSC 83, pages 2-3.
Report of Dr Sundin, 21 July 2020, page 27.
Report of Dr Sundin, 21 July 2020, page 29.
Report of Dr Sundin, 21 July 2020, page 30.
Report of Dr Harden, 27 July 2020, page 50.
Report of Dr Harden, 27 July 2020, page 51.
Report of Dr Harden, 27 July 2020, page 51.
Dangerous Prisoners (Sexual Offenders) Act 2003, dictionary, definition of “serious sexual offence”.
Attorney-General v Phineasa  1 Qd R 305. See the discussion by Jackson J in Attorney-General (Qld) v Fardon  QSC 193 at ; on appeal on another point Attorney-General v Fardon  2 Qd R 487.
Although Dr Harden describes the offences as sexual offences for the purposes of his risk assessment.
- Published Case Name:
Attorney-General for the State of Queensland v Sagiba
- Shortened Case Name:
Attorney-General v Sagiba
 QSC 254
21 Aug 2020