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Attorney-General v Brown

 

[2014] QSC 84

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

Judgment delivered Ex tempore 28 April 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

28 April 2014

JUDGE:

Ann Lyons J

ORDER:

There is an order in the terms of the draft which has been initialled and placed with the file

CATCHWORDS:

DANGEROUS PRISONERS – SEXUAL OFFENDERS – where the respondent has been subject to a detention order since 2009 – where the respondent committed two violent rapes in 1995 and 2002 – whether the respondent should continue to be subject to a Division 3 order

Dangerous Prisoners (Sexual Offenders) Act 2003, s 27(1B), s 27(1C)

COUNSEL:

J Rolls for the applicant

K McMahon for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

This application

[1] By application filed on 7 November 2013, the applicant has made an application, pursuant to s 27(1B) and s 27(1C) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), that the continuing detention of the respondent be reviewed.

Overview

[2] On 16 June 2009, Martin J ordered that the respondent be detained in custody for an indefinite term for care, control or treatment.

[3] On 22 June 2011, Daubney J affirmed the order of Martin J, made on 16 June 2009, that the respondent is a serious danger to the community in the absence of a Division 3 order and ordered that the respondent continue to be subject to the continuing detention order.

[4] On 12 November 2012, Henry J affirmed the order of Martin J made on 16 June 2009 that the respondent was a serious danger to the community in the absence of a Division 3 order and ordered that the respondent continue to be subject to the continuing detention order.

Background

[5] The respondent was born on 8 September 1980 and is 33 years of age. Concerningly the respondent has an extensive criminal history which goes back to 1994 when he was almost 14 years of age.  His offending commenced at Lockhart River and initially were essentially break and enter and stealing offences. Concerningly on 3 October 1995, when he was 14 the respondent entered a house and raped a woman. There was then a further rape on 27 June 2002 when the respondent left a nightclub in Cairns with friends and went to a nearby public toilet where the rape occurred. He had forcibly entered a cubicle, closed the door behind him, and then assaulted and raped the victim.

[6] The respondent’s criminal history is summarised in the table below:

 

Date

Description of Offence

Sentence

6.09.1994

Lockhart River CC

Break & enter dwelling house with intent

Wilful damage to property (2 chgs)

Break, enter & steal (3 chgs )

Break, enter & steal (3 chgs )

Break & enter place with intent (2 chgs)

Break & enter dwelling house with intent

Stealing

Convictions recorded

Probation 12 mths

Restitution $1296.05

3.10.1995

Cairns DC

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

Rape (26.07.95)

Stealing (26.07.95)

On each charge:

Conviction recorded, detained 5 years

Conviction recorded, detained 6 months

Detention to take effect on and from 26.07.95

All terms of detention are to be served concurrently

1.11.1999

Cairns CC

Indecent assault (16.07.95)

Stealing (on/abt 18.07.95)

Stealing (20.07.95)

Convictions recorded

Detained 6 months

14.07.1999

Cairns MC

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

Convicted & sentenced 14 days imprisonment

Concurrent with present sentence

9.09.2000

Cairns MC

Bail Act failure to appear (on 04.09.00)

No conviction recorded

Fined $325

9.09.2000

Mareeba MC

VAG Act Use insulting words (on 22.08.00)

No conviction  recorded

Fined $325

In default imp 13 days

22.09.2000

Cairns MC

Obstruct police officer (2 chgs on 21.09.00)

On each charge: convicted & fined $300

5.02.2001

Mareeba MC

Breach bail undertaking (on 29.01.01)

Common assault

Imprisonment 5 days

Fined $225 i/d imp. 6 days imp

Cairns Magistrates Court

16.03.2001

Behave in a disorderly manner (on 26.02.01)

Contravene direction or requirement (on 05.09.00)

Common assault

Breach bail undertaking (2 chgs on 5 & 12.03.01)

Fined $100

In default imprisonment 2 days

Fined $50

In default imprisonment 1 day

Fined $300

In default imprisonment 6 days

On each charge:

Convicted & sentenced 14 days imprisonment

15.05.2001

Cairns MC

Consume liquor on a road (on 23.04.01)

Convicted & fined $100

i/d imp. 2 days

4.10.2001

Cairns MC

Behave in a disorderly manner (on 14.09.01)

Behave in a violent manner (on 19.09.01)

Bail Act Fail to appear (on 28.09.01)

On each charge:

Probation 6 months

Imprisonment 1 month

16.10.2001

Cairns MC

Behave in an indecent manner (on 27.09.01)

Convicted & fined $50

7.11.2001

Cairns MC

Bail Act Fail to appear (on 02.11.01)

Behave in a violent manner (on 06.11.01)

Behave in a disorderly manner (on 01.11.01)

On each charge:

Imprisonment 1 month

21.12.2001

Cairns MC

Behave in a disorderly manner (on 20.12.01)

Convicted & sentenced

Imprisonment 1 month

7.02.2002

Cairns MC

Bail Act Breach bail undertaking (on 05.02.02)

Convicted & not further punished

20.02.2002

Cairns MC

Behave in a disorderly manner (on 04.02.02)

Obstruct police officer (on 04.02.02)

Behave in a disorderly manner (on 05.02.02)

Obstruct police officer (on 05.02.02)

Contravene direction or requirement (on 17.02.02)

Obstruct police officer (2 chgs on 17.02.02 & 16.02.02)

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

Breach bail condition (btn 8 & 14.02.02)

Breach of Domestic Violence Order (on 01.02.02)

Behave in a disorderly manner (on 22.01.02)

Imp 8 weeks

Imp 7 days

Imp 8 weeks conc

Imp 7 days

On each charge

Imp 7 days conc

Imp 1 month conc

Imp 14 days

Imp 1 month conc

Imp 8 weeks conc

20.03.2002

Cairns MC

VAG use insulting words (on 18.01.02)

Assault police officer (on 05.02.02)

Imp 7 days

Imp 2 mths

21.06.2002

Cairns MC

Use insulting words (on 30.05.02)

Behave in a disorderly manner (on 30.05.02)

Behave in a disorderly manner (on 06.06.02)

On each charge:

Fined $100 i/d imp. 6 days

28.10.2002

Mareeba MC

Stealing (on 27.06.02)

Fined $500

6.02.2003

Cairns DC 

Rape (on 27.06.02)

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

Imprisonment 7 years

Imprisonment 4 years

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

Defendant declared to be convicted of two serious violent offences

[7] At the time the original orders for the respondent’s detention were made under the Act in 2009 there was clear evidence before Martin J that the respondent was too great a risk to be released even under the most stringent orders.  At that stage it was considered that that the respondent’s needs were considerable and the preponderance of opinion was that those needs could not be addressed outside of the prison environment even under the ambit of a supervision order. It was clear that Doctors Sundin and Nurcombe shared the concerns of Professor James. It was clear that the respondent had a multiplicity of problems not all of which had been assessed at that stage and there was a very real concern that the respondent may have had some brain damage.

[8] In his reasons for judgment Martin J stated:[1]

“The medical evidence in this case is all of one mind, that is, that Mr Brown constitutes too great a risk to be released even under the most stringent of supervision orders.

Professor James opined that the application of actuarial risk elements indicate that the respondent has a very high risk of further offending, both violent and sexual, unless significant therapeutic interventions prove to be successful during the course of his imprisonment. Professor James also was of the view that the respondent’s needs are ‘very considerable indeed’.  So great are they that they cannot be addressed outside of prison, even under the ambit of a supervision order.

 

Part of the respondent’s problems may have developed in part from serious dependence problems he had with respect to alcohol, cannabis and petrol.  Various tests performed suggest that he is on the cusp of diagnosis of a psychopathic personality.  Dr Nurcombe, who also examined him, placed him in the very high risk of re-offending on three tests and high risk on a fourth test.

 

There is also unanimity among the experts that the respondent has problems with planning – this may, of course, be part of his neurological problems – and the exit report from the program he undertook while in gaol did not change the views expressed by Dr Nurcombe.

 

Dr Sundin, who was called to give evidence, also assessed Mr Brown as being of a high risk in various categories.

 

Ms Debbie Anderson, a clinical neuropsychologist, examined the respondent and concluded that he had serious cognitive deficits in the language or verbal areas.  This would cause him difficulty in comprehending any supervision orders.  Other problems identified by her meant that the preparation of a release plan of any use was impossible.

 

I accept without equivocation Dr Sundin’s oral evidence that the respondent suffers from a multiplicity of problems, not all of which have been fully identified and assessed.  There is a clear need for neurological examination, such as an EEG or an MRI, or perhaps other tests.  These would assist in assessing the degree, if any, of any brain damage from which the respondent suffers.  The length and extent of any treatment will depend upon the results of those further necessary investigations.”

[9] On 22 June 2011 the review of the continuing detention order was conducted before Daubney J. His Honour was concerned that the respondent was unable to undertake programs and to engage meaningfully in offender programs because of literacy issues and recommended that those literacy and numeracy skills be addressed. It was ordered that the decision of Martin J be affirmed and that the respondent continue to be subject to the continuing detention order made on 16 June 2009. 

[10] In his reasons for judgment Daubney J made the following observations:[2]

“As the material was presented to me in February, particularly the state of the psychiatric reports at that time, it was clear that the risk assessed by Martin J had not, in any way, been ameliorated, not least because of what I would conclude to be an incapacity on the part of Mr Brown at that time to engage meaningfully in the remedial alcohol, drug dependence and sex offender programs that he, on any view of the psychiatric evidence, needs to undertake in order to address the risk of re-offense.

It is also apparent that a significant, if not the most significant, factor contributing to his ability to partake meaningfully in those programs, particularly in such programs or either engage in group sessions, was the fact that English is not his first language and he had little literacy and numeracy skills in English leading to frustration and an inability to participate meaningfully in those programs.

 

I accept the submission made by counsel for the Attorney General, Mr Rolls, to the effect that the psychiatric evidence which has been meant for the purpose of this review all points in one direction, that is that without the benefit of completion of remedial programs to which I have referred the risk that Mr Brown presents is simply too great to permit him to be released even under the terms of a stringent supervision order.”

[11] Later his Honour noted:

“The fact of the matter is, however, on the evidence before me, that I cannot be satisfied that the risk he otherwise presents can be addressed while he undertakes literacy courses in the community.  That needs to be balanced in practical terms against the factors I have already observed that even in the relatively few months in which he has had, what seems to be an intensive literacy and numeracy course available to him at Lotus Glen facility he has made very considerable progress and I have already commented on the fact that he should be credited for having applied himself to undertaking that program so diligently.”

[12] On 12 November 2012 the continuing detention of the respondent was further reviewed as required by the Act by Henry J who was satisfied that the literacy and numeracy issues had been addressed. His Honour was satisfied that those issues had in fact been masking a lack of motivation in completing courses and not a lack of capacity because of want of literacy. He considered that the failure to complete the literacy classes looms as less significant in comparison to the respondent’s lack of motivation particularly in completing the courses. His Honour continued:[3]

“It is apparent from the psychiatric evidence of recent times that one of the problems concerning Daubney J, if not the principle problem, namely the failure to properly complete literacy courses, may not have been quite the stumbling block first thought.  Both psychiatrists appear to be of that view. Certainly Dr Grant explained compellingly with reference to the respondent’s musical skills and song writing ability, that he had revised his view about the respondent’s level of literacy upwards.  A reasonable inference to draw on the whole of the evidence is that the wrongly perceived extent of the respondent’s literacy problems masks that which is now more obvious, namely a lack of motivation in completing courses, not a lack of capacity to do so because of a want of literacy skill.  I do not overlook in making that observation that it may once have been the case that literacy problems did genuinely interfere with his ability to complete courses, but there no longer seems to be the same concern by those professionals involved with the case on that front as once there was.  So, it is that his failure to complete literacy classes, notwithstanding Daubney J’s clear indication of the importance of those, looms as less significant in comparison to his lack of motivation, particularly in completing the two courses to which I have referred.”

[13] His Honour observed:[4]

“It is readily apparent the respondent is of borderline intelligence.  He suffers from a severe anti-social personality disorder which Professor Grant, using the psychopathic checklist, classified as psychopathic.  Professor Grant observed, after taking account of the poor motivation and failure to complete courses, ‘Taking all of this into account, it seems evident that Mr Brown has not been successful in pursuing any of the programmes that were designed to assist with his rehabilitation and reduce risk upon release from prison.  His clear lack of motivation makes it difficult to know whether he will ever achieve any further meaningful steps in terms of education or rehabilitation … It would appear that Mr Brown has effectively closed off future educational and rehabilitation options through his refusal to participate and evidence lack of motivation’.”

[14] Later, his Honour observed:[5]

“In my view, on the whole of the evidence, there is plainly acceptable cogent evidence that satisfies me to the high degree of probability required that the respondent remains a serious danger to the community in the absence of a Division 3 order under the Act.  Accordingly, I will affirm the decision of Martin J.

I have already explained that the psychiatric evidence shows the risk of the respondent’s release presents is high, and that any offending, if committed, would likely relate to a violent sexual assault against an adult female unknown to him, most particularly in circumstances where he may ingest alcohol or other intoxicating substance, the risk of which, in my view, remains high in the absence of a more concerted demonstration of motivation by Mr Brown in dealing with a problem he still seemingly fails to acknowledge.

One of the main requirements to reduce the risk of him committing further sexual offences is that he remain alcohol and substance-free.  He has refused to undertake any drug and alcohol programme and remains poorly equipped to cope with the risk of consuming intoxicating substances once released from custody.  The reality is that little has changed since the order of Martin J was made, save for some clarification that the literacy difficulties once perceived are not the most significant underlying problem in respect of his rehabilitation and completion of courses, and that rather it is a lack of motivation.”

[15] His Honour also observed:[6]

“In short, these rehabilitation courses are so important to one of the most concerning risk factors in this case, that they ought to have been completed in gaol.  Moreover, the prisoner’s lack of motivation to complete them in gaol detracts from the force of any argument that he can be relied upon to take the need for those courses more seriously once he is released.

In my view, in circumstances where one of the most significant risk minimisation strategies to ensure the adequate protection of the community has been within the prisoner’s hands to tend to for some time now, it mitigates very strongly against a conclusion that the adequate protection of the community can reasonably and practicably be managed by a supervision order.

The concern about his relapse in relation to alcohol or intoxicating substances and the link between that and the high risk of re-offending is simply too great to, in my view, conclude that the other features of the proposed supervision order would ensure adequate protection of  the community.

In all of the circumstances then, I am satisfied that the adequate protection of the community cannot be reasonably and practicably managed by a supervision order of the kind proposed or, indeed, of any kind of a similar nature.”

[16] It was clear that Justice Henry was concerned that Mr Brown had a borderline intelligence and suffered from a severe antisocial personality disorder which DR Grant, using the psychopathy checklist, classified as psychopathic. He observed that he had not been successful in pursing programs that had been designed to assist with his rehabilitation and reduce the risk upon his release from prison.

[17] Accordingly, Justice Henry ordered that the respondent continue to be subject to a continuing detention order. 

[18] On this review there are very real concerns in relation to the respondent’s motivation to be involved in his ongoing rehabilitation, and the rehabilitation courses are important and clearly go to addressing the risk factors. It is clear that the minimisation of those risk factors lies in Mr Brown’s hands. It is important that Mr Brown understands that he must not take any substances or use any alcohol and that the concern about his relapse is in relation to the resumption of his use of substances and alcohol. It is clear that if those factors can be addressed then the risk to the community can be managed to an appropriate degree.

Statutory Scheme

[19] It is clear that the objects of the Act, contained in s 3, are to provide for continued detention or supervision of a particular class of prisoner and to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.

[20] The Act establishes a scheme for the continued detention in custody or supervised release of prisoners who are deemed to be at risk of committing serious sexual offences if released at all, or if released without appropriate supervision. The Act provides for the Supreme Court to hear applications for orders under the Act, pursuant to s 5 of the Act and places the responsibility for making the necessary applications on the Attorney-General.

[21] Once an order has been made under Division 3 of the Act, then the Attorney must make application for a review to be carried out.[7] The application for review is governed by s 30 of the Act, which provides:

30Review hearing

(1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.

(2) On the hearing of the review, the court may affirm the decision 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 affirm the decision.

(3) If the court affirms the decision, the court may order that the

prisoner—

(a) continue to be subject to the continuing detention order; or

(b) be released from custody subject to a supervision order.

(4) In deciding whether to make an order under subsection (3)(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.

(5) If the court does not make the order under subsection (3)(a),

the court must rescind the continuing detention order.

(6) In this section—

required matters means all of the following—

(a) the matters mentioned in section 13(4);

(b) any report produced under section 28A.”

[22] Arrangements must be made for the respondent to be examined by two psychiatrists.[8]

[23] Section 13(2) of the Act provides that a prisoner is a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or if released from custody without a supervision order being made.  This definition would be applicable and applies to the determination that is required to be made under s 30 of the Act.

[24] The expression “unacceptable risk” is undefined by the Act. It is incapable of precise definition but is an expression which requires the striking of a balance.[9] The relevant risk is the risk of commission of a serious sexual offence i.e. an offence of a sexual nature involving violence or against children. Risk means the possibility, chance or likelihood of commission of such an offence. An unacceptable risk is a risk which does not ensure adequate protection of the community. This phrase was considered in Attorney-General for the State of Queensland v Francis[10] when the Court of Appeal observed:[11]

[39] Insofar as his Honour was concerned that, if the appellant began to use alcohol or drugs, he might abscond, the risk of a prisoner absconding is involved in every order under s 13(5)(b). The Act does not contemplate that arrangements to prevent such a risk must be “watertight”; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”

[25] The means of avoiding that risk is a continuing detention order or a supervision order.

[26] If the court, on the review hearing, affirms a decision that the prisoner is a serious danger to the community in the absence of a Division 3 Order then the discretion granted by s 30(3) is enlivened. 

[27] In determining whether the decision ought to be affirmed the matters mentioned in s 13(4) of the Act must be considered.  Section 13(4) provides:

13 Division 3 orders

(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.”

[28] For the Court to make a Division 3 order, it must be satisfied that the prisoner is a serious danger to the community in the absence of such an order.[12]: Section 13, subsection (2) defines what is a “serious danger to the community”. There must be an unacceptable risk that the prisoner will commit a serious sexual offence if released at all, or if released without a supervision order.

[29] The Schedule to the Act defines what a serious sexual offence is:

“serious sexual offence” means an offence of a sexual nature, whether committed in Queensland or outside Queensland— involving violence; or against children”.

[30] The offence must be of a sexual nature, with the added requirement that it either involve violence, or is an offence against children.

[31] To be satisfied under s 13(1) of the Act that the prisoner would pose a serious danger to the community in the absence of an order, the Court must be satisfied by acceptable, cogent evidence, and to a high degree of probability, that that the evidence is of sufficient weight to justify the decision[13].

Further psychiatric reports

[32] It is clear that a number of psychiatrists have examined the respondent over a number of years.

Dr Josephine Sundin

[33] Josephine Sundin is a psychiatrist who has examined the respondent on 6 May 2010 and in a report filed on 30 June 2010,[14] stated that the respondent continued to meet the diagnostic criteria for alcohol abuse/dependence (in remission whilst in gaol), cannabis abuse/dependence (in remission while in gaol) and mixed personality disorder; antisocial/borderline personality traits.  He also met the criteria for psychopathic personality. He suffers inhalant abuse currently in remission and “issues of potential cerebral damage still not excluded”

[34] Dr Sundin has again examined the respondent on 7 March 2014 and filed a report dated 1 April 2014. She states that at the time of preparation of the report, the respondent had undertaken the Pathways program.  The respondent expressed to Dr Sundin great confidence in what he had learned but Dr Sundin notes the facilitators, “… are much more cautious”.  Dr Sundin observed that the respondent continued to overstate his capacities and underestimate the difficulties he would encounter.  Further, the respondent was unable to identify to Dr Sundin his specific or particular practical plans with which he would engage should the court release him. 

[35] Dr Sundin notes that the collateral material demonstrates that the respondent has improved his behaviour overall but he continues to struggle with motivation and is not engaged in any concrete way towards his own benefit from a location industry perspective. 

[36] More positively, Dr Sundin records that there has been some improvement in the respondent’s overall behaviour.  He is engaged with three criminogenic treatment programs.  He has good reports from two of these and a less satisfactory report from the more intense program.  The respondent has developed a relapse prevention plan which identifies some strategies he hopes to engage so that he can manage his risk factors.  However, Dr Sundin notes that, “unfortunately” the relapse prevention plan lacks the kind of concrete specifics which would create confidence in the respondent’s capacity to remain offence free within the community.  The substance abuse program, “Pathways”, gave rise to what Dr Sundin records as a, “disheartening exit report”.

[37] In Dr Sundin’s view, the respondent continues to present an unacceptable, unmodified risk to the community for both general and sexual recidivism. He remains vulnerable to decompensation in the face of life’s stressors and destabilisers.  Dr Sundin notes the respondent appeared to have completed most of the criminogenic treatment programs available to him within the Corrective Services system.  She considered, however, that the respondent’s low IQ, personality structure and cognitive distortions have limited the extent to which he has internalised the message of these programs.  She did not consider that the respondent would benefit from any further treatment programs whilst in custody.  Dr Sundin notes the respondent has benefited from one-on-one counselling and this probably could be considered as a strategy to work on in improving his level of insight and helping him focus on more practical risk prevention strategies. Dr Sundin was concerned that whilst the respondent has improved his behaviour he continues to struggle with motivation.

[38] Dr Sundin considered that if a supervision order was considered to be appropriate and it was considered he could be managed in the community a supervision order which would require the respondent to actively engage in one on one sessions with a suitably qualified forensic/clinical psychologist would be required. The supervision order would need to be, “very strict” and in place for 10 years. 

[39] Dr Sundin also considered that the respondent would need to be subject to curfews and GPS monitoring.  The respondent would benefit from further participation in a community based alcohol and drug intervention program and a sexual offenders’ maintenance program.  Abstention from alcohol and illicit substances would be required.  Resumption of substance abuse should flag a potential decompensation with an associated rise in the risk of reoffending. 

Dr Donald Grant

[40] Donald Grant has also provided a number of reports and he sets out in great detail an analysis of the respondent’s intellectual and cognitive deficits which he considers could be a result of solvent abuse and chronic alcohol abuse. Dr Grant prepared a report dated 20 June 2010 which is in evidence in these proceedings. [15]  Dr Grant made the following diagnosis of the respondent: alcohol abuse and dependence, currently in remission in prison, cannabis use and dependence, currently in remission while in prison and past solvent abuse, now in remission.

[41] Dr Grant has further examined the respondent and prepared a report dated 15 February 2014. Dr Grant, consistently with earlier reports, indicates the respondent suffers from alcohol abuse and dependence, cannabis abuse and dependence and solvent abuse.  These conditions are currently in remission due to custody.  The respondent has a borderline level of intelligence with some significant verbal and memory problems and issues with literacy.  He also has a personality disorder with antisocial traits.  He reaches the cut-off point for psychopathic personality.  Dr Grant could not find sufficient evidence to diagnose any specific sexual paraphilia.  All of the respondent’s offending behaviour seems to have occurred when he was intoxicated.

[42] Dr Grant notes that the current assessment indicated some evidence of improved attitude and a better understanding of the risk factors and what needs to be done in the future.  He stated that a perusal of the Pathways exit report indicates that, despite having done the course satisfactorily, the result demonstrates little real change in deep seated attitudes and problem solving skills. It appears that this does not necessarily represent motivational issues but is more reflective of the respondent’s intellectual and educational limitations. 

[43] The respondent has now undergone all the possible educational programs available to him in custody.  There does not appear to be any purpose in trying to pursue further educational specialists courses. 

[44] Dr Grant perceives that future treatment and counselling would be better conducted on a one to one basis.  Individual counselling would be necessary in the future to further address drug and alcohol issues, issues to do with the respondent’s own sexual abuse and issues regarding prevention of reoffending and risk prevention. 

[45] Dr Grant considers that the respondent’s release would be better managed in South East Queensland rather than Northern Queensland, however, the evidence is that there is no space at the Wacol precinct and the respondent will, at least initially, be managed in Townsville.

[46] The respondent will require a great deal of support and rehabilitation if released from prison.

[47] The respondent now appears to have a somewhat more positive attitude towards undergoing supervision and having appropriate counselling in the future.  In Dr Grant’s view, the respondent is at risk of some kind of breach of a supervision order, most likely a failure to comply with the drug and alcohol restrictions or a failure to follow directions of supervisors. 

[48] Dr Grant perceives that if the respondent is released from custody he will need to be placed on a supervision order which will mandate an abstinence from alcohol and drugs and volatile substances.  The respondent should be placed on curfews that prevent him from being out late at night.  He should be offered assistance with social rehabilitation.  Progress is likely to be slow because of his intellectual and language limitations.  A supervision order would need to be in place for at least 5 years.

[49] The respondent has, to some extent, recognised the dangers that are presented by the ingestion of alcohol and illicit substances.  To that end, he has participated in the Pathways program.  He has gained, perhaps some insight into the impact of alcohol and illicit substances upon his overall risk of offending. 

[50] Whilst the exit report from the Pathways facilitators has been described as, “disheartening” there is some evidence that there has been some change of attitude with the respondent obtaining more positive attitudes towards undergoing supervision and having appropriate counselling. 

Is the respondent a serious danger to the community in the absence of a Division 3 Order?

[51] I am satisfied that there is a significant body of evidence which satisfies me, to a high degree of probability, that the respondent remains a serious danger to the community in the absence of a Division 3 order under the Act. The psychiatric evidence identifies that the risk that the respondent’s release presents is high. Any such an offence would, if committed, relate to a violent sexual assault against an adult female unknown to him.  The risk of psychological damage being high and there exists a risk of potentially severe physical violence that might escalate to a more life threatening level.   

[52] The psychiatric evidence indicates, clearly and unequivocally, that the respondent presents as a serious danger to the community in the absence of a Division 3 order under the Act.  Accordingly, the decision of Martin J is affirmed.

Should the Respondent be subject to a supervision order or a continuing detention order?

[53] Once the Court is satisfied that the respondent is a serious danger to the community without a Division 3 order the Court may order that the respondent continue to be subject to the continuing detention order or be released from custody subject to a supervision order[16].

[54] I am satisfied that given the most recent reports by the psychiatrists and the view that he can be managed in the community if there are stringent supervision orders in place that the respondent should be released from custody subject to a supervision order. There is no doubt that there ought to be a preference for a supervision order being made over a continuing detention order.  It is for the applicant to establish that adequate protection to the community cannot be ensured by the adoption of a supervision order. I am satisfied that on the material before me the conditions should address any risk. Evidence from the two psychiatrists indicates that one of the main requirements for the respondent to reduce the risk of the commission of further sexual offences is that he remains alcohol and substance free. 

[55] The respondent has availed himself of the opportunities presented by his continuing detention to undertake courses to equip him with the skills which would assist in the management of alcohol and drugs in the community. The psychiatric evidence suggests that there are no further courses or treatment that could be usefully undertaken by the respondent in custody.  He does not require detention for care.  In those circumstances, the question which arises is whether or not he ought be detained for control.  It does not appear that the evidence reaches a point that the respondent is so incorrigible that he ought be detained for the purposes of control only.  The evidence before me does not indicate that he is incorrigible.

[56] I am satisfied that the psychiatric evidence is that the respondent is able to be released into the community on a supervision order.  However there must be very stringent conditions put in place for at least 10 years.[17]

[57] Mr Brown understands the concerns that are raised by his release and the fact that he is going to have to undertake for the next 10 years some rehabilitation courses and some counselling, and he understand he will be subject to a very strict supervision regime for the next 10 years where it is very clear he must not take any alcohol or substances. 

[58] In all of the circumstances, I am satisfied that there should be an order in the terms of the draft which has been initialled by me and placed with the file, which sets out in great detail the 34 conditions which Mr Brown is required to comply with.

[59] The decision of Martin J that the respondent is a serious danger to the community in the absence of a Division 3 order is affirmed.  The continuing detention order made on 16 June 2009 is rescinded and the respondent be released subject to conditions for a period of 10 years, until 28 April 2024.

[60] The respondent must:

1. report to a Corrective Services officer at the place, and within the time stated in the order and advise the officer of his current name and address;

2.report to, and receive visits from, a Corrective Services officer at such times and at such frequency determined by Queensland Corrective Services;

3.notify a Corrective Services officer of every change of his name, place of residence or employment at least 2 business days before the change happens;

4.be under the supervision of a Corrective Services officer;

5.comply with a curfew direction and monitoring direction;

6.comply with any reasonable direction under section 16B of the Act;

7.comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;

8. not leave or stay out of Queensland without the permission of a Corrective Services officer;

9. not commit an offence of a sexual nature during the period of the order;

10.seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;

11.reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;

12.if this accommodation is of a temporary or contingency nature, comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;

13.notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed;

14.not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer;

15.not commit an indictable offence during the period of the order;

16.respond truthfully to inquiries by a Corrective Services officers about his whereabouts and movements generally;

17.not have any direct or indirect contact with a victim of his sexual offences;

18.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 your prior offending behaviour;

19.notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;

20.submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;

21.if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred;

22.abstain from the consumption of alcohol and illicit drugs for the duration of this order;

23.abstain from the use of intoxicating inhalants such as, but not limited to, petrol, glue, paint or solvents, for the duration of the order;

24.submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer;

25.disclose to a Corrective Services officer all prescription and over the counter medication that he obtain;

26.not visit premises licensed to supply or serve alcohol, without the prior written permission of a Corrective Services officer;

27.attend upon and submit to assessment and/or treatment 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;

28.permit any medical, psychiatric, psychological or other mental health practitioner 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;

29.attend any program, course, psychologist 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;

30.must develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it as directed with a Corrective Services officer;

31.advise a Corrective Services officer of the make, model and telephone number of any mobile telephone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use and includes reporting any changes to mobile telephone details;

32.allow any other device including a telephone to be randomly examined. If applicable, account details and/or telephone bills are to be provided upon request of a Corrective Services officer;

33.not visit public parks without prior written permission from a Corrective Services officer;

34.notify a Corrective Services officer before attending on the premises of any shopping centre, including the times in which he wishes to attend.

Footnotes

[1] Unreported, Supreme Court No. 442 of 2009, 16 June 2009.

[2] Unreported, Supreme Court No. 442 of 2009, 22 June 2011.

[3] Unreported, Supreme Court No. 442 of 2009, 12 November 2012 at p 10.

[4] Unreported, Supreme Court No. 442 of 2009, 12 November 2012 at pp 11-12.

[5] Unreported, Supreme Court No. 442 of 2009, 12 November 2012 at p.17.

[6] Unreported, Supreme Court No. 442 of 2009, 12 November 2012 at p.21.

[7] See s 27 of the Act.

[8] See s 29(1) of the Act.

[9] See Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at [22], [60] and [225].

[10] [2006] QCA 324.

[11] [2006] QCA 324 at [39].

[12] S13(1) of the Act.

[13] S 13(3) of the Act.

[14] Affidavit of Josephone Sundin sworn 30 June 2010 (CFI 31).

[15] See exhibit DAG2 to Affidavit of Donald Grant filed 5 July 2010 (CFI 32).

[16] See s. 30(3)(a) and (b) of the Act

[17] Ten years is appropriate having regard to the respondent’s deficits and age.

Editorial Notes

  • Published Case Name:

    A-G for the State of Queensland v Brown

  • Shortened Case Name:

    Attorney-General v Brown

  • MNC:

    [2014] QSC 84

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    28 Apr 2014

Litigation History

No Litigation History

Appeal Status

No Status