- Unreported Judgment
SUPREME COURT OF QUEENSLAND
A-G for the State of Qld v White  QSC 36
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
GRAEME JOHN WHITE
BS No 12065 of 2016
Supreme Court at Brisbane
13 March 2017
13 March 2017
Ann Lyons J
A Supervision Order should be made under s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in terms of the Schedule attached to these reasons.
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT SEXUAL OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant seeks orders pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) that the respondent be detained in custody for an indefinite term of care, control or treatment or alternatively that the respondent is released from custody subject to a Supervision Order – whether the respondent presents a serious danger to the community in the absence of a Division 3 Order – whether the respondent should be subject to a Division 3 Order
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13
Attorney-General for the State of Queensland v Beattie  QCA 96
Attorney-General for the State of Queensland v Fardon  QCA 111
J Tate for the applicant
D Holliday for the respondent
GR Cooper Crown Solicitor for the applicant
Legal Aid Queensland for the respondent
- Pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) the applicant Attorney-General for the State of Queensland seeks orders pursuant to Division 3 of the Act that the respondent be detained in custody for an indefinite term for care, control or treatment; or alternatively, he be released from custody subject to the requirements of a supervision order.
- The respondent is currently 44 years of age. On 31 October 2013 he was found guilty of three counts of indecent treatment of children under 16 (lineal descendant/guardian/carer). He was sentenced by Judge Devereaux to a term of imprisonment of three and a half years on each count to be served concurrently. The complainant was 15 ½ years old and had an intellectual disability. The respondent had been in a relationship with the complainant’s mother and whilst giving the complainant a lift to school he drove up to the Mount Gravatt lookout and penetrated her mouth with his penis as well as touching her thigh and her breast outside her clothing. It was said by the sentencing judge that the act of oral sex to ejaculation was a serious and demeaning one. The respondent’s conduct was expressed to be disgraceful and predatory as well as opportunistic in taking advantage of a child.
- His full time release date is 30 April 2017.
- His criminal offending commenced on 15 April 1999 when he was convicted and fined $300 in default imprisonment for 10 days for solicitation for the purpose of prostitution.
- On 2 May 2003 he was convicted and imprisoned for two years suspended for three years after serving 237 days for charges of entering a dwelling and committing an indictable offence; common assault; three counts of sexual assault; and an indecent act in a public place. The offences all occurred in the context of the respondent hailing a taxi and whilst in the taxi assaulting the female taxi driver unlawfully and indecently.
- On 5 December 2005 he was convicted and fined $250 for public solicitation for prostitution.
Personal and family history
- The respondent having been born in Ipswich had a good relationship with his parents and there was no history of abuse or neglect. He had however been the victim of sexual abuse at 11 when he had been raped by a stranger and his older brother was murdered at the age of 17 when the respondent was 16. He left school in grade 11 and joined the army but was court martialled and discharged when he fell off a train and fractured his skull. He then worked as a tyre fitter but would lose his employment due to his drinking problem. He had stopped drinking in 2006 but resumed drinking the night before the index offence. The respondent does not have any formal psychiatric history or contact with Mental Health Services and has not reported any significant psychiatric symptoms. The reports of the psychiatrists indicate that alcohol abuse has played a significant part in his criminal offending.
- The respondent was examined by three psychiatrists for the purpose of this application. Dr Scott Harden whose report is dated 17 July 2016; Dr Robert Moyle whose report is dated 15 December 2016; and Dr Jane Phillips whose report is dated 16 February 2017.
- The respondent completed the preparatory program for sexual offending on 3 April 2014. He was initially noted to have limited insight but demonstrated a commitment to change. He then completed the High Intensity Sexual Offending Program between 16 March 2015 and 25 February 2016. He participated in 112 sessions and was described as a good group participant. He was considered to have made positive gains with increased awareness of his offence pathway, communication skills and insight. He also acknowledged during the course that his emotional management was an area for development. It was recommended that he access further professional counselling to focus on intimacy, sexual needs, communication skills and emotional management. He also had outstanding treatment needs in relation to deviant sexual interests.
- The respondent also completed the Choices: Recovery from Substance Abuse Program in August 2014 and it was noted by facilitators that he was ready and confident to make major changes in his substance use. He acknowledged he needed to remain abstinent from alcohol.
- Whilst the respondent’s parole eligibility date was 31 July 2015 he has not made an application for parole.
- The Court must receive any submissions supplied by an eligible person and in this case an eligible person was identified, a submission has been received from that person and it has been read. The draft conditions of the supervision order were also amended to address some of the concerns raised.
The psychiatrists’ reports
The report of Dr Scott Harden, 7 July 2016
- Dr Harden outlined in his report the history of the respondent’s sexual and relationship history, his sexual offending history, his criminal history, as well as his psychiatric, medical and family history. Dr Harden utilised a number of risk assessment tools to assess the respondent’s risk of sexual recidivism. On the Static-99R the respondent was placed in the high risk; on the STABLE 2007 he was in the moderate needs group; on the Sexual Offender Risk Appraisal Guide (SORAG) he was placed in a category of offenders who had a 45 per cent rate of violent or sexually violent reoffending within seven years and 59 per cent at 10 years. On the HARE psychopathy check list the respondent’s score was not elevated; on the SRV 20 he was a moderate risk.
Overall Dr Harden indicated that he thought the risk was moderate to high of the respondent committing a sexual offence in the future. He considered that the greatest risk factors were alcohol intoxication and the use of sex as a primary coping strategy for negative emotions. Dr Harden considered that if the respondent were placed on a supervision order in the community his risk of sexual recidivism would be reduced to low as he would be compliant with the strictures of a supervision order.
The report of Dr Robert Moyle, 15 December 2016
- Dr Moyle also recommended that the respondent have ongoing psychological therapy with a skilled practitioner and that he attend a substance abuse group such as Alcoholics Anonymous. He also considered that he needed ongoing individual and group treatment as well as community based support for his substance misuse. He considered that the respondent should endeavour to re-engage in employment immediately and he should be supported to continue his current relationship. Ultimately Dr Moyle considered that a supervision order would be counter-therapeutic if it interfered with the respondent’s ability to return to employment and enhance his pro-social peer networks.
- In Dr Moyle’s report he noted that the respondent’s personality was that of an avoidant anxious man and although he had some antisocial traits that was not sufficient for a personality disorder. Dr Moyle also completed some of the same risk assessments previously referred to and noted that the respondent achieved scores on the STATIC-2002, SORAG, and SRV 20 which would all support a conclusion that the respondent was in the category of offenders at moderate risk of reoffending.
- Dr Moyle concluded that the respondent’s risk is moderately high in that when he is distressed or there is a potential loss of a relationship and he is intoxicated and aroused he might seek a disabled acquaintance or a stranger and forcefully encourage sexual gratification that will give him sexual pleasure irrespective of the wishes of the female. Dr Moyle was also concerned that it is unlikely that the respondent would be abstinent from alcohol and it was unlikely he would not become intoxicated. Whilst he noted that the respondent had completed the Sexual Offenders Program and a drug and alcohol program the respondent is not committed to abstinence from alcohol but rather seeks help on release.
The report of Dr Jane Phillips, 16 February 2017
- Dr Phillips in her report made particular reference to the respondent’s traumatic adolescence including being the victim of sexual abuse as well as the murder of his brother. She considered that the murder of his brother and the sexual abuse had significant impact upon him, including becoming socially withdrawn and having difficulty forming trusting relationships. Dr Phillips also considered that it would likely have an impact on the respondent’s self-esteem, sense of self, and contributed to his deficits in social skills and intimacy. She stated that for the majority of his adult life, the respondent has been unable to form emotional connections with women.
- Dr Phillips noted that the respondent had a high sex drive and had developed a pattern of using sex as a maladaptive way of coping with emotional distress. She considered that the respondent had limited adaptive coping skills and had a history of coping poorly with relationship breakdowns. She noted that he does however have the capacity to form relationships and that he has been in a de-facto relationship which has continued whilst he was in custody.
- Dr Phillips also utilised a number of risk assessment tools and obtained the following results. On the STATIC-99R the respondent was well above average risk; on the STABLE 2007 he was ranked as having a moderate risk of reoffending; on the Sexual Offender Risk Appraisal Guide (SORAG) he was placed in a category of offenders who had a 45 per cent risk of sexually violent reoffending at seven years and 59 per cent at 10 years. On the HCR20 the respondent was placed in a category at a moderate risk of future physically violent offending.
- Overall Dr Phillips concluded that there would be a moderate to high risk of the respondent committing a sexual offence in the future. She considered that the risk would increase in the setting of relapse to alcohol abuse or dependence, acute intoxication or psychosocial stressors, for example relationship breakdown, perceived rejections, his partner’s health continuing to deteriorate, a death in the family or loss of social supports.
- Dr Phillips was concerned that the respondent was focussed on obtaining permission to consume alcohol when released as this is a problematic issue for him given he is a significant risk of relapse to “problematic alcohol use”, particularly in the context of psychosocial stressors. Dr Phillips considers that in such a setting, the respondent would use sex as a coping mechanism and that sexual reoffending would increase in that setting. Dr Phillips considered that he would require ongoing psychological intervention in order to further address adaptive coping skills and to implement risk prevention strategies.
- Dr Phillips considered that there should be assertive monitoring and interventions to target risk factors for physical violence. She considered he needed ongoing sexual offender maintenance therapy, abstinence from alcohol and robust supervision.
- Dr Phillips recommended that:
- “I recommend that risk management interventions focus upon psychological interventions, supervisions and monitoring, environmental measures and multi-agency planning and information sharing.
- It is my opinion that Mr White would benefit from individual psychological intervention with a forensic psychologist with experience in managing sexual offenders. He would benefit from further intervention focussing on adaptive coping skills, problem solving, interpersonal skills, identifying high risk situations and relapse prevention planning.
- In addition, it would be appropriate that he engage in the Staying on Track: Sexual Offending Maintenance Program (SOMP) as recommended in the HISOP Completion Report.
- It is my opinion that Mr White would benefit from further counselling regarding his alcohol use and interventions to reduce his risk of relapse to alcohol dependence. I recommend that there be a condition that he not be allowed to consume any alcohol or illicit drugs and that there be frequent random breath alcohol testing and urine drug screens.
- It is my opinion that treatment with anti-libidinal medications is not clinically indicated.
- With regards to his accommodation upon release, it is noted that Mr White has highlighted the Parole Board’s previous concerns regarding him returning to live at his father’s home, due to him having contact with his nieces and nephews when they visit their grandfather at that address. However, this needs to be weighed against the benefits of Mr White having the support of his father and his partner in the community, and also access to a normative sexual outlet with his partner, which are likely to be protective factors against reoffending.”
- 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. Section 3 provides that the objects of the Act are –
- to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and
- to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.
- Section 13 of the Act then outlines the orders which may be made under the Act, called “Division 3 orders”, and the matters the Court must be satisfied about as follows:
“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—
- by acceptable, cogent evidence; and
- 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—
(a)the reports prepared by the psychiatrists under section 12 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 conditions 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), the paramount consideration is to be the need to ensure adequate protection of the community.
(7)The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
- The first question I need to determine therefore is whether or not the respondent is a serious danger to the community in the absence of a Division 3 Order.
- Having considered the Reports of the three psychiatrists I am satisfied to the requisite standard that those Reports support a finding that the respondent’s unmodified risk of sexual re-offending is moderate to high and he is therefore a serious danger to the community in the absence of an order made pursuant to Division 3 of the Act. The Reports indicate that the victim of future offending would likely be an adult female or an underage post-pubescent female.
- Counsel for the respondent does not contest that the Court should be satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of a Division 3 Order.
- Accordingly, taking into account the matters required to be taken into account pursuant to s13(4) of the Act, I am satisfied to the high degree of probability necessary, that if released without a Division 3 Order under the Act the respondent presents an unacceptable risk of committing a “serious sexual offence” as defined by the Act.
- The next question I must therefore determine is whether the respondent should be detained for an indefinite term for care, treatment or control or whether he can be released subject to a supervision order.
- In determining whether to make a continuing detention order or supervision order the paramount consideration is the need to ensure adequate protection of the community. The applicant has the onus of demonstrating that a supervision order affords adequate protection to the community.
Submissions by Counsel for the applicant
- Counsel for the applicant submitted that it must be necessary to conclude, on all the evidence, that a supervision order would be, “efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences” or to put it another way, “… the likely effect of a supervision order in terms of reducing the opportunity to the appellant to engage in acts of seduction of children to an acceptably low level”.
- Counsel for the applicant submitted that the psychiatric evidence indicates the respondent’s unmodified risk of sexual re-offending is moderate to high and the future victim would likely be an adult female or an underage post-pubescent female. Counsel noted that the fact that the expert description of the respondent’s risk of reoffending is moderate to high does not mean that the risk is acceptable. As Keane JA said in Attorney-General for the State of Queensland v Beattie:
“For the appellant, it was argued that the expert description of the risk of re-offending as “moderate” meant that the risk fell short of “unacceptable”. But this argument overlooks the point that whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising. In this regard, the appellant's likely targets are children, and especially street children: vulnerable members of the community who are likely to be peculiarly susceptible to his seduction techniques. The focus of consideration must, therefore, be upon the likely effect of a supervision order in terms of reducing the opportunities for the appellant to engage in acts of seduction of children to an acceptably low level.”
- Counsel for the applicant conceded that the psychiatric evidence supports a conclusion that the risk would be reduced, significantly, by the application of a supervision order which provided for assertive monitoring and interventions to target dynamic risk factors for sexual and physical violence. In this regard I note the reasons of Keane JA in Beattie as follows, by reference to the previous decision of AG v Francis:
“ In Attorney-General (Qld) v Francis, this Court said: "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."
- Counsel for the applicant also conceded that the imposition of such an order, on the psychiatric evidence, would suggest that adequate protection of the community could be ensured by the respondent’s release upon a supervision order containing provisions as indicated by the psychiatric evidence. Counsel submitted that an Order should be made in terms of the Draft Order.
- Accordingly I am satisfied that a supervision order should be made under s 13(5)(b) of the Act and that it should be in terms of the amended draft in the Schedule to these reasons.
THE COURT being satisfied to the requisite standard that the respondent, Graeme John White, is a serious danger to the community in the absence of a Division 3 Order ORDERS THAT:
- The respondent be subject to the following conditions until 30 April 2022.
The respondent must:
- Be under the supervision of a Corrective Services officer for the duration of the order;
- Report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of his release from custody and at that time advise the officer of the respondent’s current name and address;
- Report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;
- Notify and obtain the approval of a Corrective Services officer for every change of the respondent’s name at least two (2) business days before the change occurs;
- Comply with a curfew direction or monitoring direction;
- Comply with any reasonable direction under section 16B of the Act given to him;
- Comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;
- Not commit an offence of a sexual nature during the period of the order;
- Not commit an indictable offence during the period of the order;
- Not to have any direct or indirect contact with a victim, or the family of a victim, of his sexual offences;
- Not engage in or demonstrate interpersonal violence or aggression against any other person, excluding acts of self defence;
(12)Seek permission and obtain approval from an authorised Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;
(13)Notify an authorised 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 at least two (2) days prior to commencement or any change;
- Not leave or stay out of Queensland without the written permission of a Corrective Services officer;
- Reside at a place within the State of Queensland as approved by an authorised Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
- If this accommodation is of a temporary or contingency nature, you must 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;
- Not reside at a place by way of short term accommodation including overnight stays without the permission of an authorised Corrective Services officer;
Disclosure of weekly plans and associates
- Respond truthfully to enquiries by an authorised corrective services officer about his activities, whereabouts and movements generally;
- Submit to and discuss with an authorised Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
- 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;
- 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;
- Notify the supervising Corrective Services officer of all personal relationships entered into by the respondent;
- Notify an authorised 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 unless directed otherwise by a Corrective Services Officer;
Alcohol and other Substances
- Abstain from the consumption of alcohol a nd illicit drugs for the duration of this order;
- Submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer;
- Disclose to a Corrective Services officer all prescription and over the counter medication that he obtains;
- Take prescribed drugs at the dosage and frequency as directed by a medical practitioner;
- Not visit premises licensed to supply or serve alcohol, without the prior written permission of a Corrective Services officer;
- Attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
- Permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of attendance and compliance with treatment and provide opinions relating to level of risk of re-offending 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;
- Attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
Contact with Children
- Not establish or maintain any supervised or unsupervised contact including undertaking any care of children under 16 years of age except with prior written approval of a Corrective Services officer. 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;
- Advise a Corrective Services officer of any repeated contact with an adult that he knows has care of a child under the age of 16 years. The respondent shall 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;
- Not without reasonable excuse be within 100 metres of schools or child care centres without the prior written approval of a Corrective Services officer;
- Not visit public parks without the prior written approval of a Corrective Services officer;
- Notify a Corrective Services officer before attending on the premises of any shopping centre, including the times in which he wishes to attend;
- Not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation without the prior written approval of a Corrective Services officer;
- Not to visit or attend on the premises of any establishment where there is a dedicated children’s play area or child minding area without the prior written approval of an authorised Corrective Services officer;
Access to Information Technology
- Notify a Corrective Services officer of any computer or other device connected to the internet that the respondent regularly uses or has used;
- Supply to a Corrective Services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device and allow any device where the internet is accessible to be randomly examined using a data exploitation tool to extract digital information or any other recognised forensic examination process;
- Supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords;
- Allow any other device including a telephone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer;
- To advise a Corrective Services Officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use, including reporting any changes to mobile phone details.
- Published Case Name:
A-G for the State of Qld v White
- Shortened Case Name:
Attorney-General v White
 QSC 36
A Lyons J
13 Mar 2017
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