Attorney-General v Robinson[2024] QCA 206

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Brown JA and the order proposed by her Honour.
2. [2]
   BROWN JA:  This is an appeal from a decision made by Hindman J on 22 March 2024 to release Nigel Robinson, the respondent, under a supervision order made by Bond J on 15 June 2015 as amended^[1] (the supervision order), following a contravention hearing pursuant to s 22 of Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA).  There is no issue raised as to the respondent’s release under supervision.  The only issue raised on this appeal is as to the terms of the supervision on which the respondent was released.  The Attorney-General for the State of Queensland (the Attorney-General), the appellant, contends that her Honour was in error in amending the supervision order to remove requirement 21, which required the respondent to abstain from using illicit drugs for the duration of the supervision order.

The hearing below

3. [3]
   In the court below, the appellant sought orders under s 22 of the DPSOA in relation to a number of contraventions by the respondent of the supervision order, including:

   1. breaches of a curfew or monitoring direction, contrary to requirement 5;
   2. breaches of the requirement not to use illicit substances, contrary to requirement 21; and
   3. breaches of the requirement to submit to urinalysis as directed by a corrective services officer, contrary to requirement 23.
4. [4]
   Those breaches were admitted by the respondent and amounted to offences under s 43AA of the DPSOA.  As to the second breach above, the respondent tested positive to two unlawful drugs, methylamphetamine and buprenorphine.  The contraventions were admitted.  Drug use by the respondent, particularly methylamphetamine, has resulted in a number of contraventions during the history of his release on a supervision order.
5. [5]
   Pursuant to s 22(2) of the DPSOA, unless a prisoner can satisfy the court on the balance of probabilities that the adequate protection of the community can, despite the contravention of the existing order, be ensured by the existing order as amended under subsection (7), the supervision order must be rescinded, and a continuing detention order made.
6. [6]
   Pursuant to s 22(7) of the DPSOA:

“If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—

1. 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

2. may otherwise amend the existing order in a way the court considers appropriate—

1. to ensure adequate protection of the community; or

2. for the prisoner’s rehabilitation or care or treatment.”

7. [7]
   At the hearing, oral evidence was given by Dr Harden and Dr Sundin, who had provided detailed reports assessing the respondent, and Mr Ryan Robinson,^[2] the acting manager of the High-Risk Offender Management Unit (HROMU) with Community Corrections, Queensland Corrective Services (QCS), who had provided an affidavit.
8. [8]
   It was uncontroversial at the hearing that the opinions of psychiatrists Dr Harden and Dr Sundin supported the fact that, despite the contraventions, the respondent could be released to the community under supervision and the adequate protection of the community ensured.  The Attorney-General accepted that the evidence supported that position.  The two controversial issues before the court were whether requirement 21 should be removed and the length of the extension of the order.
9. [9]
   The point of controversy for the purposes of this appeal follows from her Honour accepting and acting upon a recommendation of Dr Sundin which was supported in oral evidence by Dr Harden.
10. [10]
    In her report, Dr Sundin stated that the many months of 24-hour curfew have aggravated the respondent’s resentment, contributed to boredom and fostered the respondent’s antagonistic attitudes.  She considered that the extended curfews had become unhelpful and stated:

“While I appreciate the caution of HROMU staff, I recommend a graduated easing of restrictions in anticipation of the order ending. This means not keeping Mr Robinson on 24 hour curfews for months on end and encouraging him to link into appropriate community and pro-social activities. It leaves any illicit substance abuse to be managed by the appropriate legal sanctions.”

11. [11]
    Dr Sundin stated in this regard that “it is an important aspect of ongoing risk management for him to increase his contact with the wider community.”  She was examined in oral evidence about this proposal and her reasoning behind the recommendation, as was Dr Harden, including by Hindman J.  Dr Harden gave evidence that:

“I agree that the substance-use condition seems to have been the trigger for the revolving door in the last few years. So there is some merit to the idea of removing substance use as a breach of the supervision order, but I agree with the proposition put forward that the capacity to test and to refer substance use … through the normal criminal process should remain.”

12. [12]
    At the time of the hearing, the supervision order was approaching its end.  Both psychiatrists considered that the respondent would need a period of 12 months to 2 years to demonstrate compliance with supervision and prosocial behaviour and that there was insufficient time remaining on the supervision order for a safe transition into the community.
13. [13]
    Mr Ryan Robinson of HRMOU gave evidence that he wished requirement 21 to remain, stating that it would greatly impact on their ability to actually case manage the respondent.  Mr Robinson was the subject of cross-examination in that regard by the respondent’s counsel and also asked questions by her Honour.
14. [14]
    In addition to there being cross-examination of each witness, her Honour asked each witness questions about the effect of removing requirement 21.

The Primary Judge’s decision

15. [15]
    Justice Hindman reviewed all of the material in relation to the history of the matter and considered how the respondent had reacted to the supervision imposed under the order.
16. [16]
    Her Honour accepted the evidence of Dr Sundin and Dr Harden.  She found their evidence to be helpful, particularly that of Dr Sundin.
17. [17]
    Justice Hindman considered the fact that the supervision order was coming to its end and that the time remaining was not sufficient for the respondent to be re-integrated into the community in a pro-social manner and demonstrate an ability to comply with the supervision order.  She considered two years of compliance with easing of restrictions, good compliance and no reoffending could give some confidence that the risk of reoffending without supervision was at an acceptable level.  It was in that context her Honour considered the question of how to incentivise the respondent to comply with the supervision order.
18. [18]
    In her reasons for determining the respondent could be released under a supervision order and that the supervision order should be amended to remove requirement 21, her Honour noted the evidence of Dr Sundin and her recommendation for the easing of restrictions and the removal of requirement 21 and for illicit drug use to be managed by the usual legal sanctions.  Her Honour stated:

“I note that the purpose of the supervision order is not, per se, to directly manage illicit drug use.  It is to protect the community from violent and serious sexual offending, and it has been achieving that aim.  Even though it appears, from about 2018, the respondent has been engaging in at least semi-regular methamphetamine use (sic).  I think that there is considerable merit to the proposition in this case that the use of illicit drugs being a breach of the supervision order is causative of an unhelpful cycle, that is, it is not assisting in the rehabilitation of the respondent and preparing him for reintegration into the community without supervision.”

19. [19]
    In reaching that view, her Honour took into account that the person supervising the respondent considered it was important for them to have power to take positive action if he was detected using drugs.  Her Honour, however, did not consider that that positive action is required to be the result of a contravention of the supervision order, particularly given the provision for drug testing and a curfew remained part of the supervision order.  As to determining the condition enabling corrective services to test the respondent should continue, her Honour stated that “[k]nowing if the respondent is using should assist in his supervision, including in terms of the restrictions to which he should be subject if he is demonstrated to be using illicit drugs…”.  That is against the background of her Honour having also acknowledged that “[a]ny release on supervision would necessarily envisage initial tight restrictions, likely a 24-hour curfew at the Precinct, with restrictions being eased as compliance is demonstrated”.
20. [20]
    Her Honour stated that, in lifting the condition as to illicit drug use, she considered it was necessary for the respondent to show two years of compliance with the amended supervision order before she could determine that the risk of serious sexual offending is reduced to a level that no further supervision can be justified.  Accordingly, she extended the current supervision order until 23 March 2026.

Grounds of appeal

21. [21]
    The appellant originally raised two grounds of appeal.  The first ground was that the learned trial judge gave insufficient weight to the object of the DPSOA to provide for the adequate protection of the community by preferring the respondent’s rehabilitation in removing requirement 21 from the supervision order.  At the hearing this was no longer relied upon.
22. [22]
    The second ground of appeal was that the learned trial judge’s exercise of discretion conferred by s 22(7) of the DPSOA in amending the supervision order to remove requirement 21 miscarried and was unreasonable in all of the circumstances due to:

    1. her Honour’s failure to have proper regard to the evidence of Ryan Robinson as to the importance of the requirement in QCS’s supervision of the respondent and the reasons why the requirement had been included in the supervision order;
    2. her Honour’s finding that the removal of the requirement would be an incentive for the respondent to change and would allow him the opportunity to demonstrate compliance with the supervision order to reduce his risk such that a further supervision would not be required.
23. [23]
    At the hearing, the ground raised in (a) above was no longer relied upon.  It is therefore the ground in (b) above which remains.
24. [24]
    The present appeal is one by way of rehearing, requiring the appellant to establish an error of law or a fact or in the exercise of discretion.^[3]
25. [25]
    The appellant contends that her Honour correctly recognised that “[c]annabis intoxication was an issue” in the respondent’s previous sexual offending, while methylamphetamine wasn’t, but acknowledged that the “disinhibiting nature of drugs such as methamphetamine (sic) … does increase the risk of sexual recidivism”.  However, the appellant contends that having done that her Honoured erred in seeking to incentivise “in an appropriate manner, ongoing good compliance with supervision, so that reintegration into the community can progress” and considering “the cycle of the respondent being in and out of custody because of his illicit drug use”.
26. [26]
    According to the appellant, the error was that her Honour was acting on wrong principle^[4] in removing the condition because there was only one possible lawful outcome which accorded with the primary purpose of the DPSOA to ensure adequate protection of the community, namely, to maintain the condition.  A proper exercise of the Court’s discretion consistent with the primacy of the adequate protection of the community could only result in requirement 21 being left in the supervision order.
27. [27]
    In having regard to the need to incentivise the respondent to comply with the supervision order, Hindman J, in the appellant’s submission, overlooked the evidence of the connection to which her Honour referred between drug use and sexual recidivism and incorrectly prioritised the rehabilitation of the respondent.  Such a contention is untenable and ignores the fact the DPSOA provides for the Court not only to ensure the adequate protection of the community but also the rehabilitation of the respondent which has to be determined by evaluating the evidence before it.
28. [28]
    The notion that there was some binary choice to be made is contrived.  In considering whether a prisoner could discharge the onus under s 22(2), to ensure the adequate protection of the community by the existing order as amended under subsection (7), subsection (7) provides that the court may amend the existing order in a way the court considers appropriate “to ensure adequate protection of the community” or “for the prisoner’s rehabilitation or care or treatment”.
29. [29]
    Relevant to the considerations under s 22(7), consistent with the objects of the DPSOA set out in s 3, is the power to amend conditions to ensure adequate protection of the community and “for the prisoner’s rehabilitation or care or treatment”.
30. [30]
    In amending the conditions, her Honour had considered the relevant risk of sexual reoffending by the respondent.  She had considered the respondent’s past offending and the association of drug use with that offending and the disinhibiting effect of methylamphetamine, which her Honour was aware the respondent had been using for a number of years without sexually reoffending.
31. [31]
    Recognising that cannabis had been an issue in previous offending by the respondent and acknowledging the disinhibiting effect of methylamphetamine does not mean that the adequate protection of the community can only be ensured by a condition in terms of requirement 21.  Her Honour’s decision took into account that provisions for release on a curfew and drug testing would be maintained.  The curfew restrictions would only be eased as compliance is demonstrated.  Her Honour observed that if the respondent continues to engage in illegal drug use, that will have consequences both for the easing of restrictions and his ability to reintegrate in the community without supervision.
32. [32]
    The appellant contends that the removal of requirement 21 was to overlook the link between the respondent’s drug use and recidivism, which was said to have been effectively contained by the inclusion of requirement 21.  That, however, fails to have proper regard to the evidence before the learned primary judge.
33. [33]
    Dr Harden gave evidence that it was “not very clear … that there was a strong association between drug use and his sexual reoffending”.  He further stated that “it’s not clear that … substance use was a significant driving factor around the offending behaviour.  So, from that point of view, it’s less critical when we’re thinking about the issue of managing the risk of sexual recidivism” while acknowledging that intoxication with substances can increase the sexual behaviour.  Dr Sundin also gave evidence that “[i]t’s seven years since we’ve seen any offence paralleling behaviour, and… he’s been using methylamphetamine, I think, now for four to six years, and there’s been no offending behaviour in that time either”.
34. [34]
    While Mr Robinson of HROMU gave evidence as to the effectiveness of the requirement 21 in relation to the respondent’s management, that evidence was considered by her Honour in her reasons.
35. [35]
    The contention that her Honour preferred the respondent’s rehabilitation over the adequate protection of the community is unsustainable.  Her Honour correctly applied the test provided under s 22 of the DPSOA in finding that she was “satisfied, on the balance of probabilities, based on the psychiatric evidence, … that the adequate protection of the community can, despite the further contraventions, be ensured by releasing the respondent on the amended and extended supervision order”.
36. [36]
    The reference to “ensure” is linked to “adequate protection” of the community. In Kynuna v Attorney-General for the State of Queensland, McMurdo P stated:^[5]

“The reference to “the adequate protection of the community” in s 22(2) and s 22(7) is clearly a reference to that term as explained in s 13, that is, adequate protection of the community from the unacceptable risk that the appellant will commit a serious sexual offence…”

37. [37]
    It has been long established in decisions of this Court that “[t]he Act does not contemplate that arrangements to prevent [the relevant risk of sexual reoffending] must be ‘watertight’”.^[6]  In Kynuna, McMurdo P stated:^[7]

“In Attorney-General v Francis this Court made plain that if the supervision of a prisoner is apt to ensure adequate protection of the community under the Act, having regard to the risk to the community posed by the prisoner, then an order for supervised release should be preferred to a continuing detention order. This is because 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 warranted by the Act. It is not contemplated under the Act that supervision orders must be watertight; otherwise they would never be made.” (footnotes omitted).

38. [38]
    The appellant’s argument does not seek to revisit that authority.  Nor does the appellant seek to contend that her Honour’s evaluation of the evidence was in error.
39. [39]
    The determination to remove requirement 21 followed a careful consideration of the evidence and the history of the whole matter with the respondent’s last sexual offending having occurred in 1997.  She considered the effect of removal of the requirement in light of other conditions in the supervision order.  The removal of requirement 21 was accompanied by an extension of the order for a further two years to allow the respondent to demonstrate compliance with the amended supervision order and that the risk of reoffending is reduced to a level that no further supervision can be justified.  QCS maintain the power to drug test the respondent and to supervise his release, including any relaxation of the provision as to curfew.
40. [40]
    The decision to remove requirement 21 does not provide a licence to the respondent to engage in drug use, as was made clear by her Honour, nor was there any evidence that its removal would materially affect the risk of the respondent sexually reoffending.  The effect of removing that as a condition, of course, did not remove the illegality of illicit drug taking by the respondent.  The effect of removing it as a condition is that it the respondent is to be dealt with by the normal processes of the law that apply to any other citizen if they commit such an offence.
41. [41]
    The appellant has not demonstrated any legal error and the appeal must fail.
42. [42]
    The appeal should be dismissed.
43. [43]
    HENRY J:  I agree with Brown JA.