Attorney-General v Batts[2004] QDC 470

CIVIL JURISDICTION

JUDGE O'SULLIVAN

and

BRISBANE

..DATE 04/11/2004

JUDGMENT

HER HONOUR: This is an application pursuant to section 19(1) subsection (1) of the Criminal Law Amendment Act 1945 as amended. The application seeks reporting orders against Clifford John Batts as set out in paragraphs (1), (2) and (3) of the originating application dated 5 October 2004.

In order to make the order, section 19 subsection (2) requires that I be “satisfied a risk exists that the offender will thereafter commit any further offence of a sexual nature upon or in relation to a child under the age of 16 years”. I have helpfully been provided with authorities by Crown Law and I have read each of those judgments: R v A [2003] QCA 68; R v. C (Court of Appeal 264 of ‘99 delivered 2 November ‘99); R v. C, an unrelated matter, [2002] QCA 156 delivered 10 May 2002; R v. B [2002] QCA 156 (Court of Appeal delivered 10 May 2002); Kitchener, (Supreme Court - Moynihan J - delivered 18 June 2003); Shapland, (Supreme Court - Chesterman J - delivered 5 September 2003); Johnston, (Supreme Court - Byrne J - delivered 17 November 2003); Davies, (District Court - Brabazon DCJ - delivered 28 January 2004); Wells, (District Court - Healy DCJ - delivered 5 January 2004); Cocking, (District Court - Samios DCJ - delivered 19 July 2004); Hopwood, (District Court - Forde DCJ - delivered 31 May 2004); Raeder, (District Court - Wolfe DCJ CJ - delivered 24 August 2004); Swinnerton, (District Court - McGill DCJ - delivered 29 June 2004).

In R v. A in 2003, the Court of Appeal stressed the need for evidence from which a Judge can be satisfied that there was a substantial risk of re-offending. I note at that time the legislation did use the word “substantial”. I mention the case merely to make the point that there must be evidence in support of the application.

In R v. C in 2002, the Court of Appeal made it clear that the purpose of section 19 is “to protect vulnerable young people who are at risk from sexual predators” and “to protect a vulnerable part of the community, being children under 16 years of age from circumstances where they are at risk of being the subject of sexual offences”.

As his Honour Judge McGill SC said in Swinnerton:

I have read the numerous psychological reports tendered in support of this application. The reports of Wheat, Jephcott, Borg, Grant and Booysen largely focus on an assessment of suitability of the respondent for the Sexual Offences Intervention Program and on his continuing denial of guilt. These assessments were made some time ago and for purposes other than the current application.

The report of Glanville is more recent and is based on a recent psychological assessment. It also refers to denial of guilt and unsuitability for sex offender programs. It refers to lack of victim empathy and to the Static 99 measure which resulted in a scale of risk for the respondent being assessed at medium to high. Glanville referred to four risk factors: denial and need to participate in cognitive skills program; need to participate in sex offender program; substance abuse preventing and managing relapse program (the respondent has completed one core program only); counselling regarding intimacy defects pertinent to his relationships with adult women (this does not seem to me to be relevant to this application.)

Glanville also referred to lack of insight regarding the respondent's offending behaviour reflected in his criminal history for offences other than those for which he was imprisoned in respect of the sexual offences the subject of this application.

Glanville also referred to participation in anger management in the form of relationship counselling or a program.

At para 6.2, Glanville opines that after his assessment of the relevant files and the psychometric tests he performed, he considered the prisoner's current level of risk should be categorised as high.

I note that the respondent does have a prior criminal history and this is set out in Table 1 on page 3 of Glanville's report. There is a previous offence of a sexual nature, namely, an aggravated assault on a female but details disclosed in the material tendered in support of this application show this to be not as serious as the offences for which he was imprisoned.

The solicitor for the respondent who appeared by telephone link, conceded that a reporting order was called for but did not concede the need for reporting every three months. He submitted that the other two proposed orders are sufficient. He submitted that the material tendered in support of the application does not show any link between reporting and the likelihood of re-offending. I agree with him that this is so, but I note that the legislation does not require a Judge to be so satisfied.

I have given the matter some considerable thought because my first impression was that his denial of guilt and unsuitability for the Sexual Offences Intervention Program seemed to be the only reason for the reporting order and I would have some doubts whether that is sufficient. But having now carefully read all of the psychological reports, and giving particular weight to the report of Glanville, I have reached the view that the orders ought to be made.

My reading of the decisions of other Judges and Courts reinforces the view that these applications are by no means automatic and there must always be evidence in support of the reporting orders sought.

I am satisfied that there is a risk that the offender will commit a further offence of a sexual nature upon or in relation to a child under the age of 16 years.

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HER HONOUR: Order as per draft as signed by me.

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