Attorney-General v Downs[2005] QSC 16

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

BYRNE J

No 10256 of 2004

BRISBANE

DATE 10/02/2005

ORDER

HIS HONOUR:  This is an application pursuant to The Dangerous Prisoners (Sexual Offenders) Act 2003 for a determination that the respondent is a serious danger to the community in the absence of a Division 3 order.

By subsection 13(2), a prisoner is a serious danger to the community in that sense if there is an unacceptable risk that he will commit a serious sexual offence if released from custody or if released from custody without a supervision order being made.

On an application such as this, the satisfaction which is required under section 13 depends upon the existence of acceptable, cogent evidence, and showing to a high degree of probability that the respondent is a "serious danger to the community".

By section 13(4), in deciding whether a prisoner is such a serious danger to the community, the Court must have regard to several matters. 

Under subsection (a) the Court is required to take into account reports prepared by the psychiatrists pursuant to section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists.

The reports of Professor Nurcombe and Dr Lawrence are both comprehensive and highly informative.  They are lengthy documents which consider not only the respondent's personal circumstances and prior offending but also, and by reference to relevant criteria, the prospects of his offending in future, especially if he were at liberty and not subjected to a substantial supervision regime.

The respondent is 48 years of age.  He is serving a three year sentence of imprisonment for indecent treatment of a child under 12.  He is due to be released in a fortnight, after serving the entirety of his sentence and a week for a fine.  His criminal history involves sexual assaults on pre-pubescent girls over many years.  The respondent's interest in girls has been apparent since he was a teenager.  His convictions over the years for sexual offences in connection with girls is, in summary, as follows:

• May 1974:  aggravated assault of a sexual nature on a child under the age of 17 which resulted in probation for three years.

• January 1978:  a similar offence for which he was fined $200.

• March 1978:  another such offence, resulting in imprisonment for nine months.

• November 1987:  indecent dealing with a child under the age of 14 years.  He was imprisoned for three years on each of two charges.

• April 1992:  indecent dealing with a child under the age of 16, for which he was imprisoned for three years.

• December 2002:  indecent treatment of a child under the age of 16 years for which, as I have said, he was imprisoned for three years.

He has committed other offences but they need not be dwelt upon for present purposes.

The details of the offences are set out in the reports of Professor Nurcombe and Dr Lawrence.  They are also usefully summarised in the outline of Mr O'Sullivan, who appears for the applicant.  There is some difference in the offences.  There are also similarities.  His demonstrated propensity is to interfere with young girls sexually but not in a violent way.

The reports prepared by the psychiatrists identify a high to moderate risk of sexual offending within a period of seven to ten years. 

Professor Nurcombe's risk appraisal was based upon a consideration of a number of predictive instruments and his own clinical judgment.  He concluded that the respondent's risk of committing a sexual offence within the next seven to ten years was from moderate to high.  He drew attention to the respondent's limited intelligence, impaired abstracting ability, impulsivity, defective empathy, lack of social supports, poor social skills and a tendency to revert to paedophilic fantasies and actions when he feels rejected, abandoned or aggrieved.

The respondent has not benefited from sex offender treatment, largely because of his low level of intellect; and, in Professor Nurcombe's view, he is not likely to do so in future.  Professor Nurcombe is, however, disposed to acknowledge that the respondent has struggled to be more honest with himself about what he did to his victims, to be more aware that he could have hurt them, and to cease blaming them for his actions.

Professor Nurcombe considers that, from a rehabilitative point of view, there is no utility in keeping the respondent in prison any longer, saying:

"Although he is a repeat sexual offender his crimes have not been violent ones.  Nevertheless, it should be noted that several of his victims were children who had already been sexually abused and whose emotional problems, if any, are likely to have been aggravated by (the respondent's) molestation of them."

Professor Nurcombe considers that any effective rehabilitation plan should include close parole supervision, regular counselling, supervised housing, and restrictions on proximity to female children.  He summarises his opinion by saying that the respondent has mild to borderline mental retardation and is classified as having paedophilia, sexually attracted to females, non-exclusive in type.

Dr Lawrence's assessment of the respondent concludes with a prognosis for re-offending as "poor":  that is, in her opinion, there is a very high risk that he will re-offend when released into the community.  She bases that view not only on actuarial tables, which suggest probabilities of a moderate risk, but also upon her clinical assessment.

No treatment, in her view, is likely to be of assistance except possibly the use of anti-libidinal drug such as Androcur.  She considers that, if a supervision order is to be made, it will need to be quite intense and closely monitored, and should include the following elements:

1.Accommodation where he may get some support from appropriate support groups.

2.The accommodation should be remote from areas where children are likely to congregate or frequent, such as schools and parklands.

3.He should be forbidden to attend areas where children are likely to frequent and should refrain from being alone in the presence of children, including friends and neighbours, at all times.

4.He should only change accommodation to a previously approved address.

5.He should be required to attend a designated medical officer at regular intervals for monitoring of any medication.

6.He should be recommended for use of the anti-libidinal drug to which I have referred, after its benefits and risks are explained to him.

7.He should seek at least part-time employment - something within his capacity, at least if the work is of an unskilled or labouring nature.

8.He should be required to abstain from alcohol and drugs and to submit himself to such tests as may be required of him from time to time by the appropriate medical officer.

9.His supervision should be regularly - that is, weekly to two weekly, and monitored by one assigned person with consent to check and get reports from appropriate people.

The reports of the psychiatrists, in summary, identify a moderate to high risk of offending within about seven years.  If that should happen, the consequences for his victim would no doubt be devastating. 

Section 13(4)(b) requires that consideration also be given to other medical, psychiatrist, psychological and other assessments.  I have taken into account the report of Dr Colls, which has been provided on the respondent's behalf.  It, however, was brought into existence without the benefit of the psychiatrist's having considered the reports of Dr Lawrence and Professor Nurcombe.

There are also psychologists' reports - assessments made at different stages during the respondent's incarceration over the years.  These reports are useful, among other things, in describing the relative ineffectiveness of the respondent's participation in sex offender treatment programmes.  He has participated in a number but has had considerable difficulty benefiting from them, largely because of his intellectual deficits.  There are several such reports.  They, too, are helpfully summarised in Mr O'Sullivan's submissions.

Sub-section (c) concerns information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future.  There is.  It is mainly in the reports of the psychiatrists (to which I have already referred) and to be derived from his criminal history.

(d) requires attention to be given to whether or not there is any pattern of offending behaviour on the part of the prisoner.  Here again, there is.  The offences generally involve children in relatively close proximity; and usually they occur at times of stress.  The stressors related to much of the offending are the kinds of stressors which he may yet continue to encounter, such as difficulties in relationships with adult females.

Section 13(4)(e) requires attention to be given to efforts by the prisoner to address the causes of his offending behaviour, including his participation in rehabilitation programmes.  I have already discussed this.  He has made efforts, within the limits of his intellectual capacity.

By section 13(4)(f), a matter to be taken into account is whether or not his participation in rehabilitation programmes has had a positive effect.  There may have been some, limited positive effect.  But the programmes are not likely to significantly inhibit his giving vent to his demonstrated paedophilic tendencies.  As I have indicated, his intellectual deficits impeded his comprehension of important concepts in the programme. 

His antecedents and criminal history are the next matters to be considered. 

His antecedents present a sad story of a difficult childhood in which he was sexually molested.  Tragic though his childhood and early adolescence may have been - characteristic as it is of many paedophiles - it assumes present significance mainly to the extent to which the psychiatrists have, as I think, reliably assessed what the future holds for him. 

His criminal history I have already mentioned. 

Section 13(4)(h) concerns the risk that he will commit another serious sexual offence if released into the community. That risk is demonstratable.  I have already referred to the psychiatrists' assessment of the degree of it. 

Sub-section (i) emphasized the need to protect members of the community from that risk.  The paramount concern of the legislation is the need to protect the community. 

Any other relevant matter is the last of the factors that falls to be assessed.  There appear to be none which have not been adequately considered in the reports of the psychiatrists.

The applicant seeks an order which would have the effect of seeing the respondent remain in custody.

I have already said that, in Professor Nurcombe's assessment, there is no rehabilitative potential in continued incarceration.  That view seems plainly correct.  The only point which would be served by his continued incarceration is the protection of the community; see section 13(6).

Although the protection of the community is the "paramount" consideration, it is not the only consideration.  The other, the significance of which scarcely needs elaboration in this Court, relates to liberty of the citizen. 

The question comes essentially to this:  whether, on a consideration of the interests at stake, the continued incarceration of the respondent is necessary or else whether the interests of the community and the respondent might be sufficiently accommodated by the making of a continuing supervision order.  A decision about that is necessarily influenced by the conditions which might attach to such an order were it to be made. 

A draft set of conditions has been presented for consideration in case a supervision order were made.  One remains (slightly) contentious.  The others, were a supervision order to be made, are that: 

1.within 48 hours of release he would report to a Corrective Services Officer at the area office of Community Corrections closer to his residence.

2.he would be under the supervision of a senior Corrective Services officer who has experience in the supervision of sexual offenders for the duration of the order.  The proposed duration is until 31st December 2015.

3.he would report to and receive visits from the supervising Corrective Services officer on a twice weekly basis until August 2005 and thereafter at such frequency as determined necessary by the supervising Corrective Services officer.

4.he would obey the lawful and reasonable directions of the supervising Corrective Services officer.

5.he would respond truthfully to enquiries by the supervising Corrective Services officer about his whereabouts and movements generally.

6.he would notify the supervising Corrective Services officer of any affiliation with any club or organisation that has child membership or child participation in its activities.

7.he would only reside at accommodation that has been given prior approval by the Department of Corrective Services.

8.he would notify the supervising Corrective Services officer of the make, model, colour and registration number of any motor vehicle owned by or generally driven by him.

9.he would notify the supervising Corrective Services officer of the nature of his employment, the hours of work each day, the name of his employer and the address of the premises where he is employed.

10.he would notify a Corrective Services officer of every change of his name, place of residence or employment at least two business days before the change happens.

11.he would not leave or stay out of Queensland without the permission of the supervising Corrective Services officer.

12.he would not commit an offence of a sexual nature during the period for which these orders operate.

13.he not be in the area within 100 metres directly outside a school between 8.00 a.m. to 9.30 a.m. and 2.30 p.m. to 16.30 p.m. on school days without reasonable excuse.

14.he not establish and maintain contact with children under 16 years of age.  This is slightly contentious.  The respondent seeks to attach an exception in respect of his own children, while subject to supervised contact within an office of the Department of Families.

15.he not access pornographic images containing photographs or images of children on a computer or on the Internet.

16.he abstain from alcohol and illicit drugs for the duration of the order, only take prescribed drugs as directed by a medical practitioner, and submit to alcohol and drug testing as directed by a Corrective Services officer.

17.he disclose details of any treating psychiatrist, psychologist or counsellor to the supervising Corrective Services officer and permit any treating psychiatrist, psychologist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of offending and compliance with this order to the Department of Corrective Services if such request is made in writing.

These conditions address the conditions the psychiatrists consider ought to be imposed were there to be a supervision order.  Plainly, they involve significant and continuing supervision and other measures designed to protect the community against the risk of his re-offending. 

No supervision order can be risk-free.  However, the conditions proposed to be imposed afford reasonable protection to the community.  Given the interests to be weighed in the balance, and recognising that the paramount of them is the need to ensure adequate protection of the community, the appropriate form of order is a supervision order to take effect at the end of the respondent's period of imprisonment. 

The respondent ought to be allowed to see his three young children, but only if his contact with them is supervised and takes place at an office of the Department of Families.  Mr O'Sullivan has helpfully informed me that there are offices where that can take place.

The applicant is opposed to this upon the basis that the respondent ought not to be allowed near any children.  But the risk to his children is reduced to acceptable levels if the contact takes place under the supervision of an officer of the State Government department:  someone who will be present in the room where any such meeting between the respondent and his children may take place, and for the duration of it.

...

HIS HONOUR:  Not establishing and maintaining contact with children under 16 years of age, subject to the respondent's being permitted by the Department of Child Safety, under the supervision of an officer of that Department, to meet with his children at an office of that Department.