Attorney-General v G[2005] QSC 71

SUPREME COURT OF QUEENSLAND

1. This is an application by the Attorney-General for a Division 3 order under the Dangerous Prisoners Sexual Offenders Act 2003.

2. On 9 December 2004 at a preliminary hearing a judge of this Court made a risk assessment order pursuant to section 8 of that Act, but did not make an interim detention order. The prisoner was released from custody on or about 11 January 2005.

3. The order sought by the Attorney is for a supervision order of the respondent and as the matter was argued the contentious questions are ones relating only to the conditions of such an order.

4. Indeed, the respondent through his counsel told me that he agreed that a supervision order should be made.

5. Nevertheless it is necessary for me to consider whether a serious danger to the community is established, for the existence of such a danger is essential to the Court's power to make a Division 3 order.

6. A prisoner is a serious danger to the community for the purposes of this Act 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. The Court may decide that it is satisfied that there is a serious danger to the community, only if satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision which is sought.

7. In deciding whether a prisoner is a serious danger to the community the Court must have regard to matters set out in section 13(4). If it is satisfied that there is a serious danger to the community in the relevant sense, the Court may order that the prisoner be detained in custody for an indefinite term for control, care or treatment (which is a continuing detention order) or it may make an order of the kind which the Attorney seeks here which is that the prisoner be released from custody subject to the conditions the Court considers appropriate that are stated in its order (which is called a supervision order).

8. Section 13(6) provides that in deciding whether to make an order of either of these kinds the paramount consideration is to be the need to ensure adequate protection of the community, and subsection 13(7) provides that the Attorney-General has the onus of proving the prisoner is a serious danger to the community.

9. I mentioned that this respondent was released from custody, having served any relevant term, earlier this year. Section 8(4), however, provides that in such a circumstance a prisoner is treated for all purposes in relation to this Act as if he were still a prisoner.

10. The respondent has a long and extensive history of criminal behaviour involving sexual offences as well as offences of some other kinds. His most serious criminal behaviour has been his sexual offending. That dates back to 1962 when he was convicted of an offence involving offensive behaviour in a toilet block. There were a number of convictions in relation to sexual offences from 1979 through to and including January 1994 when he was sentenced to certain cumulative terms, the last of which expired only on his recent release.

11. On the 11th of January 1994 he was convicted on two counts of rape for which he was sentenced to concurrent terms of 12 years. At the same time he was convicted of a number of offences involving indecent dealing with girls under the age of 14 years, and certain other sexual offences. On the indecent dealing counts he was sentenced to terms of four years concurrent with one another but cumulative upon the sentences for the counts of rape. He was granted remission of the 12 year terms so that they expired upon 11 January 2001 and the four year terms for the indecent dealing counts then commenced.

12. The risk assessment order made last December has resulted in the provision of reports by two psychiatrists, each of whom also gave oral evidence. They are Doctors Moyle and Lawrence.

13. Dr Moyle says that the respondent's criminal history makes him a high risk of reoffending against children who are aged four to 13 and of either gender. The respondent is now aged 70 years and is in poor physical health in respects which I will mention shortly, but in the report of each of the psychiatrists his relatively poor physical health and advanced age does not substantially affect the risk, because assuming that he has no or little potency, his sexual desires and his potential for reoffending by other means is substantial.

14. Dr Lawrence says that the respondent is clearly a paedophile and capable of violence and that he shows traits of dependent passive self-gratification with little empathy.

15. She also summarises the respondent's medical or physical illnesses as including these matters: Diabetes Mellitus Type 2, adrenal insufficiency secondary to adrenal haemorrhage; chronic obstructive airways disease, hypertension, osteoarthritis, some mild dementia, a probable transitional cell carcinoma of the bladder and other conditions.

16. In her view the dominant factor affecting the relevant risk is the respondent's medical status and his health. She explains that in these terms, and I here set out paragraphs 19.4 to 19.11 inclusive of her report:

“19.4 However, it must be borne in mind that the current good control of his chronic medical illnesses is achieved through the consistent and reliable routine of care which he receives in the prison setting.  This is a simple routine which requires him to attend 2 or 3 times per day at the hospital to receive his necessary medications, which are numerous, and for continuing monitoring of his blood sugar levels by nursing staff to assist in that control.  Presumably the need for a diabetic diet with its prohibitions would be taken care of in the prison routine.  His visits to doctors are organised by the nursing staff and others for him and he receives the necessary transport and is escorted.

19.5  In prison, he is not exposed to the temptations or alcohol or drugs.

19.6  In short, (G) is receiving the optimal medical care and supervision which is achieving good control of his chronic illnesses.  However, he is very much a passive recipient in the system and merely relies on others to tell him what to do and is compliant with what he is told.

19.7  Were he not to be imprisoned, the organisation of his medical care and its day-to-day administration would need to be provided for him by others.

19.8  In my opinion, his age, limited understanding of medical matters and such cognitive and memory deficits as he does have, would make it almost certain that, unless his care was carefully supervised and administered, his medical illnesses would rapidly get out of control.

19.9  Without carefully supervised control of his medical conditions, there is a very high probability that he would deteriorate mentally as well as physically; he could readily lose such cognitive understanding as he does have that he should not drink alcohol and consumption of alcohol would undoubtedly aggravate, not only his medical conditions but would lead to the loss of any inhibition of sexual impulses that he may have.

19.10 The medical and biological basis for his sexual functioning at the present time is unclear.  It is highly likely that his apparently longstanding Diabetes, even though controlled, may well lead to erectile failure in this man.  However, it cannot be assumed that this will invariably lead to a loss of sexual desire or drive.  With the object of his sexual fantasies in the past being children, and an inability to participate in adult type sexual relationships, the risk of his re-offending sexually against children is, if anything, increased.

19.11  In my opinion, if his medical condition is well controlled, the risk of his sexual offending is low.  This is consistent with his stated attitude at the present time.”

17. In that last paragraph, that is 19.11, she expresses the opinion that the risk of his sexual offending was low if his medical condition is well controlled. In her oral evidence, however, Dr Lawrence emphasised that if it is not well controlled then the risk becomes a high one. She emphasises the difference between the medical attention available to the respondent when he was a prisoner and what she fears will be the relatively low attention which he will seek now that he is not in custody.

18. The effect of her opinion is that there is a high probability that his medical condition will deteriorate and that in summary this will make for a relatively high risk of sexual offending.

19. The Attorney also relies upon other evidence going to this threshold question of risk and in particular upon the views of a psychologist, Ms Roland. According to her report written in September 2003 there is a moderate to high risk of sexual recidivism.

20. What I have said here in relation to the professional opinions deals with most of the matters to which I must have regard according to section 13(4). I would add that so far as the respondent's cooperation in the examination by the psychiatrist is concerned, to a limited extent the respondent appears to have cooperated. I say "limited" because each of the psychiatrists have said, in effect, that the respondent gave some answers to questions and gave some responses which show some non-cooperation in the sense at least of some lack of frankness.

21. Subject to that matter, however, I accept that the respondent has cooperated in the examinations.

22. The respondent has also participated in relevant programs. He has undertaken the Sexual Offenders Treatment Program in 1999, the Substance Abuse Relapse Prevention Program in 1994, the Intimate Relationships Program in 1995, the Sexuality in Relationships Program in 1995, an anger management program in 1995 and a stress management program in 1994.

23. I have considered each of the matters within section 13(4).

24. The evidence of the psychiatrists, Doctors Moyle and Lawrence, is in my view acceptable and cogent and I accept it. In my conclusion it establishes to a degree of probability that there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody without a supervision order being made, and that the respondent is a serious danger to the community in the absence of a supervision order.

25. I turn then to the question of the appropriate conditions for such an order. Section 16(1) requires a supervision order to contain certain requirements. Section 16(2) provides that the supervision order may contain any other order the Court thinks appropriate to ensure adequate protection of the community or for the prisoner's rehabilitation or care or treatment.

26. The relatively few conditions of the order proposed by the Attorney which are in dispute are ones which are concerned more with what is necessary or not for the adequate protection of the community, rather than so much with what is appropriate for the prisoner's rehabilitation or care or treatment, although in some respects, as I will explain, their content could have an impact upon that matter also.

27. The first of the contentious conditions which is within the draft order handed up at the commencement of the hearing by counsel for the Attorney is a condition that the respondent must:

“(c) reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitable assessment, the place not to be within 500 metres of a school or other public place or business where children are cared for or supervised.”

The respondent's present residence has not yet been the subject of the suitability assessment.

28. The respondent is aged 70. As I have said, he is in many respects in poor physical health and he is without any significant finances.

29. For these reasons it will be relatively difficult for him to find suitable accommodation and care must be taken in the prescription of a condition as to where he may reside that some suitable residence is not denied to him.

30. This statute and in turn orders under it are concerned with the adequate protection of the community but, as I have mentioned, section 16(2) also recognises the relevance of a prisoner's rehabilitation or care or treatment in the context of what is an appropriate condition for a supervision order.

31. The respondent submits that the limit of 500 metres is excessive. Each of the psychiatrists were asked questions about that matter. The effect of their evidence is that there are particular risks even from the respondent being somewhere where children are regularly in view.

32. The prescription of any such limit, whether it be 500 metres or otherwise, is always at risk of being somewhat arbitrary. As I see the matter, there is a relevant distinction between a school and some “other public place or business where children are cared for or supervised”. It is more likely that at a school there are many more children in attendance than many other places which would fit that description such as small child-care centres or preschools.

33. The condition which is proposed by the Attorney-General will confer a substantial and important discretion upon a Corrective Services officer. One can envisage some cases where a place which is more than 500 metres from a school or other relevant place might be considered to be unsuitable. On the other hand, it is quite possible that there could be somewhere within 500 metres of a school or such other place which having regard to the particular circumstances, might be considered suitable. The Corrective Services officer upon whom this discretion is conferred will no doubt approach the difficult task of the suitability assessment without mistaking some prescription of distance, whether it be 500 metres or otherwise, as a reliable guide so far as what is suitable is concerned.

34. It is also relevant in this context, as it is with the prescription of other conditions, to consider the means by which in the regime which would be imposed by this order could be sensibly amended to meet new circumstances. Section 18 of this Act provides for an application for an amendment of the terms of the supervision order and section 19 empowers the Court to make such an order of amendment.

35. Section 44 provides that the Court may decide whether it is satisfied as required under section 18 entirely or partly from the consideration of the documents filed, without the prisoner or witnesses appearing.

36. Section 44 provides then a means by which, at least, in context of a variation which is not opposed, a supervision order can be varied. That does involve some expense, but a relatively small one. So, should it appear that there is an appropriate residence assessed as suitable by the relevant officer, but within whatever distance is prescribed within this condition, then there is a means of allowing the respondent to live there.

37. For the present, however, I am persuaded that there ought to be some prescribed distance within which the respondent is not to reside. As I have said, I see some distinction between a school and another place as described in the proposed condition.

38. The order will, therefore, include the paragraph (c) of the draft, but with this amendment, which is that after the word “or”, where it first appears in the second sentence, the words, “300 metres from some”, will be inserted.

39. The next of the conditions which is controversial is in paragraph (p), which is that the respondent “not be in the area within 500 metres directly outside a school between 8 a.m. to 9.30 a.m. and 2.30 p.m. to 4.30 p.m. on school days and not be in an area within 300 metres of a school at any time without reasonable excuse”. I have just mentioned the condition in relation to the respondent's residence. That condition as to residence is one under which the respondent is not to live within 500 metres of a school. What this condition is concerned with is not where the respondent lives, but where he might be outside his residence.

40. The respondent submits that this condition is more than is appropriate to provide a proper protection to the community. The respondent says that 500 metres is a considerable distance, and that a condition of this kind could place a substantial restriction on the respondent's movements. Nevertheless, it seems to me that much of that restriction is overcome by the rider in the words “without reasonable excuse”. It does seem to me that once those words are kept in mind the condition which is proposed is an appropriate one. The order will be, however, for a condition in slightly different terms, but to the same effect as that proposed. The terms of the condition will be: “not without reasonable excuse be in an area within 500 metres of a school between 8 a.m. and 9.30 a.m. and between 2.30 p.m. and 4.30 p.m. on school days, or be in an area within 300 metres of a school at any time”.

41. The next of the conditions is condition (r), where the Attorney-General proposes that the respondent “not be in the area within 500 metres of a children's playground or child care area without reasonable excuse”. Again, it is submitted by the respondent that the distance of 500 metres is more than is reasonably required. The reasonableness, however, of the condition is again affected by the rider of “reasonable excuse”.

42. According to the psychiatric evidence there is a significant risk of temptation, although the respondent might be at some distance from where he sees children playing or otherwise gathering. The term which is proposed in my view is not disproportionate to what is reasonably required. The condition, however, will be in these terms: “not without reasonable excuse to be within 500 metres of a children's playground or child care area”.

43. I come then to the condition in paragraph (t) of the proposed order which is that the respondent “not establish and maintain contact with children under 16 years of age”. The respondent has a number of grandchildren who are under 16 years of age and also some great grandchildren. The particular concern which the respondent, through his counsel, expresses in this respect is in relation to the respondent's contact with his own children. The apprehension is that on some relatively few occasions within a year it will be necessary or desirable for the respondent to be with not only his children, but some of their children who are under 16 years of age. That concern is, of course, perfectly understandable and again it is necessary to consider not only the protection of the community, but also what is appropriate for the rehabilitation care or treatment of the respondent.

44. The respondent suggests that the condition be qualified so that it does not relate to children who are members of his immediate family where the relevant contact is in the actual presence of and supervised by the parent or guardian of the child.

45. The psychiatrists in their oral evidence were asked about this and each expressed concern about the proposal. Some suggested further modifications or qualifications were given by, in particular, Dr Lawrence who discussed the prospect of ensuring that the relevant parent or guardian of the child well understood the risk presented by the respondent's contact with the child and well appreciated the need to be at all times present.

46. Ultimately it seems to me that the problem with what is proposed by the respondent is that it does have the real potential to go awry, and particularly in a social context, to very quickly lead to a position where the respondent is alone with a child and succumbs to the temptations which have led to so much offending over the years.

47. The respondent's history not only involves extensive and very serious exploitation of vulnerable children, but in one instance it involves a serious sexual offence against one of his own grandchildren. That demonstrates, taken in the context of all of the evidence and his serious history, the particular risk which would be presented by his being alone for even a very short time with a child. There is, in my view, too great a risk involved in what the respondent proposes. Although the conditions must be imposed with a view to the prisoner's rehabilitation it is necessary that the conditions are such that the protection of the community, or any part of it, is adequate.

48. In my conclusion the condition which is proposed by paragraph (t) is an appropriate one and ought to be included without amendment.

49. That leaves for consideration paragraph (z) of the draft order which is in terms that the respondent “not visit environments typically associated with the service of alcohol or typically associated with the service of alcohol such as pubs, nightclubs, casinos, or similar venues”.

50. In the course of argument counsel for the Attorney-General suggested that the condition be expressed in these terms: “not visit premises which sell or serve alcohol”. The respondent opposes such a condition saying that it is excessive. The respondent's principal submission is that he ought to be able to, for example, lunch with his son at somewhere like an RSL club, and that there would be no unacceptable risk. The particular risk is that he would drink alcohol and it is plain from the psychiatrists' evidence that if he drinks alcohol he is a high risk of offending.

51. I am satisfied that there should be a condition which prevents him from being in a place where he can acquire alcohol. But the condition proposed by the Attorney-General goes further in that it would prevent him from going to premises which not only sell or supply alcohol but which serve it. That will include premises where other persons might be served alcohol which they, themselves, bring to the premises.

52. Counsel for the Attorney informs me that under the liquor licensing laws some provision is made for licensing the service as well as the supply of alcohol. The condition, however, which the Attorney proposes would extend beyond premises having such a licence. It would extend to premises which do not require any licence to put into a glass what a person brings along. It doesn't seem to me that those premises represent an environment in which the relevant risk would become material, if the respondent is unable to acquire alcohol at the premises. It doesn't seem to me that such premises ought to be within this condition. It is true, as the Attorney's counsel points out, that the risk would still exist of somebody with the respondent bringing the alcohol to the premises, but that is to say that the respondent is at risk of drinking alcohol in many places where someone is willing to provide him with it.

53. In my view, what is proposed in the written draft or in the oral submissions for the Attorney-General ought not to be included but instead paragraph (z) should be in these terms: “not visit premises licensed to supply or serve alcohol”.

54. The remaining conditions of the draft order are not contentious. With those amendments there will be a supervision order in accordance with the draft handed up at the commencement of the hearing.

55. By that order it will be expressed that the Court is satisfied to the requisite standard that the respondent is a serious danger to the community in absence of an order pursuant to division 3 of the Act, and it will be ordered that the respondent will be subject to the following conditions until 23 August 2009 or further earlier order of the Court.

56. The conditions, as I have said, will then be according to the draft which has been marked A for identification and amended according to these reasons.

57. I shall hear the parties as to any orders in relation to publication.

…

58. The supervision order having been made, counsel for the respondent has sought an order that the whole of the file be sealed up so that it is not available for public inspection. The Attorney-General does not oppose that order. The reasons, however, respectively advanced by counsel for such an order differ.

59. The respondent submits that other statutory regimes would be undermined by the public availability of evidence as has been given in this case. Reference is made to sections 242 and 243 of the Corrective Services Act 2000, as well as to section 68 and following of the Child Protection Act 1999.

60. The benefit of provisions such as in 243 of the Corrective Services Act could be affected in certain circumstances by the public availability of evidence which contains information which is confidential according to that section.  If the confidentiality provided by section 243 was the only consideration, in this respect the benefit of that confidentiality to the working of the Corrective Services Act would have to be balanced against the well established importance of proceedings being conducted in open Court and the evidence being publicly available.  As to those considerations, see J v L and A Services Pty Ltd (No 2) [1995] 2 Qd R 10, per Fitzgerald P and Lee J.

61. The Attorney points, however, to a different consideration in favour of the order which the respondent seeks, which is the protection of the privacy of persons who were complainants in relation to the many offences which have been committed by the respondent. It is true that there is also already some statutory protection of that privacy and in particular a protection against a report which would reveal the identity or details of a complainant. See section 6 of the Criminal Law (Sexual Offences) Act 1978.

62. However, there is a proper concern that access to the file and the extensive affidavit material upon it would result in the disclosure of details of offences of the complainants, such that notwithstanding the restriction upon a report, those complainants could be made to suffer further for what has occurred. It is highly desirable that they be protected from that.

63. The order which is proposed is one in which the nature and precise terms of the application made by the Attorney would still be known as would the outcome and the reasons given by the Court for its decision. In my view, it is appropriate that an order of the kind which has been sought be made. There will, therefore, be an order as I have indicated in relation to the sealing up of the file save for the originating application itself, the supervision order as well as, of course, the earlier order made by the Court for risk assessment.