Attorney-General v O'Rourke[2006] QSC 196

SUPREME COURT OF QUEENSLAND

1. By an application filed on 5 April 2006 the Attorney-General sought an order, pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’) that the respondent be detained in safe custody for an indefinite term for care control or treatment or, alternatively, an order pursuant to s 13(5)(b) that the respondent be released from custody subject to such conditions as the court thinks it appropriate to impose.

2. On 20 March 2002 at the District Court in Brisbane Judge Healy sentenced the respondent to five years’ imprisonment for the offence of rape. His Honour remarked that, given the respondent’s prior criminal history, he thought it likely that he would be required to serve the entire sentence. The judge himself thought that that outcome would be an appropriate punishment.

3. This was the fourth occasion on which the respondent had been sent to prison for rape. His first conviction for that offence was on 12 March 1982. On 25 March 1987 he was sentenced to seven years’ imprisonment by the Supreme Court of the Northern Territory for sexual assaults committed in that Territory.  On 25 October 1994 he was convicted of rape in New South Wales and sentenced to six years’ imprisonment.

4. Professor Nurcombe who examined the respondent in August 2005 to assess whether he would present ‘a risk of offending in a sexual manner with violence’ if released from prison described the respondent’s pattern of offending:

‘The pattern of the sexual offences is reasonably consistent.  After a period of heavy drinking and drug use, Mr O'Rourke forms a casual acquaintance with a woman.  The woman accompanies him for a walk or drive.  If she spurns his sexual approach, probably because he is too rough, he forces himself on her.  In retrospect, he regards the sexual offences as attempts to dominate women in the context of a fear of weakness.  From a characterologic point of view, O'Rourke combines aspects of two kinds of rapist … sexual satisfaction is subsidiary to dominating the victim, reassuring himself of his masculinity, and getting even with women for real or imagined wrongs.’

5. The respondent has made a number of applications for post-prison community-based release orders, and for remissions of part of his sentence, but all have been refused. His full time release date is 9 September 2006. The Attorney applies to defer his release indefinitely or to secure his release on conditions which would ensure that the respondent’s behaviour in the community is strictly supervised.

6. The respondent is 44 years of age. About 20 of those years have been spent in prison. He has a lengthy criminal history commencing in 1978 (street fighting, stealing, fraud, possession of drugs, driving whilst intoxicated, sexual assault and rape). It is the respondent’s convictions for the last mentioned offence, and the respondent’s propensity to commit it, that have led to the Attorney’s application.

7. By s 13(1) of the Act the court must determine, on an application such as the present, whether the respondent is a serious danger to the community if he were to be released from custody, or released without an order for his strict supervision. The balance of the section provides:

‘(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 –

(a)by acceptable, cogent evidence;  and

(b)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 11² 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).’

8. Before an order can be made under s 13(5) the Attorney-General must prove by acceptable cogent evidence and to a high degree of probability that the respondent will be a serious danger to the community if released unconditionally.

9. The respondent was examined for the purpose of the application by Dr Lawrence AM and Dr James, both eminent forensic psychiatrists. Both assessed the respondent as having an anti-social personality disorder and suffering alcohol and illicit drug abuse/dependence disorders. In addition Dr James thought that the respondent had a diagnosable borderline personality disorder.

10. Relevantly Dr Lawrence reported:

‘[The respondent] … displays a history of anti-social behaviour with early onset of a Substance Abuse/Dependence Disorder (alcohol and drugs) from early adolescence.  His first conviction for … rape occurred at the age of 19 …

… There is little doubt that he suffers from a Psychopathic Personality …  He does not suffer from a mental illness. …  He certainly displays evidence of an Antisocial Personality Disorder to the point of qualifying as a Psychopath, with its implications for recidivism … The pattern of his sexual offending is reasonably consistent … 

… The rape offences certainly appear to be opportunistic and suggest the display of power, dominance and retribution as motivation rather than pure satisfaction of a sexual need, though the latter is clearly present.

… Most significantly [the respondent] undoubtedly suffers from the Psychopathic Personality, with implications of its longstanding permanence and implications for recidivism.  However, it is widely accepted that a degree of maturity may occur with such personality disorders in middle to late life …’

11. Importantly the doctor said:

[The respondent] … presents … quite convincingly … as having changed during his current incarceration and gives a relatively convincing presentation of intention not to re-offend. 

… One must retain reservations as to the extent of change.  This is based on the tendency to assimilate psychological concepts and incorporate them into his presentation;  his demonstrated understanding and ability to refute the possibly damaging aspects of previous reports;  his ability to present himself in a convincing light.  It may well be that the apparent significant change in attitude and attributes will be able to last, though this cannot be guaranteed at this point in time.  Certainly, he presented in a convincing way at interview.

… [H]e has demonstrated … for some years the ability not to be involved in the drug culture that might be available within the prison system … [T]he objective evidence suggests that there have been no breaches or evidence of drug taking for some years. 

… He appears to have a number of family supports …

… [H]e has a Relapse Prevention Plan which appears to be reasonable and feasible.  If followed, it should address concerns.

… The most likely destabling influence in his life would be … to participate in any alcohol or any drug abuse.  Total abstinence of these substances should be seen as an essential condition for release.’

12. Dr Lawrence summarised her opinion in these terms:

‘[The respondent] should be regarded as a high to moderate risk of re-offending.  However … the risk of re-offending is mitigated to an extent by his … demonstrated efforts at change and utilisation of assistance received, as well as the possibility of a degree of personality maturity with middle life.

… Though one must retain reservations about the validity and reliability of this change, I can see no necessity for him to require, at this stage, ongoing indefinite detention.

… [I]t would be my recommendation that he be released under conditions of:

• strict supervision which would require, in particular;
• total abstinence from alcohol and drugs, with frequent random testing for same to monitor that abstinence;
• attendance at Substance Abuse Relapse Prevention programs such as AA or alternates;
• close supervision by a Correctional Services officer;
• Attendance at a Sexual Offender Maintenance Program and/or associated Psychologist contact;  and
• appropriate, approved accommodation and employment.’

13. In the course of their interview the respondent told Dr Lawrence that he was committed to his personal reformation and that he wished to lead a peaceful and law-abiding life. He has re-established contact with his family and a former partner who bore his child who has herself had a child, the respondent’s grandchild. He has established contact with that child though her husband discourages close association between her and the respondent. In his discussions with Dr Lawrence he exhibited a degree of understanding as to the unacceptability of his past conduct and the desire not to return to it. He had addressed, in considerable detail, the difficulties of ‘changing his spots’ and had developed a comprehensive and detailed ‘relapse prevention plan’. He appeared to Dr Lawrence to be genuine though the doctor could not discount the possibility that his sincerity was feigned.

14. Dr James had this to say about his examination of the respondent:

‘[The respondent] said … he wished to be honest in … his communications with me, and that he had renounced his former tendency to hide himself behind “pretend normal”.  He said that he had in the last few years been “taking (him)self very seriously,” and that he genuinely wished to change, and to be a better person.  He had … re-established [a] relationship with his daughter, and … that … relationship … had been the key to the development of a greater degree of empathy …

[The respondent] said … he had arrived at a meaningful understanding of what had led to his offending …

[The respondent] said that he felt extremely regretful at his offending … he felt that his previous dysphoric state had led to him taking drugs and alcohol, and that he had later used his intoxicated state to minimise his responsibility for his actions.  He said that he now fully accepted responsibility for his actions, and thus felt more able to assume self-control in the future.’

15. A psychologist employed at the prison which housed the respondent noted in March 2003 that the respondent displayed a ‘consistently positive attitude towards supervision and treatment [and was] very motivated to stop offending’.  He has completed the sex offenders training program which is a course which extended over seven months from June 2003 to February 2004.  He had completed the program to a good standard and demonstrated attitudinal and behavioural change that were constructive and socially useful.  The respondent also completed a cognitive skills program and a substance abuse managing and preventing relapse program as well as an anger management program.  The course convenor’s notes on the respondent described him as having completed each course to a high standard, demonstrating a high degree of insight and good motivation.  The respondent has been confined in a number of prisons but when the opportunity arose he has sought gainful employment in laundries, bakeries and dairies.  While confined at the Numinbah Correctional Centre he worked as a stockman where he was permitted day leave to perform his employment.  He was described as a diligent worker.  He has undertaken an external course of study in waste management and hopes to obtain employment in that field upon his release from prison.

16. Dr James noted that his diagnosis that the respondent suffered from an anti-social personality disorder and alcohol and drug abuse disorder coincided with the diagnoses made by other psychiatrists. He, though, thought the respondent also suffered from a borderline personality disorder. About this he said:

‘The additional diagnosis of Borderline Personality is important to note … it highlights important intra-psychic dynamics which … underlie much of [the respondent’s] offending behaviour …

Borderline Personality Disorder … is defined … in terms … such as markedly and persistently unstable sense of self, marked reactivity of mood, chronic feelings of emptiness, patterns of unstable and intense interpersonal relationships … inappropriate, intense anger … 

In my opinion, it is important clearly to identify the “borderline” dimension of [the respondent’s] personality, both in order to understand the nature of the difficulty in making behavioural predictions … as well as to assist in the construction of any recommended rehabilitation program …’

17. Dr James’ evaluation of the tests he administered to the respondent also indicates that he exhibits a high risk of recidivism, varying between 35 per cent and 58 per cent, depending upon the particular test.  Dr James expressed his conclusion in these terms:

‘In my opinion, in [the respondent’s] case, the pivotal issues are … the fragility of his sense of Self … in relation to Borderline Personality Disorder, and … his past habitual abuse of intoxicating substances, the two being closely linked … The prediction of risk … centres on the degree to which the “borderline” features … have ameliorated over the last five and a half years, and on what therapeutic and environmental strategies can be designed to safe-guard against future disruptions of personality coherence. … 

[T]he period which [the respondent] has spent in prison … has enabled certain risk-reducing factors to operate. 

Firstly one notes the process of continuing maturation. 

… Secondly, and importantly, [the respondent] has been involved in a number of treatment programmes most notably that of the Sexual Offenders Treatment Programme, and … the impact of such an intense and extended program on affective and relational matters should not be minimised …

General optimism … has to be tempered by past experience, and … as long ago as 1989, a Senior … Officer had opined that “During this present imprisonment [the respondent] has appeared to mature …” … and [the respondent] was noted to have referred in 1992 to his greater maturity … as well as a certainty that he would fulfil his goal of starting a new life … after release from prison …

… [I]t is my opinion that [the respondent] genuinely wishes to avoid re-offending and that he equally genuinely believes that he can.  I do not consider him to be a person deliberately concealing plans for evil acts;  but neither can he be seen as possessing absolute prescience, and his intentions and hopes have to be seen only as a promising beginning.’

18. Dr James does not in terms support the respondent’s release pursuant to s 13(5)(b) of the Act but his report appears to support such a course. He thought that successful integration into the community would depend upon the respondent having a well designed system of support from family and professional advisers but he thought that the respondent’s detailed relapse prevention plan was a ‘promising starting point’. He thought that the respondent’s intentions with respect to housing and occupation were reasonable. Dr James insists that the respondent not consume any alcohol or illicit drugs. Should he do so the risk of re-offending will increase mightily. He should participate, as he says he intends to, in programs encouraging abstinence, such as those run by Alcoholics Anonymous. He should be carefully monitored to ensure that he does not ingest alcohol or illicit drugs and should have regular support and contact from an appropriately trained therapist.

19. Given these conditions Dr James appears to be cautiously optimistic that the respondent might reintegrate successfully into society and live a law-abiding life.

20. Professor Nurcombe in his report said:

‘… [The respondent] is at moderate to high risk of sexual/violent recidivism.  However, the potency of these static risk factors may be counteracted by recent changes in his attitudes to women and to his offences, a great degree of self-understanding engendered by the Sex Abuse Treatment Program, and a detailed self-generated Relapse Prevention Program.  It is … possible that [the respondent] is duping me … by claiming improvements that are not genuine but merely parroted from the jargon of Relapse Prevention.  It is also possible that the improvements are genuine but will prove fragile when he is confronted with external reality.  However, I am inclined to believe that these recent improvements, although likely to be unstable without continuing external support, are authentic indicators of change.  Of all the risk factors [the respondent] will face after release, there is no doubt that alcohol and drug use is the most serious.  Unless he can abstain from alcohol/drug use in the future, recidivism is likely.’

21. Professor Nurcombe was recently shown the reports of Drs Lawrence and James and asked whether his prognosis for the respondent had changed and whether he thought the contents of a draft supervision order proposed for the respondent was satisfactory. Professor Nurcombe replied that his prognosis had not changed and that he was ‘in agreement with’ the draft supervision order.

22. To keep the respondent in prison after the expiration of the sentence last imposed on him is a serious matter. It cannot be justified under s 13 of the Act unless the evidence shows that in all probability (to paraphrase the Act) that the order is necessary to protect the community from the respondent’s sexual predation.

23. The evidence does not justify an order that the respondent be detained in custody for an indefinite term.

24. None of the psychiatrists who have examined the respondent in order to ascertain the level of danger he would pose to the community should he be released has recommended that he be so detained. Dr Lawrence instead recommends that he be released pursuant to s 13(5)(b) so that the respondent, on release, may be strictly supervised to ensure that he does not relapse into violent behaviour and to offer him support in his endeavours to lead a law-abiding life.

25. By 9 September next the respondent will have served every day of the sentence imposed on him in May 2002. His behaviour in jail has been exemplary. During earlier periods of imprisonment the respondent had obtained and consumed illicit drugs. On every occasion he has been tested since 2000 no trace of drugs was found. He has undertaken a number of courses designed to reform his character and rehabilitate his behaviour. He has successfully completed each course and earned the respect of his teachers for his efforts. He has impressed the examining psychiatrists with the earnestness of his express desire to lead a reformed life.

26. The respondent himself developed a detailed and comprehensive relapse prevention program. Its fundamentals are the avoidance of the circumstances which in the past led him to offend and the self-recognition of the indications that his behaviour may be tending towards the unacceptable and the violent. He has devised means of diverting those tendencies principally by taking part in wholesome activities and contacting family or institutional supporters for encouragement. He has the promise of gainful employment and appropriate accommodation as well as the support of family and at least one friend.

27. These are all promising indications that the respondent does intend to put his criminal past behind him. Substantial risks remain that his expressions of regret for past misbehaviour and a desire for a law-abiding future are not genuine but feigned for the purpose of obtaining his release. Even if his expressions be genuine there are real risks that he will re-offend given his past and his personality defects. The risk is not, however, unacceptable. The prospects that the respondent has been genuinely rehabilitated and is sincerely determined not to re-offend are sufficient to alleviate the risk so that it does not satisfy the test required before the serious step of detaining the respondent in prison indefinitely may be taken. The conditions proposed for the respondent upon his release are sufficient to provide adequate protection to the community against the chance that the respondent might return to his violent ways.

28. The conditions are quite strict. They have the approval of the examining psychiatrist. Mr Horton who appears for the Attorney-General accepts their appropriateness and does not contend for an order under s 13(5)(a). The conditions are acceptable to the respondent and his legal representatives. They require that the respondent absolutely abstain from the consumption of alcohol or illicit drugs. Should he so abstain his prospect of a successful reintegration into society is a distinct possibility.

29. I therefore order that the respondent, Leslie William O'Rourke, be released from custody pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 on the following conditions.  The respondent must:

(i)be under the supervision of a corrective services officer (‘the supervising corrective services officer’) for the duration of this order;

(ii)report to the supervising corrective services officer at the Department of Corrective Services Area Office closest to his place of residence within 24 hours of his release and therein to advise the officer of the respondent’s current name and address;

(iii)reside at a place within the State of Queensland as approved by the supervising corrective services officer by way of a suitability assessment;

(iv)report to and receive visits from the supervising corrective services officer at such frequency as determined necessary by the supervising corrective services officer;

(v)notify the supervising corrective services officer of every change of the prisoner’s name at least two business days before the change happens;

(vi)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 his premises where he is employed;

(vii)notify the supervising corrective services officer of every change of employment at least two business days before the change happens;

(viii)notify the supervising corrective services officer of every anticipated change of the respondent’s place of residence at least two business days prior to the change and to obtain the approval of the supervising corrective services officer prior to the change of residence; 

(ix)not leave or stay out of Queensland without the written permission of the supervising corrective services officer;

(x)not commit an offence of a sexual nature during the period for which these orders operate;

(xi)obey the lawful and reasonable directions of the supervising corrective services officer;

(xii)respond truthfully to enquiries by the supervising corrective services officer about his whereabouts and movements generally;

(xiii)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;

(xiv)not contact directly or indirectly the victims of his sexual offences;

(xv)not access pornographic images on a computer or on the Internet;

(xvi)abstain from illicit drugs for the duration of this Order;

(xvii)abstain from consumption of alcohol for the duration of this Order;

(xviii)take prescribed drugs only as directed by a medical practitioner;

(xix)submit to random drug and alcohol testing as directed by a corrective services officer, the expense of which is to be met by the Department of Corrective Services;

(xx)attend a psychiatrist or psychologist who has been approved by the supervising corrective services officer at a frequency and duration which shall be recommended by the treating psychiatrist/psychologist, the expense of which is to be met by the Department of Corrective Services;

(xxi)permit any treating psychiatrist, psychologist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of re-offending and compliance with this order to the Department of Corrective Services if such request is made in writing for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;

(xxii)attend any program, course, counselling, therapy or treatment, in a group or individual capacity, as directed by the supervising corrective services officer in consultation with the treating psychiatrist/psychologist, the expense of which is to be met by the Department of Corrective Services;

(xxiii)agree to undergo medical testing or treatment as deemed necessary by the treating psychiatrist/psychologist in consultation with the supervising corrective services officer, and permit the release of the results and details of the testing to the Department of Corrective Services, if such a request is made in writing for the purpose of updating or amending the supervision order, the expense of which is to be met by the Department of Corrective Services.  Further and specifically, if it is deemed by the treating psychiatrist/psychologist in consultation with the supervising corrective services officer that sexual impulse medication is an appropriate course of therapy/treatment this is only to occur with the respondent’s consent.