Attorney-General v Hansen[2006] QSC 35

SUPREME COURT OF QUEENSLAND

1. The Attorney-General seeks an order that the respondent be detained for an indefinite term pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 or, in the alternative, a supervision order under s 13(5)(b) of the Act. 

Background events

2. The respondent pleaded guilty to nine counts of indecent treatment of a child under 16 which occurred over a period of two months. Six of the counts related to incidents when the respondent was left by a woman at whose premises he was living left him to baby-sit her four year old daughter. He committed the offences which included touching and kissing her vagina while she was in the bath. The remaining charges related to an incident when the respondent took the same child to a park and inappropriately touched the breasts and bottoms of two girls, who were apparently strangers to him, when pushing them on a swing. He was sentenced to three years’ imprisonment with a full time discharge date of 14 March 2006.

3. The respondent had also been sentenced to imprisonment in 1995 when he received a term of four years for maintaining a sexual relationship and indecently dealing with a child under 12 over a four year period. On this occasion the child with whom he had the relationship was one of the daughters of a woman with whom he was living. The counts of indecent dealing related to three girls aged between eight and 14. These counts related to showing them pornographic magazines and touching their genitals.

4. With the exception of the offences committed against the children in the park, who were strangers to him, the respondent’s sexual offending occurred in circumstances where he had gained the trust of mothers of child victims and taken advantage of the opportunities created by that situation to commit sexual offences. They were inherently serious because they were committed on children, with the known risk of psychological damage, but were not of the most serious kind and were committed without physical violence. It is this pattern and the propensity for this kind of re-offending against children that is the area of concern for the future.

Nature of proceedings

5. The objects of the Act, according to s 3, are to provide for the continued detention in custody or for supervised release of a particular class of prisoner to ensure adequate protection of the community and to provide continuing control, care or treatment of that class to facilitate their rehabilitation. Section 13(5) provides that if the court is satisfied that the prisoner is a serious danger to the community in the absence of an order made under Division 3 of the Act, it may order that the prisoner be detained in custody for an indefinite term for control, care or treatment, or that he be released from custody subject to conditions it considers appropriate that are stated in the order. The former is a continuing detention order and the latter a supervision order.

6. For an order to be made, s 13(2) requires that there is an unacceptable risk that the prisoner will commit a serious sexual offence if the prisoner is released from custody or is released without a supervision order being made. The Attorney-General has the onus, under s 13(7), of satisfying the court by acceptable, cogent evidence, and to a high degree of probability, that the prisoner is a serious danger to the community, on evidence of sufficient weight to justify the decision (s 13(3)).  A number of matters to which the court must have regard in deciding whether the prisoner is a serious danger to the community are set out in s 13(4).  By virtue of s 13(6) the paramount consideration in deciding whether to make an order under s 13(5) is the need to ensure adequate protection of the community.

7. The psychiatric reports to which s 13(4) requires the court to have regard were from Drs James and Lawrence and from Professor Nurcombe. There is also other material falling under s 13(4)(b), including information about his good behaviour in prison.

8. It is not disputed by counsel that in the absence of a Division 3 order the prisoner is a serious danger to the community because there is an unacceptable risk that he would commit a serious sexual offence if he were released without restraint or without a supervision order being made.

9. However, the stance taken by the parties is not decisive; the court must be satisfied on the basis of the evidence. For the reasons expanded on in the following paragraphs, I am satisfied to a high degree of probability by evidence that is acceptable and cogent and of sufficient weight that there is an unacceptable risk that the respondent will commit a serious sexual offence in the absence a Division 3 order. I am also satisfied that release under a supervision order with restrictive conditions is appropriate.

Psychiatric evidence

10. Dr James concluded that the risk of serious re-offending would be moderately high if he were released without supervision. Dr Lawrence concluded that the risk was high if he were released without supervision. Professor Nurcombe said that, if released without supervision there was a high risk of the respondent re-offending sexually. “Serious sexual offence” is defined as meaning an offence of a sexual nature involving violence or against children. The serious concern in the present case is that he will re-offend against children.

11. Dr Nurcombe noted that although the documentation available about it was insufficient, rendering the primary diagnosis not clear, the respondent had suffered head injuries in a motor vehicle accident in 1982 in which there was little doubt he suffered a brain injury including frontal lobe damage. This left him with poor executive functioning, emotional disinhibition, and impairment of short term memory, sequential memory and capacity for abstraction. He said that he suspected his personality changed after the accident. He said that the behavioural effects of frontal lobe cerebral injury can mimic the clinical features of psychopathic personality. It was not clear whether the respondent had the features of psychopathic personality prior to the motor vehicle accident. If he did have it, it was likely that the effects of the brain injury aggravated his propensity for anti-social behaviour.  He also said that the effects of the accident aggravated his substance dependence.  If he reverted to cannabis use, the risk of recidivism would be greatly increased.  He said that he was at high risk of re-offending sexually and at moderate risk of violent re-offending.  However there would be no therapeutic or rehabilitative effect in extending the respondent’s prison time beyond his release date.

12. Dr Lawrence said that despite gradual and lengthy recovery of function from the brain injury, he had been left with effects consistent with frontal lobe damage in the form of short term memory impairments, some blunting of affect and emotional instability, poor judgment and poor control of impulses. She also diagnosed a personality disorder with significant psychopathic traits. It was unclear to what extent he had these traits prior to the accident. They clearly operated on his behaviour but he could not be regarded as displaying, to the fullest extent, all the characteristics of a psychopathic personality.

13. She also concluded he had substance abuse disorder, primarily in respect of cannabis and alcohol. That was the setting in which the offences occurred. The history of poly-substance abuse was of long standing by the time he went to prison. Dr Lawrence was pessimistic about his capacity to achieve his assertion that he would not use drugs again. Further substance abuse was likely to disinhibit him. His unreliable version of events was of significance in trying to establish whether he had true paraphilia or paedophilia. She concluded it was possible that he would have ongoing paedophilic tendencies but, in any case, the ongoing nature of his personality difficulties, particularly if aggravated by substance abuse, made it likely that he would re-offend against female children in opportunistic circumstances.

14. She said that overall, because of the risk factors of his high level of psychopathic traits, organic personality disorder, possibly as a result of brain damage and poly-substance abuse she would regard the respondent as a moderate to high risk of re-offending, including offending sexually against children in the future.  She said that the risk was high if released from custody without supervision.  However, it may be moderated to a limited extent if he were to be released under a supervision order. 

15. Dr James observed that there appeared to be a considerable measure of agreement that the respondent suffered a severe closed head injury in 1982 with attendant brain damage. This resulted in some cognitive disabilities, especially memory impairment and frontal lobe impairment, causing a degree of behavioural disinhibition and some diminished capacity for empathy and for executive functions such as organisation and planning. All available evidence suggested that the impairments remain and are present to a degree which, although not gross, is nevertheless sufficient to pose some problems for the respondent’s successful reintegration into the wider community.

16. In addition, for a number of years prior to imprisonment, the respondent had been a habitual and heavy dependent user of cannabis. It was likely that he was chronically affected by his cannabis use prior to and perhaps at the time of his offences and it was likely that his brain injured state made him more susceptible to its effects. Drug taking probably played a very important part in his offending, and unlike the brain damage, it was an area towards which intervention could be directed with some prospect of significantly reducing the risk of re-offending.

17. Of the two primary conditions diagnosed, brain damage especially of the frontal lobe and previous dependant abuse of cannabis, it could be said that the behavioural manifestations of his brain damage were less susceptible to psychological treatment than similar behaviours of a non-organic origin. However, his current medicinal regime had a general stabilising effect on the respondent’s subjective state and behaviour. It should be continued indefinitely.

18. He agreed with Professor Nurcombe who attributed the personality difficulties largely to the head injury. Its likely origin as a result of organic brain damage, however, made it likely that the manifestations would be less susceptible to modification by psychological techniques than would be the case if it were of a different origin. The fact that the respondent’s conduct in prison had been unexceptionable suggested that at least in a regulated environment, perhaps with the assistance of medication and without the effect of cannabis, the respondent would be capable of controlling and regulating his behaviour.

19. With respect to sexual orientation and impulse direction, the respondent’s behaviour fulfilled the diagnostic criteria for paedophilia. Although it was difficult to be certain, there were factors which would suggest that his paedophilic behaviour was secondary to cannabis intoxication in particular, with some further degree of disinhibition arising from his brain damage, rather than representing a primary condition involving more compulsive conduct based upon a predilection towards children. Dr James expressed the conclusion that if the respondent relapsed into cannabis use and into a relationship likely to bring him into contact with young female children, the risk of further offending would be moderately high. He did not consider it likely that the respondent would actively seek out sexual gratification with children. He thought that the risk of violent re-offending was low.

Contents of Supervision Order

20. Counsel for the Attorney-General and for the respondent both produced draft supervision orders which were largely identical in terms. It was not submitted that the case was one where continued detention was necessary. However, both parties recognised that it was a case where a supervision order was necessary.

21. Each of the psychiatrists had been shown a copy of the terms of the supervision order and all were comfortable with them, subject to the following comments. Each of the psychiatrists had some concerns if the respondent is to be released into accommodation where there is not close monitoring for a period until he becomes accustomed to living in an unstructured environment after being in a highly regulated regime in prison. This raises what has been an ongoing issue. The concluding paragraphs, [135] to [138], of Attorney-General v Francis [2005] QSC 381 summarise the issues and my views, to which I adhere, on the subject.  (Due to an apparent editing error, the second sentence of [136] should read “In particular, the lack of a facility … seems to me to fall short of a minimum requirement …).  See also Attorney-General v Van Dessel [2006] QSC 016 (White J), especially
    [70]-[72].

22. Professor Nurcombe said that private accommodation without a supervisor or mentor would not be suitable, at least initially. Whether it became suitable would depend on the respondent’s progress, particularly his ability to abstain from alcohol and cannabis and to fulfil the requirement of keeping away from children.

23. Dr James said that in his experience people released from institutions after a long period required something more structured than private accommodation for a period after release. The ideal situation would be one where, taking into account the reduction of coping skills and social support networks because of incarceration in a structured environment, there was someone in authority in a half-way house situation to whom the person could have access and who could keep general oversight over things that had to be done to re-establish the person as a member of the community. This process would usually involve a few weeks in that environment.

24. He was cross-examined about his views by Mr Moynihan on the respondent’s behalf, to the effect that intensive supervision by a community services officer might be an adequate substitute for a half-way house with a resident supervisor. as to a half-way house situation, the better the risk management.  The further away, the poorer risk management would be.  He summed his view up by saying that the first month out was a crucial time for a prisoner leaving an institution.  He said “It probably is the most difficult hurdle to get over and it would be disappointing if it were not possible to get somebody like (the respondent) into a half-way house … .”  He was asked whether, if a half-way house situation was not available, a private residence with very intense supervision by a corrective services officer, and support, would suffice.  He said that taking everything else into consideration he would not consider it an insuperable impediment to release but he adhered to the view that it was very highly desirable if there were a half-way house. 

25. The focus of Dr Lawrence’s examination and cross-examination was more on the concern that if the respondent was accommodated in a private flat from the beginning, a supervising corrective services officer would have to be alert to the risk of drug and alcohol use and the need to random test for contraventions. The supervising officer would also have to ensure that there were no children in the building who might be at risk from him. Close supervision was necessary. Relaxation of supervision increased the risk of relapse into drug and alcohol abuse. If the respondent complied with the requirements of the supervision order, the risk to the community would be at an acceptable level.

26. In the present case, the risk of re-offending is said to lie in a combination of alcohol and drug use and proximity to children. The terms and conditions proposed in the draft orders are designed to minimise these risks and to allow detection of breaches of the terms and conditions.

27. The evidence of the psychiatrists, in my view, provides compelling reasons not only for very close supervision of prisoners of this category upon release but also for assistance to be available to habituate them to living in the community in the weeks following their release. These measures may reduce the immediate risk of breach of the terms and conditions of the supervision order and reduce the risk to the community of longer term re-offending. A non-resident supervisor alone is a second best option.

28. On specific instructions from the Department of Corrective Services, Mr Mumford who appeared for the Attorney-General informed me that since the decision in Francis the Department intends to look for suitable housing well before the intended release date of prisoners likely to be the subject of a supervision order.  A proposal for funding had been submitted to Treasury and negotiations had commenced with the Department of Housing.  One proposal is to contract out the housing of people under supervision orders.  The proposal is that people would be housed in small facilities, anticipated to be sufficient since the number of prisoners would be relatively small and the stay would hopefully be comparatively short. 

29. The proposals are of course contingent upon funding being provided for the initiatives. The Dangerous Prisoners (Sexual Offenders) Act 2003 is a relatively new legislative initiative on the part of the Government.  From experience, the special problems associated with releasing prisoners in this special category on supervision orders with limited risk to the community appear not to have been well understood initially within the Department, but have become apparent since supervision orders have become more common.  On the evidence before me, the case for funding and providing physical facilities and human resources to allow for closely supervised reintegration of prisoners of this special class into the community, in the interests of improving the chances that they will not re-offend, seems very cogent.

30. With regard to accommodation in this case, the respondent has been receiving assistance from a prison chaplain. This gentleman was, according to a Community Corrections office report, identifying suitable premises in which the applicant might be housed at the time of the hearing. However, by the conclusion of the hearing, the Community Corrections office had not been able to verify the suitability of the premises, principally due to lack of information from the gentleman as to whether there were children residing there. Subsequent to the hearing, the premises in contemplation became unavailable. The report raises the alternative of a men’s hostel as a possibility. Since the draft orders provided by both counsel envisage that the proposed accommodation will in any event have to be approved by way of suitability assessment by a Community Corrections officer, uncertainty about where precisely the prisoner will be located on release is not a critical defect, provided accommodation that is suitable can be found before his release.

31. Another matter commented upon in psychiatric evidence was that the limitation on hours during which the respondent might lawfully visit shopping centres might be expanded to cover weekends and other times when it is notorious that unaccompanied children often frequent such places. I propose to adopt that suggestion.

32. One other matter which was raised was the duration of the order. The contention on behalf of the respondent that the order be made for 10 years was resisted by the applicant and also, according to the evidence of the psychiatrists, was too short. Section 15 provides as follows:

“A supervision order … has effect in accordance with its terms -

(a)…

(b)for the period stated in the order.”

33. The obligation to state a period for which the supervision order has effect is derived from s 15. A supervision order has effect in accordance with its “terms” for the period stated in the order. Section 16 sets outs several “requirements” that the order must contain. The heading of the section refers to them as “conditions” for supervised release. The heading is part of the Act (s 14(2) Acts Interpretation Act 1954) and of the provision to which the heading relates (s 35C ibid).  Section 19 refers both in the heading and the section itself to amendment of “conditions”. 

34. Prima facie, as a matter of construction, the structure of the Act suggests that the period of operation of the order is not a “condition” and therefore cannot be amended under s 19. It was pressed in argument that an indefinite term should not be imposed for that reason. Even if compliance with the supervision order becomes unnecessary because of changed circumstances, the duration of the order cannot be amended, if this is correct. Apart from that argument which is based on the undesirability of such a consequence to some extent, there is the more basic question whether the requirement in s 15(b) allows an indefinite term to be imposed as a matter of construction. This causes factual tension because the not uncommon situation, as in this case, where the expert evidence is to the effect that it is unlikely that the underlying causes of the respondent’s offending will ever abate, on the one hand, and the requirement to state a period of operation in the order, on the other.

35. The former tends to suggest that the only practical conclusion is that the order should be indefinite. The latter requires a judgment to be made as to when, in practical terms, effluxion of time may render continuation of supervision unnecessary.

36. In neither case can the term be amended if circumstances change either in favour of the person subject to the order or adverse to him. Because circumstances may change in favour of the person subject to the order, or adverse to him, because for example his underlying condition worsens, the provision cannot be treated as one for the benefit of the person subject to the order and given a beneficial interpretation.

37. In my view, the matter is attended with sufficient uncertainty to make it undesirable to make the term of the supervision order indefinite. The duration of the order will be a definite period. The respondent is presently 48½ years of age. A period as short as that proposed by Mr Moynihan on his behalf is in my view too short. Prescribing a term of 20 years as the duration of the order strikes a balance between protection of the community and the need for continuing restrictive requirements that in my view are likely to be adequate in the circumstances of the case. Since conditions of the order may be amended, there is some possible relief available to a person subject to a supervision order in the right to apply for amendment of the order. If circumstances materially changed to an extent that a lesser degree of supervision was appropriate, that could be achieved by amending the conditions. In some cases there may be practical disadvantages in both the absence of power to amend the duration of an order and to initially make it of indefinite duration. On the other hand, if there is no power to amend the duration of the order and effluxion of time makes it unnecessary to continue intensive supervision, the administrative disadvantages in keeping the file active may assume significant proportions. Whether legislative action is necessary to remove the present uncertainty is a policy question upon which no further comment will be made.

38. There is one further matter to be addressed. Mr Moynihan applied for an order of the kind made in Attorney-General for the State of Queensland v G [2005] QSC 071, where the whole file, save for the originating application, the supervision order and the earlier order for risk assessment, was ordered to be sealed. The name of the respondent was concealed by the use of a letter to identify him. In cases where complainants are likely to be identified because of their common family name, that is an understandable course. There may be other circumstances where the respondent may gain a derivative benefit because of the risk that further detriment may occur to complainants if a link can easily be made between him and a victim. That kind of issue would have to be resolved on a case by case basis.

39. Having given consideration to the submission which was, in the first instance, undeveloped beyond reliance on Attorney-General for the State of Queensland v G, in light of the principles discussed in J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10, I requested further submissions. The Attorney had no submissions to make in relation to the application. Mr Greene, who appeared for the respondent in Mr Moynihan’s absence due to another important commitment in Townsville, was content with the level of restriction of access to documents, imposed in the order, that I intimated to him I believed was sufficient. Further, he relied on the protection given to children in relation their evidence in support of his submission that the respondent should be identified other than by name. The comments in Phillips v The Queen [2006] HCA 4 at [80] to [87] relevant to deciding whether to make an order of the kind sought and, if so, its extent, were discussed.

40. I have come to the conclusion that the only documents that ought to be kept confidential are those containing sufficient detail concerning the identity of complainants to enable them to be identified. Those documents are those numbered 13 to 18 on the file index. The first of these contains a Community Corrections Board file. The others contain the DPP file and transcripts of Court proceedings. Protection of the identity of child witnesses, not the respondent’s identity, is the purpose served by restricting the information in the documents. The degree of restriction to be imposed is consistent with the philosophy in ss 5 and 6 of the Criminal Law (Sexual Offenders) Act 1978 and s 193 of the Child Protection Act 1999. It is not easily apparent that they can be identified from the other documents and exhibits. With regard to using a pseudonym for the respondent, I am not persuaded that the case is one where such an order is necessary or where one should otherwise be made. 

Orders

1. The Court is satisfied to the requisite standard that Craig Lyndsay Hansen poses a serious danger to the community in the absence of an Order pursuant to Division 3 of the Dangerous Prisoner (Sexual Offenders) Act 2003.

2. The Respondent be subject, for a period of 20 years, to a supervision order on the conditions in paragraph 3, until further Order of the Court.

3. The Respondent must:

(a)be under the supervision of a Corrective Services officer (“the supervising Corrective Services officer”) for the duration of this Order;

(b)report to the supervising Corrective Services officer at the Department of Corrective Services Area Office closest to his place of residence between 9.00 am and 4.00 pm on the day of his release pursuant to the supervision order and advise the officer of his current name and address;

(c)reside at a place within the State of Queensland as approved by the supervising Corrective Services officer by way of a suitability assessment.  The place is not to be within 200 metres of a school, or any other public place or business frequented by children unless authorised in writing by the supervising Corrective Services officer in order to provide temporary accommodation;

(d)report to and receive visits from the supervising Corrective Services officer at such frequency as determined necessary by the supervising Corrective Services officer;

(e)notify the supervising Corrective Services officer of every change of his name at least two business days before the change happens;

(f)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;

(g)notify the supervising Corrective Services officer of every change of employment at least two business days before the change happens;

(h)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 obtain the approval of the supervising Corrective Services officer prior to the change of residence;

(i)not leave or stay out of Queensland without the written permission of the supervising Corrective Services officer;

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

(k)obey the lawful and reasonable directions of the supervising Corrective Services officer;

(l)respond truthfully to enquiries made by the supervising Corrective Services officer about his whereabouts and movements generally;

(m)not join, affiliate with, or attend the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing that there is either child membership or child participation; provided that it shall not be a contravention of this condition if the respondent attends a place of religious worship in company with Mr Neil Pearson or another person in respect of whom prior approval in writing has been given by the supervising Corrective Services officer, solely for the purpose of religious worship;

(n)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;

(o)not be on the premises of any shopping centre, without reasonable excuse:

(i)between the hours of 8.00 am to 9.30 am and 2.30 pm to 4.30 pm on school days;

(ii)at any time on weekdays during school holidays, weekends or public holidays;

other than:

• for the purpose of employment; or
• to attend a bona fide pre-arranged appointment with a government agency, medical practitioner or the like; or
• for any other purpose if the supervising Corrective Services officer has given prior approval in writing.

(p)not, without reasonable excuse, be within 200 metres of a school between 8.00 am to 9.30 am and 2.30 pm to 4.30 pm on school days;

(q)not, without reasonable excuse, be within 200 metres of a children’s playground or child care area;

(r)not have any supervised or unsupervised care of children under 16 years of age;

(s)not have any unsupervised contact with children under 16 years of age except with the supervising Corrective Services officer’s prior written approval.  Further, the Respondent must disclose the terms of this Order to the guardians of the child or children before any such contact can take place;

(t)not establish and maintain contact with children under 16 years of age;

(u)not establish and maintain a relationship with any woman who has any children under 16 years of age in her care permanently or from time to time;

(v)not access pornographic images containing photographs or images of children on a computer or on the Internet;

(w)abstain from illicit drugs and from alcohol for the duration of this Order;

(x)take prescribed drug only as directed by a medical practitioner;

(y)submit to random drug and alcohol testing for illicit drugs and alcohol as directed by a Corrective Services officer, the expense of which is to be met by the Department of Corrective Services;

(z)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;

(aa)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;

(bb)attend any program, course, counselling, therapy or treatment, in a group or in an 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;

(cc)attend any such sex offending treatment programme or counselling as is considered appropriate 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;

(dd)agree to undergo medical testing or treatment as deemed necessary by the treating psychiatrist/psychol ogist in consultation with the supervising Corrective Services o fficer, 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 purposes of updating or amending the supervisio n 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 psychiatri st/psychologist in consultation with the supervisi ng Corrective Services officer that sexual impulse medication is an appropriate course of therapy/treatment this is only to occur with th e Respondent’s consent.

4. I order that documents numbered 13 to 18 on the file index be sealed in an envelope or other suitable receptacle and marked “not to be opened without the order of a judge”.