Attorney-General v Buckby[2007] QSC 200

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

BRISBANE

..DATE 12/04/2007

ORDER

HER HONOUR:  This was the hearing of an application by the Attorney-General for a Division 3 order under the Dangerous Prisoners Sexual Offenders Act 2003 (the Act).

The Court is empowered to make Division 3 orders if it is satisfied that the prisoner is a serious danger to the community in the absence of a Division 3 order.

Section 13(3) provides that a prisoner is a serious danger to the community 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.

Subsection 4 of section 13 sets out the factors to which the Court must have regard in determining whether or not the prisoner is a serious danger to the community.  That question is attended by little doubt in this case.

The Court appointed two psychiatrists, who are expert in this area, Dr Barry Nurcombe and Dr Basil James both of whom are of the view that all of the factors to which they have had regard show that the prisoner would be a serious danger to the community if a Division 3 order were not made.

That view is supported by other medical, psychiatrist and psychological assessments relating to the prisoner, including in particular the view of the psychiatrist Dr Josephine Sundin and psychologists John Granville and Dr Barry Kidd.

There is information indicating that there is a propensity on the part of the respondent to commit serious sexual offences in the future, both according to the actuarial scales and also by the clinical findings of those psychiatrists who examined him.  There has been a pattern of offending behaviour on the part of the prisoner which can be seen in his criminal history which shows repeated sexual offending against children.  There has been little effort by the prisoner to address the causes of his offending behaviour, including participation in rehabilitation programs.  It is true that he has taken part in various programs, but his denial of the many offences of which he has been convicted, many of which he pleaded guilty to,show that he has failed to address the causes of his offending behaviour.

There is, of course, a real risk therefore that he will commit another serious sexual offence if released and the members of the community, particularly children, need to be protected from that risk.  The risk as expressed by Dr James is of his sexual offending against children in situations where he grooms children who are needy or vulnerable so that they have some degree of trust in him so that he can offend against them, and it is also necessary to reduce the risk that he engages in opportunistic sexual offending against children.There are two types of orders that can be made under Division 3.  The first is a continuing detention order which requires the person to remain a prisoner.  The second is a supervision order.  In the choice between those two the question is whether the protection of the community is adequately ensured.

As the Court of Appeal held in The Attorney-General (Queensland) v. Francis (2006) QCA 324 at paragraph 39:

If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the act upon the liberty of the subject are  exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the     statute which authorised such constraint."

There is disagreement amongst the professionals with relevant clinical experience, that is the psychiatrists, as to that question in this case. Fortunately the two psychiatrists appointed by the Court, Dr Nurcombe and Dr James, agree that the respondent could respond to treatment.

Dr Nurcombe expressed the view in his evidence given in Court today that the conditions which have been proposed are adequate for the protection of the community and if complied with would completely reduce the risk of his re-offending.

Dr Sundin expressed grave concern that he would comply with the conditions imposed and recommended that she would prefer if he remained in custody until he complied with the Sexual Offenders Treatment Program.  However, I agree with Dr James that there is no point in his completing that program in custody if he is just sitting through it in order to be released and it is unlikely to have any beneficial effect on him.

Dr James expressed the view that the risk of his re-offending against children would be very great unless he were under strict supervision.  He thought that the draft supervision order which had been provided was strict but not too strict,not unnecessarily strict, and that the conditions were such as to reduce the risk of his re-offending and would be likely to be as effective as any conditions could reasonably be.However, he also expressed strongly the view that the respondent must be carefully monitored under that supervision order and must receive treatment.

It is essential that any supervision order address two main factors.  The first is to provide conditions which reduce the  opportunity for him to re-offend, and secondly, conditions which provide that he must obtain treatment to reduce his desire to re-offend.  Both of those are necessary conditions of any supervised release.

The conditions which have been drafted by the officers from the Corrective Services Department are very carefully drawn.They are onerous and they ensure to the greatest extent that it is possible to do that they are apt to ensure adequate protection of the community from the risk posed by the prisoner.

A number of matters in those conditions have been discussed at length during the hearing.  A suitable place of residence for Mr Buckby is critical and I have been informed by counsel for the Attorney on instructions from the Corrective Services Department that such accommodation will be available to him upon his release on property owned by the Corrective Services Department.

There are numerous conditions to reduce his opportunity to re-offend, including, but not limited to, electronic monitoring of the respondent, curfew conditions, conditions which limit his opportunity to be near children and particularly important in the case of this offender who has offended against children in caravan parks that he not reside at a caravan park or at any other short-term accommodation residence.

In addition to those numerous conditions are conditions which are requirements to address his integration needs.  It is critical that he undertake any test or treatment as deemed necessary by a treating psychiatrist or supervising corrective services officer including in his case testing for organic brain injury and those conditions are part of the conditions which have been put in the draft supervision order.

Mr Buckby must be aware of the dire consequences not only of re-offending but of breaching any of the conditions to which he will be subject on his release.  He has given instructions to his counsel that he is prepared to comply with all of the conditions found in the draft order.

In the circumstances I am prepared to make the order set out in the draft supervision order.  I find that I am satisfied to the requisite standard that the respondent Desmond George Buckby is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners Sexual Offenders Act 2003, and secondly, that the respondent be subject to the following conditions until - 10 years after his release - his full-time release date is the 14th of May 2017 - or further order of the Court.  The conditions will be those set out in the draft order.  There are 40 conditions set out in the draft order and I have included in condition 22 after the word "endocrinologist" the words "and testing for organic brain injury".