Attorney-General v Edwards[2007] QSC 396

SUPREME COURT OF QUEENSLAND

1. MARTIN J: In this application, the Attorney-General seeks a continuing detention order, that is, an order that the respondent be detained in custody for an indefinite term for care, control or treatment pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”). Alternatively, the applicant seeks a supervision order (the draft put forward is contained in the schedule), that is, an order under s 13(5)(b) that the respondent be released, but released subject to conditions.

2. The matters to which the Court must turn its attention are set out in s 13 of the Act. It provides:

“13 Division 3 orders

(1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).

(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 11 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 requirements 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).”

3. The correct approach to be taken by the Curt in considering an application under this section has been considered on a number of occasions. I respectfully agree with the analysis set out in the reasons of P D McMurdo J in Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 where his Honour said:

“[26]No order can be made unless the court is satisfied that the prisoner is a serious danger to the community.  But if the court is satisfied of that matter, the court may make a continuing detention order, a supervision order or no order^[1].  There is no submission here that if the prisoner is a serious danger to the community, nevertheless no order should be made.  As already mentioned, it is conceded on behalf of the prisoner that I could be satisfied in terms of s 13(1) and that a supervision order would be appropriate.

[27]The court can be satisfied as required under s 13(1) only upon the basis of acceptable, cogent evidence and if satisfied ‘to a high degree of probability that the evidence is of sufficient weight to justify the decision.’  Those requirements are expressed within s 13(3) by reference to the decision which must be made under s 13(1).  They are not made expressly referable to the discretionary decision under s 13(5).  The paramount consideration under s 13(5) is the need to ensure adequate protection of the community.  Subsection 13(7) provides that the Attorney-General has the onus of proving the matter mentioned in s 13(1).  There is no express requirement that the Attorney-General prove any matter for the making of a continuing detention order, beyond the proof required by s 13(1).  So s 13 does not expressly require, precedent to a continuing detention order, that the Attorney-General prove that a supervision order would still result in the prisoner being a serious danger to the community, in the sense of an unacceptable risk that he would commit a serious sexual offence.  However in my view, such a requirement is implicit within s 13.

[28]The paramount consideration is the need to ensure adequate protection of the community.  But where the Attorney-General seeks a continuing detention order, the Attorney-General must prove that adequate protection of the community can be ensured only by such an order, or in other words, that a supervision order would not suffice.  The existence of such an onus in relation to s 13(5) appears from Attorney-General v Francis^[2] where the Court allowed an appeal from a judgment which had made a continuing detention order upon the primary judge’s view that the Department of Corrective Services would not provide sufficient resources to provide effective supervision of the prisoner upon his release.  The Court found an error in that reasoning because of the absence of evidence that the resources would not be provided^[3] .  The Court observed^[4]:

‘The question is whether the protection of the community is adequately ensured.  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 principal, 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.’

Thus the absence of evidence of the inadequacy of resources was important because that matter had to be proved, as a step in persuading the court that only continuing detention would suffice.

[29]The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order.  As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made.^[5]   What must be proved is that the community cannot be adequately protected by a supervision order.  Adequate protection is a relative concept.  It involves the same notion which is within the expression ‘unacceptable risk’ within s 13(2).  In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.

[30]The existence of this onus of proof is important for the present case.  None of the psychiatrists suggests that there is no risk.  They differ in their descriptions of the extent of that risk.  But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion.  It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”

4. The applicant’s criminal history commences in 1988. He has been the subject of a conviction for a variety of offences including unlawful use of a motor vehicle, breaking and entering a dwelling house with intent, stealing, attempted breaking and entering with intent, aggravated assault on a female child under the age of 17 years, aggravated assault on a female, wilful and unlawful damage to property, and procuring gross indecency with circumstances of aggravation. He has also been convicted of breaches of the Bail Act on three occasions, a breach of probation on one occasion, a breach of a community service order on one occasion, and he has been convicted of escaping from legal custody. The charges on which he is presently serving a term of imprisonment were the subject of sentencing on 28 October 1994. He was on parole at the time of those offences. The general description of the offences given in the report of Dr James is sufficient for the purposes of these reasons. Dr James said (page 3):

“All three rapes referred to appeared to follow a pattern, in which Mr Edwards lured the victims, who were all known to him, and seemingly trusting of him, into remote places, during the course of motor vehicle journey, each arranged on the pretext of visiting a friend or a relative.

The rapes involved frank physical coercion, but no additional gratuitous violence. The victims were respectively aged eighteen years, twelve years and seventeen years; they were all of European ethnic origin.

On each occasion, following the offences, Mr Edwards drove the victims back to a place near their own home.”

5. His childhood was disrupted and unhappy. He was born in Toowoomba and is one of five children. He has no contact with his two older brothers and his two sisters have passed away. The respondent is unsure as to what work his father did. He was of Aboriginal background and lived on a mission. His parents separated at a young age and he had no real contact with his father while growing up. He was raised for a few years in Cherbourg and then his mother moved to Murgon where he was raised by her and her boyfriend. When interviewed by Dr Beech, the respondent described his upbringing as being extremely abusive. He said that his foster father physically abused him and this included elements of torture such as burning his feet and legs. On occasion his foster father used to make him watch his sister being sexually abused. Dr Beech noted that during the interview the respondent became almost inarticulate as he tried to describe some of the experiences from his early childhood. He told Dr Beech that he ran away, engaged in delinquent activity such as stealing, used illicit substances including cannabis, sniffed petrol, and abused Serapax tablets that he stole from his stepmother. He was placed under the care and protection of the Department of Children’s Services at the age of 12 years when he attacked a school teacher with a sharp object. As a child his history after that is a sad list of delinquent activities and criminal actions. In his report, Dr Beech notes (at p 3):

“Over all, Mr Edwards said that he emerged from his childhood feeling angry and with a dislike and indeed hatred of all white people. He had a poor sense of belonging in society, with people of his own background, and in the public generally. He felt most at home in the institutionalised care…”

6. The respondent was interviewed by three medical practitioners. The substance of their conclusions is set out below:

Dr Michael Beech (Specialist Psychiatrist)

7. In Dr Beech’s opinion the respondent has an “antisocial personality disorder”. He also believes that the respondent has a “polysubstance abuse disorder” that is currently in remission. Dr Beech said:

“Early experiences appear to have led to his identification of sexual violence with racial hatred. The latter came about from the circumstances of his mother’s death and his abuse in foster care and were reinforced by the environment of his subsequent detentions and the sub-culture with which he associated when in the community. He has had a very poor ability to handle personal stress, to contain negative emotional states and to control his impulses. This is in addition to a significant array of psychopathic traits including a limited sense of responsibility, a manipulative skill and a parasitic lifestyle.

The rapes for which he was sentenced in 1994 occurred during a period of high personal stress, with conflict with his wife and significant drug use. They were planned, callous and with a notion of retaliation or vengeance against white people whom he held generally responsible for his life circumstances and, more proximally, the death of his son. However, while I accept that they were acts of anger and I can accept his statements that ultimately they were designed to lead to a return to institutional care of some sort, I believe they were also to be seen as sexualised acts of aggression and their eroticised nature together with the manipulated isolation of his victims are suggestive of sadistic traits despite the lack of other violence.”

8. Dr Beech does, though, go on to note that his general behaviour in prison has improved and he has participated meaningfully in sexual offender programs and has benefited from it. Dr Beech refers to his maturity and insight together with his positive attitude towards intervention as being good prognostic indicators. He goes on to say:

“Of concern is his history of great difficulty in adjusting to the community and even his difficulty in adjusting to relaxation in his security ratings. He has a recurrent history of bail and probation violations, has escaped legal custody and has been unlawfully at large. The most recent offence occurred only in 2005 within two months of his work release. The file indicates that even changes in prison to lesser ratings have led to regression and deterioration in his behaviour. Together this would suggest to me that he would have considerable difficulty adjusting to his release to the community.

9. In submissions from Mr Ryan, who appeared for the respondent, the occasion on which the respondent was unlawfully at large was explained. While he did breach the terms of his release it was, in my view, not of a significantly serious nature and was adequately explained by the circumstances which arose at that particular time.

10. Finally, Dr Beech says:

“Overall, notwithstanding the changes he has made in prison, I believe they are too recent and untested to moderate his risk of violence if he is released without supervision.

Without supervision I would consider him to be a high risk of re-offending in a violent way.

With appropriate supervision, I would consider the risk to be reduced to moderately high or perhaps moderate provided he was able to abide by the conditions. It would be of assistance if he could have a graduated release into the community.”

11. In cross-examination Dr Beech expressed his concern about the respondent’s ability to abide by the conditions set out in the draft order. He said that, to a significant extent, whether he would be able to abide by the conditions would depend on where he resides and that if he was to break to one or two conditions then things could go bad quickly. He was asked for his opinion on how long a conditional order, if made, should be. Dr Beech said that:

“I would think 10 years but with a review at five to see how he was going. I understand the order doesn’t allow you to do that.”

Dr Rob Moyle (Psychiatrist)

12. Dr Moyle outlined a similar history for the respondent and, in his summary, the following appears to be relevant to the considerations I need to address:

“Travice Edwards is an Aboriginal man, raised in the most disadvantaged of circumstances, who will need to learn for the first time how to live without abusing the rights of others in the community. From 12 he has abused others illegally resulting in most of his life being spent in care. …

… I would be of the view that his inmate behaviour has indeed improved over the last 2 years quite significantly but he still needs a gradual reintroduction to the community. This would ideally allow mistakes to occur and learning to take place with possible returns to custody when necessary as has happened this time. … If he were to have repeated opportunities to go into the community, and back if he finds it too difficult, then he may indeed be able to practice what he is learning, and in the longer term there is the prospect that he will pose less of a risk than if held in ongoing custody. …

As regards the type of offending he is likely to indulge in the community, I have to say he has been criminally versatile, but the most serious offending against others have been repeated sexual offending with hands on offences from his childhood, with little signs this has abated with age, and no recent opportunity to spend time free from supervision to reassure himself that he is able to do so. …

His sexual misbehaviours have been relatively quiescent as far as we can objectively tell in the jail with relatively few comments on sexual behaviours while in jail. However his sexual offending was escalating in severity and in frequency up to this imprisonment and in jail good behaviour doesn't always translate into community good behaviour when the opportunity to offend is reawakened in people as antisocial and psychopathic as Mr Edwards. However by my assessment there are several positive signs, not the least his good intelligence and capacity to learn, his identification with positive elements of the aboriginal culture, including his devotion to his art work, his clean urines recently and no reports of serious misbehaviour or emotional dyscontrol; eg using his body as a means of expressing disquiet and anger, and his better compliance in recent times with signs he can now differentiate people who are not worthy of his respect at any one time irrespective of race, although I would prefer it if he can see behaviours as not worthy of respect, therefore allowing for individuals to make errors without rejecting them completely. …

On the negative side, is his life time of entrenched misbehaviour, drug and alcohol abuse, impulsivity, emotional dyscontrol, or controlled use of emotions and threats to get what he wants immediately, with no remorse or significant concern for others rights and feelings, at least in a positive sense, (he knows he can use peoples fear of him to extract his wishes from them against their will and this has an exiting [sic] element to it which suggests sexual sadism), his irresponsibility, his using excuses not available to him, even in jail, to avoid work (too sick to work where I can find no illness that in the community would render him too sick to work), his not saving and planning for the future, his proud ability to fool white people, and his partly developed release plan.”

13. Dr Moyle engaged in a formal assessment of risk factors using the Psychopathy Checklist Revised, the Static 99, Sexual Offender Risk Assessment Guide, and Violence Risk Assessment Guide, the Sexual Violence Risk and Historical, Clinical Risk, and Stable and Acute and Violence Risk Scales. He notes that these are measures which have been developed in Canada and while used internationally he is not aware of the unequivocal scientific validation in Australia. He also notes that while there is no reason to believe that Australian populations differ, as regards risk, from Canadian populations, there is an additional problem, in that as an Aboriginal Australian there is less ability to be certain that these factors either apply or do not apply to Mr Edwards. At any rate, he suggests that the respondent has come from a very high ongoing risk of violence on admission to a much lower risk as a result of the work he has done in jail. He still rates him at the highest risk group for violent reconviction but he is unlikely to be able to significantly lower this score if he is not allowed an opportunity to show he is at a higher stage of change.

14. Dr Moyle concludes:

“Assessment of risk based on both actuarial and clinical assessments in my opinion suggest that unless he can learn to use the lessons learned in custody, and his increasing maturity to modify any urges he has in the future to rape a white woman, a previously highly enjoyable activity, then he will more likely than not re-offend. The best way to lower that risk in my opinion, is to increase over time his exposure to the community with close supervision not only of his behaviour, but also how the community reacts to him, so that any disquiet is managed increasingly in the community, but when he feels at risk he is returned to custody. …

It is my opinion that unless Mr Edwards can show he can survive well in the community over the next year he is more likely than not to re-offend in a violent sexual way from the time he is released to the community at the end of his sentence early 2008.”

Professor Basil James (Consultant Psychiatrist)

15. Professor James also administered a number of tests and, in some respects, found that he was at variance with the results obtained by Dr Moyle. In some places he found that the differences could be ascribed to a difference in clinical judgment.

16. In his summary, he says:

“…in my opinion there is little further benefit to be obtained from further detention in prison, in terms of enhancing Mr Edwards' capacity to transfer what he has learned through the Sex Offenders Treatment Programme from the prison environment into the community, it would seem essential that the transition from Mr Edwards' current prison environment to a culturally appropriate community environment should be gradual, and should take place over sufficient time to allow appropriate networks to be established between Mr Edwards and the community, with the assistance, guidance and approval of Correctional Services. In my opinion, a useful first step might be a period of residence in a less unstructured setting, with further transitional strategies evolving in the first instance from that base.

…

If such a transition were to be carefully managed, it is my opinion that the risk of any re-offending on the part of Mr Edwards would gradually reduce from the relatively high level indicated by the actuarially-based assessment instruments, but at this point I do not consider that the risk should be seen as less than moderate until a high degree of compliance and cooperation is established by him in the community.”

Consideration

17. The difficulty that arises in matters such as this is that there is a significant difference between the language of the statute and the language used by psychiatrists in assessing the risk of re-offending. Section 13 concentrates on whether or not there is an “unacceptable risk” that the prisoner will commit a serious sexual offence. The professional experts though use the terms moderate, moderate to high or high risk. As was observed by P D McMurdo J, it is at this point that there must be the exercise of a judicial determination requiring a value judgment as to what risks should be accepted.

18. Each of the psychiatrists who provided reports agree on one thing: that in order for the risk of the respondent re-offending to be reduced, it is necessary that he be reintroduced to the community through a program of gradual release. It was the clear opinion of Dr Beech and Dr Moyle that without such a program there would remain a high risk and, indeed, there might be a high risk for a period of time even with gradual release.

19. The Act does not allow for the gradual release of a prisoner into the community. Although a supervision order can contain a large number of conditions, the mechanisms otherwise available under this legislation do not contemplate the type of release whereby the respondent could return to custody should he feel unable to comply with the conditions and then, after a period, return to the community in the sense described by the psychiatrist.

20. One of the conditions in the list of proposed conditions in the schedule is that the respondent must reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment. This hearing was adjourned so that such an assessment could be obtained as the respondent had submitted that he had made arrangements to live at a certain residence. The report contained the following conclusion:

“Although it is apparent that the proposed accommodation would be suitable for monitoring of the prisoner subject to a DPSOA supervision order and Ms [name withheld for the purposes of these reasons] and her daughter are willing and capable of supporting the prisoner in his reintegration into the community the following concerns are noted:

• The children visiting the home;
• The indications that neighbouring children reside in close proximity to the home.

As a result of the above the proposed address is recommended as not suitable at this time.”

21. A further consideration, contained in another part of the report, for the recommendation was the closeness of a primary school to the proposed accommodation.

22. This evidence is not determinative of the application. Other appropriate, long-term accommodation could, presumably, be found to satisfy the proposed condition but, given, the conclusion I have reached, it is unnecessary to pursue this further.

23. A consideration of the evidence provided by the psychiatrists together with the submissions and arguments put forward both for and against an order leads me to the conclusion that there is acceptable, cogent evidence that satisfies me to a high degree of probability that the evidence is of sufficient weight to justify a decision to impose an order under s 13 of the Act.

24. That evidence satisfies me that there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody. I am not satisfied that the conditions provided in the draft order would be sufficient to ensure adequate protection of the community especially in the light of the conclusions of the psychiatrists on the need for graduated release. I consider that the applicant has discharged its onus and for that reason I make an order for the continuing detention of the respondent in custody for controlled care or treatment.

Schedule

The respondent must:

ibe under the supervision of an authorised Corrective Services officer for the duration of the order;

iireport to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office on the day of release from custody and at that time advise the officer of the respondent's current name and address;

iiireport to, and receive visits from, an authorised Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;

ivnotify and obtain the approval of the authorised Corrective Services officer for every change of the prisoners name at least two business days before the change occurs;

vcomply with a curfew direction or monitoring direction;

visubmit to and discuss with the authorised Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;

viinotify the authorised Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed;

viiiseek permission and obtain approval from an authorised Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;

ixreside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment;

xnot reside at a place by way of short term accommodation including overnight stays without the permission of the authorised Corrective Services officer;

xiseek permission and obtain the approval of an authorised Corrective Services officer prior to any change of residence;

xiinot leave or stay out of Queensland without the written permission of an authorised Corrective Services officer;

xiiinot commit an offence of a sexual nature during the period of the order;

xivnot commit an indictable offence during the period of the order;

xvcomply with every reasonable direction of an authorised Corrective Services officer;

xvirespond truthfully to enquiries by authorised Corrective Services officers about his whereabouts and movements generally;

xviinot have any direct or indirect contact with a victim of his sexual offences;

xviiinotify the authorised officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;

xixsubmit to medical, psychiatric, psychological or other forms of assessment and/or treatment as directed by an authorised Corrective Services officer;

Requirements to address Alcohol and Drug related risk factors

xxabstain from the consumption of alcohol for the duration of this order;

xxiabstain from illicit drugs for the duration of this order;

xxiitake prescribed drugs as directed by a medical practitioner;

xxiiinot visit premises licensed to supply or serve alcohol, without the prior written permission of the authorised Corrective Services officer;

xxivsubmit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by the authorised Corrective Services officer;

Requirements to address Intervention needs

xxvattend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by the authorised Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist, the expense of which is to be met by Queensland Corrective Services;

xxviagree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist and authorised Corrective Services officer, and permit the release of the results and details of the testing to Queensland Corrective Services, if such a request is made for the purposes of updating or amending the supervision order or for ensuring compliance with this order, the expense of which is to be met by Queensland Corrective Services;

xxviipermit any medical, psychiatric, psychological or other mental health practitioner to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;

xxviiiattend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by an authorised Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;

Requirements to be considered in case of Child Sex Offender

xxixnot have any supervised or unsupervised contact with children under 16 years of age except with prior written approval of an authorised Corrective Services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children;

xxxnot establish and maintain contact with children under 16 years of age without written prior approval by an authorised Corrective Services officer;

xxxiseek written permission from an authorised Corrective Services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group;

xxxiinot join, affiliate with, attend on 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 there is either child membership or child participation;