Attorney-General v Evans[2008] QSC 309

SUPREME COURT OF QUEENSLAND

[1] This is an application by the Attorney-General for an order that Glen Stewart Evans be detained in custody for an indefinite term for care, control or treatment pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offences) Act 2003 (“the Act”). Should that application not be granted the Attorney-General seeks, in the alternative, an order that Mr Evans be released subject to such conditions as this court thinks appropriate (s 13(5)(b) of the Act).

[2] The objects of the Act are contained in s 3. It provides:

“The objects of this Act are –

(a)to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and

(b)to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

[3] 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).”

[4] The correct approach to be taken by the Court 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.”

History

[5] Mr Evans is 46 years old. He is unmarried and has lived an itinerant lifestyle, working in various parts of Australia. He has several convictions for minor drug offences but, of more importance for these proceedings, he also has a number if convictions for offences of a sexual nature.

[6] Those latter convictions are:

[7] The custodial end date for the sentence he is currently serving is 12 December 2008.

This evidence

[8] As a result of the concession – properly made – by Mr East (to which I will refer shortly) it is unnecessary to set out the opinions of the experts called by the applicant in any great detail. Nevertheless, a brief summary of their conclusions should be recorded.

[9] Professor Basil James diagnosed Evans as being a paedophile, non-exclusive type and sexually attracted only to females. He did not manifest any signs of mental illness, but did perhaps exhibit the symptoms of a person with a mild personality disorder. In his opinion, Mr Evans’ offences have been motivated by a need for intimacy, rather than by a need for a sexual encounter. Professor James concludes by strongly recommending that Mr Evans complete the Sexual Offenders Treatment Programme prior to his release and, that, upon release he be subject to a supervision order which prevents contact with young girls. He was also of the opinion that the respondent is at high risk of re-offending if he leaves prison without first undergoing a Sexual Offenders Treatment Programme (SOTP) prior and then leaving prison subject to a Supervision Order.

[10] Professor Barry Nurcombe, on the basis of tests he conducted, assessed the respondent as appearing to use paedophilic behaviour to cope with loneliness and low self-esteem. He concluded that in the absence of an adequate Relapse Prevention Plan, the risk of re-offending is chronic in that “… the overall likelihood that sexual offending will re-occur is moderate (low if not in contact with female children; high if in contact with them). Professor Nurcombe strongly recommended that Mr Evans complete an SOTP prior to his release.

[11] Dr Margaret Lawrence agreed that Mr Evans was a moderate to high risk of re-offending in the next seven years. Dr Lawrence was also of the view that Mr Evans disclosed an ongoing presence of denial and minimisation and the need to develop further understanding of his own behaviour. Above all, she said: “he needs to learn strategies to prevent relapse and recurrence in the future.” It was her opinion, that he should complete a full SOTP before discharge.

[12] Mr East made the quite proper concession, on the basis of the evidence described above, that I “would be plainly satisfied that in the absence of the respondent completing a sex offender treatment program the risk would be too great to allow him into the community just on a supervision order”.

[13] In the light of the evidence and that concession I have no difficulty in concluding that I am satisfied to the requisite standard and on the basis of acceptable cogent evidence that the respondent, Glen Stewart Evans, is a serious danger to the community in the absence of an order under division 3 of the Dangerous Prisoners (Sexual Offenders) Act.

Section 9A adjournment

[14] Mr East, though, asks me not to make the detention order sought by the applicant but to make an interim detention order under s 9A of the Act. That section provides:

Court may adjourn hearing for division 3 order

(1) The court may, on application or on its own initiative, adjourn the hearing of an application for a division 3 order.

(2) If the court adjourns the hearing of the application and is satisfied the application may not be finally decided until after the prisoner’s release day, the court may make an order—

(a) that the prisoner’s release from custody be supervised;

or

(b) that the prisoner be detained in custody for the period stated in the order.

Note—

If the court makes an order under subsection (2)(a), the order must contain the requirements for the prisoner stated in section 16(1).

[15] The basis of the application was that the evidence established that there had been some dislocation in the offering of programmes to Mr Evans in the past. I am not in a position to determine where the fault, if any, lay for that dislocation and it is unnecessary to do so. Further, it was submitted, it would be most likely that Mr Evans would, upon completion of the appropriate programme, be released subject to a supervision order. The timing of the programmes is such that Mr Evans might be detained for longer than is necessary for the protection of the community.

[16] The process which would be undergone if Mr Evans was either the subject of a continuing detention order or if this application was adjourned is as follows:

∙he would undergo a psychiatric evaluation to determine which of the available programmes was more suitable – this would take about three weeks,

∙subject to availability and any other conflicts, he would be placed in a programme commencing in late January,

∙one of the programmes would take about seven months, the other about nine months,

∙after the conclusion of either programme an exit report would be compiled – this could take up to six weeks,

∙the exit report and any other relevant materials would be provided to the psychiatrists for their report – this could take up to six weeks.

[17] Mr East submitted that, if Mr Evans undertook the shorter course there was a possibility that he could be able to be released on a supervision order some months before the first review of a continuing detention order would take place. In those circumstances, he argued, it would be appropriate to adjourn the application so that these processes could take place and for the application to be determined then.

[18] There are three matters which militate against granting the adjournment.

[19] First, s 9A does not extend, in my view, to allowing an adjournment so that a different case may be considered. The section appears in Part 2 Division 1 of the Act. It is a division concerned with the practical requirements of an application – the material which is to be filed and so on. An adjournment could be granted, for example, to allow an expert to consider another expert’s evidence or for clarification of issues relating to, say, where an offender intends to live. Adjournments have been granted to allow for the relevant authorities to report on the suitability of the person or persons with whom an offender proposes to reside. It does not, though, allow for an adjournment so that an entirely different case can be presented. That is the effect of the adjournment sought. I have some sympathy for the respondent as it appears that a combination of events have prevented him from starting a course which might have been of benefit, but s 9A does not contemplate an adjournment of that length or for that purpose.

[20] Secondly, on a practical level, the circumstances are such that, even if Mr Evans undertook the shorter course, there is a likelihood that he would not be in a position to argue for supervised release until about October or November next year which will be at about the time of the first review date for the order I will make.

[21] Thirdly, the Act carefully sets out a set of procedures involving the provision of reports and regular reviews designed to achieve the objects of the Act. To allow an adjournment on the basis sought would be to ignore those procedures and inappropriate.

Conclusion

[22] I have been satisfied to the requisite standard that a continuing detention order should be made.

[23] I order, pursuant to s 13(5)(a) of the Act, that the respondent be detained in custody for an indefinite term for control, care or treatment.