Attorney-General v Burns[2008] QSC 65

SUPREME COURT OF QUEENSLAND

1. de Jersey: This is an application for final orders under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).  Reports were prepared, under s 11 of the Act, by two psychiatrists, Dr Joan Lawrence and Dr Josephine Sundin.  The prisoner co-operated in their examinations (s 13(4)(a)).  I also have had regard to a report by Dr Michael Beech, prepared however for the purpose of the preliminary hearing under s 8, and a report of Professor Harvey Whiteford tendered at a sentence hearing on 3 October 2005.  The reports refer to other assessments etc. (s 4(b)), for example psychological assessments carried out at the correctional centre where the prisoner has been detained.

Relevant offending

2. I refer now to the prisoner’s antecedents and criminal history (s 13(4)(g)). He was born on 18 June 1971, so is now 36 years of age. He is currently serving a term of four years’ imprisonment, imposed on 3 October 2005, in respect of offences of unlawful and indecent dealing with children aged under 16 years (and one offence of common assault). His release date is 20 April 2008.

3. The offences which attracted that four year term involved three victims, all male, and they were committed between 1 May 2002 and 3 June 2003 on the Sunshine Coast.  The prisoner met the complainants in his capacity as coach of their cricket team.  They were 13 to 14 years old, and the prisoner was 31 to 32.  He ‘groomed’ them and involved them in masturbation and oral sex.  While no physical violence was involved, the prisoner offered the boys cigarettes as an inducement for their participation.  Sentencing the prisoner (who had pleaded guilty), Dodds DCJ said:

‘Putting in succinctly, he took advantage of the youth and level of sexual development of these boys.  He breached the trust of them and he breached the trust of their carers ... he acknowledges that he is a paedophile.  Professor Whiteford has concluded he is a paedophile.  Unless he has ongoing restraints in place, it is likely he will re-offend.  For my part, I doubt it can be said that he will ever be completely rehabilitated ...’.

4. The prisoner had previously offended, similarly. On 30 March 1990, three years’ probation was ordered, following his guilty pleas, for two offences of indecent dealing with a child under 14 years, and two of procuring an act of gross indecency. The offences occurred on 23 July 1989. The victims were three boys aged 10 to 11, and the prisoner was then aged 18 years. He was a trainee coach at their football club.

5. Then on 13 December 1991, he was sentenced, following guilty pleas, to five years’ imprisonment for an offence of sodomy, and concurrent four year terms for two offences of indecent dealing with a boy under 14, eight of indecent treatment of a boy under 12, one of maintaining a sexual relationship with a child under 12, 19 of indecent treatment of a child under 16, one of maintaining a sexual relationship with a child under 16 and one of attempted indecent treatment of a child under 16.

6. These offences were committed between September 1988 and 1 May 1991 and involved nine boys, aged between four and a half and 13. They included acts of oral sex, both by and on the victims, and mutual masturbation to the point of ejaculation. The prisoner prevailed on the boys to watch a pornographic video. Significantly, the prisoner prevailed on one of the boys to fondle the penis of the four and a half year old infant. The victim of the sodomy was eight years old. The victims included two step-brothers who lived where the prisoner boarded, other boys visiting the prisoner’s residence, and customers at a shop where he worked.

7. Most of the offences occurred while the prisoner was subject to the probation order, a condition of which obliged him to undergo psychiatric or psychological treatment. He breached his probation.

8. Most of the offences occurred after a period of ‘grooming’. The prisoner gave his victims ‘rewards’ of money or shop goods. While there was no suggestion of physical violence, there was some evidence of threats or intimidation at times, as well as the rewards to which I have referred.

Attempts at rehabilitation

9. I turn to attempts at rehabilitation (s 13(4)(e) and (f)).

10. During his first period in custody, the prisoner completed the Sex Offenders Treatment Program in 1993 and found it helpful, although it did not prevent his re-offending following release. I mention also that during that period of detention, the prisoner was released to home detention in 1994. The home detention was revoked when he left a training program without authorisation. His reason for non-attendance was that he met a student, then aged 16 years, with whom he was commencing a relationship.

11. During his second period in custody, the prisoner completed the ‘Getting Started: Preparatory Program’, and the ‘High Intensity Sexual Offending Program’. The High Intensity Sexual Offending Program ran from 25 September 2006 to 3 May 2007, involving 92 sessions. As Dr Lawrence records, it was considered he had displayed:

‘... a recognition of the need to develop and maintain positive social influences.  He had been proactive in contacting a number of community supports to assist his adjustment and coping upon release.  He demonstrated an intellectual understanding of his motivation to offend against young children and the interplay between his offending behaviour and low self-esteem.  He developed an increased recognition of the impact of his offending and incorporated the benefits of being empathic into his New Future Plan.

Whilst his sex drive/pre-occupation was not specifically targeted in the program, he was able to elaborate on the benefits of establishing a mutually satisfying relationship with a consenting adult.  Mr Burns had some difficulty reconciling his attraction to males and females.  He recognised his sexual attraction to males and his desire for intimacy from females.  Initially, he considered seeking casual sex outside of a relationship, however, recognised that, to some degree, this behaviour might counter his need to be open within his relationships.  He was able to identify his use of sex as a means of coping with negative emotions;  he was able to generate alternative strategies to alleviate negative emotional states.  With regard to deviant and sexual fantasy, Mr Burns was pro-active in seeking strategies to disrupt these thought processes and identified appropriate substitutes.  He recognised this as an area that will require ongoing monitoring and the need to access professional support.

General self-regulation was targeted throughout the program.  He developed an enhanced ability to problem solve, both in terms of practical and emotional issues.  It will be important for him to continue to enhance his ability to manage his emotions and access relevant supports in this process.

Throughout the program, Mr Burns was highly motivated to gain insights into his offending and develop a pro-social, offence-free new future.

He was assessed as a high risk of re-offending (SOPA dated 12 April 2006).  His completion of the HISOP and adherence to his New Future Plans should reduce his risk of re-offending.’

12. Again, as Dr Lawrence records, recommendations for follow-up approaches included the following:

‘That the prisoner should access appropriate professional counselling to assist his adjustment to the community, emotional coping and ongoing development of his self-esteem;

that he undertake the Transitions Program in order to gain practical assistance and guidance;

that he undertake the Staying on Track:  Sexual Offending Maintenance Program;

that he undertake intervention with an appropriate qualified professional to address any recurrence of deviant sexual fantasy;

that if applicable, he should be supervised by a parole officer upon his release to ensure he complies with parole condition, and that the supervising officer should be familiar with his offending and his New Future Plan;  and

that his activities, relationships and life circumstances should be monitored by the parole officer, and that his support persons be monitored to provide any additional assistance to them.’

Risk of re-offending:  Dr Lawrence’s report

13. As to the risk that the prisoner will commit another serious sexual offence if released into the community (s 13(4)(h), and the need to protect members of the community from that risk (s 13(4)(i)), Dr Lawrence observes that the prisoner ‘has benefited in the past from his participation in a Sexual Offender Treatment Program with an apparent nearly 10 years free of offending. He has participated actively with apparent benefit in recent times with the High Intensity Sexual Offender Program’. Dr Lawrence rates the prisoner as ‘a low risk of re-offending, likely to raise to moderate in certain circumstances’. She ‘would not recommend him as a candidate for indefinite detention but would recommend supervising conditions for 10 years with the possibility of some modification of the conditions over time’.

14. Dr Lawrence identifies, as the circumstances which would likely operate to increase the risk of re-offending from the low to moderate level, the following:

‘If he fails to establish himself back into society with reasonable employment and accommodation and appropriate use of the support systems that he has and/or fails to develop further psychological and support systems’;

were he not “to avoid interests, hobbies and situations where he might be exposed, over a period of time, to the presence of late pre-pubertal and early adolescent male children”;

were he to fail to “establish meaningful relationships with both or either age appropriate males or females”, and were he to fail to develop “interests and recreational activities which do not involve exposure to the children of the age group against which he has offended in the past”.’

Dr Lawrence adds that ‘risks will increase under external stressors so that supportive counsellors and monitors would be aware of increased risks and provide increased support at times of potential increased risk’.

Risk of re-offending:  Dr Sundin’s report

15. Dr Sundin rated the risk of the prisoner’s re-offending somewhat higher than did Dr Lawrence.  See para 29 of Dr Sundin’s report.  It is useful that I quote her summary in section G:

‘While Mr Burns appears to have benefited from participation in the HISOP he remains at long term risk for re-offending.  Until the substantive deficits in his lifestyle and personality that led to his prolonged pattern of offending are addressed and modified he is at risk for relapse.

In my opinion the offending occurred in a setting of a rather feckless lifestyle that lacked real intimacy despite a history of strong attachments within his family of origin.  His libidinal drives have been intense over two decades and his sexuality has been polymorphous.  He has had strong self-esteem ties to his early to mid-adolescence and seems to have never felt so happy and confident in himself as at this time.  Unfortunately, subsequently a large part of his self-esteem has been perverted into dysfunctional sexual impulses.

His plans for his future still have a somewhat unrealistic quality to them especially in the light of his past vocational achievements and easy boredom.  He will need support to remain committed and on task in whatever activity he undertakes.

Finally given the longevity of his offending behaviour I consider it important that any supervision order be in place for 15 years in the hope that with the passage of time, the acquisition of maturity and the development of more appropriate adult attachments,  Mr Burns is at less risk for sexual offending within the community.’

Risk of re-offending:  Dr Beech’s report

16. Dr Beech’s report preceded the prisoner’s completion of the High Intensity Sex Offender Treatment Program. He offered the following assessment:

‘I believe that Mr Burns will be at long term risk of reoffending notwithstanding that he may learn again from the Sex Offender Treatment Program.  The sexual offending should be seen in the context of his relatively dissolute lifestyle, lack of intimacy and social supports, and the current absence of any realistic relapse prevention plan.  In my opinion, if he were to be released at this stage, he would be at high risk of reoffending at some stage in the future ...

For the risk of reoffending to be reduced, I believe it is necessary for him to be monitored and supervised on his release.

Firstly, I believe that he needs to complete the High Intensity Sex Offender Treatment Program and on release he should be referred for a continuing Community Sexual Treatment Program by an experienced therapist.

His risk could be reduced if he is prohibited from engaging in activities where he can develop relationships with young men ...

Finally, I believe he needs to develop a more inclusive relapse prevention plan which is realistic and includes where he will live, what work he will engage with and what supports he will have.  In part, it is his lack of relationships, lack of meaningful and sustained employment and lack of meaningful or sustained support which I believe will place his at risk of reoffending.  Without such structure in place it is likely that he will again become dysthymic and will seek inappropriate relationships to meet the sense of emptiness and boredom that he experiences.’

Victims’ submissions

17. Submissions from victims are before the Court (s 9AA(4)). They express concern that in the event of the prisoner’s being released, he must not make contact with the victims, or attend venues where the victims and other children play sport; concern if the prisoner were to move back to where his parents previously lived near a school on the Sunshine Coast; and concern that the prisoner should have no contact whatever, either directly or indirectly, with the victims or their family members. These are obviously important and naturally entertained concerns.

18. I heard oral evidence yesterday from each of Drs Beech, Sundin and Lawrence. I accepted all their evidence.

Oral evidence of Dr Beech

19. Dr Beech expressed the opinion that if, upon any release, the prisoner were subject to no externally imposed control, the risk of his re-offending would be moderately high and persist for a number of years. He considered that the conditions advanced on behalf of the Attorney-General, to attend any release order, would substantially reduce that risk. Dr Beech favoured a 15 year term for any supervision order, because the prisoner is relatively young and has a pattern of entrenched offending.

Oral evidence of Dr Sundin

20. Dr Sundin expressed the view that if the prisoner were released without control or supervision, the risk of his re-offending would be at least of moderate order, but probably high. She considered the proposed conditions would reduce the risk of his offending to a moderate level, but not lower because of the longevity and nature of his previous offending. She considered that the term of any supervision order should be a minimum of 15 years because of his present age. When I raised with her whether 20 years might not be warranted, in standing by the 15 year term she was influenced by the circumstance that previously the prisoner had lived for eight to nine years without re-offending. Although Dr Sundin accepted that the prisoner would be at risk of re-offending well into his 50’s, she accepted that he would then have the benefit of lessons learnt from the preceding 15 year supervision regime.

Oral evidence of Dr Lawrence

21. Dr Lawrence rated the risk of the prisoner’s re-offending, if subject to no conditions upon release, as moderate to high. The imposition of the proposed conditions would reduce that risk to a low level. Dr Lawrence considered it very important that the prisoner find appropriate employment and accommodation following any release, and adopt an appropriate, stable lifestyle. While Dr Lawrence referred in her report to a 10 year supervision period, her evidence was that she ‘would not argue’ with 15 years.

Section 13(4) considerations

22. Turning now to the issues raised by the criteria in s 13(4), it is clear that there is a propensity on the part of the prisoner to commit serious sexual offences in the future (c); there is a pattern of offending behaviour on his part (d); he has sought to address the causes of his offending behaviour, including participation in the rehabilitation programs (e), and that has had some positive effect upon him (f); there is risk that he will commit another serious sexual offence if released into the community (h); and there is plain need to protect members of the community from that risk (i).

Whether order under Division 3 should be made

23. In this context, I am satisfied that the prisoner is a serious danger to the community in the absence of an order made under Division 3 of the Act (s 13(1)). That is because there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody, or if released from custody without a supervision order being made (ss 2). I have reached that degree of satisfaction on the basis of what I see as acceptable and cogent evidence, and which warrants that conclusion ‘to a high degree of probability’ (ss 3). I am conscious of the observation by five Justices of the High Court in McGarry v R (2001) 207 CLR 121, 132, that:

‘Orders for indefinite imprisonment are not lightly to be made.  An application for such an order should be treated with commensurate care and attention to detail.’

Continuing detention or release under supervision?

24. The issue then arising is whether the prisoner should be detained in custody for an indefinite term for control, care or treatment, or whether he should be released from custody subject to appropriate requirements in a supervision order (ss 5). The paramount consideration informing that decision must be the need to ensure adequate protection of the community (ss 6).

25. The position taken upon the hearing of the application on behalf of the Attorney-General was that ‘although he does not disavow further detention, he acknowledges that the expert evidence supports release on a supervision order subject to stringent terms’.

26. The end position is that all of the expert psychiatric evidence supports, and strongly supports, the conclusion that the prisoner should be released, but subject to a supervision order on appropriately stringent terms. There was substantial agreement between the parties as to those terms, and it is appropriate that I order in those terms. The prisoner is aware of those terms, and the obligations and limitations they will involve.

Order

27. The form of the order I make is as follows:

1. The Court is satisfied to the requisite standard that the respondent, Dale Martin BURNS, 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.

2. The respondent be subject to the following requirements until 20 April 2023:

The respondent must:

1. be under the supervision of a Corrective Services officer for the duration of the order;
2. report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence by 4pm on the day of release from custody (or such other time as directed by a Corrective Services officer) and at that time advise the officer of the respondent’s current name and address;
3. report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;
4. notify and obtain the approval of the  Corrective Services officer for every change of name, place of residence or employment at least two business days before the change occurs;
5. notify the 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;
6. seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;
7. reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment;
8. not reside at a place by way of short term accommodation including overnight stays without the permission of the Corrective Services officer;
9. seek permission and obtain the approval of a Corrective Services officer prior to any change of residence;
10. not leave or stay out of Queensland without the written permission of an  Corrective Services officer;
11. not commit an offence of a sexual nature during the period of this order;
12. not commit an indictable offence during the period of this order;
13. must comply with every reasonable direction of an  Corrective Services officer;
14. respond truthfully to enquiries by  Corrective Services officers about his whereabouts and movements generally;
15. not have any direct or indirect contact with a victim of his sexual offences;
16. notify a Corrective Services 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;
17. submit to medical, psychiatric, psychological or other forms of assessment and/or treatment as directed by a Corrective Services officer;

Requirements to address Alcohol and Drug related risk factors

18. abstain from the consumption of illicit drugs for the duration of this order;
19. take prescribed drugs only as directed by a medical practitioner;
20. submit to any form of drug testing as directed by a Corrective Services officer;

Requirements to address Intervention needs

21. attend upon and submit to assessment, testing and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by the  corrective services officer at a frequency and duration which shall be recommended by the treating intervention specialist, 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;
22. permit 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;
23. be assessed for a sexual offending program and, if referred to participate in such program, attend the program as directed by a Corrective Services officer;
24. attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
25. not establish or maintain contact with children under 16 years of age without written prior approval by a 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;
26. not to access schools or child care centres at any time without prior written approval of a Corrective Services officer;
27. seek written permission from a Corrective Services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group;
28. not 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, except with the prior written approval of a Corrective Services officer;
29. not be on the premises of any shopping centre, without reasonable excuse, between 3pm and 6.30pm on school days other than for the purpose of:
    1. approved employment;
    2. attending an approved bona fide pre-arranged appointment with a Government agency, medical practitioner or the like;
30. not visit public parks without prior approval from a Corrective Services officer;
31. advise Corrective Services Officer of any repeated contact with a parent of a child under the age of 16. The offender shall if directed by his supervising officer make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by the supervising officer who may contact such persons to verify that full disclosure has occurred;
32. not access child pornographic images in any format and allow any device where the internet is accessible to be randomly examined to determine whether the computer has been used for unacceptable purposes involving children;
33. submit 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;
34. submit to electronic monitoring and curfew requirements as directed by a Corrective Services officer.

General observations

28. In dealing with applications under this legislation, the Court exercises a sensitive, difficult and not infrequently controversial jurisdiction. There has been criticism of some of the Court’s decisions.

29. Two things should be noted and accepted: first, that the framework of the Court’s approach is carefully delineated in considerable detail by the legislation; and second, that the Court must make its determinations only on the evidence put before it.

30. In this case, that evidence is all one way, in supporting the release of the prisoner subject to a supervision order on strict conditions. It would be nothing short of capricious for a judge nevertheless to order continuing detention: that would amount to a surrender to passion or prejudice or other irrelevant considerations, and an abrogation of judicial responsibility.

31. I have no doubts as to the complete objectivity of all of the psychiatric evidence put before me. The reports of Drs Lawrence and Sundin were effectively commissioned by the Court. Those reports comprehensively raise and discuss all relevant considerations. Even allowing for the ‘predictive’ nature of the exercise, and the inevitable lack of a watertight guarantee as to what will transpire, those reports, especially, provide a firm foundation for the supervision order to be made.

32. It is also significant in this particular case, although not of course definitive (cf Attorney-General v Hansen [2006] QSC 35, [9]), that the Attorney-General did not urge continuing detention, but acknowledged that a supervision order on these terms would be appropriate.