Attorney-General v Downs[2008] QSC 87

SUPREME COURT OF QUEENSLAND

1. This is an application by the Attorney-General for final orders against the respondent Ronald James Downs pursuant to Part 2 Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’).  The applicant sought a continuing detention order, or alternatively a supervision order, under s 13(5) of the Act.

2. The respondent is 46 years old, and has a lengthy criminal history, including property and dishonesty offences, dating back over 30 years. He has on three occasions been convicted and sentenced for offences of a sexual nature:

20 October 1980 – The respondent was convicted and sentenced to six months’ imprisonment for an offence of aggravated sexual assault on a child under the age of 14 years.  This offence occurred when the respondent lifted a three year old male child (whom he knew) from a pram and attempted, or simulated, intercourse with the child.

18 November 1999 – The respondent pleaded guilty to six counts of indecent dealing with a child under 12 years.  The child was the daughter of a friend of the respondent, and the offences were committed when the child was four and six years old.  The conduct involved in the offences was the kissing of the complainant on the lips, having the complainant fondle his penis, playing with the complainant’s vagina through her clothing, sucking her nipples and licking her on the vagina.  When sentencing the respondent to two years’ imprisonment with parole after nine months, the learned sentencing Judge said:

‘Although you have pleaded guilty to these offences, you have maintained the complainant initiated the offences and that you were not really to blame for what happened.  It is clear, however, from the interview between yourself and the police that you knew what you were doing was wrong and that you should have stopped it.  Although Dr Stanton saw you only for a short time, he believes that in sexual matters, you are dangerous and likely to re-offend against children unless you receive appropriate psychiatric treatment.

The offences that you have pleaded guilty to are very disturbing.  They occurred over a period of time and were committed on the daughter of your friends at a time when they trusted you to look after her.  Fortunately, the degree of seriousness of the indecency to the young child did not increase and become as abhorrent as it could have over the period of these offences.’

14 November 2005 – The respondent relevantly pleaded guilty to, and was sentenced by Dick SC DCJ to a term of two and a half years in prison, for the offence of unlawful carnal knowledge of a child under the age of 12 years.

3. The respondent remains in custody serving that last sentence, and is due for release on 13 May 2008.

4. As will appear from the expert evidence to which I will refer in some detail shortly, it is not in issue that the respondent suffers from mild mental retardation. His own family was quite dysfunctional, including by reason of a drunk and violent father and the respondent being subjected from a young age to sexual assault by his older brother. Dr Moyle, consultant psychiatrist, who conducted a psychiatric assessment of the respondent in June 2007, neatly encapsulated the respondent’s upbringing in the following opening statement to the executive summary in a report which was put in evidence before me:

‘This 46 year old man has been intellectually disadvantaged all his life, was exposed [precociously] to sexual misbehaviour and was raised in a family where violent expression of emotions was seen as a reasonable way of communication and where discontrol of one’s urges to drink excessively was the norm.’

5. Dr Moyle’s assessment of the respondent at that stage was that he would rate the risk of the respondent sexually re-offending in the future at ‘moderately high’, despite the respondent’s current imprisonment, unless external constraints were placed on the respondent’s behaviour on release. In particular, Dr Moyle thought it important for the respondent to engage in a program to teach him how to manage his own risk factors for sexual re-offending in the future.

6. Since being seen by Dr Moyle, and while in prison, the respondent completed, with a team leader in the Queensland Corrective Services (‘QCS’) Sex Offender Program Unit, a sexual offending program ‘individual intervention plan’. That led to him taking part, in December 2007, in an ‘inclusion sexual offending program’ (‘ISOP’). The reports on the respondent’s participation in, and outcomes from, those courses were in evidence before me, and evidence was given by the QCS team leader who facilitated these programs with the respondent. The ISOP outcomes were summarised as follows:

‘Upon commencing the program, Mr Downs initially experienced difficulty due to belief that his victim was to blame for the offending.  However, he was able to overcome this challenge, gradually recognising that he was the adult and therefore responsible for the offending behaviour.  He was able to build upon this insight and recognise the impact of such behaviour on his victim and others, the quality of his intimate relationships, his sexual offending and his desire for an offence-free life.  While he experienced some lapses within the program, he persevered and appeared to make some genuine gains in these areas.  Whether he has integrated this understanding beyond a basic level can only be determined upon his release to the community when his continued attention to these issues will be solely his responsibility.

In summary, Mr Downs appeared motivated towards successful completion of the program, maintained attendance in the program and demonstrated some of his new-found skills.  Provided he remains committed to this, he will go a long way towards minimising feelings of helplessness to deal with problems, which he has identified as a risk factor in his offending.  Within the program Mr Downs made efforts of managing his emotions and developing his problem solving skills.  He would be encouraged to continue working on these areas so as to strengthen his ability to re-integrate safely and responsibly back into the community.

Despite initial difficulties, he has made gains which will support his intention to live an offence-free life and not to cause harm to others.’

7. I note in passing that the QCS team leader in evidence confirmed that the ISOP had objectives designed to meet the needs of the cognitively challenged, and accordingly was appropriate for use with the respondent. She also confirmed that the respondent did appear genuine in trying to ‘better himself’ and there was demonstrated evidence of this desire throughout the time he was on the program. She said, however, that there was a need for ongoing reinforcement with this respondent to avoid, or at least minimise the risk, of him ‘sliding back’.

8. Evidence was also led from a psychologist, Mr Brady, who was the principal adviser in the Sex Offender and Dangerous Offender Unit within the QCS. He gave evidence of a residential facility located in the precinct of the Wacol Prison Reserve consisting of some old houses which have been recommissioned as a temporary housing solution for offenders who are subject to supervision orders under the Act. He described the relatively limited access to this precinct, the fact that the road is monitored by closed circuit television, and that there are random patrols in the area by QCS officers. Within the precinct there is also a reporting centre where offenders are seen by their case managers. This precinct is obviously not secure, in the sense of being locked down like a prison, but it is fenced and not immediately accessible by members of the public. QCS staffing capacity currently allows for one or two random staff visits to the precinct each week. He also confirmed that, with the electronic monitoring requirements now called for under the Act, curfew monitoring can provide immediate notification if there is a break in an imposed curfew. This is the precinct in which the respondent would initially be authorised to reside if released under a supervision order.

9. For the purposes of the present application, the respondent was seen and assessed by Dr Josie Sundin, consultant psychiatrist, and Dr Michael Beech, consultant psychiatrist.

10. Dr Sundin diagnosed the respondent as suffering from:

1. Paedophilia, sexually attracted to both, non-exclusive, not limited to incest;

2. Mild mental retardation (IQ between 55 and 75);

3. Anti-social personality disorder;

4. Alcohol abuse, in remission, in a controlled environment.

11. Dr Sundin expressed the view that there are a number of unwavering historical features which would make community management and risk mitigation of this respondent particularly difficult. She referred to:

(a)The respondent’s mild mental retardation, and its adverse impact on his capacity to learn;

(b)His anti-social personality disorder;  and

(c)Her assessment that he is a pathological liar.

12. Dr Sundin’s report stated:

‘26.1If Mr Downs is to be released in to the community, the orders for supervision will need to be highly regimented.  I suggest including a clear curfew, incorporating electronic monitoring for a substantial period of time after release and abstinence from alcohol.  Mr Downs will need very clear orders explained to him of the expectations of his community behaviour and in particular the prohibitions on his behaviour.  These will need to be repeated to Mr Downs on quite a number of occasions for him to understand them and for him to begin to understand the need for compliance.

26.2His principal positive is that he has been compliant with the institutional rules of prison so thus might be able to be similarly adapted to community orders.

26.3His overall risk for future sexual recidivism remains high in my opinion.

26.4I recommend that any order for community supervision is for a minimum period of 15 years.’

13. In evidence before me, Dr Sundin reaffirmed her view that any release order relating to this respondent needed to be ‘incredibly clear’ and that it would ‘require incredibly close supervision’ which left the respondent ‘no wriggle room because of his anti-social personality and the lack of capacity for his supervisory personnel to rely upon his self-reports’.

14. Dr Sundin was of the view that responses recorded as having been made by the respondent in the course of his ISOP program were really manifestations of his capacity to ‘parrot’. She said:

‘He can parrot statements that he knows need to be parroted but he doesn’t continue on with those statements in any real or meaningful fashion beyond the point at which they are required.’

15. Dr Sundin did not think that this inherent difficulty could be addressed by appropriate programs directed towards someone of this respondent’s intellectual capacity; in other words, she thought he could learn, but he could not retain the information.

16. On the other hand, Dr Sundin was prepared to accept that the respondent is able to recognise and appreciate cause and effect such that he understands that non-compliance with a specific condition will result in him being returned to prison. She said that if he has truly grasped that a breach of the orders will return him to prison, then that would be a sufficient motivation for him to comply with the conditions of release. Dr Sundin thought it important that the terms of the conditions of any supervision order spell out in precise terms, even to the point of repetition, the conditions which the respondent would be required to observe in order to avoid a return to prison.

17. Some of Dr Sundin’s observations about the respondent were indirectly corroborated by Dr Beech’s report. For example, when describing the presentation of the respondent during the interview with Dr Beech, the doctor recorded:

‘At times his talk was shallow and rambling and in fact at times he simply prattled on.  He was talkative and facile.  Despite a poor vocabulary, poor use of syntax and grammar, I considered that he was in fact glib.  This came through as he talked about his response to the course [the ISOP].  It also came through in the superficial sense as he described the change on his part.’

18. Dr Beech described the respondent as presenting with limited intellectual capacity, and assessed him as suffering from mild mental retardation. The doctor thought the respondent suffered from a post-traumatic stress disorder as a consequence of the childhood sexual abuse he suffered. He also assessed the respondent as having an anti-social personality disorder, rating highly on the personality traits of being cunning, irresponsible, lacking empathy, and being superficial. Dr Beech was of the opinion that the respondent is a non-exclusive paedophile, attracted to females. He said:

‘His sexual offending should be seen in the light of four critical factors.  Firstly, he has a very limited intellectual ability to critically think about his behaviour, to control his urges, and to learn ways to cope.  Secondly, he suffers from a sexual deviance with an attraction to young girls.  Thirdly, he has come through his childhood with very distorted views about sexual relationships as a result of his own abuse and as a result of his father’s coarse sexist teachings.  Finally, he is anti-social, again probably as a result of a highly prejudicial childhood, and prone to law-breaking and is dismissive of social mores and rules.

The interaction between these factors is highly toxic and makes treatment and management very complex.  I believe a combination of sexual deviance, internalised parental exhortation and mental infirmity makes him very vulnerable to thought processes whereby he perceives young girls as being sexually flirtatious, and the instigators of sexual advances.   He has had a limited capacity to accept his role and responsibility in the offending and I believe he still maintains views that condone paedophile practices, notwithstanding what he may say he has learnt from the sexual offender courses.

His repeated offending is a concern, particularly so soon after a period of detention;  as are his previous breaches of bail and release orders.’

19. Dr Beech was of the opinion that, if the respondent were to be released into the community without supervision, he would be at a high risk of re-offending sexually against children. He believed that the offences would be of a similar nature, and involve forming a relationship with a person who has young female children, and position himself over time into a situation of confidence to allow him to prey on the children.

20. Dr Beech considered, however, that the respondent’s risk of sexually re-offending in the community could be significantly reduced ‘if he is very closely monitored and limits are placed on him’. Dr Beech reaffirmed in his report that the supervision ‘should be strict given his history of breaches’. With appropriate conditions, Dr Beech thought the risk would be reduced to moderate.

21. Dr Beech gave evidence before me as to his view of the degree of understanding and insight which the respondent gained from his participation in ISOP. He said that, on his observation, the respondent does harbour an internal restraint consisting of the desire not to go back to gaol. Dr Beech said:

‘It’s not as empathic or as insightful as I would like but he clearly understands that if he were to offend again he would be in serious trouble.’

22. Dr Beech also gave evidence as to the appropriateness of the living and monitoring arrangements at the Wacol facility, and considered that while the respondent resided there it would ‘reduce the risk’. He assessed the risk of re-offending in those circumstances as ‘moderate, perhaps even lower’. He viewed the Wacol facility as a ‘useful staging process for ultimate entry into the wider community’, although he did concede concern if the respondent had to remain there for a lengthy period such as 15 years.

23. Turning, then, to the present application, the scheme of the relevant provisions of the Act was outlined by the Court of Appeal in Attorney-General (Qld) v Francis [2006] QCA 324 at [25] – [29]:

‘[25]The order which may be made by the court under s 13(5) of the Act, and confirmed under s 30 of the Act, is, in terms, an order made for “control, care or treatment” of a dangerous prisoner.  By virtue of s 13(2) of the Act, such an order may be made only if the court is satisfied that a prisoner would constitute a serious danger to the community in the form of “an unacceptable risk that the prisoner [would] commit a serious sexual offence”.  As an alternative to a continuing detention order, under s 13(5)(a), the court may order, under s 13(5)(b), that the prisoner be released from custody subject to appropriate conditions.

[26]The objects of the Act are expressed in s 3 of the Act as being:

“(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.”

[27]Section 13(6) provides that, in deciding whether to make an order under s 13(5)(a) or (b), “the paramount consideration is to be the need to ensure adequate protection of the community”.

[28]Section 13(5)(a), in speaking of a continuing detention order as an order “for control, care or treatment”, identifies the three purposes for which an order may be made:  control of the dangerous prisoner, care for the dangerous prisoner, or treatment of the dangerous prisoner.  These purposes are identified as alternatives.  The phrase “control, care or treatment” must, as a matter or ordinary language, be read disjunctively.

[29]This disjunctive reading suggests that there may be cases where the basis for an order may be, either

• the control of an incorrigible offender, or
• the care of an offender whose propensities endanger the offender as well as others,  or
• the treatment of an offender with a view to rehabilitation.

It will often be the case that more of these considerations will inform the making of an order.

24. By amendments to the Act which were effective from 29 August 2007, the Court is required to receive any submissions supplied by an ‘eligible person’. Such a person is required to be given notice of this hearing. An ‘eligible person’ is defined as a person registered as an eligible person in relation to the prisoner on an ‘eligible person’s register’. Such a register is required to be kept under the Corrective Services Act 2006 (Qld).  On the evidence before me, there is no ‘eligible person’ able to be identified in respect of the respondent.  Accordingly, no submissions pursuant to s 9AA of the Act have been placed before the Court. 

25. In addition to the medical evidence to which I have referred, the evidence before me included copies of:

(a)The respondent’s criminal history;

(b)Psychiatric and psychological assessments of, treatment of and intervention programs undertaken by the respondent while in custody;

(c)All files held by the office of the Director of Public Prosecutions in relation to this respondent (including the sentencing remarks of the various judges before whom the respondent has appeared over the years).

(d)The various prison files held in relation to the respondent by Queensland Corrective Services.

26. It was conceded before me on behalf of the respondent that the respondent would be a serious danger to the community in the absence of a Division 3 order. Notwithstanding that express concession, I record that the evidence before me is acceptable, cogent evidence, which independently persuades me to a high degree of probability that the evidence is of sufficient weight to justify me making a decision under s 13(1) that the respondent represents a serious danger to the community within the meaning of s 13(1).

27. The real issue for determination is whether the appropriate response to that finding is the making of a continuing detention order under s 13(5)(a) or the making of a supervision order under s 13(5)(b). Section 13(6) expressly provides that, in making that decision, ‘the paramount consideration is to be the need to ensure adequate protection of the community’.

28. The making of a continuing detention order under the Act is clearly a serious incursion into an individual’s right to liberty after the expiration of a judicially imposed period of incarceration; hence the need to resort to a continuing detention order only if the Court concludes that adequate protection of the community cannot be ensured by the making of a supervision order. In Attorney-General (Qld) v Francis, the Court of Appeal said, at [39]:

‘The Act does not contemplate that arrangements to prevent such a risk must be “watertight”;  otherwise orders under s 13(5)(b) would never be made.  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 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.

29. In anticipation of the prospect of the respondent being released under a supervision order, each of Dr Sundin and Dr Beech were shown, and asked to comment in evidence, on the terms of the conditions for a proposed supervision order. Some of those draft conditions were, in part, repetitive, or at least had some significant overlapping; for example, the draft proposed a condition that the respondent ‘not commit an offence of a sexual nature during the period of the order’ and also a condition that the respondent ‘not commit an indictable offence during the period of the order’. Each of the psychiatrists, however, thought it important that this sort of express statement of the boundaries of the conduct required of the respondent on release was appropriate, if for no other reason than to reinforce the nature and extent of the boundaries. In that regard, Dr Sundin said that she thought it was an important condition:

‘For Corrective Services to stand a chance in reducing the risk of recidivism in this man, they need to have a very clear set of orders with no wriggle room.  The one positive thing in this man’s history is that he was contained within the prison.  He learned to be institutionalized and obey the rules within a prison.  Any order that gives him the message that there are some rules that you can obey and some rules that you can disobey will give him the thin end of the wedge message, so to speak, and runs the risk of giving him in his mind an excuse that, if some forms of anti-social behaviour are acceptable, then all forms of anti-social behaviour are acceptable.’

30. It is fair to say that Dr Sundin’s view of the respondent’s risk for future sexual recidivism was more pessimistic than that of Dr Beech. It seems to me, however, that the careful balancing exercise of weighing the paramount consideration of the need to ensure adequate protection of the community against the respondent’s entitlement to liberty calls, in this case, for a conclusion that adequate, albeit it not necessarily ‘watertight’, protection for the community may be ensured by the imposition of very stringent and limiting conditions such as those proposed before me. I would also conclude, on the evidence before me, that the proposed term of 15 years for a supervision order is appropriate.

31. Accordingly, pursuant to s 13(5)(b) of the Act, I make a supervision order in the terms set out in Annexure A to these reasons for judgment.

ANNEXURE A

THE ORDER OF THE COURT IS THAT:

1. The Court is satisfied to the requisite standard that the respondent, Ronald James DOWNS, 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 13 May 2023:

The respondent must:

1. be under the supervision of an authorised Corrective Services officer for the duration of the order;
2. report to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence by 4pm on the day of his release from custody, or 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, an authorised Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;
4. notify 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;
5. notify the authorised Corrective Services officer of the nature of his employment, offers of employment, or any non paid or volunteer work, the hours of work each day, the name of his employer or provider and the address of the premises where he is or will be employed;
6. seek 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;
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 authorised Corrective Services officer;
9. seek permission and obtain the approval of an authorised Corrective Services officer prior to any change of residence;
10. not leave or stay out of Queensland without the written permission of an authorised Corrective Services officer;
11. not commit an offence of a sexual nature during the period of the order;
12. not commit an indictable offence during the period of the order;
13. comply with every reasonable direction of an authorised Corrective Services officer;
14. respond truthfully to enquiries by authorised Corrective Services officers about his whereabouts and movements generally and 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;
15. disclose to an authorised Corrective Services Officer upon request the name of each person with whom he associates and provide information to a Corrective Services Officer about the nature of the association, address of the associate, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
16. not have any direct or indirect contact with a victim of his sexual offences without the prior written approval of an authorised Corrective Services Officer;
17. notify 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;
18. submit to medical, psychiatric, psychological or other forms of assessment and/or treatment as directed by an authorised Corrective Services officer, the expense of which is to be met by Queensland Corrective Services;
19. abstain from the consumption of alcohol;
20. not visit premises licensed to supply or serve alcohol, without the prior written permission of the authorised corrective services officer;
21. abstain from the consumption of illicit drugs and take drugs only as prescribed by a treating physician;
22. submit to any form of drug and alcohol testing as directed by an authorised corrective services officer;

Requirements to address Intervention needs

23. attend 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;
24. agree 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;
25. 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;
26. be assessed for a sexual offending program and, if referred to participate in such program, attend the program as directed by an authorised Corrective Services officer, the expense of which is to be met by Queensland Corrective Services;
27. attend 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, the expense of which is to be met by Queensland Corrective Services;

Requirements relating to his offending behaviour

28. not establish and or maintain 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 authorises his supervising officer to make complete disclosure of the terms of this supervision order and the nature of his past offences to the guardians and caregivers of the children before any such contact can take place and authorises Queensland Corrective Services to disclose information pertaining to the Respondent to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children;
29. advise an authorised Corrective Services Officer of any repeated social contact with a person the Respondent knows to be a parent, guardian or caregiver of a child under the age of 16.  The Respondent authorises his supervising officer to make complete disclosure of the terms of this supervision order and the nature of his past offences to the parent, guardian or caregiver of any such child in the interests of ensuring the safety of the child;
30. seek written permission from an authorised Corrective Services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group;
31. 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;
32. not without reasonable excuse be within 100 metres of schools or child care centres between 8:00am to 9:30am and 2:30pm to 4:30pm;
33. not access a school or a child care centre at any time without prior written approval;
34. not be on the premises of any shopping centre, without reasonable excuse, between 8 am to 9.30am and 2.30pm and 6pm 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;
35. not visit public parks without prior written permission from an authorised Corrective Services officer;
36. not access child pornographic images in any format and allow any device in his control or which he has used where the internet is accessible to be randomly examined to determine whether the device has been used for unacceptable purposes involving children;
37. submit to electronic monitoring and curfew requirements as directed by an authorised Corrective Services officer.