Attorney-General v Francis[2010] QSC 465

SUPREME COURT OF QUEENSLAND

HER HONOUR: The respondent was released on a supervision order for a period of six years on 29 September 2006. The history of his compliance under the orders, which has involved periods in which he has returned to custody, is reflected in numerous decisions of this Court.

The last decision of the Court under which the respondent was released again under the existing supervision order with amendments was Attorney-General for the State of Queensland v. Francis [2009] QSC 312. The respondent's release under that order was 28 September 2009. On 3 March 2010 his urine screen tested positive for tetrahydrocannabinol. On 13 April 2010 he was sentenced to three months' imprisonment for breach of the supervision order as a result of that positive drug test and given an immediate parole release date.

On 3 June 2010 the respondent's urine screen tested positive for cannabis sativa and amphetamine. He was returned to custody on 9 June 2010 on an interim detention order.

On 11 June 2010 the respondent pleaded guilty to a charge of contravening the supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) and was sentenced to three months' imprisonment cumulative upon the three months' imprisonment that was imposed upon him on 13 April 2010 and in respect of which parole was revoked. His full-time discharge date from this period of imprisonment was 20 October 2010.

He has remained custody pending the determination of the application under section 22 of the Act in relation to the contraventions of the supervision order that required him to abstain from the use of illicit drugs. Even though it is not in dispute that these contraventions occurred, the respondent seeks to be released again under the existing supervision order. The Attorney-General takes the position that a return of the respondent to continued detention is one course that should be considered by the Court. The Attorney-General, however, in the light of the evidence that has been prepared for the purpose of the hearing today, concedes that the evidence points to a return to supervised release for the respondent.

Section 22(2) of the Act requires the Court to rescind the supervision order and make a continuing detention order, unless the respondent satisfies the Court on the balance of probabilities that the adequate protection of the community can, despite the contraventions, be ensured by the existing order with any necessary amendments. The primary evidence before the Court today was in the nature of psychiatric evidence. The respondent has been seen on a number of occasions by each of Professor Nurcombe and Dr James. These psychiatrists, however, have each further interviewed the respondent whilst in custody for the purpose of providing updated psychiatric assessments to the Court.

In order to put the psychiatric evidence in context, it is necessary to refer to the circumstances of the offences that resulted in the respondent becoming subject to the regime under the Act. Those circumstances are set out in the judgment of Justice Byrne in Attorney-General for the State of Queensland v. Francis [2004] QSC 233 at paragraphs [10]-[12]. The circumstances of the respondent's prior sexual offending is critical to evaluating his risks of re-offending if released again under the supervision order, and the nature of the risks that must be managed by the supervision order.

The respondent has a long history of polysubstance abuse and both sets of sexual offences involved violence within ongoing heterosexual relationships in which both the respondent and the victims were drug abusers. The risk that the respondent poses to the community arises when he engages in alcohol and drug abuse and the women who are at risk are those with whom the respondent is in an intimate relationship.

This has been recognised in the terms of the existing supervision order which are directed at preventing illicit drug and alcohol abuse.

It is important that the community note that there is no suggestion that the respondent has any sexual deviance. As the psychiatrists acknowledged in their evidence, he is not a paedophile.

One of the conditions in the existing order that received attention from the psychiatrists is the requirement in condition 2(xiv) that the respondent not enter into an intimate relationship until employed for a continuous period of 12 months from the commencement of the order. This order is due to expire on 28 September 2012. The respondent has only been able to obtain a very short period of employment to date. Both psychiatrists thought it imperative, in view of the risk to any woman with whom the respondent may enter into an intimate relationship, that he be given the opportunity to develop any relationship with a woman while the supervision order remains in existence, so that he can be monitored for the signs that indicate that he may be at risk of re-offending.

Both psychiatrists also emphasised the importance to the respondent's personal relationships and his endeavours to remain drug free that he obtain gainful employment. It appears that he has been referred previously by Corrective Services to an employment agency in order to obtain employment, but in the light of the psychiatric evidence that I have heard today, encouragement and help to the respondent to obtain and maintain employment must have the highest priority for the respondent for the remainder of the supervision order.

Professor Nurcombe explained the risks that operate in relation to the respondent in terms that he commits sexual offences when he is in a psychotic state as a result of heavy usage of amphetamines over a period of time, or when the respondent is in the withdrawal stages after heavy usage of amphetamines.

Because the respondent has been in custody since 9 June 2010, he has been free of amphetamines since that time. It also appears that his contravention earlier this year was a single episode of amphetamine use and not amphetamine use after prolonged usage.

Professor Nurcombe suggested that the sensitivity of the alcohol and drug screening, that the respondent is subject to whilst under supervision, will immediately pick up any usage of illicit drugs, but relevantly amphetamines. That would ensure that any intimate relationship that the respondent may develop would not continue or could be monitored, when the respondent may be vulnerable to a psychotic state because of drug usage.

In view of the recommendations that both psychiatrists have made that the respondent be allowed to return to the community under the supervision order, and in light of the protections that are within the existing supervision order in relation to the monitoring of illicit substances usage by the respondent, I am satisfied that the evidence before me warrants the respondent returning to the community under the conditions of the supervision order.

I have discussed with counsel, for both the Attorney-General and the respondent, the amendments that are required to the supervision order to ensure that it complies with the current legislative regime under the Act, and with the evidence that has been given in the Court today. As a result of the assistance obtained from counsel, I will make amendments to the supervision order.

The formal orders that I make are:

(1) The respondent is to be released forthwith subject to the supervision order made by the Court of Appeal on 26 September 2006 and amended by Justice Philippides on 7 December 2007, Justice A Lyons on 28 September 2009, and as follows;

(2) The existing supervision order is amended as follows:

1. delete the words "or further order of the Court" from the first paragraph 2 of the supervision order;
2. amend paragraph 2(vi) of the supervision order by deleting the words "premises where he is employed" and insert in lieu "employer's premises";
3. delete paragraph 2(xi) and insert in lieu "comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order";
4. delete paragraph 2(xiv) of the supervision order;
5. insert as part 2(xxxi) of the supervision order as follows: "comply with any reasonable direction under section 16B of the Dangerous Prisoners (Sexual Offenders) Act 2003."

Mr Francis, it is not going to be easy, but people have gone to a lot of trouble to get you to the stage where you are going out again. There is a lot of effort required on your part. I know from what you've said to the psychiatrists that you tried very hard last time. You are going to have to try harder again.

RESPONDENT: Thank you, your Honour.