Attorney-General v Clarke[2011] QSC 116

SUPREME COURT OF QUEENSLAND

1. PETER LYONS J:  On 18 May 2004 the respondent was convicted after a trial of three counts of rape committed on 10 and 11 March 2003 (current offences).  He was sentenced to a term of imprisonment, which, allowing for time served prior to sentence, would mean that his release date is 13 May 2011.  The applicant has applied for an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA) (Division 3 Order).

Current offences

2. The current offences were committed in the home where the respondent was then living with his mother. The respondent was 44 years of age at the time.

3. The victim was the wife of a close relative. She was then 38 years of age. She and her husband were staying at the house on a family visit.

4. The victim describes being restrained and raped on three occasions over two days. She also states that she was threatened with violent retribution if she reported these occurrences. However, she did report them, some 17 days later, after she had returned home with her husband. The victim also stated that on one occasion the respondent placed a pillow over her face at night. That led to a charge of common assault, for which the respondent was acquitted.

5. The sentencing judge said of the offences that they “involved no physical violence” but they did involve the use of threats to the victim. The basis for the statement relating to the absence of physical violence is not obvious, but perhaps should be understood to refer to the use of anterior or subsequent violence, beyond that constituting the offences themselves. The victim’s descriptions refer, not surprisingly, to the use of some force.

6. The respondent has at all times maintained his innocence of these offences, alleging that sexual intercourse was on each occasion consensual. He relies on the results of a polygraph test, which resulted in a report from the polygraph examiner supporting his innocence. He has taken other steps to establish his innocence while in prison, and apparently intends to continue to take further steps of that kind if released.

7. As mentioned, the respondent was convicted after a trial, in which the jury had the advantage of hearing the evidence of the victim and of the respondent. The respondent appealed against the convictions, unsuccessfully. I also note that the sentencing judge said in his sentencing remarks that he did not find the verdicts surprising.

8. There is scope for some debate whether, on an application like this, the correctness of the jury verdicts might be questioned. In respect of an application for parole (relating to a not entirely dissimilar statutory context), Fitzgerald P in Mott v Queensland Community Corrections Board^[1] expressed the view that a Parole Board is required to proceed on the footing that the prisoner’s guilt had been established by his conviction; and that his suitability for parole fell to be assessed on the basis of his denial of guilt and his disinterest in and unsuitability for participation in a sexual offenders’ treatment program.  McPherson JA did not think the case could be resolved by saying that the Parole Board was bound to accept and act on the fact of the conviction alone, considered in isolation from the circumstances involved, or the evidence adduced at the trial.^[2]  The third member of the court, Davies JA, thought that in some cases it may be desirable, or even necessary, in determining eligibility for parole of an applicant, to look at the evidence given at the applicant’s trial.^[3]  His Honour did not identify cases where this might be so.

9. I have not had the benefit of submissions about whether it is open to me to consider the correctness of the 2004 verdicts. Indeed, there has been no submission suggesting that their correctness should be doubted. Were I permitted to reconsider the correctness of the verdicts, it seems to me that, on the available material, I should assume that they are correct. There was plainly evidence which provided a proper foundation for the convictions, including the evidence of the complainant. The verdicts were the result of the jury’s observation of the witnesses giving evidence, including their observations of the respondent. The evidence included the evidence of the complainant about the commission of the offences. The comment of the judge before whom the trial was conducted supports the correctness of the verdict.

Other offending conduct

10. It is convenient first to note other sexual offences of which the respondent has been convicted.

11. In 1980, the respondent was convicted (on his plea of guilty) of an offence of unlawful and indecent dealing with a girl under the age of 14 years, the offence being committed on 23 May 1980. The girl was apparently five years of age. He was sentenced to 18 months probation.

12. In 1990, the respondent was convicted (again, on his pleas of guilty) of one count of committing an indecent act and one count of aggravated assault of a sexual nature on a female, both committed on 18 February 1990. The complainant was 38 years of age. For the assault, the respondent was sentenced to 60 hours of community service; and for the wilful exposure offence, to 40 hours.

13. Later in 1990, the respondent was convicted (again, on his plea of guilty) of one offence of indecent dealing with a girl under the age of 12 years, the offence being committed on 1 July 1990. The girl in question was some 10 years of age.

14. In respect of the sexual offences involving children, the respondent has expressed remorse to each of the three psychiatrists who interviewed him for these proceedings. He has also expressed some recognition of the adverse impacts of his conduct on these children. The reports of the psychiatrists suggest, however, a tendency by the respondent to minimise the extent of his misconduct.

15. Of the assault on the woman in 1990, the respondent appears to have little recollection; and he denies any recollection of some significant aspects of the complainant’s version of the event.

16. The two sexual offences involving children occurred at a time when the respondent was affected by alcohol. There is no suggestion of alcohol in connection with the aggravated assault on the woman in 1990, nor the current offences.

17. The respondent’s criminal history records a breach of probation on 24 September 1990 for which, on 16 August 1991, he was sentenced to 12 months probation and 50 hours of community service. The breach apparently was that the respondent drove a vehicle while under the influence of alcohol.

18. The respondent also reported to Dr Moyle some other offences. One, apparently committed some time in the 1980s, was riding a motor bike without a licence. There were two other offences of driving whilst under the influence of alcohol (though one of these seems to have been the breach of probation). There was also an offence of driving through a give-way sign, which the respondent said happened after he had had a beer.

Further context

19. The respondent was born on 16 February 1959, being one of nine children. He and another sibling were sent to live with his grandparents. His grandmother was very strict, using physical discipline if he misbehaved.

20. He was educated to grade eight. He has had a range of jobs. With his first wife, he managed a motel (when he was 24 years of age) for 12 months. When he was in his mid thirties, he and his then wife leased a café (in Tasmania).

21. The respondent first married when he was 24 years of age. However, his first wife left him after a few years. He appears to have had some other short term relationships, and a longer relationship with a woman who became his second wife, from about 1991 until 1998. His wife was a member of the Mormon Church, with which he became involved in this period. He has not maintained this involvement. He has two children from this marriage, who were left in his care for some years after the respondent and his wife separated.

22. The respondent has reported smoking cannabis in his later teenage years. There is no other suggestion of the use of illegal drugs.

23. In prison, the respondent’s conduct has been good. He has had regular work and has completed a cabinet making course, and numeracy and literacy courses. There have been no breaches of discipline. However, he has not undertaken a sexual offenders’ treatment program. It would seem that this is both because of his refusal to do so, and because he is not considered an appropriate subject for such a program, since he maintains his innocence of the current offences.

Psychiatric assessments

24. The three psychiatrists who have provided reports for these proceedings have each reviewed extensive material, and have interviewed the respondent for some hours. Dr Moyle considers that the respondent poses a moderate risk of opportunistic heterosexual re-offending if he continues rigidly to refuse to try to modify his risk factors. These appear to include instability and resultant stress on his discharge from prison; alcohol; his attitude to sexual activity with women, and in particular to self-gratification; his aversion to therapy; and his negative response to criticism of his behaviour. Dr Moyle considered him to be of low intelligence. His history reveals features of a non-exclusive heterosexual paedophilia.

25. In a supplementary report, Dr Moyle expressed the view that the risk that the respondent would re-offend was moderately high. He maintained that view in his oral evidence.

26. Dr Beech assessed the risk that the respondent would re-offend as moderate, though probably above the average for a sex offender on release from prison. He considered alcohol to be a risk factor. On the other hand, he thought the respondent’s age may have some effect on the risk, as would the respondent’s intention to attempt to establish his innocence. He thought a supervision order under the DPSOA would assist in reducing the risk, because it would be likely to make provision for some oversight and monitoring of the respondent’s mental state and levels of stress and distress; and might result in some psychological counselling.

27. Dr Grant considered that the respondent presented at least a moderate risk of future sexual offending, but did not consider his continued detention as “mandated by his history or treatment needs”. Dr Grant considered that the respondent’s history demonstrated that the consumption of alcohol made no difference to that risk.

28. Dr Grant noted the length of time since any offences involving children, and the fact that since those offences, the respondent appears to have had some extensive contact with children, including his own children. He gave the impression that he did not consider there to be a significant risk of the respondent committing a sexual offence involving children.

29. Dr Grant did not strongly support the imposition of conditions on the respondent’s release. He did not consider that conditions were likely to make a significant contribution to the reduction of the risk that the respondent might re-offend. He thought that what was most likely to be of some assistance to avoiding the risk that the respondent would re-offend, was that the respondent have access to therapy, but its utility would depend upon the respondent’s willingness to benefit from it, a matter about which Dr Grant appeared pessimistic.

30. None of the doctors assessed the respondent as psychopathic.

Making a Division 3 order

31. The provision for making such an order is found in s 13 of the DPSOA.  The section applies if the court is satisfied that the respondent is a serious danger to the community in the absence of such an order.  Under s 13(2), a person is a serious danger to the community if there is an unacceptable risk that the person will commit a serious sexual offence if released from custody; or if released from custody without a supervision order being made.

32. The court may be so satisfied only if that conclusion is the result of acceptable, cogent evidence, and the court is satisfied to a high degree of probability, that the evidence is of sufficient weight to justify its decision to make an order under s 13.

33. If satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order, the court may, under s 13(5) of the DPSOA order that the respondent be detained in custody for an indefinite term for control, care or treatment (detention order); or order that he be released from custody subject to requirements stated in the order (supervision order).  Pursuant to s 13(6), in deciding whether to make either a detention order or a supervision order, the paramount consideration is to be the need to ensure adequate protection of the community; and, in the case of a supervision order, it is necessary to consider whether adequate protection of the community can be reasonably and practicably maintained by a supervision order.  The same provision makes it necessary to consider whether the requirements set out in s 16 can be reasonably and practicably managed by corrective services officers.  Those requirements generally relate to reporting, supervision and directions.

34. Counsel for the Attorney-General did not submit that the evidence would justify the making of a detention order. He provided a draft supervision order with an extensive number of requirements. It was clear that some required modification or omission in this case; but others remained to varying degrees contentious. The respondent does not contest the proposition that he is a serious danger to the community in the absence of a Division 3 order. Notwithstanding the position taken by the parties, it seems to me necessary for me to consider whether any order should be made.

35. There are some features of the respondent’s sexual offending which should be noted. The first is that the offences are relatively sparse. That is to say, they are not of great number, and there have at times been very lengthy periods between offences. The second is that there is a variability about the offending. On some occasions it has involved children, and on other occasions, adult women. There is no particularly common thread to the actions of the respondent on the occasions when he offended. Alcohol appears to have been a feature of the two occasions on which the respondent committed offences involving children; but not for the other sexual offences. The current offences involved a degree of physical coercion, not apparent in the earlier offences. Nor do they appear to be the outcome of a gradual progression or escalation in the respondent’s conduct.

36. The random nature of the respondent’s sexual offending (notwithstanding its infrequency), the particular seriousness of the current offences, and the fact that the respondent has not undergone any significant treatment in recent years which may have assisted the respondent in his relationship with women and helped to modify the risk assessments, are all matters which, in my view, are of particular concern.

37. In the light of the evidence, and bearing in mind the respondent’s concession, I consider that the evidence is sufficiently acceptable and cogent to satisfy me, to a high degree of probability, that it is of sufficient weight to justify a decision that the respondent is a serious danger to the community in the absence of a Division 3 order. I am also similarly satisfied that there is an unacceptable risk the respondent would commit a serious sexual offence if released from custody, without a supervision order being made. The view of Dr Grant (discussed later in these reasons), about the absence of a need for the respondent’s further detention, is not sufficient to overcome the concern previously expressed, and lead to different conclusions.

38. It would follow that the question whether the respondent should be released subject to a supervision order (that is, whether a detention order should be made) depends upon whether the risk that the respondent would commit a serious sexual offence is reduced to an acceptable level by the imposition of a supervision order. It seems to me that that is a real question in the present case, particularly in the light of Dr Grant’s views.

39. It should again be noted that Dr Grant does not consider that the respondent’s history or treatment would warrant his continued detention, from a clinical point of view. It seems to me that his concern about the lack of effectiveness of such an order should be viewed in that light.

40. Notwithstanding Dr Grant’s reservations about the benefits of therapy, it seems to me it is likely to assist in reducing the risk that the respondent would commit a serious sexual offence in the future. All of the doctors supported a condition directed to this. As Dr Moyle acknowledged, the respondent has to some extent recognised that some of his past sexually offending conduct is wrong. It seems to me that that would provide some basis for the provision of some useful therapeutic intervention. Beyond that, an underlying concern expressed by the doctors was the attitude of the defendant to a relationship with a woman. The material before me suggests a real prospect that that could be usefully addressed in the course of therapeutic treatment, even if the respondent continues to refuse expressly to acknowledge his guilt of the current offences. The respondent’s desire to avoid any further sentence of imprisonment should provide significant motivation for him to obtain such benefits as he can from such treatment. His history in prison suggests that in other areas of his life, he has been prepared to do things with a view to improving himself. This, and Dr Moyle’s observation of the respondent’s reaction to the doctor’s persistent questioning about the current offences, provide some additional, though rather limited, bases for optimism about the benefits of such treatment. In any event, it seems to me inevitable that it will assist in an appreciation of the respondent’s psychological and mental state after his release, relevant to the imposition of other controls (such as a prohibition on his consumption of alcohol); and of a recognition of the need to provide a warning to others, to lessen the risk of his further offending.

41. Similarly, it seems to me that the support provided by a number of the other conditions is likely to lessen that risk. I note in particular a requirement for contact with a corrective services officer; and the need for the respondent to disclose the identity of a person with whom he has an intimate relationship. The consumption of alcohol by the respondent is identified as a disinhibiting factor. A condition which would enable some control of this (discussed later in these reasons) would also provide some assistance in reducing the risk that he would re-offend.

42. A diagnosis of non-exclusive heterosexual paedophilia has been made in respect of the respondent. It should be noted that this diagnosis is based on the two offences involving children, which are 10 years apart. The medical evidence is that these events are sufficient to support that diagnosis; and it demonstrates that the respondent is (or has been) capable of being sexually aroused by children. Nevertheless, the very low number of offences of this kind, in my view, distinguishes him from many offenders with a similar diagnosis. Also, somewhat atypically, he now rejects the appropriateness of that conduct. It is very many years since the second of those offences; and it seems highly likely that for much of that time, the respondent would have had opportunities to have contact with children. While the risk of his committing a sexual offence involving a child cannot be ignored, concern about this matter is significantly lower in the present case than in many others; and is lower than the concern about the respondent committing a serious sexual offence involving an adult.

Conditions relating to places where children might be located

43. Two of the conditions proposed in the draft order relate directly to restrictions on contact by the respondent with children. It is proposed to amend these conditions so that they refer specifically to female children. With those amendments, these conditions are not contentious.

44. However, five other conditions would restrict the attendance by the respondent at places where children might be found, such as schools, places where there are children’s play areas, public parks, and premises of a club or organisation of which a child is a member, or which carries on activities involving the participation of a child.

45. These conditions were supported by Dr Beech, on the basis that in the past the respondent had shown sexual interest in children, and vulnerable children might be found in such places. Dr Grant, on the other hand, considered that these five conditions were directed to persons whose offending was quite different to that of the respondent’s. That seems to me to be correct.

46. I also note the width of the operation of these five conditions, taken together. That in itself is not a decisive consideration; but makes it necessary to consider with some care whether such conditions are appropriate.

47. In my view, in light of Dr Grant’s evidence, and also bearing in mind the nature of the respondent’s offending against children, it does not seem to me that these five conditions are appropriate. Counsel for the applicant no longer urges their inclusion.

Consumption of alcohol

48. A condition proposed in the draft order would require the respondent to abstain from the consumption of alcohol and illicit drugs for the duration of the order.

49. There is no issue that a condition should be imposed requiring his abstinence from illicit drugs for this period.

50. However, in light of the limited role which alcohol has played in his offending, and in view of the evidence of Dr Grant, it seems to me that the proposed condition, so far as it relates to alcohol, is not warranted.

51. The applicant contends, in the alternative, that a condition be imposed that the respondent be required to abstain from the consumption of alcohol for a period of 12 months, and that he may thereafter consume alcohol only with the approval of his treating psychologist or psychiatrist. For the respondent it is contended that this condition should require the respondent to abstain from the consumption of alcohol for 12 months from the date of the order, and thereafter as directed by a corrective services officer.

52. There seems to me to be good reason to require the respondent to refrain from the consumption of alcohol for 12 months after his release. He has been in custody for a period of seven years. Inevitably, his transition to a life in the community will involve some stress to him. It seems to me therefore that a prohibition on his consumption of alcohol in this period is appropriate, and likely to assist in the reduction of the risk of his offending.

53. It seems to me, however, in light of the evidence looked at as a whole, that a blanket prohibition on his consumption of alcohol for the balance of the period of the order is unduly restrictive, and not necessary to reduce the risk of his re-offending to an appropriate level. I say that bearing in mind the limited role of alcohol in the respondent’s previous offending. I am influenced by Dr Grant’s evidence on this point. Nevertheless, there may be times when it is appropriate that the respondent be required to abstain from the consumption of alcohol. That might be as a result of the fact that the respondent is experiencing particular stress, perhaps associated with a difficulty in a relationship, or for some other reason. It may also be the result of a recommendation by a treating psychologist, psychiatrist, or some other person providing some form of therapy to the respondent.

54. It seems to me, therefore, that it would be appropriate to impose a condition such as that proposed on behalf of the respondent.

55. A further condition is proposed which would prohibit the respondent’s attendance at a place licensed to supply alcohol. Such a condition would be very restrictive; and potentially have a negative effect on the respondent’s reintegration into the community. It seems to me that sufficient protection and control are provided by the condition previously discussed, relating to the respondent’s consumption of alcohol. I would therefore not impose a condition prohibiting him from attending at licensed premises. As I understand the position for which counsel for the applicant contends, this condition is not required if a condition is imposed in relation to the respondent’s consumption of alcohol, as proposed above.

Other matters

56. It is common ground that it is unnecessary to impose a condition, found in the draft order, that the respondent not commit an indictable offence during the period of the order (in addition to a condition, which will be imposed, not to commit an offence of a sexual nature during the period of the order). The position taken by the parties, in my view, is correct.

57. Another condition found in the draft order requires the respondent to develop a risk management plan, in consultation with the treating psychologist or psychiatrist, and to discuss that plan as directed with a corrective services officer. A requirement that a plan be developed is, it seems to me unduly onerous; and may, notwithstanding substantial efforts by the respondent, not be performed.

58. The applicant proposes an alternative condition that the respondent be required to discuss the development of a risk management plan in the course of treatment with a treating psychologist or psychiatrist, and to discuss it, as directed, with an authorised corrective services officer. Counsel for the respondent supports a condition in that form. That seems to me to be appropriate.

Conclusion

59. In my view, it is appropriate to make a supervision order, generally in the form of the draft proposed by the applicant, with amendments identified in these reasons.

60. I order:

The respondent be released from custody, subject to the following conditions, until 12 May 2016.

The respondent must:

1. be under the supervision of a Corrective Services officer;
2. report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm, the day of release from custody and at that time advise the officer of his current name and address;
3. report to, and receive visits from, a Corrective Services officer as determined by Queensland Corrective Services;
4. notify a Corrective Services officer of every change of his name, place of residence or employment at least two (2) business days before the change occurs;
5. comply with a curfew direction or monitoring direction;
6. comply with any reasonable direction under section 16B of the Act given to him;
7. comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the Order;
8. not leave or stay out of Queensland without the permission of a Corrective Services officer;
9. not commit an offence of a sexual nature during the period of the Order;
10. 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;
11. notify a 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;
12. reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
13. if this accommodation is of a temporary or contingency nature, comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
14. not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer;
15. respond truthfully to inquiries by a Corrective Services officer about his whereabouts and movements generally;
16. not have any direct or indirect contact with a victim of his sexual offences;
17. disclose to a Corrective Services officer upon request, the name of each person he associates with, including all intimate relationships and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
18. 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;
19. discuss with a Corrective Service officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
20. if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred;
21. abstain from the consumption of illicit drugs for the duration of this Order. Abstain from the consumption of alcohol for 12 months from the date of this order and thereafter as directed by a Corrective Services officer;
22. disclose to a Corrective Services officer all prescription and over-the-counter medication that he obtains and, if he takes prescribed drugs, take them only as prescribed by a medical practitioner;
23. submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer;
24. attend upon and submit to assessment, treatment and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
25. permit any medical, psychiatrist, psychologist, social worker, counsellor 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. attend any program, course, psychologist, social worker 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;
27. discuss the development of a risk management plan in the course of treatment with a treating psychologist or psychiatrist and discuss it as directed with a Corrective Services officer;
28. not establish and maintain any supervised or unsupervised contact including undertaking any care of female children under 16 years of age, except with prior written approval by a Corrective Services officer. The respondent is required to fully disclose the terms of the Order and nature of offences to guardians and caregivers of the female children before any such contact can take place. Queensland Corrective Services my disclose information pertaining to the respondent to guardians or caregivers and external agencies (i.e. Department of Communities, Child Safety Services) in the interests of ensuring the safety of the female children;
29. advise a Corrective Services officer of any repeated contact with a parent of a female child under 16 years of age. The respondent must, if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred.