Attorney-General v Fuller[2011] QSC 211

SUPREME COURT OF QUEENSLAND

[1] This is an application by the Attorney-General under s 22 of the Dangerous Prisoners Sexual Offenders Act 2003, hereinafter called “the Act”.  The Attorney-General applies for a rescission of the supervision order of Martin J made on the 15th June 2009 and an order that the respondent be detained in custody for an indefinite period of care, control or treatment, or alternately, the pursuant section 22.7, the supervision order be amended.

[2] It is conceded on behalf of the respondent that he has breached the supervision order of Martin J.  The breach alleged was in respect of paragraph 24 of that order and related to contact with the child under 16 years of age without prior approval of a Corrective Services officer and excepting his children.

[3] As I say, the breach is conceded.  Once that happens, the onus shifts to the respondent to satisfy the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be insured by a supervision order in its original form or as amended.

[4] I pause to note that in a recent decision of the Court of Appeal in the case of the R v Fardon [2011] QCA 155, it is suggested that usually there will need to be evidence from the respondent.  That has not happened in this case and I am conscious that the stance now taken by the Attorney is that, despite the contravention, the protection of the community can be assured by a supervision order and that the original supervision order should be amended as per a draft order which will be provided and attached to the judgment.

[5] This comes about because of the following background.  The respondent is currently 36 years of age.  He was the first subject orders under the Act when he was placed on the supervision order by Martin J in 2009.  He breached the supervision order requirements. 

[6] The factual basis, in very short compass, is that he approached a male child who was believed to be about 12 years of age. He approached from behind and placed his hands around the hips and waist area.  The child broke free and alerted his mother.

[7] The respondent has a criminal history, which includes an offence for which he was sentenced on the 6th February 2004 in the Brisbane District Court for charges of indecent treatment of children and maintaining unlawful sexual relationships.  The most substantive sentence was imprisonment for 6 years with a recommendation for post-prison community based release.

[8] Those offences, which resulted in the 6 year sentence, involved six complainants and stretched over a period of some 6 years.  At the time of that sentence, he had a very limited criminal history, so the offences for which he was imprisoned and received that 6 year sentence were the first of a sexual nature for which he had been convicted.

[9] He has participated in courses and programs while in custody, including the inclusion Sexual Offending Program.  He undertook the Sexual Offending Maintenance Program whilst in the community under the supervision of order and reports have been provided from a number of people. 

[10] Dr Lars Madsen, a psychologist, gave a report dated the 21st July 2010.

[11] The respondent had participated in a series of treatment sessions with Dr Madsen between 30th September 2009 and 1st July 2010 under a referral from the Corrective Services.  Dr Madsen, in his report, inter alia makes the following comments;  that the respondent had been compliant in that he had attended all the required appointments.  Nonetheless, he was difficult to engage and would avoid completing specific tasks and activities.

[12] Dr Madsen said that that strategy suggested that he had perhaps limited motivation for engaging in the therapeutic process to address identified treatment needs. 

[13] Dr Lawrence has provided a report dated the 19th April 2011, having interviewed the respondent on the 6th April 2011 for the purposes of this proceeding.

[14] Dr Lawrence had previously provided a report in respect of the respondent for the initial hearing of the proceedings.  The relevant parts of her discussion and opinions are helpfully set out in the submissions provided by the Attorney-General.

[15] Part of what Dr Lawrence said is that the evidence suggests that the respondent, after release from prison on his supervision order, had made significant attempts to comply with his order.  She said that there remain certain questions in respect of the approach to the boy, who was the subject of the breach.  The Respondents behaviour, and events during his period of release, were recorded in great detail in computerised records by his parole officers.

[16] Dr Lawrence said in her opinion the level of risk “had not altered to any significant extent by the latest charges”. She meant the criminal charges which are now withdrawn so I assume she also means by the present breach.  She had previously rated him as a moderate risk of sexual offending in the future and, in her opinion, the risk remains moderate.

[17] Dr Harden has interviewed the respondent on the 20th of April 2011 for the purpose of these proceedings.  He diagnoses the respondent as having paedophilia - sexually attracted to males - non-exclusive type and he also meets a diagnostic criteria for exhibitionism.

[18] Having considered the matters, Dr Harden suggests that the respondent's future risk of sexual offence is moderate to high in the community in the absence of modifying factors.  He thought that the contact with the child, the subject of the breach, meant that his assessed risk of recidivism should be increased somewhat. 

[19] He said it was his opinion that if the respondent were released into the community on a supervision order, it would reduce his risk of sexual recidivism to moderate and made recommendations in respect of any order that should be made.

[20] The conduct, the subject of the contravention proceedings, is concerning in that it could be seen as linked to the risk factors identified in his earlier offending, but some caution needs to be applied and I am persuaded that Dr Lawrence has given appropriate caution to interpreting the conduct but has kept in mind that there are some unexplained questions about it.

[21] In the end result, the combined opinion of Dr Lawrence and Dr Harden is that on a properly addressed supervision order, the risk of sexual offending has not increased due to the contravention since the order made by Martin J.

[22] I am satisfied, despite the lack of evidence from the respondent but on the evidence of the psychiatric opinions, that the respondent has discharged the onus under s 22(2) of the Act. 

[23] The amended draft supervision order will be attached to my judgment.