Attorney-General v Armstrong[2011] QSC 40

SUPREME COURT OF QUEENSLAND

[1] In this case the Honourable Attorney-General seeks an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003, hereinafter called "the Act", for the continued detention, or alternatively for the supervised release of the respondent. 

[2] The Attorney-General acknowledges that the evidence of Dr Michael Beech, Dr Donald Grant and Professor Basil James support a final order that the respondent be released from custody subject to the requirements of a supervision order.

[3] The background of the matter is that the respondent was convicted on 13 October 2005 in Townsville District Court of one count of assault with intent to commit rape. 

[4] The rape is said to have occurred on 16 March 2005. 

[5] He was sentenced to imprisonment for eight years at the first instance.  He appealed his conviction, but the appeal was dismissed. 

[6] He was granted leave to appeal against the sentence, and as a result of that appeal the sentence was reduced from eight years to six years.

[7] The offence for which he was convicted in 2005 related to an assault on a female not known to him.  She claimed he tried to pull her pants down.  She gave evidence that he made threats to have intercourse with her, and to sodomise her.

[8] He had previous convictions described as extensive and diverse. 

[9] He had a number of traffic offences. 

[10] He had multiple offences of possessing dangerous drugs or utensil or syringes, street offences, wilful destruction of property, breaking and entering, stealing, producing dangerous drugs.

[11] In relation to sexual offences, his history contained the following entry:  on the 30th of June 1988 he was convicted of three counts of rape, one count of carnal knowledge against the order of nature and one count of indecent assault of a female, all of which was said to have occurred on the 1st of April 1988. 

[12] On that occasion he was sentenced to four years six months' imprisonment.

[13] The victim in that case was a young woman who was known to him and had gone to school with him.  She had become pregnant to him and adopted out a baby.  The pregnancy was a result of a brief relationship they enjoyed when she was 15.

[14] On the 6th of November 1991 he was convicted of assault occasioning bodily harm and indecent assault of a female which was said to have occurred on the 31st of August 1991.  For that he was imprisoned for 12 months.

[15] The complainant was walking home after working.  She was unknown to him.  He charged her and pushed her on to her back.  She hit the back of her head on a rock.  He pinned her to the ground and interfered with her clothing.  He touched her on the breast and vaginal area and he was thrusting his crotch into hers.

[16] On the 15th of April 1994 he was convicted of assault with intent to steal and use actual personal violence whilst armed with a dangerous weapon.  That is said to have occurred on the 9th of July 1993.  He was imprisoned for five years. 

[17] That occurred while he was on work release from his previous sentence. 

[18] He reverted to use of drugs and he robbed a woman sitting in a car at the Toombul shopping centre and threatened her with a knife.

[19] On the 20th of July 2001 he was convicted of assault occasioning bodily harm said to have occurred on the 28th of July 2000, sentenced to three years' imprisonment, reduced to two on appeal. 

[20] The victim in that case was a former girlfriend so was known to him.

[21] In 2002 he was convicted of breach of bail, wilful destruction of property and common assault on an ex-girlfriend. He was sentenced to a term of imprisonment.

[22] He has no record of any breaches in prison since 2007 apart from a record of a breach proceeding in 2008 in which a finding of “not guilty but reprimanded” is recorded.

[23] To sum it up he has a history of offending in a sexual way against women, both women he knows and strangers.

[24] On the 21st of October 2010, Justice Daubney was satisfied there were reasonable grounds for believing the respondent was a serious danger to the community in the absence of a Division 3 Order and granted an order that the respondent be examined by two psychiatrists. 

[25] He nominated Dr Donald Grant and Professor Basil James, and they have prepared reports.  In addition I have the report of Dr Michael Beech.

[26] The statutory scheme surrounding an application such as this is set out in the Act, and the objects of the Act are to provide for continued detention or supervision of a particular class of prisoner and to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.

[27] Section 13 of the Act sets out the circumstances in which a prisoner may be found to be a serious danger to the community.

[28] Section 13 (4) of the Act provides a list of factors to which the Court must have regard when deciding whether a prisoner is a serious danger to the community and I have considered each of those factors set out in that section of the Act in coming to my decision.

[29] The respondent is now aged 40, having been born on the 15th of July 1970.

[30]  He had some unfortunate circumstances in his childhood.  His mother, he says, suffered bipolar disorder and she died in 2006, aged 63, of a stroke.

[31] On occasions when she was unwell he was left in the care of his father. 

[32] He has siblings. 

[33] He reports that he started drinking alcohol from age 14 or 15 and would drink quite heavily in bouts. 

[34] He believed he used to drink alcohol to deal with anger and to avoid issues in his life but it would only make things worse.

[35] He suffered a motor vehicle accident and that introduced him to the use of strong pain-killers which he initially did not like using and so substituted alcohol and marihuana. 

[36] He started abusing marihuana at age 14 and it was a constant in his life right up until his last offence.

[37] For a period of time he used heroin while he was in custody between 1994 and 1999. 

[38] He has been involved in the use of amphetamines which he used heavily for some years and he has experimented with a variety of other substances.

[39] He reports that he himself was the subject of two episodes of sexual abuse when he was a child, and it is undoubtedly true that those episodes have caused a lot of confusion for him.

[40] I have mentioned his extensive criminal history. 

[41] Each of Professor James and Dr Grant has provided a risk assessment.

[42] I should first go to the report of Dr Beech which lead to the preliminary application.

[43] He dealt in detail with the previous history, the medical history, the psychiatric history and the substance abuse, family history and sexual relationships, personality, and employment of the respondent.

[44] He felt that the respondent showed some remorse but very limited empathy for his victims, and that while he demonstrated a capacity for self-reflection and made links between his offending and his past, he seemed to minimise the extent of his offending and its impact.

[45] In his first report, Dr Beech came to an opinion that on the test described as Static-99, he scored 7 which is slightly lower than the score of 8 that was given on the Sexual Offending Program Assessment Form, and Dr Beech was of the opinion that that difference was not hugely significant. 

[46] He fell within the group of whom members are at a high risk of re-offending both sexually and violently.

[47] On the "Hare Psychopathy Checklist - Revised", he scored 28. 30 is the cut-off which indicates psychopathic traits.

[48] The Risk For Sexual Violence Protocol indicated a number of factors which pointed to an increased risk of re-offending, and Dr Beech formed the opinion then that he was a high risk of re-offending if he were to be released in the community, the risk arising predominantly from the significant past history, the difficulties with alcohol and drugs, his personality style and his limited supports.

[49] He did say, however, that there was some evidence from the material that over the recent years some of the personality traits had started to mellow. 

[50] He developed some self-awareness. 

[51] He was participating in the appropriate program and that led the doctor to the view that he could be managed in the community with stringent supervision.

[52] To complete what I wanted to say about Dr Beech, I read a more recent report attached to an affidavit and dated the 14th of February 2011. 

[53] At that time he referred to his previous opinion and said, "My concern in particular was that if faced again with interpersonal and general stresses, he would return to drug and alcohol use, and from there enter into a depressive state, notwithstanding resentment and anger towards women would re-emerge and eventually lead to an assault on a woman."

[54] He, in the end result, thought that his opinion remained as the earlier report. 

[55] He has given a further letter dated the 10th of March 2011 relating the appropriate term of any supervision order.  He said that, "Given the respondent's relative youth, nature and extent of his offences and there is difficulty dealing with the stress, I believe that it is likely he will require supervision in the community for 10 years.  If by five years he has shown that he has adjusted to his release, that he has undertaken further treatment and that his overall behaviour has been good then I believe that his risk would have substantially reduced to the point where he would be a moderate risk for further offending.  If, though, it is evident that it is, in fact, the ongoing supervision that has acted to maintain him rather than his own internal attitudes and controls, then I believe that a further five years would be warranted.  Ultimately I believe he could be managed on a five year order with a review at that stage regarding a further five years but I expect that in the end 10 years will be necessary."

[56] The Act provides that there can be an application for a further supervision but that in deciding the appropriate length of the order, the Court must not have regard to whether or not the prisoner may become the subject of such an application, and I am aware of that.

[57] Interestingly, the medical practitioners do not seem to be so constrained but I am aware of it and I have taken that into account.

[58] Turning to Dr Grant, without repeating other matters that he has talked about, has made, inter alia, the following comments:  "The last offence represented the fifth serious episode of assaults on females, two of them ex-girlfriend against whom he had a grudge, two being strangers on the street late at night, and the fifth being a woman unknown to him in the carpark.  Four of the incidents had obvious sexual components but, of those, two of the convictions reflect only non-sexual violence.  In all of these incidents he was intoxicated with both alcohol and cannabis."

[59] He has pointed out that the respondent has undergone the Sexual Offender Treatment Program whilst in custody.  He did so in 1993 but sexually offended since undertaking that course.  He has now completed the High Intensity Sexual Offender Program.

[60] He does comment that during the most recent period in prison, the respondent has shown evidence of maturation and more healthy attitudes and goals. 

[61] He has ceased all drug use, has maintained appropriate antidepressant therapy and expressed a strong motivation to avoid drug and alcohol abuse in future in order to make a better life for himself. 

[62] He is presently maintained on antidepressant medication and shows no evidence of mental illness.

[63] On the Static-99 he placed the respondent in the high risk category at a score of 7.  In the Hare PCL-R second edition he scored him 27 out of 40, just short of the cut-off point  recognised in Australia for indicating strong psychopathic traits.

[64] Under the HCR-20 he was in the high risk group for violence including sexual violence.  

[65] In the Risk For Sexual Violence Protocol RSVP, he indicated a high risk for sexual violence re-offending.

[66] So the overall risk assessment indicated that he represented a high risk of sexual re-offending.  That was based on his past behaviour, his history of alcohol and drug abuse and personality traits.

[67] Dr Grant pointed out that the respondent has undergone treatment programs in prison with some benefit.  He came to the opinion that the risk of re-offending could be reduced by the application of an appropriate supervision order, a very strict one, including the restriction of any use of intoxicants.

[68] He believed that the order should be in place for 10 years. He thought that was necessary because of his very long history of offending, his relative youth and the chronicity of the risk.  He said, "With the lapse of time Mr Armstrong may well show further evidence of personality maturation and the risk may gradually reduce.  Under those circumstances the application of the conditions of the supervision order could be modified accordingly."

[69] Dr Grant gave evidence here and expressed the difficulty with making assessments at this time as to the point at which the respondent would be if he complied with all the conditions for five years and if by that time his reaction was positive and his need for intervention by the professionals had reduced and he thought that at that time the level of risk of offending would have reduced.

[70] Professor James has given a report which I have read.  He has read and sets out conveniently all the other relevant professional observations and opinions which were available to him.  I will not go through them but I have had the same opportunity from reading the file to see the documents to which Professor James refers.

[71] He scored the respondent 8 on the Static-99 which is considered to represent a high risk of future recidivism. 

[72] He scored him 26 on the Sex Offenders' Appraisal Guide, and 12 on the Violent Risk Appraisal Guide, but taking into account there had been decreasing evidence of acting out at least within the prison environment over a period of two or three years, indicating a decreasing impulsivity, the maturation and the fact that he is now 40 years of age, the fact that he is in an improved state of psychological well-being as a result of the antidepressants he has been prescribed and which he has been using, the fact that he has undergone the high intensity sexual offender program and that he had demonstrated an ability to become abstinent from substances including nicotine but also alcohol and other drugs, the risk of  recidivism was moderate.

[73] He was of the opinion the supervision order should be in place for five years and gave reasons in his evidence here today.

[74] As I say, the Attorney-General acknowledges there should be an order that the respondent be released from custody subject to the requirements of a supervision order. 

[75] The parties have now prepared a document of proposed orders which has been initialled and amended in handwriting, in which they are in agreement and which are supported in my view by the evidence of each of the psychiatrists who gave evidence here today, and the report of Dr Beech contained in his affidavit.

[76] The clear requirements of the Act include the adequate protection of the community as one of the objects of the legislation, and I have given that consideration. 

[77] In light of all the circumstances, including the acknowledgment by the Attorney-General, there will be an order for supervised release.  That order will be on the conditions set out in the handwritten document which has been handed up, and a clean copy of which will be provided by close of business today.  Once that is received I will initial it and place it on the papers for an order for supervision.

[78] What is left for me to decide is the duration of the order, and it has not been without some difficulty. 

[79] It is clear that while Professor James is firm in his opinion that five years is sufficient, Dr Grant and Dr Beech prefer with, some qualifications, the idea of a ten year supervision order. 

[80] In respect of Dr Grant, he expresses some uncertainty, and it has left me in a situation where I have come to the opinion that the order should be for five years. 

[81] The supervision order is very strict and the intrusions on the respondent's life are very severe. 

[82] I have in mind that he has had this period of good behaviour on the medication and abstinence and that if he complies with that for the next five years he should no longer be constrained to any greater extent than is called upon in the circumstances. 

[83] I prefer the reasoning of Professor James in this regard and I am persuaded by his confidence. 

[84] I am satisfied that a period of five years is an appropriate period for the supervision order.