Attorney-General v Sagiba[2013] QSC 260

SUPREME COURT OF QUEENSLAND

MARGARET WILSON J:    In December 2009 the respondent was approaching his full-time release date (13 January 2010) pursuant to the head sentence of seven years which had been imposed by a Court.  The offences for which he had been sentenced included indecent assault, rape, unlawful assault, two counts of breaking and entering at night with intent and with the actual use of violence, and one count of breaking and entering at night with intent with the actual use of violence and indecent assault.

An application for continuing detention or release pursuant to a supervision order came before Fryberg J who determined it on 16 December 2009.  Ultimately, his Honour made an order for supervised release.  I quote from his Honour’s reasons: 

“The evidence before the Court on [the issue of unacceptable risk of the commission of a serious sexual offence if released without a supervision order] is all one way.  Two of the psychiatrists who have examined Mr Sagiba report that he presents a moderate risk of re-offending,  a third psychiatrist, Dr Harden, that he presents a high risk of re-offending if released in the absence of any order. 

Mr Sagiba himself accepts that the conclusion that he would be a serious danger to the community is correct and does not contest the appropriateness of making a supervision order”.

Today I have had placed before me an updated report by Dr Harden dated August 2012.  In his opinion the respondent would clearly meet a diagnosis of alcohol abuse and dependence and marijuana abuse, both in remission because of incarceration.  He said that the respondent had anti-social and narcissistic personality traits, but it was not entirely clear whether those might in fact meet criteria for personality disorder, in view of his dysfunction across a range of interpersonal domains over a number of years. It was possible he met criteria for personality disorder not otherwise specified with anti-social and narcissistic features.  He said he most likely met diagnostic criteria for the paraphilia of voyeurism, which might be in remission following treatment in the sexual offender program. 

He went on to say: 

“The actuarial and structured professional judgment measures I administered would suggest that his future risk of sexual re-offence is high and his future risk of violent re-offence is high.  My assessment of this risk is based on the combined clinical and actuarial assessment.  This assessment takes into account all information made available to myself”.

He recommended that the respondent continue to be monitored in the community by means of a supervision order if released from detention.  He recommended that he continue to be required to be abstinent from alcohol and drug use and undergo an appropriate random testing regime, etcetera. 

That second report by Dr Harden was made after two incidents of breach of the supervision order.  In April 2010 there was a breach which resulted in his being taken back into custody and ultimately released pursuant to an order of Justice Applegarth on 4 October 2010.  There was another breach in May 2012 which resulted in his being taken back into custody and his ultimate release on 25 February 2013 pursuant to an order of Justice Dalton.

Both of those breaches involved the use of illicit drugs, marijuana and Kronic, which is a synthetic tetrahydrocannabinol.  Those breaches were rightly considered to be serious ones because the risk of serious sexual re-offending was, on the evidence, heightened when the respondent was intoxicated. 

He now appears before the Court having been arrested on a warrant for breaches allegedly committed two days ago (on 22 May 2013). 

I say at the outset that the breaches now alleged are of a quite different character from those that came before Justice Applegarth and Justice Dalton. They are essentially of failure to comply with curfew and monitoring directions and with directions of a Corrective Services officer. 

As at 18 May 2013 the respondent was subject to a curfew direction which allowed him to be absent from his residence at the Wacol precinct between 10.30 am and 2.30 pm. 

On 21 May 2013 he sought and obtained an extension of the curfew to allow him to attend an appointment with a psychologist.  He told his supervising case manager that he would be using public transport to travel to the appointment which would end at 2.30 pm, and that he would then be catching public transport back to Wacol. As a result he was given a pass to allow him to return by 5 pm on the day of the appointment. 

The next day, 22 May 2013, at about 1.13 pm Queensland Corrective Services staff received an alert notification indicating that the respondent had separated from the GPS tracker device he was supposed to be wearing.  Having unsuccessfully tried other means of contacting the respondent, QCS staff identified that he would be attending the appointment with his psychologist and contacted the psychologist immediately.  The first contact was by email asking the psychologist to inquire of the respondent whether he was in possession of the GPS tracking device, and if not, to contact the monitoring room and advise as to the location of the device.

A review of the GPS monitoring system identified that the tracker was in transit and probably on a Brisbane City Council bus when the respondent was having his appointment.  In his affidavit, the respondent concedes that he separated from the device.  He says that he left it apparently inadvertently on the bus.  Shortly after 2.30 pm the Supervisor Electronic Monitoring contacted the psychologist and asked him to tell the respondent to remain at his office until electronic monitoring staff attended there to take him back to Wacol. 

The respondent had already left the psychologist’s office and he had gone to a local IGA to purchase cigarettes. The psychologist telephoned him there and asked him to come back to his office immediately and wait for Queensland Corrective Services staff to come and pick him up to take him back to Wacol.  According to the psychologist, the respondent acknowledged this advice, said he was purchasing cigarettes next door and that he would return in five minutes, but did not return.

According to the respondent, he returned to the psychologist’s office, waited for about 10 minutes in the waiting room and then left to make his way back to Wacol.  He did not arrive back at Wacol by the curfew limit of 5 pm.

After 6 pm the Manager of Electronic Monitoring observed him walking along the footpath of Railway Parade in the vicinity of Darra railway station and from there transported him to Wacol. 

According to the respondent he left the psychologist’s office because he was impatient.  His grandmother had died the Saturday before and her funeral in Port Douglas was held today.  Throughout the week, he said, he had been very emotional coming to terms with his grief and had not been thinking clearly.  He said he caught a train from Park Road (on the south side of the river) to Roma Street Station.  He had a smoke at the station and then caught a train headed for Darra.  However, he got off the train at Oxley, then caught a bus to Mount Ommaney. From Mount Ommaney he got on a different bus and went to the Darra railway station, where he was met by a Corrective Services Officer and a Police Officer.

He has deposed to being breath and urine tested and both tests returning negative results.  What he said there was explained by his counsel in terms of that being what he understood to be the results.  It is not alleged that he breached the terms of the supervision order by using alcohol or illicit drugs.  Counsel for the applicant informed the Court that while presumptive tests had been negative, final test results are not yet available. 

So those are the circumstances of the current contraventions alleged and the respondent’s version of what occurred.

Under section 21 of the Dangerous Prisoners (Sexual Offenders) Act the Court must either order that he be detained in custody until the final decision on the contravention proceeding or release him under subsection (4).  Subsection (4) provides:  “The Court may order the release of a released prisoner only if the prisoner satisfies the Court on the balance of probabilities that his or her detention in custody pending the final decision is not justified because exceptional circumstances exist”.

In Harvey v The Attorney-General for the State of Queensland [2011] QCA 256, Boddice J, with whom the other members of the Court agreed, said: 

“42. Once contravention proceedings had been instituted, the appellant was required to be detained in custody unless he satisfied the Court on the balance of probabilities that his detention in custody pending the final decision is not justified ‘because exceptional circumstances exist’. The word ‘exceptional’ is an ordinary familiar English adjective. It ‘describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon’. It need not be ‘unique or unprecedented or very rare’ but it cannot be a circumstance that is ‘regularly or routinely or normally encountered’”.

“43. Whether exceptional circumstances are shown to exist will depend on the facts and circumstances of a particular case.  A breach that is trivial or accidental may well present little difficulty for a released prisoner to show ‘exceptional circumstances’.  However, exceptional circumstances require a conclusion the associated risks from any release pending determination of the contravention proceedings are not such as to justify continuing detention”. 

In my view the respondent has satisfied the exceptional circumstances test.  The breaches now alleged are comparatively minor.  He has given a plausible explanation – his being emotionally upset by the death of his grandmother and not thinking clearly.  Further, in my view, the risks associated with any release pending the final determination of the contravention proceedings can be managed under the current supervision order, which allows Corrective Services officers flexibility in tightening or easing curfew and monitoring provisions. 

In all of the circumstances I am going to order his release subject to the terms of the existing order pending the determination. 

Now, I have a draft order which has been put before me by counsel for the respondent.

I will make an order in terms of that draft.