Bickle v Attorney-General[2015] QSC 64

SUPREME COURT OF QUEENSLAND

1. The applicant is currently subject to a supervision order which will expire on
   18 May 2016.  The evidence indicates that he is no longer a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). 
2. He seeks a declaration to this effect and an order that the supervision order be discharged.  Alternatively, he applies to amend the order to bring it to an end forthwith.  In the alternative, he seeks the deletion of certain conditions. 
3. Over several years the applicant has established a stable lifestyle.  He enjoys a mutually-supportive, positive relationship with his partner.  He has no assessed outstanding treatment needs.  His risk of re-offending is, in those circumstances, low.
4. The respondent acknowledges that the evidence supports relaxation of some of the requirements of the supervision order.  However, the early termination of the order is opposed, and the respondent submits that, in any event, there is no jurisdiction to order its early termination.

Background

5. The circumstances under which a supervision order came to be made on 2 June 2006 appear in Attorney-General for the State of Queensland v Bickle.^[1]  Briefly stated, the applicant committed sexual offences against adolescent and pre-adolescent children over a period from about 1988 until his incarceration in 1992.  The offences occurred during a time when the applicant experienced significant interpersonal stress of various kinds.  At that time the applicant was in a de facto or similar relationship as a step-parent to the children.  He was sentenced to terms of imprisonment totalling 13 years and nine months.  During his imprisonment he completed a large number of courses designed to address the issues that gave rise to his offending behaviour.  Moynihan J identified the relevant risk as arising if the applicant was released into the community without appropriate constraints and support, particularly if he reverted to alcohol or substance abuse or experienced stress at a time when he had access to children, particularly pre-pubertal girls in a family situation.
6. Prior to his release from prison, the applicant formed a relationship with his current partner.  They remain in a stable relationship.  He has supported her during some recent health problems, from which she is recovering.  The applicant and his partner reside in a rural setting where they maintain their household and property and care for animals.

Recent assessments

7. Dr Lars Madsen, a forensic and clinical psychologist, has treated the applicant on the referral of Corrective Services over the course of the applicant’s supervision order.  On 24 March 2014 Dr Madsen reported on the applicant’s response and progress, and advised that the applicant presented with “no outstanding treatment needs and that there was no need for on-going psychological treatment”.  Reference was made to the applicant’s “positive and settled home situation, the length of time that he now has been in the community, his age (59 years) and apparent progress that he has made previously in therapy”. 
8. Dr Scott Harden was requested by Crown Law in December 2014 to provide an updated psychiatric risk assessment in relation to the applicant.  Dr Harden interviewed the applicant on two occasions in December 2014 and prepared a report dated 27 January 2015.  Dr Harden remarked about the applicant’s “stable lifestyle, stable long-term relationship and general compliance with the conditions of his order”.  He also remarked about the applicant having “significantly more realistic planning around managing situations of high risk” since Dr Harden saw him in 2008, and that the applicant is “more psychologically self-contained and controlled and less dependent upon his partner”. 
9. Dr Harden expressed the opinion that the applicant is at a low-moderate risk of re-offending sexually in the community.  His report concluded:

“To summarise it is my opinion that he is at low-moderate risk of reoffence sexually in the community at the point in time of assessment.^[2]

His overall stable lifestyle and primary relationship are important to his ongoing risk reduction.

It is unclear how much additional risk reduction the supervision order provides in the current scenario.  He is  down to monthly reporting, no psychological therapy on a regular basis and GPS monitoring, curfews and urine drug testing have not showed up any significant issues in recent years

Recommendations

If the supervision order continues to apply, the conditions of the order and its operational implementation should be made such that it minimises the chance of interfering with his stable social situation and stable long-term relationship as both these factors are more potent risk reduction measures than the supervision order at this point in time.

It is unclear to me what the additional benefit of a curfew is on this man’s risk reduction and I would suggest it be removed.

Additionally if the supervision order were to continue there is no reason for the prohibition on alcohol use to continue.”

10. Professor Nurcombe also provided an updated risk assessment report based upon an interview which he conducted with the applicant in December 2014.  Professor Nurcombe identified the following risk scenario:

“The most likely risk scenario is as follows.  If Mr Bickle’s current love relationship falters, or if his partner dies, in reaction to stress, he will revert sexually to grooming and sexual offending against prepubertal or pubertal females… I think that the risk of his sexually reoffending against females is moderate or less.  The risk of reoffending is not imminent.  He has matured over the past twenty years and in the current circumstances many protective factors are operating.”^[3]

Professor Nurcome continued:

“In Mr Bickle’s current social circumstances, and while the Supervision Order is still operative, the risk of sexual reoffending is low.  If the Order were to terminate and Mr Bickle were to be affected by stress such as a personal loss, the risk of sexual offending might rise to a moderate level.  However, many protective factors are operating.^[4]

11. I should add, although it is more directly relevant to the issue of an amendment to the order to remove electronic monitoring and curfew requirements than to the discharge of the order, that Professor Nurcombe remarked that the time had come for a relaxation of several of the terms of the order and that the “current severity of the Order is not aiding, but rather interfering with, rehabilitation”.  Professor Nurcombe stated that electronic monitoring and curfew “serve no particular protective function, and militate against rehabilitation” and that they should be eliminated and not reimposed unless there are clear indications that they are required.

Oral evidence

12. Based upon the affidavit material before me, at the start of the hearing I inquired about the current state of health of the applicant’s partner and the applicant’s plans if, prior to the expiry of the supervision order, his partner’s health was to deteriorate unexpectedly.  The applicant gave oral evidence about his partner’s health and recovery and his plans.  I accept his evidence.  His plans seem realistic. 
13. Dr Harden and Professor Nurcombe gave brief oral evidence.  One aspect was the breadth of current condition (s).  It provides that the applicant must:

“(s)Not establish and/or maintain a relationship with a woman who has children under 16 years of age in her care permanently or from time to time.”

The apparent intent of the condition is to address the risk identified by Moynihan J.  It was not suggested before Moynihan J, and it is not suggested now, that the applicant is a predatory paedophile.  Instead, the relevant risk was identified in 2006, and confirmed by Dr Harden and Professor Nurcombe.  It is that, in a family situation, and in circumstances of great distress, the applicant might abuse the children who live in the household in which they cohabit. 

14. Professor Nurcombe gave this oral evidence:

“Mr Bickle is only at risk of re-offending if he is in a family, in an intimate relationship within a family where there are female children under the age of 16, and at that time he is feeling rejected, lonely, unjustly unwanted, because of whatever the circumstances might be.  He’s not in danger of predatorily seeking children to sexually abuse.  It’s a rather specific situation that might occur, and it would be very wise for him now and in the future not to be in a family situation where there was such children.”

Dr Harden gave oral evidence to like effect: the identified risk would exist if the applicant was “living in a household with particularly girls, and things went badly”.

15. Literally construed, condition (s) would prevent the applicant from establishing a business relationship with a woman who has children under 16 years of age in her care, even if the woman lived in another part of Australia and the applicant had no contact with her children.  This is not the intent of the supervision order. 
16. The applicant has no plans to form a relationship with, and co-habit with, a woman who has children under 16 years of age.  His partner has no children and it is to be expected that the applicant will continue to reside with her until the date of the expiry of the current supervision order and beyond that date.  In the circumstances, the risk of his committing a serious sexual offence during the remaining period under the supervision order is low.

Submissions

17. The applicant submits that the supervision order achieves nothing in the circumstances.  His personal circumstances, including his ageing, stable and secure relationship and lifestyle, are said to protect the community.  There is nothing in the material to suggest that his stable lifestyle will not continue and the applicant submits that the resources of Queensland Corrective Services should be deployed where they will be effective in preventing re-offending. 
18. The applicant’s principal submission is that because, in the light of the evidence, he is no longer a person who is an unacceptable risk of committing a sexual offence involving children or violence, the Court should so declare and, if such a declaration is made, it follows that the supervision order ought to be discharged.  His alternative submission is that the order should be amended to delete the electronic monitoring and curfew restrictions and other requirements.
19. The respondent submits there is no jurisdiction to order the discharge of a supervision order or to order that it be brought to an end prior to the expiry of the period stated in it. 

Is there power to amend the period stated in the supervision order?

20. If there was a power in this case to amend the period stated in the order so as to bring the supervision order to an end forthwith or in the coming days, then I would exercise that power.  However, such a power does not seem to exist in the present circumstances.  That may be the result of a legislative oversight.  The Court’s power to amend supervision orders under s 19 is to amend “the requirements of a supervision order”.  The “requirements” of a supervision order are the mandatory requirements specified in s 16(1) of the Act and “any other requirement the court or a relevant appeal court considers appropriate”.^[5]  There is authority to the effect that the period stated in the order is not such a requirement.^[6]  The Court seems to lack power to amend a supervision order in a case such as this by reducing the period stated in it where circumstances have improved and reduced the risk of re-offending.
21. Remarkably, if someone in the applicant’s position wished to engage the Court’s jurisdiction to reduce the length of the supervision order, he or she might commit some trivial contravention of it simply to prompt a contravention hearing at which the Court would have power under s 22(7) to amend the existing order to reduce its duration.  It is hard to believe that the legislature intended to create a situation in which persons who contravene supervision orders can engage the jurisdiction of the Court to reduce the duration of the supervision order, but those who do not contravene supervision orders cannot seek such an amendment.  This apparently anomalous situation might be addressed by an independent assessment of the Act’s anomalies and deficiencies.  But that is a matter for the legislature. 
22. I conclude in the light of authority and the terms of s 19 that the power of amendment under s 19 does not permit me to amend the current supervision order so as to alter the period stated in the order.

Is there power to discharge the supervision order?

23. If there was power to discharge the supervision order, then I would do so.  However, for the reasons which follow, I doubt whether such a power exists under the current legislative regime.  In the absence of an express power conferred by the Act to discharge a supervision order, I do not consider it an appropriate exercise of any inherent jurisdiction which the Court possesses in the matter to order that the supervision order be discharged.
24. The applicant seeks a declaration that he is no longer a serious danger to the community in the absence of an order pursuant to Division 3 of the Act.  The “entire premise” of the Act is said by the applicant to be that it applies to persons who are “a serious danger to the community”, as defined in s 13.  A continuing detention order or a supervision order can only be made against such a person.  According to the applicant, this Court has jurisdiction to answer the question whether or not a person is a serious danger to the community in the absence of a supervision order.  He points to the fact that, as a matter of course, final orders under the Act are accompanied by a statement in the order that the Court is satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act.  Because the Court has power to make this kind of determination, it is submitted that there must be, by necessary implication, a power to declare that a person is not a serious danger to the community.  The applicant also submits that if there is a power to make such a declaration, then the only order that could possibly follow the making of such a declaration is that the supervision order be discharged. 
25. The applicant also points to s 49A of the Acts Interpretation Act 1954 (Qld) which provides:

“If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal.”

I do not consider that s 49A assists the applicant’s argument.  No provision of the Act expressly authorises a proceeding to be instituted in this Court after a supervision order has been made for a declaration that the person is no longer a serious danger to the community in the absence of an order pursuant to Division 3.  No provision of the Act authorises a proceeding to be instituted to discharge a supervision order.  The fact that the Act authorises the Attorney-General to apply for a supervision order which, if made, has effect in accordance with its terms “for the period stated in the order”^[7] does not carry the necessary implication that a party is authorised to institute a proceeding in the Supreme Court for an order that the supervision order be discharged.

26. The Court’s power to grant declaratory relief in an appropriate case cannot be doubted.^[8]  This follows from the Court’s constitutional status as a superior court of record and the supreme court of general jurisdiction in the State with unlimited jurisdiction in law, in equity or otherwise.^[9]
27. The existence of a general jurisdiction to grant declaratory relief does not mean that the jurisdiction will be exercised simply to answer questions that arise in disputes between parties.  The declaration must have utility.  A declaration that a person is no longer a serious danger to the community in the absence of an order pursuant to Division 3 of the Act may have some utility.  However, the applicant does not seek such a bare declaration because of its practical effect.  He seeks it in aid of the substantive order which he submits must follow the making of such a declaration, namely an order that the supervision order be discharged. 
28. If, contrary to the applicant’s argument, the Court lacks power to discharge a supervision order then there is no utility in making the declaration that is sought.  The issue of whether the Court has the power to discharge a supervision order in circumstances such as these does not turn upon the Court’s general jurisdiction to make declarations.  It turns upon whether the Act impliedly authorises or permits a proceeding to be instituted which seeks a discharge order.  Expressed differently, the issue is whether the Act should be construed as governing, to the exclusion of other laws, the making, amendment and duration of supervision orders so as to leave no scope for the exercise by the Court of any inherent jurisdiction to make an order that a supervision order be discharged.  If the Act is intended to exclusively govern the duration of a supervision order, then a power to discharge it will not arise under the Court’s general jurisdiction.
29. In making a supervision order the Court usually adopts the form of recording in the order its satisfaction that a respondent is a serious danger to the community in the absence of an order pursuant to Division 3.  This is because such a state of satisfaction is a statutory precondition to the power to make either a continuing detention order or a supervision order under s 13.  The Act provides that the supervision order has effect for the period stated in the order.  It contains no provision for a supervision order to be discharged when a person ceases to be a “serious danger to the community” (as defined in s 13) or if the Court is satisfied of that fact.  The Act’s provisions, and s 15 in particular, state that the original or amended supervision order has effect for the period stated in the order.  These provisions do not imply that a supervision order has effect until it is discharged by the Court.  The Act does not necessarily imply that a proceeding may be instituted to discharge a supervision order.
30. It is not entirely correct to say, as the applicant does, that the “entire premise” of the Act is that it applies to persons who are a serious danger to the community.  A more precise statement is that the Act applies to a person if the Court is satisfied that the person is a serious danger to the community in the absence of a Division 3 order.  If the Court is so satisfied, and makes a supervision order, then the supervision order applies for the period stated in the order.  This is so notwithstanding the possibility that, during the relevant period, the applicant ceases to be a serious danger to the community in the absence of a Division 3 order.
31. The fact that the Act authorises the making of a supervision order which has effect for the period stated in the order should not be taken to confer, by necessary implication, a power in the Court to discharge such an order. 
32. The Act confers power on the Court to amend the requirements of a supervision order.^[10] It also confers a power to amend a supervision order, including an amendment to the period stated in the order if, after a contravention hearing the Court considers that such an amendment is appropriate.  The fact that the legislature has made provision for supervision orders to be amended, but not provided for them to be discharged, tends against the recognition of an implied power to discharge a supervision order. 
33. The Act was amended in 2010 to insert Division 4A of Part 2 which provides for an extension of supervised release.  Under Division 4A the Attorney-General may apply for a further supervision order within six months of the expiry of the original order.  The enactment of provisions for the practical extension of a supervision order, in the form of a further supervision order under Division 4A upon the Court being satisfied that the person remains a serious danger to the community in the absence of such an order, further indicates that the legislature has addressed the matter of the duration of supervision orders, and in doing so has not permitted the early determination of a supervision order.
34. Simply put, the Act addresses the duration of a supervision order, including the practical extension of such an order by the making of a further supervision order.  In doing so, the legislature has refrained from enacting provisions for a supervision order to be discharged or otherwise terminated prior to the expiry of the period stated in the order.
35. Incidentally, and with respect to the power to amend the “period stated in the order”, the enactment of Division 4A of Part 2 may have been unnecessary if the Court had a general implied power to amend the “period stated in the order” either in favour of its extension or in favour of its reduction.  One would not lightly infer the existence of an implied power to extend the period to the prejudice of a person subject to the Act.  One might more easily infer the existence of an implied power to amend the period stated in the order so as to reduce it in the event that the person had ceased to be, or was expected to cease to be, a serious danger to the community in the absence of a supervision order prior to the expiry of the period originally stated in the order.  However, Parliament decided to address the practical extension of a supervision order by the enactment of Division 4A. It did not decide to amend s 19 to confer an express power to amend the period stated in the order.  This tells against the existence of an implied power to amend the “period stated in the order”.  It can be inferred that the legislature intended that the Act be the exclusive source of the law relating to amendment of the period stated in the order.
36. Returning to the existence or otherwise of a power to discharge a supervision order, the Act is based upon a regime which makes imperfect assessments about the risk that a person will commit a serious sexual offence if released from custody in the absence of a supervision order being made.^[11]
37. In making a supervision order the Court effectively makes a statement that it is satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order.  Section 13A(1) requires the Court, in making a supervision order, to state the period for which it is to have effect.  But the period that is stated in the order is, at best, an informed prediction by the Court about the period that the person is likely to remain a serious danger to the community in the absence of a Division 3 order.  The prediction may be falsified by subsequent events and developments, including the enhanced rehabilitation of the offender and an unexpected moderation of risk.^[12]
38. Importantly, the Act does not operate on the premise that a supervision order only continues whilst the person to which it applies is “a serious danger to the community”.  Subject to amendment of its requirements, and the possible reduction or extension of the period stated in the order following a contravention hearing, the supervision order has effect in accordance with its terms “for the period stated in the order”.  This period may extend beyond the date the respondent ceases to be a serious danger to the community according to a fair and objective assessment that is undertaken some years after the supervision order is made.  But that is what the Act dictates because the order has effect for the period stated in the order.
39. Therefore, it cannot be said without qualification that the Act applies only to persons who are a serious danger to the community.  The absence of a general power to amend the period stated in the supervision order, and the absence of an express power to discharge the order in the event a person no longer is (or is assessed to no longer be) a serious danger to the community means that the Act’s supervision orders may in fact apply to a person who is no longer a serious danger to the community in the absence of an order pursuant to Division 3.
40. This is a highly unsatisfactory situation, as the facts of this case illustrate.
41. In Attorney-General v Van Dessel,^[13] Jerrard JA observed, by way of obiter dicta, that a supervision order expressed to have effect “until further order” would give the Court jurisdiction to discharge it, and that jurisdiction would exist “in any event if, for example, a supervised prisoner fell into an irreversible coma, or suffered incapacitating injury or illness making the supervision unnecessary.”  The other members of the Court did not express or adopt that view.  The existence of a power in this Court to discharge an order which was specified to have effect for a fixed and stated period seemingly was not argued in that case.  The point has been argued in this case and, with some reluctance, I find myself unable to accept the passing observation of Jerrard JA that jurisdiction exists in this Court to discharge a supervision order.
42. The inherent power of a superior court does not permit it to make orders “excusing compliance with obligations … deriving from statute.”^[14]  It does not authorise excusal of the obligation to comply with a supervision order by the making of an order discharging it.
43. In summary:

(a)the Act states that a supervision order has effect for the period stated in it;

(b)limited provision exists to amend the duration of the order so as to bring it to an end;

(c)no express provision exists to discharge a supervision order; and

(d)the apparent intent of the legislature is that the Act should exclusively govern the duration of a supervision order.

In these circumstances, I doubt whether the Court has an inherent jurisdiction to discharge a supervision order.  The existence of such an inherent jurisdiction seems inconsistent with the scheme of the Act in which the legislature has addressed the duration of the supervision order and provided, in effect, that the supervision order has effect for the period stated in the order, notwithstanding the subsequent emergence of facts and circumstances which make supervision unnecessary.  The legislature has not adopted a scheme for supervision orders which permits the period stated in the order to be reduced (save curiously for a provision that permits such a reduction in the event of a contravention), and it has not adopted a scheme for supervision orders to be discharged in the event that a person is found to no longer be a serious danger to the community in the absence of such an order.

44. The legislature apparently intended that the Act be the exclusive source of the law relating to the duration of supervision orders.  If, however, the Court has an inherent jurisdiction to discharge a supervision order, I am disinclined to exercise it.  The circumstances in which a supervision order should be discharged or its duration truncated are proper matters for legislative intervention.  The legislature has declined to confer a general power to amend the duration of a supervision order, let alone confer a power to discharge one.  I do not consider that it is an appropriate exercise of any jurisdiction I enjoy to discharge a supervision order to create a judge-made scheme to discharge a supervision order.
45. It seems anomalous that someone who, through rehabilitation and support in the community, no longer presents an unacceptable risk of committing a serious sexual offence should continue to be subject to a supervision order, possibly for several years or even decades.  The continuation of a supervision order in such a case achieves little.  It may prejudice, rather than assist an individual’s rehabilitation and thereby prejudice the protection of the community.  However, such a result appears to be dictated by the terms of a statute which exclusively governs the making, amendment and duration of a supervision order.
46. One should not lightly infer that Parliament, conscious of the constitutional basis of the Act’s validity, would enact legislation which permits a person to be subject to an order under Division 3 after a time at which the person ceases to be a serious danger to the community.^[15]  But this is what the Act, by its terms, provides.  I therefore conclude that the Court does not have a power to discharge a supervision order in the present circumstances.

Disposition of paragraphs 1, 2 and 3 of the application

47. The evidence persuades me that the applicant is no longer a serious danger to the community in the absence of an order pursuant to Division 3 of the Act.  However, a declaration to that effect was only sought as a precursor to the making of an order that the supervision order to which he is subject be discharged, or amended to bring it to an end forthwith.  Because I have reached the conclusion that I lack a power to order that the supervision be discharged or amended to bring it to an end forthwith, there is no utility in making the declaration that is sought.  I therefore decline to make the orders sought in paragraphs 1, 2 and 3 of the application. 

Matters for the legislature to consider

48. The result which I have reached about the proper construction of the Act provides no encouragement to persons subject to supervision orders to rehabilitate themselves in the way the applicant has done, in the hope that their good behaviour, rehabilitation and proof that they are no longer a serious danger to the community will result in the discharge of a supervision order or its termination on a date prior to the date which a court, many years earlier, expected it to last. 
49. It is anomalous that a person subject to a supervision order can engage the jurisdiction of the Court to reduce its duration by contravening a supervision order, but not be able to do so after having complied with an order for years. 
50. These matters may warrant consideration by the legislature. 

Amendment of the requirements of the supervision order

51. During the course of the hearing before me, it was agreed that requirement (s) should be amended to the following:

“(s)Not co-habit or reside or stay overnight with a child under 16 years of age.”

There was no contest that requirements (u) and (w) should be amended by deleting the words “and alcohol”. 

52. The evidence before me, including the expert evidence, persuaded me that the current requirement in (ee) to submit to electronic monitoring and curfew requirements as directed by a Corrective Services officer is unnecessary and counter-productive.  That requirement should be deleted and the following inserted in lieu thereof:

“(ee)Comply with monitoring directions and curfew directions if a court has ordered that a requirement to comply with curfew directions and monitoring directions be reinstated.”