Attorney-General v Yeatman[2016] QSC 187

SUPREME COURT OF QUEENSLAND

1. On 30 June 2014, the respondent was made subject to a supervision order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). He has since been returned to custody on a warrant issued because of a reasonable suspicion that he was likely to contravene a condition of the order. Under s 22 of the DPSOA, I must consider whether I am satisfied on the balance of probabilities that the respondent is now likely to contravene a requirement of the supervision order and if so, whether he has satisfied me that adequate protection of the community can nonetheless be ensured by the existing order with any suitable amendments.
2. The respondent is a 37 year old indigenous man who was convicted of two separate counts of rape committed when he was 19 years old, as well as deprivation of liberty and entering a dwelling and committing an indictable offence.  In the first incident, he raped a 15 year old girl with whom he had previously been in a relationship, abducting her at knife point and inflicting minor cuts on her neck and cheek.  In the second incident, about a month later, he threatened to stab a 14 year old girl, then forced her into a toilet and raped her.  In 1999 and 2000, he was sentenced to imprisonment for the respective rapes, receiving cumulative terms of seven and eight years. 
3. Having completed those sentences, the respondent was released on the supervision order, the duration of which was ten years.  In November 2014, he was returned to custody because of an admitted contravention of a requirement of the order that he comply with regulations in place at the contingency accommodation in which he was housed; he had engaged in sexual activity with his partner on the premises.  He was subsequently re-released from custody on the supervision order.
4. In July 2015, the respondent was returned to custody because Corrective Services officers reasonably suspected that he was likely to contravene the requirement of the order that he not commit an indictable offence.  The circumstances giving rise to that suspicion were that he was seen to be intimidating his partner and threatening her, saying that he would kill her.  He was limited to telephone contact. About a week later he was heard on the telephone raising his voice and speaking aggressively to her. He also reacted in a hostile and aggressive way when case officers raised his behaviour with him.  His treating psychologist Ms Kylie Lavers, formed and communicated the view that his behaviours gave rise to a risk of harming his partner or someone else. After his return to custody, Ms Lavers provided a written report noting that the respondent had displayed some aggression in his dealings with her. Her assessment was that he had no insight into his behaviours or its impact on others, particularly his partner.  He felt justified in his anger and was inconsistent and manipulative in his explanations.
5. The respondent relies on an affidavit from his partner, who says that they have known each other for more than a decade.  They formed a relationship soon after his release from jail in 2014.  She swears that he has never been violent with her and that although they have sworn at each other and made threats to kill each other, it does not mean that they have any real intent to do so.  As long as she has known him he has had difficulties with his hearing.  When his hearing aid is not working well and she has to speak loudly to him, he becomes frustrated and often begins to swear.
6. Two psychiatrists, Dr Donald Grant and Dr Scott Harden, have been involved in assessing the respondent at various points of the proceeding which led to the making of the original supervision order and both have twice made assessments of him since his return to custody.  Their diagnoses were very similar: a severe personality disorder with an anti-social traits, or more simply anti-social personality disorder, with past alcohol abuse and dependence and marijuana abuse. Neither psychiatrist made any diagnosis of sexual paraphilia. Both noted his long-term severe deafness, which is of considerable significance in his behaviour; it has affected his ability to participate in programs and to communicate effectively. 
7. Dr Grant in his report of 23 November 2015 noted that both the original offences were accompanied by severe intoxication with alcohol and cannabis, together with attitudes of entitlement and ownership of the girls involved.  The respondent’s previous history (offences of dishonesty, assault and possessing weapons) during his adolescence, accompanied a history of anti-social behaviour.  He had been born into a very dysfunctional family where violence, sexual assault and substance abuse were common.  Dr Grant regarded the respondent as posing a high risk of offending, particularly in a violent way, which would likely be in the context of a close relationship with a woman, such as his partner, and to be associated with jealousy, lack of trust and difficulty controlling anger and frustration.  The risk of his committing sexual offences was moderate to high but would increase if he were to abuse alcohol and drugs to a significant extent.  His response to supervision had been problematic.  Dr Grant considered that the respondent was likely to contravene his supervision order by committing an indictable offence and that he could not at that time be safely managed in the community.  He recommended among other things an audiological assessment to ensure that the respondent’s hearing aids were functioning properly; and assessments for programmes to deal with alcohol and drug abuse, anger management domestic violence and (follow up) sexual offender treatment. 
8. Dr Harden reported in January 2016.  He noted that the respondent had formed his relationship with his partner very soon after leaving detention and it had had a negative effect on his ability to integrate into the community.  He expressed his insecurity and jealousy with controlling behaviour, threats and probable violence, interspersed with remorse and attempts to repair the relationship.   Dr Harden assessed the future risk of the respondent’s sexual re-offending as high.  The relevant issues were substance abuse, intoxication, violation of social rules, lack of empathy, lack of vocational and social structure in the community, all of which were exacerbated by his interpersonal style, his dysfunctional relationship and perhaps poor cognitive function.  Whether the respondent should be permitted to continue his relationship with his partner depended on whether he could comply with limits on it.  The monitoring and supports to be gained from a supervision order reduced his risk of recidivism to moderate.  Dr Harden did not think that there was a high risk of immediate breach of the supervision order as at February 2016.  He recommended that the respondent be supported in learning to maintain functioning hearing aids.
9. In his more recent report, dated 2 August 2016, Dr Harden noted that the respondent was still in telephone contact with his partner and they had agreed to seek relationship counselling and for him to undertake a domestic violence programme.  He had undertaken a sexual offending maintenance programme.  Dr Harden observed that the respondent was insightful to the extent of understanding that further contraventions of the supervision order would result in further incarceration and able to identify the challenges he faced in managing his emotions and his relationship if he were released.  His planning in that regard was unsophisticated but had improved.  His diagnosis remained the same.  Dr Harden still considered his future risk of sexual re-offending to be high, with the major issues substance intoxication, violation of social rules, lack of empathy and lack of vocational and social structure in the community.  The monitoring supports and abstinence which would be required by a supervision order reduced his risk of recidivism to moderate.  If the respondent were released, his relationship should still be closely monitored with relationship or domestic violence counselling undertaken as well as psychological therapy.  Particular attention should be paid to ensuring that his hearing aids were functional. 
10. Dr Grant’s further report was dated 8 July 2016; he had interviewed the respondent two days previously.  He noted that the respondent was cheerful and seemed more stable and positive than when he had previously interviewed him.  He expressed an enthusiasm for working within the supervision order in the community and getting his life organized. It was noted that he had satisfactorily completed the sexual offender maintenance programme.  Dr Grant continued to regard the respondent’s overall risk for future sexual re-offending as moderate to high, with an increase if he were to abuse alcohol and drugs regularly.  The risk for general offending and particularly for violence was moderate to high and likely to be realised in the context of a close relationship with a woman.  The respondent’s deafness and its effects were significant.  He seemed to have settled considerably in incarceration, showed good emotional control and expressed positive views.  He appeared to have benefited from the sexual offender maintenance programme.  Dr Grant considered that those factors had resulted in a reduction in the risk he posed so that it could adequately be managed under a supervision order.
11. Counsel for the respondent did not submit that I should not make the finding that he is likely to contravene a requirement of the supervision order. That is not surprising. The history to date strongly suggests to me that on the balance of probabilities he is likely to do so, and I find accordingly.
12. The more difficult question is whether I am satisfied that adequate protection of the community can nonetheless be ensured by the existing order. (Neither side proposed any amendment to it.) It is clear that the major cause for concern has been the respondent’s conduct in his behaviour to and relationship with his partner.  He has shown difficulty in keeping within the bounds of appropriate behaviour to her and in responding reasonably and without hostility when his failures are pointed out.  That is perhaps not surprising, given his social background, his long incarceration and his deafness. The reasons do not of course make the risk of violence any less real but they do give some pointers to the areas requiring attention.
13. I have been greatly assisted in determining the issue in the respondent’s favour by the views of the psychiatrists, particularly as given in brief evidence before me today and also by counsel for the applicant’s fair acknowledgment that there are some positive signs in the respondent’s behaviour. Dr Grant considered that there had been a notable improvement in the respondent’s outlook.  He had completed the sexual offending maintenance programme with excellent results; the programme’s convenors had reported very favourably.  He appeared to be taking responsibility for the functioning of his hearing aids, which was an important factor, because his deafness contributed to his reactions of paranoia and confusion.  Generally, he appeared more insightful and willing to engage in programmes.  It could be expected that the treatment by a male psychologist would be helpful.
14. I should mention here that in June 2016, a new psychologist, Mr Walkley, began to treat the respondent.  Mr Walkley has given an initial report, dated 10 August 2016, after having seen the respondent for four treatment sessions.  He too sees some cause for optimism.  He thinks that the respondent has the competence and capability to gain from treatment.
15. Dr Harden generally agreed with Dr Grant’s comments.  He noted that the respondent will continue to have difficulties in compliance with a supervision order.  His volatile relationship was at the heart of the problems, in turn stemming from his past abandonment, jealousy and attachment issues.  However, the respondent had done well on the sexual offending maintenance programme and it was notable that he was very different to deal with when his hearing aids were working (as they evidently were in the respondent’s appearance by video-link today).  Generally, the respondent had a much more positive attitude
16. Counsel for the applicant made helpful submissions acknowledging the respondent’s improvement, as was manifested by his completion of the sexual offending maintenance programme and of a low intensity drug and alcohol course.  It was also encouraging, he conceded, that the respondent was willing to undertake relationship counselling, was managing his hearing aids, so as to reduce the prospects of miscommunication and was, at least on the limited information available to date, doing better with a male psychologist.
17. In summary, I am reinforced in my conclusion that the protection of the community can still be ensured by the existing order by the increase in the respondents insight which the psychiatrists report, which no doubt to some extent is the result of the respondent’s experience of further imprisonment; his having undertaken further programmes, particularly the sexual offending maintenance programme with considerable success during the period of his return to custody; the significant difference which attention to his hearing aid functioning appears to have made to his outlook; and his willingness to undertake further programmes and counselling in the community to assist in his relationship with his partner. 
18. I order that the respondent be released from custody subject to the existing supervision order made by Justice Philippides on 30 June 2014.