Attorney-General v UMW[2016] QSC 204

SUPREME COURT OF QUEENSLAND

1. The Attorney-General for the State of Queensland makes application, pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”), for orders that the respondent, having contravened a supervision order made on 30 April 2012, be detained in custody for an indefinite term for care, control or treatment, or alternatively that the supervision order made on 30 April 2012 be amended. 
2. On 3 March 2016, this Court found the respondent had contravened the supervision order on 19 August 2014 by indecently touching a female complainant on two separate episodes, first by rubbing her leg and secondly by touching her breast. 
3. The issue for determination is whether the respondent has satisfied the Court, on the balance of probabilities that, despite the contravention, the adequate protection of the community can be ensured by a continuation of the existing supervision order or an amended order.  It is accepted that if the respondent fails to satisfy that onus, the supervision order must be rescinded and a continuing detention order made in its place. 

Background

4. The respondent was born on 21 March 1960.  He has a significant past criminal history, including being convicted of seven counts of indecent treatment of children and four counts of rape in 2003 and two counts of indecent treatment of a child, one count of rape, two counts of unlawful sodomy and one count of maintaining an unlawful relationship with a child in 2007. 
5. The 2003 convictions related to two female victims, one being his 11 year old natural daughter and the other his 9 year old stepdaughter.  The respondent was sentenced to six years imprisonment for those offences.  The 2007 convictions related to his stepson who was aged between 11 and 13 years.  He was sentenced to five years imprisonment for those offences.  The 2007 convictions had occurred during the earlier offending period but were not known until he was incarcerated for the 2003 convictions. 
6. On 6 November 2009, upon application by the Attorney-General, this Court found the respondent represented a serious danger to the community in the absence of an order under Division 3 of the Act.  A supervision order was made, with the order to remain in force until 14 November 2019. 
7. On 26 October 2010, the respondent was found to have contravened the supervision order in May 2010 by having unsupervised contact with children.  As a result, the Court rescinded the supervision order and a continuing detention order was made in its place. 
8. On 30 April 2012, upon review of the continuing detention order, this Court confirmed the respondent remained a serious danger to the community, in the absence of an order under Division 3 of the Act.  However, a supervision order was made pursuant to s 30(3)(b) of the Act, to remain in force until 30 April 2022. 
9. The supervision order made on 20 April 2012 contained a number of conditions.  Relevantly, for present purposes, it included condition xv that the respondent “not commit an offence of a sexual nature during the period of the order”.  It was this condition the respondent contravened on 19 August 2014. 

Contravention

10. On 26 September 2014, the respondent was arrested and charged with two counts of sexual assault.  The matter proceeded to trial in the District Court at Rockhampton on 4 August 2015.  It was heard in conjunction with another indictment containing two counts of sexual assault involving a separate female complainant.  The respondent pleaded not guilty to each count.  He was acquitted by a jury on all counts. 
11. Notwithstanding that acquittal, the Attorney-General prosecuted this application, alleging a contravention of the supervision order.  The contravention related to allegations concerning one of those two female complainants.  That complainant alleged that on the evening of 19 August 2014, while she was staying in the respondent’s unit at Yeppoon, he had rubbed his hand up and down her leg, and had subsequently, whilst giving her a hug, put his hand onto her left breast.  Both acts occurred without her consent. 
12. The respondent denied having committed the acts in question.  However, after a hearing, the respondent was found to have committed each of those acts.  Each act was found to constitute a sexual assault.  Accordingly, the respondent was found to have committed two offences of a sexual nature, in contravention of condition xv of the supervision order. 

Legislative provisions

13. Section 22 of the Act provides:

“22.Court may make further order

(1)The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).

(2)Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—

(a)if the existing order is a supervision order, rescind it and make a continuing detention order; or

(b)if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.

(3)For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—

(a)act on any evidence before it or that was before the court when the existing order was made;

(b)make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order—

(i)in the nature of a risk assessment order, subject to the restriction under section 8(2); or

(ii)for the revision of a report about the released prisoner produced under section 8A;

(c)consider any further report or revised report in the nature of a report of a type mentioned in section 8A.

(4)To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).

(5)If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.

(6)For applying section 11 to the preparation of the report—

(a)section 11(2) applies with the necessary changes; and

(b)section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.

(7)If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—

(a)must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and

(b)may otherwise amend the existing order in a way the court considers appropriate—

(i)to ensure adequate protection of the community; or

(ii) for the prisoner’s rehabilitation or care or treatment.

(8)The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”

Evidence

14. The Attorney-General relies upon a significant body of material.  Relevantly, it includes reports from two psychiatrists, Dr Michael Beech and Dr Donald Grant, and a report from the respondent’s treating psychologist, Dr Lars Madsen.  Dr Beech and Dr Grant gave evidence at the hearing. 
15. Both Dr Beech and Dr Grant undertook risk assessments, using a number of risk assessment instruments.  Dr Beech opined that the respondent’s risk of sexual re-offending had actually increased since being made subject to the supervision order.  Dr Grant agreed the respondent’s risk of sexual re-offending had increased.  Both psychiatrists agreed the respondent’s scores now placed him in the moderate-high risk group, which is higher than 80% of sexual offenders. 
16. Dr Beech noted that two factors rendered it possible the true risk was even higher than indicated by the actuarial instruments.  First, the respondent’s victims had previously been identified as pre-pubescent females related to him or known to him through their family, whereas the most recent victim was an adult female.  This suggested an increase in the diversity of the respondent’s potential offending in the future.  Second, the contravention occurred whilst subject to a supervision order containing conditions for his regular monitoring, supervision, support and engagement in psychological treatment.  Of particular concern was that the respondent had committed this contravention and a previous contravention in circumstances consistent with active secrecy and deception. 
17. In his report, Dr Beech summarised the concern thus:

“For all the appearance of cooperation and compliance, [the respondent] has acted with duplicity, and I have a concern that some of the minor aberrations in the GPS monitoring in fact reflected illicit contact with others.

It is because of this nondisclosure, secretiveness, and deceit I have a concern that a Supervision Order would be very difficult to administer although, perhaps, longer periods of close regulation might mitigate some of the risk.  Even then, though, there is a worrying factor that relates to the persistence of offending over two decades despite custodial sentences and treatment.”

18. Dr Beech expanded on this concern in evidence.  He noted the respondent had been able to engage in activities in contravention of the supervision order whilst apparently having a good ongoing relationship with Dr Madsen, his counsellor, and after having completed two sexual offender treatment programmes wherein he had obtained “reasonably good exit reports”.  Further, the respondent had breached conditions despite his reports whilst incarcerated suggesting a level of compliance.  As such, he was unlikely to be flagged as a risk of potential non-compliance with directions in the future. 
19. Dr Beech outlined the significance of these issues:

“He’s had two sex offender treatment programs in custody, he’s had counselling in the community and he has committed this last offence.  So I would think that he has ongoing counselling, but I don’t know how effective that would be, particularly as he didn’t seem particularly open with Dr Madsen.  I think it would be again about surveillance and monitoring and it would be reducing access to potential victims.  Now, I would think that clearly a supervision order must hinder your ability to offend just because you’re under all these restrictions, but the difficulty is he does go under the radar, he does – he is secretive, he doesn’t disclose everything honestly and the risk is that we just – I don’t know how you can sufficiently limit victim access under those circumstances because I would think the way to manage the risk of – a central part of managing risk would be limiting his access to victims.”

20. Dr Grant did not share Dr Beech’s concern as to the inadequacy of ongoing supervision in protecting others against the risk of future sexual re-offending.  Dr Grant noted the female victim in the most recent contravention was a person who the respondent had known for some years.  Against that background, it did not follow that the group of likely victims had changed to include adult females.  Dr Grant also noted the respondent, in his interview, appeared to be open in relation to his understanding of his risk factors in the future, although he continued to deny the contravention.
21. Dr Grant accepted the respondent’s past deception may be a basis to call in question the frankness of his discussions with the respondent.  Dr Grant also accepted that if in fact the potential victim group had expanded to include adult females it may be difficult to find any condition which would render the risk of future offending adequate, due to his past deceptive behaviour in breach of the conditions of his supervision orders. 
22. Dr Grant agreed the key to managing the risk posed by the respondent was to reduce his access to the victim group but observed:

“Yes, but how do you – that – that is problematic in his case.  You can – certainly he should have restricted access to children, no unsupervised access to children, and any situation where there might be grooming going on has to be prevented, and he shouldn’t have access to these family members who have now proven problematic, and so on, as well, but if – if indeed his victim groom is expanding into adult females or males, I don’t know how you stop that on a supervision order.  You don’t see humanity.  You have to stay alone, never go into the – into the community.”

Submissions

23. The Attorney-General submits the material placed before this Court is inadequate to satisfy the respondent’s onus that the adequate protection of the community is able to be ensured by his release on a supervision order or amended supervision order.  The respondent has shown, through persistent secretive and deceptive practices, a willingness to contravene conditions of a supervision order, including the most significant condition, that he not commit an offence of a sexual nature.  That behaviour indicates an unwillingness to comply with conditions of a supervision order are necessary to ensure the protection of the community from the risk of future sexual offending. 
24. The Attorney-General submits that conclusion is supported by the opinions of Dr Beech and Dr Grant that the respondent’s risk of future sexual re-offending has increased whilst subject to the supervision order and whilst engaging in counselling with Dr Madsen.  That risk is further heightened by the enlarging of the respondent’s possible victim group and his past appearance of co-operation and compliance, which shields the respondent’s non-compliance from those responsible for his ongoing monitoring and supervision. 
25. The respondent submits the evidence of Dr Beech and Dr Grant supports a finding the respondent has demonstrated the adequate protection of the community can be ensured, despite the contravention, by the respondent’s release on an amended supervision order.  Whilst both Dr Grant and Dr Beech concluded the respondent’s risk of sexual re-offending in the future has increased during the supervision order, both opined that risk would be reduced or mitigated by the imposition of a supervision order. 
26. The respondent submits he has now been custody since September 2014.  There are ongoing programmes which can be the subject of a continuing supervision order.  He can be housed in accommodation away from the Rockhampton area where his likely victims continue to reside, thereby reducing the risk of any close proximity to his past victims.  The respondent has previously only been housed in the Rockhampton area.  The respondent can also continue counselling with Dr Madsen. 

Discussion

27. The essential issue for determination is whether the respondent has established, on the balance of probabilities, that, despite his contravention, the adequate protection of the community can be ensured by his release on a supervision order. 
28. In considering that issue, it is relevant to have regard to the purpose of a supervision order.  As was observed in Turnbull v The Attorney-General for the State of Queensland:^[1]

“The means of providing the protection, and avoiding that risk, is a supervision order.  When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk.  Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection.”

29. In determining whether an amended supervision order will provide adequate protection, it is important to consider its efficacy “in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences”.^[2]  It is the efficacy of any supervision order that is of particular concern in the present case. 
30. The respondent has now breached a supervision order on two separate occasions.  The first contravention was for having unsupervised contact with children.  Children at the time were the known victim risk group.  The more recent contravention is for committing offences of a sexual nature.  On this occasion, the victim was an adult teenager. 
31. I accept Dr Beech’s opinion that the type of victim in the present contravention suggests a widening of the potential victim group.  I accept that opinion notwithstanding the victim was known to the respondent for some years.  The offences are consistent with a conclusion that the age of the victim is no longer significant to the risk of sexual re-offending in the future. 
32. Of particular concern is that the contravention occurred whilst the respondent was subject to a supervision order, the conditions of which called for his close monitoring and supervision, and whilst he was engaging in ongoing counselling with a specialist psychologist.  Despite the existence of these conditions, the respondent was able to engage in the present contravention.  The conditions of the present supervision order were inadequate to protect the community at large from a central risk, the risk of future sexual re-offending. 
33. That the respondent was able to contravene the order in such circumstances is entirely consistent with behaviour which Dr Beech appropriately characterised as secretive and deceptive.  I accept Dr Beech’s opinion that the respondent’s consistent behaviour of non-disclosure, secretiveness and deceit gives rise to real concerns that it would be difficult to ensure the respondent’s future compliance with any supervision order. 
34. A difficulty in ensuring future compliance with conditions of a supervision order goes to the heart of the efficacy of a supervision order to adequately protect the community at large from the risk of future sexual offending.  Its efficacy is particularly called into question in respect of the respondent because his risk of future sexual offending has increased while subject to a supervision order. 
35. The increase in the risk of future sexual offending is particularly concerning having regard to the nature of the most recent contravention.  The conduct engaged in was consistent with opportunistic and manipulative behaviours by the respondent who exhibited to Dr Grant insight into the nature and risks of his offending behaviour.  That conduct satisfies me the respondent is a poor candidate for ongoing compliance with the conditions of any supervision order, either in its present form or in an amended form. 
36. Having considered all of the material and accepting an order requiring the respondent’s continued detention for ongoing care and treatment should only be made on clear and cogent evidence, I am satisfied a supervision order would not provide adequate protection for the community at large. 
37. The respondent’s contravention and ongoing deceptive and secretive behaviours satisfy me it is highly unlikely he would comply with the conditions of any supervision order.  That non-compliance is not going to be altered by the respondent living away from Rockhampton, especially in light of the enlarging of his potential victim group. 

Conclusion

38. The respondent has not demonstrated on the balance of probabilities that, despite the contravention, the existing supervision order or an amended supervision order will ensure the adequate protection of the community. 
39. The existing supervision order is rescinded and a continuing detention order made in its stead. 

Orders

1. Pursuant to s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 the supervision order made by Peter Lyons J on 30 April 2012 is rescinded.

2. The respondent, UMW, be detained in custody for an indefinite term for care, control or treatment.