Attorney-General v Gibson[2017] QSC 102

SUPREME COURT OF QUEENSLAND

1. The Attorney-General for the State of Queensland seeks orders for the hearing of an application in respect of the making of orders under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”).  The respondent opposes the making of any orders.  At issue is whether the material relied upon by the applicant is sufficient to establish there are reasonable grounds for believing the respondent is a serious danger to the community, in the absence of such an order. 

Background

2. The respondent was born on 10 December 1981.  He is currently serving sentences of imprisonment imposed in the District Court of Queensland at Cairns on 4 August 2016 for one count of indecent treatment of children under 16 years and one count of unlawful stalking.  The respondent is due for release on 18 August 2017. 

Criminal history

3. The respondent has a relevant criminal history.  It commenced in 2012 when the respondent was convicted of wilful exposure.  On that occasion the respondent exposed his genitals to a female complainant in a store. 
4. On 30 August 2013, the respondent pleaded guilty to three counts of indecent treatment of a child under 16 and one count of an indecent act in any place to which the public are permitted access.  The first three counts related to one occasion when the respondent approached three children aged 14, 14 and 13 respectively whilst they were swimming at a gorge.  The respondent exposed his penis and masturbated in front of them.  The remaining count related to the same act which was also witnessed by adults.  The respondent was released under supervision for a period of two years. 
5. On 30 August 2013, the respondent was also convicted of an offence of using a carriage service to menace, harass or cause offence.  That offence related to four telephone calls the respondent made to employees at a clothing store.  In those telephone conversations, the respondent had requested sex.  On the last occasion, he referred to a particular sexual act. 
6. On 6 May 2015, the respondent pleaded guilty to one count of indecent treatment of children under 16.  That offence related to a 12 year old female complainant who the respondent approached whilst she was shopping with her father in a clothing store.  The respondent came up behind her, placed his hand on her buttocks and placed one of his fingers between her buttocks.  The respondent was sentenced to imprisonment for a period of 225 days and released under the supervision of an authorised corrective services officer for a period of 12 months.  At that same time, the respondent was re-sentenced for the offences on 30 August 2013.  He was ordered to be released under the supervision of an authorised corrective services officer for a period of 12 months. 

The index offences

7. On 4 August 2016, the respondent pleaded guilty to one count of indecent treatment of children under 16 years and one count of unlawful stalking.  The stalking offence related to contact by the respondent with an employee of a hair salon on a number of occasions over a five day period.  On the first occasion, the respondent indicated he wanted to have sex with the complainant.  He also indicated he could see her through the window.  On the last occasion, he asked the complainant if she wanted a threesome. 
8. The indecent treatment offence related to a 12 year old female complainant who was shopping with her family.  The respondent approached her, touched her leg inside her clothing and her bottom on the outside of her clothes. 

Psychiatric evidence

9. Dr Scott Hardin prepared a risk assessment for the purposes of this application.  That risk assessment was based on an interview with the respondent and a consideration of the documentary material. 
10. The documentary material revealed a history of drugs and alcohol abuse and significant kidney and liver dysfunction.  The documentation also recorded that the respondent, during his most recent incarceration, has been generally compliant but has not undertaken any courses.  He has, however, undertaken work for a significant period of that incarceration. 
11. The documentation recorded that the respondent started but had not completed a sexual offenders treatment programme in 2014.  He had declined to undertake a further preparatory programme in 2016.  The respondent had previously completed a preparatory sexual offending programme.  That programme, completed in 2013, identified the respondent as having a number of relevant factors including drug abuse, social isolation, poor relationship skills, violence and previous sexual offending. 
12. The facilitators of that programme recommended the respondent undertake an assessment and be wait listed for the Medium Intensity Sexual Offending Programme.  However, the respondent subsequently did not successfully complete such a programme or a positive futures programme.  In respect of the MISOP programme, the respondent exhibited a general lack of commitment with nil treatment gains.  The respondent frequently did not attend and presented as unwilling to participate and engage fully during the programme.  It was highly recommended he complete the programme in the future, with programme staff observing the respondent’s needs would only be met through a high intensity sexual offenders programme in custody. 
13. Dr Hardin considered that material as part of his risk assessment.  Dr Hardin also considered the results of his own interview.  Dr Hardin noted the respondent was of below average intelligence.  The respondent ascribed non-sexual motivations to his prior offences.  Dr Hardin considered that was probably out of a sense of shame and due to his limited ability to realistically empathise with his victims. 
14. Dr Hardin opined that the respondent suffers from an exhibitionist disorder, an unspecified personality disorder, alcohol use disorder, a specific learning disorder and has other cognitive deficits associated with his long-standing alcohol abuse and renal dialysis.  Dr Hardin considered the respondent’s greatest risk factors were alcohol abuse, non-compliance with court orders, lack of appropriate social networks and probable deviant sexual arousal associated with exposure and similar conduct. 
15. After administering a number of risk assessment tools, Dr Hardin opined that the respondent’s ongoing unmodified risk of sexual re-offending in the community was high.  Dr Hardin noted the nature of his offending included an escalation in the level of intrusion and risk taking associated with physically assaulting female children in a public place.  Dr Hardin opined this was “concerning”.
16. In Dr Hardin’s opinion, if the respondent were to be placed on a supervision order within the community, his risk of sexual re-offending would be reduced to moderate.  Dr Hardin recommended the respondent attend the sexual offending programme for indigenous males and that he have ongoing psychological therapy. 
17. Dr Hardin maintained those opinions in evidence.  He noted the respondent’s sexual offending fell into two categories.  First, sexually explicit discussions with employees in a retail setting.  This behaviour did not include any physical contact.  Second, physical contact with female children in a public place.  In Dr Hardin’s view, the nature of the offending was consistent with a level of escalation.  This escalation increased the relevant risk of future sexual offending, as did the fact that the index offences had occurred after the respondent had been sanctioned by a court for similar conduct on an earlier occasion. 

Legislative scheme

18. The Act provides a regime for the continued detention or supervision of prisoners who represent a serious danger to the community.  Where a supervision order is appropriate, the central issue for consideration by the Court is what conditions are necessary to ensure the adequate protection of the public whilst those prisoners are living in the community.
19. Section 8 of the Act provides:

“(1) If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order.

(2)If the court is satisfied as required under subsection (1), it may make –

1. an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports; and

2. if the court is satisfied the application may not be finally decided until after the prisoner’s release day –

1. an order that the prisoner’s release from custody be supervised; or

2. an order that the prisoner be detained in custody for the period stated in the order.

Note –

If the court makes an order under subsection (2)(b)(i), the order must contain the requirements for the prisoner stated in section 16(1).”

20. In undertaking an assessment of whether there are reasonable grounds for believing a prisoner is a serious danger to the community, for the purposes of the preliminary hearing under s 8, it is relevant to have regard to the matters set out in s 13(4) of the Act.  Those matters are:

“(a)   reports prepared by psychiatrists under s 11 and the extent of prisoner co-operation during the examination;

2. other medical, psychiatric, psychological assessments relating to the prisoner;

3. information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

4. the pattern of offending behaviour on the part of the prisoner;

5. efforts by the prisoner to address the cause or causes of the offending behaviour and his participation in rehabilitation programs;

6. whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on him or her;

7. the prisoner’s antecedents and criminal history;

8. the risk of the prisoner committing another serious sexual offence if released into the community;

1. the need to protect members of the community from that risk; and

10. any other matter.”

21. Whilst those matters, with any necessary changes are relevant, the determination on the preliminary hearing only requires the Court to consider whether it is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community.  The Court does not have to be satisfied the prisoner is a serious danger.  However, the Court should bear in mind the need for the Court to be satisfied by acceptable, cogent evidence to a high degree of probability that the material relied upon is of sufficient weight to justify that decision.^[1] 

Submissions

22. The applicant submits the Court would be satisfied, to the requisite standard, that there are reasonable grounds for believing the respondent is an unacceptable risk to the community in the absence of a Division 3 Order.  The respondent has a number of past convictions for sexual offences in respect of children.  He has not completed any sexual offenders’ treatment programme.  Dr Hardin opines that his ongoing unmodified risk of sexual re-offending in the future is high but that risk could be reduced to moderate if the respondent was subject to a supervision order within the community. 
23. The respondent submits the material placed before the Court is not sufficient to satisfy the Court that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of such an order.  The respondent has a limited history of sexual offending.  The sexual contact with female children involved momentary touching, largely on the outside of their clothes.  The risk of the respondent committing a further offence of a sexual nature against a child without a Division 3 Order was not unacceptable. 

Discussion

24. The respondent has a disturbing criminal history of sexual offending in respect of children.  That offending has escalated from acts of public exposure and masturbation to physical touching of female children who were strangers and in a public place.  That latter type of behaviour has been engaged in on two separate occasions.  The second occurred after the respondent had been sentenced to a period of imprisonment for earlier similar offending.  I accept Dr Hardin’s opinion that that history is relevant to the risk presented by the respondent in relation to the risk of future sexual offending against children. 
25. Of concern, the respondent continues to display limited empathy for his victims and minimises his own responsibility.  He has shown an unwillingness to date to engage in any sexual offenders’ treatment programme in a genuine and meaningful way.  Those circumstances amply support Dr Hardin’s opinion that the respondent’s risk of sexual re-offending against children in the future is high, in the absence of a Division 3 Order.  I accept Dr Hardin’s opinion as to the risk presented by the respondent in the future. 
26. The respondent’s behaviour has not been modified by periods of incarceration.  He has not developed any insight into the wrongness of his actions.  The escalating nature of his more recent offending committed after earlier sanctions by the Court, gives rise to the real risk of future sexual offending against children.  That risk is high but likely to be reduced by the imposition of a supervision order. 

Conclusions

27. Having considered all of the material placed before me, including Dr Hardin’s assessment, the respondent’s past criminal behaviour, his antecedents, his conduct whilst in custody, the likely risk of committing another serious sexual offence against children and the need to protect the community from such a risk, I am satisfied there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a Division 3 Order. 
28. In reaching this conclusion, I have had regard to the need for that conclusion to be based on acceptable, cogent evidence and to a high degree of probability.  The material relied upon by the applicant cogently and compellingly establishes that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act.  The respondent represents an unacceptable risk of committing a serious sexual offence, namely an offence of a sexual nature against a child in the future in the absence of such an order. 

Orders

29. I am satisfied it is appropriate to make orders for the hearing of an application for a Division 3 Order, for the respondent to undergo examination by two independent psychiatrists and for those psychiatrists to give evidence in person. 
30. I make orders in terms of the draft, which I initial and place with the papers.