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Attorney-General (Qld) v Currie[2018] QSC 318

Attorney-General (Qld) v Currie[2018] QSC 318

SUPREME COURT OF QUEENSLAND

CITATION:

 Attorney-General (Qld) v Currie [2018] QSC 318

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

JOEL GEORGE CURRIE

(respondent)

FILE NO/S:

BS 10864 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 December 2018

JUDGE:

Brown J

ORDER:

Order as per draft

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is subject to a continuing detention order pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant applied for a review of the continuing detention order – whether the continuing detention order should be affirmed to ensure the adequate protection of the community

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 13, 27, 30

Attorney-General v Francis [2006] QCA 324

Attorney-General (Qld) v Kennedy [2016] QSC 287

Attorney-General for the State of Queensland v Currie [2016] QSC 48

Attorney-General for the State of Queensland v Currie [2017] QSC 318

Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519

COUNSEL:

J Tate for the applicant

P Wilson for the respondent

SOLICITORS:

Crown Law for the applicant

Fisher Dore for the respondent

  1. [1]
    This is an application pursuant to section 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) for a review of the continuing detention of the Respondent, Mr Currie. The Applicant seeks to have the decision made on 11 March 2016 by Justice Byrne, which was affirmed in a review of 21 December 2017 by Justice Mullins, that the respondent presents a serious danger to the community in the absence of a Division 3 order under the Act affirmed, and that a continuing detention order consequentially be made, pursuant to s 30(3)(a) of the Act. 
  2. [2]
    This is the second review of the continuing detention order. 
  3. [3]
    The applicant contends that the continuing detention order should be confirmed to ensure the adequate protection of the community.  The Respondent contends that he should be released from custody under a supervision order. 
  4. [4]
    The circumstances surrounding the making of the first order were summarised in the decision of Justice Byrne in Attorney-General for the State of Queensland v Currie [2016] QSC 48.  At that time, his Honour indicated that the Respondent needed to complete satisfactorily a High Intensity Sexual Offenders Program to protect females from serious sexual offending at his hands and considered that a supervision order could not adequately address the high risk that the Respondent would, if released, commit a serious sexual offence.[1] 
  5. [5]
    At the first annual review, the Court found that the preponderance of evidence then before the Court did not support Mr Currie’s preferred option of receiving individual treatment and counselling in the community.[2] 
  6. [6]
    In the context of compelling psychiatric evidence that Mr Currie is a serious danger to the community in the absence of a Division 3 order and the reasons for that danger, which remain unaddressed by Mr Currie through participation in appropriate programs and other treatment, the Attorney-General has discharged the onus of showing that a supervision order is not feasible at this stage for Mr Currie. 
  7. [7]
    The Respondent’s counsel does not contest that, for the purposes of section 30(1) of the Act, the evidence before the Court is capable of satisfying the Court it should affirm the decision that the Respondent is a serious danger to the community in the absence of a Division 3 order.  Given the evidence before the Court, that concession is one which I regard as properly made.
  8. [8]
    For the Court to make a Division 3 order, it must be satisfied that a prisoner is a serious danger to community in the absence of such an order.[3]  Section 13(2) of the Act defines “serious danger to the community”.  There must be an “unacceptable risk” that the prisoner will commit a serious sexual offence if released at all or if released without a supervision order being made.  The definition of “serious danger to the community” applies to the determination that is required to be made under section 30 of the Act. 
  9. [9]
    The expression “unacceptable risk” is undefined by the Act.  It is incapable of precise definition but is an expression which requires the striking of a balance.[4]  The relevant risk is the risk of commission of a “serious sexual offence”, i.e. an offence of a sexual nature, involving violence or against children.[5]  Risk means the possibility, chance, or likelihood of commission of such an offence. An unacceptable risk is a risk which does not ensure adequate protection of the community. 
  10. [10]
    In determining whether the decision ought to be affirmed under section 30 of the Act, the matters mentioned in section 13(4) of the Act must be considered.  Many of those matters have been relevantly summarised in the reports of Dr Sundin and Dr Harden, as well as in the evidence provided by QCS and Dr Madsen. 
  11. [11]
    The contest between the parties is whether the respondent should be released subject to a supervision order or whether he should remain subject to a continuing detention order. 
  12. [12]
    By section 30(3) of the Act, the Court may order the Respondent to be subject to a continuing detention order or be released from custody subject to a supervision order.[6]  In determining whether to make such an order, the “paramount consideration” is to “to ensure adequate protection of the community”.[7]  The onus is on the Applicant to establish that the adequate protection of the community can only be ensured by a continuing detention order.[8] 
  13. [13]
    In determining the appropriate order to make under section 30(3), the Court must bear in mind the considerations discussed in Attorney-General for the State of Queensland v Francis, where the Court of Appeal stated: [9]

The question is whether the protection of the community is adequately ensured.  If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.

  1. [14]
    In the context of section 13(5), the Court of Appeal also observed in Attorney-General v Francis that:[10]

The Act does not contemplate that arrangements to prevent such a risk must be watertight; otherwise orders under section 13(5)(b) would never be made.  The question is whether the protection of the community is adequately ensured. 

  1. [15]
    Similar comments have been made recently, in the decision of Attorney-General for the State of Queensland v FJA [2018] QSC 291.

Background

  1. [16]
    Mr Currie is a 34 year old man.  He has spent considerable time in custody from a young age.  He had a childhood where he was exposed to abuse and to drugs and alcohol.  He had a very limited education, reporting to Dr Harden that he had stopped going to school when he was seven.  Dr Madsen, however, notes that Mr Currie is a highly intelligent man, despite his limited education.  The history of the Respondent’s sexual offending is set out in the decision of Justice Byrne at paragraphs 2 to 8 of his reasons.[11] It is unnecessary for me to repeat that history.
  2. [17]
    The Respondent is reported as having longstanding substance abuse problems predominantly associated with alcohol and marijuana.  Dr Sundin and Dr Harden, who gave evidence in this matter, both indicate that is in remission in the present custodial setting. 

Further Psychiatric Reports

  1. [18]
    Two reports were prepared and obtained pursuant to section 29 of the Act by Dr Sundin and Dr Harden.  Both had previously assessed Mr Currie.  Dr Sundin has provided a report dated 12 November 2018.  She interviewed the Respondent on 29 September 2018.  Her review of the Respondent has resulted in her providing an opinion as to his risk and future care, control and treatment that:

I continue to be of the opinion that Mr Currie’s risk for general recidivism and violence is extremely high and his risk for sexual recidivism is high. 

Over the last 12 months, he has demonstrated a continuing level of sexual preoccupation, a lack of insight into his own offending behaviour, and continues to displace responsibility for the index offence, in part, onto the victim.  He has made only small gains with respect to accepting responsibility for his own contribution to the offences.  This, despite multiple sessions with an extremely skilled forensic psychologist in Dr Madsen.

  1. [19]
    Dr Sundin stated that Mr Currie’s risk of sexual recidivism is high according to various instruments she used to assess risk, including that:

He has elevated levels on the Hare psychopathy rating scales.  All of these scales indicate that his risk for future sexual recidivism is high.  Material obtained in August and again in October 2018 indicate that his level of sexual preoccupation remains high, which is of concern, given his offence history.

  1. [20]
    Dr Sundin concludes that he continues to pose an unacceptable risk for future sexual recidivism to the community and that she continues to recommend that he should be detained in prison for ongoing treatment.  In her report, Dr Sundin states that Mr Currie meets the criteria for antisocial personality disorder and meets the criteria for psychopathy.  She also considers his diagnosis for Substance Abuse Disorder has remained in remission. 
  2. [21]
    In her report, Dr Sundin stated that she considered that until Mr Currie is able to regulate his emotions and his behaviour improves, he is not a suitable person to participate in any form of sexual offender’s treatment program, which she considers would be warranted, given his history.  However, when she gave evidence in this Court she noted that when she prepared her reports, she did not have the benefit of the more recent reports of Dr Madsen. 
  3. [22]
    In her oral evidence, she stated that Mr Currie’s personality structure and the fragility of his personality is such that he cannot undertake the High Intensity Sexual Offender’s Program, known as HISOP, as it would be too confronting. 
  4. [23]
    She expressed the same opinion in relation to the suggestion that Mr Currie could undertake the Medium Intensity Sexual Offender’s Program known as MISOP in the community and considers that engaging in such a program would likely have a detrimental effect upon him and potentially, in relation to his re-offending.
  5. [24]
    Dr Sundin considers that Mr Currie’s offending was a result of significantly more than just intoxication and opportunity, given the spectrum of sexual offences which speak to a sexual preoccupation, as well as matters such as his lack of appreciation of the rights of other individuals and understanding of matters such as consent.  She considers that the materials found in Mr Currie’s cell, which are exhibits JM8 and JM10 to the affidavit of Ms Monson, are clinically significant as they show a sexual preoccupation which demonstrates an immaturity, and are not merely matters of personal gratification but are significant in terms of risk when looked at from the point of view of the respondent’s history of serious sexual offending.
  6. [25]
    Dr Sundin considers that Dr Madsen’s report of October 2018 shows a positive engagement by Mr Currie with Dr Madsen and that progress is being made.  Up until that point, she did not consider that great progress was being made.  Dr Sundin now considers that the one-on-one treatment with Dr Madsen is the best treatment for Mr Currie and is the most effective way to address his sexual recidivism, and that it would be an effective replacement for HISOP or MISOP.  She considers that Mr Currie could also benefit from less intensive programs of the nature referred to by Dr Madsen.
  7. [26]
    She considers that Mr Currie is showing improvement in his behaviour in custody linked to his work with Dr Madsen, and showing some limited insight.  His engagement with Dr Madsen is, in her view, his most positive step forward and she considers that he needs to continue that engagement in custody for 12 months, and for the matter to then be assessed to determine whether he could be released into the community under a supervision order.  She does not consider Mr Currie would presently be compliant with a supervision order, although she stated that that should not be taken to be her view for the future.
  8. [27]
    She considered that while the supervision order would reduce his risk of re-offending, it would not reduce it by any considerable level.  Although she referred to such an order as not “absolutely” removing the risk, which is not the test for such an order that is applied by this Court, she clarified that Mr Currie continues to need a high level of oversight and treatment, and that the level of oversight that would be available under the supervision order would not be sufficient.
  9. [28]
    Dr Harden provided a report of 11 December 2018.  He examined the respondent on 13 September 2018.  He had also had regard to the reports of Dr Madsen.  He also considers that Mr Currie has an antisocial personality with significant psychopathic personality features and polysubstance abuse which is in remission because of his incarceration.  Dr Harden does not consider that the respondent has a sexual paraphilia and considers that the offending against child victims was opportunistic.  That is a view shared by Dr Sundin.
  10. [29]
    Dr Harden considers that the treatment program which involves Mr Currie having one-on-one treatment with Dr Madsen has resulted in his making some progress in dealing with his treatment needs.  He considers that Mr Currie has also made some general progress since his previous review in terms of institutional compliance and treatment compliance. 
  11. [30]
    Dr Harden’s clinical opinion on risk and future care, control and treatment is that:

His ongoing modified risk of sexual re-offence in the community is in my opinion still in the High range. 

If he were released from custody on a supervision order, his risk of sexual re-offending would be Moderate - High as in my opinion a supervision order would now provide some small diminution of his risk given his degree of improvement with institutional compliance and treatment compliance.

He should continue in the individual treatment program provided by Dr Madsen.

…

His greatest risk factors for reoffending are in my opinion, his general criminal behaviour, lack of concern for others, substance misuse, attitudes that support sexual assault including attitudes to women, general failure to comply with previous community supervision or similar and restlessness and impulsivity associated with his personality structure. 

If he were to reoffend sexually he is likely to commit a sexual offence associated with interpersonal violence and threat, this is most likely to occur when intoxicated and possibly during the commission of other criminal offences.  This is most likely to occur against an adult woman.  It could be a stranger or someone known to him.

  1. [31]
    Dr Harden recommends that Mr Currie continue individual treatment with Dr Madsen either in custody or in the community on a supervision order.  Dr Harden’s preference would be for Mr Currie to continue for a further 12 months in the structured environment of custody, to consolidate his current gains.  He highlights the fact that Mr Currie should abstain completely and permanently from alcohol and drug use.  Dr Harden explained the various tools which he had used to assess the risk posed by Mr Currie to reach the view that Mr Currie had a high risk of sexual recidivism. 
  2. [32]
    Mr Currie has been seeing Dr Madsen whilst at the Wolston Correctional Centre.  As a result of it being recognised that Mr Currie had particular challenges because of his personality and particularly his psychopathy, Dr Madsen recognised that there are some principles for working with psychopathic individuals which have been identified that appear to show promise with regard to engaging such individuals and promoting meaningful change.  In his report, Dr Madsen states that:

The change in Prisoner Currie’s circumstances in late 2017 (i.e. being denied access to group treatment), meant that individual treatment could be structured in a way that attempts to account for problems that he struggles with in terms of engaging with others therapeutically.  I propose that this could be done by offering him individual sexual offender treatment...

  1. [33]
    Dr Madsen noted that this was desirable to him because Mr Currie wants to complete treatment and get out of custody, and linking his access to this desirable activity to his compliance and behaviour in the treatment session and the custodial environment.  He stated:

In this way, we are able to leverage the circumstances (i.e. in custody, desires to get out, needs to address his sexual offending risk/treatment needs) to get him to:

engage in sex offender treatment…and;

improve his behaviour in custody…

The actual sexual offender treatment activities were structured and focussed on completing readings, written exercises etc. This provides a way of ensuring that the right things get covered and anyone can review his ‘work’ for insight/ comprehensiveness/ understanding etc. 

  1. [34]
    Dr Madsen noted Mr Currie was only able to access treatment “when he was not in the Detention Unit (DU) or in the process of being disciplined for adverse behaviour in custody”.  Since being shifted to the Wolston Correctional Centre, Mr Currie has been able to have much more direct ongoing treatment with Dr Madsen. 
  2. [35]
    In his report of 10 October 2018, Dr Madsen noted that:

In sum, prisoner Currie has demonstrated a good response to the structured ‘one-to-one’ sexual offending intervention that was developed in late 2017/early 2018.

  1. [36]
    Dr Madsen further noted that throughout their sessions Mr Currie has engaged in a positive and productive way.  Dr Madsen noted that Mr Currie’s in-session behaviour had improved, with no displays of aggression, hostility or obvious attempts to intimidate.  Dr Madsen found that the times where Mr Currie did appear to be rigid, paranoid or emotionally dysregulated were likely appropriate, given the subject matter of their discussions.  Dr Madsen stated that Mr Currie’s institutional conduct has also notably improved:

Since the intervention commenced in May 2018 he has not been identified as a perpetrator in an adverse incident.  This suggests that he does have the capacity to self-regulate his reactions and behaviours when he is appropriately motivated and engaged.  At this time treatment remains ongoing and we are completing the final chapters from the work books that I have used. 

  1. [37]
    I note that Dr Madsen stated that this treatment has been ongoing since he gave the aforementioned report.  Dr Madsen recommended that Prisoner Currie continue to have access to individual treatment in the manner that has been set out in this intervention.  Mr Currie has responded well to it and seems to have been able to form a rapport and comply with the expectations set out within their developed treatment contract.  Dr Madsen states that he is uncertain whether Prisoner Currie could function within a group program, and that irrespective of the progress that Mr Currie has made with individual treatment, he remains a complicated fellow.  Dr Madsen states that it is conceivable that Mr Currie would be able to successfully complete a less intense and practical course, but he does not believe he could successfully manage a high intensity program such as the HISOP. 
  2. [38]
    The positive aspects of Mr Currie’s treatment with Dr Madsen have been acknowledged by both Dr Sundin and Dr Harden. 

Other Matters

  1. [39]
    In terms of other matters which have been canvassed, beyond those in the psychiatric reports, Ms Monson deposed to 11 incidents involving the respondent since 11 December 2017. Those incidents involved threats against staff and against other prisoners, as well as the discovery of some offensive material of a sexual nature in his cell, which was the material discussed particularly by Dr Sundin.  As I have noted and as has been noted by Dr Madsen, there have been no incidents since May 2018.  Mr Currie has also stated that he has been happier since he was transferred to the Wolston Correctional Centre in May 2018.
  2. [40]
    Mr Currie has not engaged in any programs since his last review in 2017 and declined placements on the Low Intensity Substance Intervention course and the Resilience course.  Given his engagement with Dr Madsen, that is not as significant as it otherwise would have been, although potential benefit is seen in him engaging in Low Intensity programs. 
  3. [41]
    Dr Sundin stated she was not surprised that Mr Currie declined engagement in such programs, since when he was first offered a program in June 2017 he was not in a state where he could participate in such a program and, when offered a position on a program in November 2018, she expects that he would have been awaiting the outcome of the present application.
  4. [42]
    Ms Monson deposes to the benefit of group programs based on HISOP, and refers to the aspects thereof which cannot be replicated in an individual program.  While that may be so, given Mr Currie’s particular personality structure, it seems that an individual treatment program will be more effective in addressing Mr Currie’s risks of reoffending in terms of sexual recidivism.  That view is supported by the opinions now given by Dr Sundin and Dr Harden.

Submissions

  1. [43]
    The respondent emphasises that since his last review, he has had the benefit of treatment with Dr Madsen.  In particular, his counsel emphasises that the key aspects of therapeutic interventions under this approach were a focus on the respondent’s self-interest, as opposed to relying on an expectation of intrinsic motivation, empathy or remorse; a focus on characteristics related to offending, as opposed to personality traits; treatments with a clear structure, goals and expectations; and consequences for undesirable or problematic behaviour.
  2. [44]
    Counsel noted that Dr Madsen says that the respondent has engaged well, completed all reading and written tasks and engaged in those sessions in a productive manner.  It was said to be notable that the respondent did not attempt to dominate sessions or act in an intimidating or threatening way and that he appears to have developed some insight into his reoffending.
  3. [45]
    The respondent’s counsel emphasises that Mr Currie’s response to Dr Madsen has been accompanied by a marked reduction in adverse incidents.  He submitted that, while the opinions provided by psychiatrists may be accepted, the question is how the risks are to be managed so that they are reduced to an acceptable level in the way that least interferes with Mr Currie’s liberty.  He submitted, in terms of alcohol and opportunity being linked to his offending, both could be controlled by compliance with conditions under a supervision order providing for no alcohol consumption, curfews and tracking devices, amongst other conditions, and submitted that there is a good argument that a supervision order would be sufficient to ensure the adequate protection of the community.
  4. [46]
    It was submitted on behalf of the Attorney-General that the risks of sexual recidivism posed by Mr Currie remain too high to be regarded as being able to be reduced to an acceptable level by a supervision order, and that the index offences, clinical opinions of the psychiatrists and longitudinal evidence provide acceptable and cogent evidence of sufficient weight to justify the continuation of the continuing detention order. It was further submitted that the opinions of Dr Sundin and Dr Harden support the fact that a supervision order would not provide for adequate protection of the community, since the respondent remains a high and unacceptable risk.
  5. [47]
    However, the Attorney-General does not submit that Mr Currie would have to undertake the HISOP program in order for his risk to be adequately addressed, and the risk to be reduced to an acceptable level to allow release on a supervision order. The Attorney-General acknowledges that Mr Currie’s progress on the individual treatment program indicates that it appears to be the best mechanism to address his risks of sexual reoffending.

Consideration

  1. [48]
    The first question is whether the respondent is a serious danger to the community in the absence of a Division 3 order under the Act, having regard to the “required matters” as provided in section 30 of the Act.  I am satisfied to a level of high degree of probability that there is acceptable cogent evidence that has been presented to me, particularly the psychiatric evidence which I accept, of sufficient weight to affirm the decision that the respondent continues to be a serious danger to the community in the absence of a Division 3 order under the Act.
  2. [49]
    Having regard to the matters which I am required to consider, I am satisfied that the Court should affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order.  The respondent’s offending behaviour in the past in relation to sexual offences, his antisocial personality and the fact that he has psychopathic traits, his history and the psychiatric evidence, lead me to be satisfied that there is an unacceptable risk that the respondent would commit a serious sexual offence if released without a Division 3 order.  The psychiatric opinions provided, which I accept, consider that the respondent’s unsupervised risk of reoffending, such that he is a serious danger to the community within the meaning of the Act is high.
  3. [50]
    As to the appropriate order to be made consequential upon that, the paramount consideration in making any order is, as I have stated, to ensure the adequate protection of the community.  The Court must also be satisfied in relation to a supervision order that the adequate protection of the community can be reasonably and practicably managed.  The respondent contends that the adequate protection of the community can be ensured by placing the respondent on a supervision order with appropriate conditions, particularly if his individual treatment with Dr Madsen continues as is envisaged.
  4. [51]
    There has been significant and positive development since the last review, with Mr Currie’s engagement with Dr Madsen and the work that has been done with one-on-one treatment.  Based upon Dr Madsen’s report and the psychiatrists’ evidence, the work Dr Madsen and Mr Currie have been doing together has set Mr Currie on a pathway to being released under a supervision order, but I am not satisfied that he can presently be released on such an order even with that treatment continuing.  The suggestion that it could be combined with his undertaking the MISOP program in the community would in my view condemn Mr Currie to failure, based on the psychiatric evidence, the observations of Dr Madsen and Mr Currie’s antisocial personality and psychopathy.
  5. [52]
    While the one-on-one program with Dr Madsen appears to be having a positive effect and he has tailored an individual program to address Mr Currie’s sexual reoffending, the gains he has made are not sufficient to satisfy me that the adequate protection of the community can be ensured by Mr Currie being released on a supervision order.  Dr Harden’s opinion, which I accept, is that if released on a supervision order, Mr Currie’s risk of reoffending would still be moderate to high and that a supervision order would now offer a small diminishment of his risk.  Dr Sundin considered that a supervision order would reduce the risk of recidivism in terms of his sexual offending to some degree, but considered that the risk was still high.  The difference between the two opinions is not significant, in terms of whether the risk can presently be reduced to an acceptable level under a supervision order.
  6. [53]
    I accept the opinion particularly of Dr Harden that the passage of six months and lack of adverse incidents is a particularly positive sign for Mr Currie.  Dr Sundin also acknowledged that that was a good step forward.  Both Dr Sundin and Dr Hardin consider that the reduction in adverse incidents is linked to the therapeutic treatment Mr Currie has received from Dr Madsen. As Dr Madsen observes, that suggests that Mr Currie does have the capacity to self-regulate his reactions and behaviours when he is appropriately motivated and engaged.  However, Dr Harden stated that he considers that, in order to be confident that Mr Currie could comply with a supervision order, the individual treatment program needs to continue for a further 12 months in a custodial environment to consolidate his gains with evidence of continued compliance.  Dr Sundin was more hesitant in her view, considering that Mr Currie has only just begun to gain some understanding of why his offending conduct was wrong, but still acknowledged the progress that has occurred. 
  7. [54]
    Dr Harden stated that if he was confident that Mr Currie would comply with the conditions of a supervision order, the risk would be moderate or perhaps low to moderate in terms of Mr Currie’s reoffending, but six months without adverse incidents is not sufficient to satisfy him that that is the case.
  8. [55]
    I am satisfied that while Mr Currie is now on the pathway to being able to be released under a supervision order with the work that has occurred, particularly over the last six months with Mr Madsen, and his not being involved in adverse incidents, however that on the evidence before me, further work needs to be done for Mr Currie to develop a proper insight into his offending and develop protective mechanisms to reduce the risk of his reoffending in the future, in order for that risk to be reduced to an acceptable level.
  9. [56]
    Up until April 2018, there had been 11 adverse incidents and the discovery of material in March and October 2018 reveals an ongoing sexual preoccupation which is relevant to his heightened risk of reoffending.  Coping mechanisms and a level of understanding about the nature of his offending need to be developed over the next 12 months while Mr Currie is in custody, to be able to ensure the adequate protection of the community, such that Mr Currie will be able to control and address the triggers for his reoffending and cope with the stresses to which he will be exposed upon his release.  As Dr Harden stated, Mr Currie needs to work with someone to change his behaviours, and that is finally occurring.
  10. [57]
    While I accept that Mr Currie is frustrated about being under the Dangerous Prisoners Regime and frustrated that he was required to undertaken the HISOP program, his sexual recidivism was such that it did indicate that engagement in such a program was warranted. However, it has now been recognised that his personality is such that engagement in a group program is not a viable prospect, and that the individual approach that has been developed by Dr Madsen (which was supported by QCS) to recognise his personality is such that his individual treatment may serve as a substitute for such a program.
  11. [58]
    While Mr Currie’s desire to be free militates in favour of his being released under a supervision order, the likelihood of his compliance with such an order, given his antisocial personality disorder and psychopathy, his history of offending and the adverse incidents that have occurred since December 2017, albeit not since April 2018, presently weigh against such release.  In that regard, I note, while he indicated to Dr Harden that he would be willing to comply with such an order, he also got upset and angry when the idea of such an order was discussed, particularly at the notion of wearing a tracking monitor.  At present, neither Dr Sundin nor Dr Harden’s opinions support the suggestion that the risk of reoffending could be reduced to an acceptable level under a supervision order. The psychiatric evidence, while not diagnosing any sexual paraphilia, does not limit his risk of reoffending to circumstances involving substance abuse and opportunity. 
  12. [59]
    His risk of reoffending of a sexual nature relevant to the Act, particularly given his antisocial personality and psychopathy which make him vulnerable to playing out antisocial elements of his antisocial behaviour, does not support a finding that a supervision order would be sufficient to control the risk of reoffending, even accepting that a supervision order is not required to be watertight in order for adequate protection of the community to be ensured, and accepting that the onus is on the applicant in this regard.
  13. [60]
    The material found in Mr Currie’s cell shows, as Dr Sundin found, that his level of sexual preoccupation continues to be high and is a matter which needs to be clinically addressed in his work with Dr Madsen to develop the relevant control mechanisms, particularly given his history of sexual offending.  These matters are significant, particularly as Dr Harden observes a lack of ability to control his impulsivity associated with Mr Currie’s personality structure.  Dr Harden considers the fact that there is a sexual preoccupation is part of Mr Currie’s profile and that is a matter that will continue to be addressed by Dr Madsen.
  14. [61]
    While a supervision order is not required to be watertight, it must be efficacious in constraining the respondent’s behaviour by reducing the risk of reoffending to an acceptable level.  That risk is still too high a level for Mr Currie to be released into the community under a supervision order, even with him continuing to have individual treatment with Dr Madsen.
  15. [62]
    Given the above and taking into account that the paramount consideration is the need to ensure the adequate protection of the community, I am satisfied the Attorney-General has established that there could not be adequate protection of the community by a supervision order and there can only be adequate protection of the community by a continuing detention order. 
  16. [63]
    That is not to indicate that that will remain the case for the future, particularly given the ongoing treatment and positive response of Mr Currie to Dr Madsen.
  17. [64]
    I affirm the decision of this Court of 24 June 2016 that the respondent is a serious danger to the community in the absence of a Division 3 order.  I order the respondent continue to be subject to a continuing detention order.

Footnotes

[1] Attorney-General for the State of Queensland v Currie [2016] QSC 48 [37]-[38].

[2] Attorney-General for the State of Queensland v Currie [2017] QSC 318.

[3] Dangerous Prisoners (Sexual Offenders) Act 2003 s 30(1).

[4] See Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 at [22], [60] and [225] and Attorney-General (Qld) v Kennedy [2016] QSC 287 at [23].

[5] Dangerous Prisoners (Sexual Offenders) Act 2003 Schedule: Dictionary.

[6] Dangerous Prisoners (Sexual Offenders) Act 2003 s 30(3)(a), (b).

[7] Dangerous Prisoners (Sexual Offenders) Act 2003 s 30(4).

[8] Dangerous Prisoners (Sexual Offenders) Act 2003 s 13(7).

[9] [2006] QCA 324 at [39].

[10] [2006] QCA 324 at [39].

[11] Attorney-General for the State of Queensland v Currie [2016] QSC 48.

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Editorial Notes

  • Published Case Name:

    Attorney-General (Qld) v Currie

  • Shortened Case Name:

    Attorney-General (Qld) v Currie

  • MNC:

    [2018] QSC 318

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    17 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General v Currie [2016] QSC 48
4 citations
Jump To
Cite 1 - [2016] QSC 48
Cite 2 - [2016] QSC 48
Cite 3 - [2016] QSC 48
Cite 4 - [2016] QSC 48
Attorney-General v Currie [2017] QSC 318
2 citations
Jump To
Cite 1 - [2017] QSC 318
Cite 2 - [2017] QSC 318
Attorney-General v FJA [2018] QSC 291
1 citation
Jump To
Cite 1 - [2018] QSC 291
Attorney-General v Francis[2007] 1 Qd R 396; [2006] QCA 324
3 citations
Jump To
Cite 1 - [2006] QCA 324
Cite 2 - [2006] QCA 324
Cite 3 - [2006] QCA 324
Attorney-General v Kennedy [2016] QSC 287
2 citations
Jump To
Cite 1 - [2016] QSC 287
Cite 2 - [2016] QSC 287
Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519
2 citations
Jump To
Cite 1 - (2004) 78 ALJR 1519
Cite 2 - (2004) 78 ALJR 1519

Cases Citing

Case NameFull CitationFrequency
Attorney-General v Currie [2021] QSC 1973 citations
1

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