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- Unreported Judgment
Attorney-General v Allen QSC 56
SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v Robert Kelly Allen  QSC 56
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
ROBERT KELLY ALLEN
No 11156 of 2016
Supreme Court at Brisbane
4 March 2019
4 March 2019
The order of the court is that:
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 was subject to examination by psychiatrists for the purposes of the application – where the applicant conceded that adequate protection of the community could be ensured by a supervision order under Division 3 Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) – where the respondent conceded the need for a supervision order under Division 3 Part 2 of the Act – whether the respondent presents a serious danger to the community in the absence of a supervision order under Division 3 Part 2 of the Act – whether such an order should be made
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 11, s 13, s 30
J Rolls for the applicant
J Horne for the respondent
Crown Law for the applicant
Legal Aid Queensland for the respondent
- This is the first review of a continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) against the respondent on 10 April 2017, almost 23 months ago.
- The review begins with the question of whether the court affirms that the prisoner is a serious danger to the community in the absence of a Division 3 order. The table below sets out the respondent’s relevant convictions and sentences for two substantial episodes of offending, and further convictions in relation to a second episode, constituting breaches of orders made as a result of the first episode.
Description of Offence
Conviction recorded on all charges.
Imprisonment 2 years to be suspended for 3 years after serving 352 days. Subject to probation order.
Balance of suspended sentence invoked.
Conviction recorded. Sentenced to 2 years 6 months imprisonment
- The earlier, or 2012 convictions, were summarised in the reasons for judgment of this court when the continuing detention order was made as follows:
“On that occasion he was sentenced to an effective sentence of two years imprisonment to be suspended for three years after serving 352 days in pre-sentence custody, which he had already served from the time that he had gone into custody on 23 February 2011, until the date of the sentence. In relation to the fifth count of carnal knowledge he was given probation for two years. He was also dealt with for other offences on that occasion that were covered by the same probation order.
The circumstances of the offending were that when he was 24 years old he had sexual intercourse with a runaway girl who was 14 years old. It was consensual in that the sentencing judge recorded that there was no coercion. As a result of Mr Allen’s convictions for these offences, the Bundaberg Magistrates Court on 14 November 2012 made a prohibition order in relation to Mr Allen, pursuant to the Child Protection (Offender Reporting) Act 2004, which prohibited him from having any unsupervised contact with a female aged under 16 years. The order was to remain in place for five years.”
- The last set of convictions in 2015 were summarised in the reasons for judgment of this court on making the continuing detention order as follows:
“Within approximately three months of Mr Allen’s release from custody, the offences for which he had been sentenced on 9 February 2012, he offended again by forming a relationship with a 15 year old girl who was in the custody and care of the Department of Child Safety. He breached the suspended sentence and the probation order imposed on 9 February 2012. Again, the relationship appears to have been consensual. Mr Allen was returned to custody, and he remained in custody until he was dealt with in the District Court at Bundaberg on 6 December 2012.”
- One point to note is that none of the offending so described was either violent or factually non-consensual sexual activity. That does not detract from the circumstance or circumstances that the victims were young females aged 14 and 15 years, respectively, at the time of the offending, entitled to the protection that the prohibition on engaging them in sexual intercourse is intended to give. But it is a relevant circumstance in considering the findings and orders sought as against the respondent. The sentencing judge, in respect of the 2012 convictions, said as follows:
“I take into account, however, that there was no coercion. The intercourse was, effectively, entirely voluntary, and that you were generally part of the same social group, despite the disparity of age, and she had run away from home, and was living with a friend of hers at that time.”
- The learned judge also found that the respondent was not in a position of trust towards the complainant, and that the offending intercourse occurred within a short time of them having met when the respondent was intoxicated from alcohol and possibly drugs.
- The 2014 offences, which were the subject of the second set of 2015 convictions, were the result of the respondent forming a relationship with a 15 year old girl who was in the custody and care of the Department of Child Safety. The respondent was returned to custody. The sentencing judge, on the second set of 2015 convictions, said as follows:
“Whilst in custody you have continued to have contact with that child in the form of various letters that you sent to her. You have demonstrated a determined intent to make contact with this vulnerable child to the extent that on 1st of May last year you were found in bed with her, having been told the previous night that you should not and cannot be there.”
- Another relevant point is that there is no evidence, apparently, that the respondent groomed or manipulated the victims, or that he has a paedophilic interest in young girls, or any other paraphilia.
- The respondent’s full time release date upon the 2015 sentences was 24 April 2017. The continuing detention order made on 10 April 2017 prevented that release. The judge who made that order was satisfied, on the evidence of the psychiatrists, that the respondent’s moderate to high risk of reoffending in respect of sexual violence was an unacceptable risk, as contemplated by s 13(2) of the Act, having regard to the matters that are set out in s 13(4).
- The definition of a serious danger to the community, in the absence of a Division 3 order in s 13(2) of the Act, is conditioned upon an unacceptable risk that the prisoner will commit a “serious sexual offence” if released, or if released from custody without a supervision order. As defined in the Schedule, there are two species of “serious sexual offence”: either an offence of a sexual nature involving violence, or; an offence of a sexual nature against a person believed by the prisoner to be under the age of 16. The respondent’s historical offences were serious sexual offences because he believed the victims to be under the age of 16, not because they involve violence.
- On the question of whether to affirm the decision that the respondent is a serious danger to the community, the historical offending clearly supported the 2017 finding that the respondent was a risk of reoffending by committing a sexual offence against a person believed by him to be under the age of 16. In my view, the court may affirm a finding of a serious danger to the community, even if the basis of the original finding was a risk of reoffending by committing a sexual offence involving violence but the risk on review is a risk of reoffending by committing a sexual offence against a person believed to be under the age of 16.
- On the hearing of this review, I am satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to affirm the decision for the reasons that I have given and which I will explain in a little more detail as these reasons continue.
- The second question to be considered when a continuing detention order is made is whether the community could not be adequately protected by a supervision order. On the 2017 application, the applicant submitted that it could not, because in particular, he had not completed the High-Intensity Sexual Offender Treatment Program, or “HISOP”. The judge held that the applicant’s submission that a continuing detention order should be made was supported by the respondent’s diagnoses of antisocial personality disorder and psychopathy, and the respondent’s inability, between 2012 and 2014, to comply with the court orders that specifically required him to keep away from girls under 16 years of age.
- Whether it should be affirmed that the respondent is now a serious danger to the community must be decided on the evidence as it stands now. The evidence brings up to date the respondent’s continuing detention in custody, not as a sentence or punishment for a past offence or offences, but purely for the protective purposes of the Act. That period includes the respondent’s participation in a HISOP over a period of 15 months. As well, there are two further reports of psychiatrists, obtained for review as required under s 29 of the Act.
- Both of the psychiatrist reports confirm the diagnoses of the respondent previously found on the making of the continuing detention order. Both of them focus in detail on the respondent’s performance as a prisoner since the continuing detention order was made, including during the HISOP, and the opinions are formed by looking at the material as it was brought up to date, and by virtue of an interview with the respondent.
- Both the psychiatrists postulate an additional diagnosis that the respondent suffers from a Polysubstance Use Disorder. That is not apparently controversial.
- Dr Sundin also postulates that the respondent meets the criteria for a conduct disorder in childhood adolescence, and that the respondent may have suffered from Attention Deficit Hyperactivity Disorder, and childhood-onset Post-traumatic Stress Disorder. It is unnecessary to consider these points that do not directly go to the risk of the respondent reoffending by committing a serious sexual offence, except to the extent that they may suggest or support delay in the respondent’s personality development as an adult.
- Yet, it must be remembered that the reporting psychiatrists give evidence of opinion as experts. Like all expert witnesses, they are obliged to confine their opinions to those that are within expertise. This must be kept in mind when considering a psychiatrist’s report upon an assessment of the level of risk under s 11 of the Act, and it must also be kept in mind when the reports of the reporting psychiatrists differ upon what seems to be a question of importance. In the present case, there is one such difference.
- Neither Dr Sundin, nor Dr Aboud, supports a finding that the respondent has a diagnosis of hebephilia, or paedophilia.
- Dr Sundin opines that the respondent’s unmodified, that is without a Division 3 order, risk of sexual reoffending is moderate to high. Then she opines that his risk of future violent offending is high, and the risk for general offending, without exploring what that might be, is high. She opines that future sexual offences are likely to involve vulnerable females in their teens or early twenties. The respondent will “exploit” those persons. The offence may involve rape. The level of violence, and the risk of sexual violence, would be enhanced by the presence of intoxicants.
- There are some difficulties with views expressed in this way. How much of these expressions of opinion are expert evidence within the field of expertise of a clinical psychiatrist may be passed by for the moment. By collectively referring to females in their teens and twenties, Dr Sundin does not distinguish between teens under the age of 16 and older females, including adults. That risks infantilising adult women who may consent to sexual activity with the respondent. What Dr Sundin intends to convey by referring to “vulnerable women” is not entirely clear. There is no suggestion in the evidence that the respondent targeted any female for sexual offending, except by being prepared to engage in sexual intercourse with persons under the age of 16 years.
- These opinions may be contrasted, to some extent, with Dr Aboud’s opinions. He opines that the respondent’s unmodified risk would be high in respect of general offending, would be high in respect of nonsexual violence and would be moderate in respect of sexual violence.
- Perhaps inconsistently with the last opinion, he says that it is unlikely that the respondent would use violence or threats, but that he might use “psychological coercion”. Exactly what Dr Aboud intends by the last point is a little puzzling. First, there is no evidence the respondent has previously used any form of psychological pressure or coercion for sexual offending. Second, the respondent does not usually, in terms of his offending, form relationships. His sexual encounters tend to have been casual. Third, whatever is intended to be conveyed by “psychological coercion”, it is distinguished by Dr Aboud from threats of violence, so it would not amount to a sexual offence involving violence.
- I am not persuaded by these opinions that the respondent is a serious risk of reoffending by a sexual offence involving violence. In reaching that view, I am inevitably a little affected by the circumstance that the applicant’s litigation resourcing, upon applications of the present kind, is significant and that the psychiatrists, who frequently give opinions in support of applications of this kind, must inevitably be exposed to a real risk of unconscious bias. As well, there is no equivalent funding, or reasonable funding, of respondents who are made subject to applications like the present. Too often, even if there were any money, there is not enough time between the provision of the reporting psychiatrist reports and the hearing that must be completed in the statutory timeframes. These points make it all the more important that the opinions of the reporting psychiatrists are prepared with and presented with both professional rigour and appropriate circumspection.
- On the other hand, in my view, there is no shortage of evidence that the respondent is a serious risk of reoffending by committing a sexual offence against a person under 16 years of age, whom he believes to be under that age. That risk is informed, principally, by his history of such offences. The only real question is whether, in the time that has passed since October 2014, when his last offence of that kind occurred, the risk has reduced for whatever reason. Without setting out the details, in my view, the last question should be answered in the negative, accepting that the applicant bears the onus of proof.
- The respondent has completed the HISOP since the last finding of a serious danger to the community was made and that finding was informed by a finding which I would not make of a serious risk of reoffending by committing a sexual offence involving violence. But, in my view, neither the respondent’s progress in prison, nor the results of his completion of the HISOP, as set out in the exit report, are such as to modify the risk that he otherwise presents.
- I take into account the respondent’s views expressed to the reporting psychiatrist and others that he considers himself much better equipped to manage the risks as having a positive effect on the respondent, which is a statutory consideration. But even so, the need to protect the members of the community from the postulated risk of serious sexual offending is one that is paramount. On those bases, I affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order.
- The second question is whether a Division 3 order should be made, and if so, whether the continuing detention order should be continued or should be rescinded, and a supervision order made.
- On that question the applicant bears the onus of proof to show why, if a Division 3 order should be made, a supervision order would not satisfy the paramount consideration to ensure adequate protection of the community.
- In this case no submission is made by the respondent that no Division 3 order should be made. Further, the applicant does not submit that the continuing detention order should be continued. It is common ground that it should be rescinded, and a supervision order should be made. I accept those submissions. The reporting psychiatrist views also supported the making of a supervision order, and were of assistance in sorting among the proposed conditions as to those which should be conditions of the order.
- In particular, I am prepared to make an order in the form of the draft that was provided, with the deletions of originally proposed conditions 15, 22, 31 and 32, and with the insertion in proposed condition 30 of the word female before the word children.
- Before leaving the case it is necessary to make one other observation. There is a great deal of evidence in the case of the respondent’s history of offending for offences that are not sexual offending and much of the evidence is directed to his antisocial personality traits and general risks of reoffending, including violent offending. There was a tendency for these issues to get mixed in with and to confuse some of the statements made about the specific risk of reoffending by committing a sexual offence that might amount to a serious sexual offence.
- The necessary findings for a case under the Act require that the subject matters be, at the least, dealt with distinctly and in my view, they should be largely dealt with separately, or else the Act might be deployed as a means for continuing detention of antisocial prisoners with a high risk of reoffending, but not an unacceptable risk of serious sexual offending.
- Published Case Name:
Attorney-General for the State of Queensland v Robert Kelly Allen
- Shortened Case Name:
Attorney-General v Allen
 QSC 56
04 Mar 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 56||04 Mar 2019||Review of continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003; respondent confirmed to be 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); continuing detention order rescinded; respondent be released from custody subject to a supervision order: Jackson J.|