Attorney-General v Griffin[2020] QSC 285

SUPREME COURT OF QUEENSLAND

1. [1]
   The respondent has been the subject of a supervision order made by Applegarth J on 9 July 2018 pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA).  The applicant alleges that the respondent contravened that order and seeks orders under s 22 of the DPSOA.
2. [2]
   On 4 September 2020, I made the following orders:

“THE COURT, being satisfied pursuant to section 22(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) that Paul Mark Griffin, the respondent, has contravened requirements 15, 40, 42 and 43 of the supervision order made on 9 July 2018, ORDERS THAT:

1. The respondent be released from custody and be subject to the supervision order made on 9 July 2018.

2. The hearing date of 21 September 2020 be vacated.”

3. [3]
   These are my reasons for making the orders which I did.

History

4. [4]
   The respondent was born on 8 June 1986.
5. [5]
   On 12 July 2008, the respondent was convicted in the District Court of Napier in New Zealand of one count of attempt to rape a female under the age of 12.  He was sentenced to a term of imprisonment of five years.  In placing the respondent on the supervision order, Applegarth J described that offending as follows:

“[22] The victim was six years of age. The respondent had become close friends with the victim’s mother and he had become a trusted visitor at the victim’s home. On the day of the offending the victim was being cared for by a babysitter and the respondent visited the house. Upon arriving he cuddled the victim on a bed until the babysitter intervened. The respondent then took the victim outside and played with her in an area that was sheltered from view of the babysitter. The respondent removed the victim’s lower clothing and sat her on his lap and attempted to penetrate her genitalia with his penis. He was then interrupted by the victim’s ten year old sister and then ran off, leaving the house.”^[1]

6. [6]
   After serving that sentence the respondent was deported to Australia.  On 13 August 2015, in the District Court at Ipswich, he was convicted on his own plea of guilty of one count of rape and was sentenced to a term of imprisonment of three years and six months with 203 days of pre-sentence custody being declared as imprisonment already served under the sentence.
7. [7]
   Applegarth J described that offending as follows:

“[26] The victim was eight years old at the time of the offending. The victim referred to the respondent as her ‘uncle’. On 29 December 2014, the victim’s mother took the victim and the victim’s sister to visit her grandmother. The respondent lived with the grandmother. The victim, her sister and the respondent were watching movies in the respondent’s bedroom, the victim and her sister were lying on either side of the respondent on the bed. The victim was laying under a blanket.

[27] The respondent put his hand down the victim’s pants and inside her underwear and has then put his finger into her vagina. The victim told him to stop, but he continued to touch her. The victim said ‘it hurt a bit’. The victim has then got up and left the bedroom.

[28] The offending was detected in January 2015. At this time the victim disclosed to her mother what had happened. The respondent was contacted in a pretext telephone conversation with the victim’s mother. During this conversation the prosecution noted the respondent ‘was not fully willing to accept the offending; in fact it could probably be best described by him as a minimalist approach to the allegation’.”^[2]

8. [8]
   The respondent’s release date on the sentence imposed in the District Court at Ipswich was 20 July 2018.  However, the applicant filed an application under the DPSOA and on 9 July 2018 Applegarth J ordered that the respondent be released subject to a supervision order for a period of 10 years until 20 July 2028.  The supervision order contained various conditions, but importantly here, are the conditions that the respondent must:

“15. not commit an indictable offence, relating to children, during the period of the order;

40. not access child exploitation material or images of children on a computer, or on the internet or in any other format;

42. to advise a Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by you within 24 hours of connection or commencement of use and includes reporting any changes to mobile phone details;

43. except with prior written approval from a Corrective Services officer, you are not to own, possess or regularly utilise more than one mobile telephone.”

The present contravention

9. [9]
   On 7 March 2020, detectives from the Child Safety and Crime Group executed a search warrant and took possession of mobile phones used by the respondent.
10. [10]
    As a result of the police action, the respondent was:

1. charged with five counts of breaching the supervision order;^[3]
2. charged with one count of unlicensed driving;
3. arrested pursuant to a warrant issued under s 20 of the DPSOA on 9 March 2020; and
4. brought before this court on the warrant on 10 March 2020 and an order was made that he be detained in custody until the determination of the contravention proceedings.^[4]

11. [11]
    It is the warrant which was issued under s 20 of the DPSOA which vests jurisdiction in the court to make orders under s 22 upon the breach of a contravention order.  However, in Attorney-General (Qld) v Sands,^[5] Burns J considered that the applicant’s practice of filing a written application seeking orders under s 22, while unnecessary, was commendable.  The filing of an application identifying the particulars of the contravention serves to properly put a respondent on notice of the allegations being faced.^[6]
12. [12]
    The contravention application here, alleges:

“Mr Griffin made admissions to Police that he had in his possession and regularly used two mobile phone devices. The two phones seized by Police were in addition to the approved phone he is permitted to use by Queensland Corrective Services. Mr Griffin did not seek approval from a Corrective Services officer to possess more than one mobile phone. This contravenes requirements (42.) and (43.) of his supervision order.

Mr Griffin made admissions to Police to utilise the mobile phones to view pornographic material, including images containing child exploitation material. Mr Griffin disclosed accessing [website redacted]. This contravenes requirements (15.) and (40.) of his supervision order.

Mr Griffin has admitted to several contraventions of his supervision order and several criminal offences related to sexual offences. Police seized Mr Griffin’s mobile phone devices and are currently completing examinations to determine further criminal charges. Initial examinations of [website redacted] by Police indicate child victims are present.”

13. [13]
    The contraventions have been admitted.  The criminal charges arising from the police search came before the Magistrates Court at Richlands on 17 April 2020.  The respondent pleaded guilty to all six charges.  The effective result of the various sentences imposed was six months imprisonment wholly suspended for an operational period of 18 months.
14. [14]
    The hearing of the contravention proceedings was listed for 21 September 2020.
15. [15]
    On 4 September 2020, the matter came before me.  I was advised that no witnesses were required for cross-examination, that the parties had agreed on a bundle of documents to be tendered and that the applicant conceded that the respondent had shown that the adequate protection of the community could, despite the contraventions, be assured by his release back on the supervision order without amendment.^[7]  After consideration, I accepted that concession was properly made and I made the orders.

Psychiatric evidence

16. [16]
    On the hearing of the original application, Applegarth J received evidence from three psychiatrists, Dr Michael Beech, Dr Jane Phillips and Dr Andrew Aboud.  Those doctors opined:

    1. (a)
       Dr Beech: 

“In my opinion, these fantasies^[8] and his own offending indicate that he has Paedophilia, with an attraction to female children.”^[9]

2. (b)
   Dr Phillips: 

“. Mr Griffin meets diagnostic criteria for Pedophilic Disorder (sexually attracted to females). This diagnosis is supported by the convictions for child sexual offences; his admission to sexually deviant fantasies involving children; use of child exploitation materials; results of the Sexual Adjustment Inventory; and previous penile plethysmography.

• I have not found evidence to suggest that Mr Griffin meets criteria for any additional paraphilic disorders, in particular there is no evidence of sexual sadism disorder.

• Mr Griffin has borderline intellectual functioning. He has a history of learning difficulties; attended special classes; and has limited literacy and numeracy. A WAIS-IV conducted on the 18/02/2016 showed a full scale IQ of 77.

• I have found no evidence that Mr Griffin has ever suffered from a mental illness, including no previous episodes of depression, hypomania, mania, psychosis or post- traumatic stress disorder.

• There is no evidence to suggest that Mr Griffin has ever suffered from alcohol or illicit substance abuse or dependence.

• Mr Griffin does not meet criteria for a diagnosis of a co-morbid personality disorder. In particular he does not present with borderline or anti-social personality disorder, nor does he meet criteria for a diagnosis of psychopathy.”^[10]

3. (c)
   Dr Aboud:

“From a diagnostic perspective, Mr Griffin meets criteria for paedophilia, nonexclusive type, sexually attracted to females. He appears to have harboured sexually deviant thoughts and masturbatory fantasies regarding pubescent and prepubescent girls. While he claims that these thoughts have diminished, it is likely that they persist as problematically as has been the case throughout his adult life. His intellectual difficulties most reasonably can be formulated by way of a diagnosis of borderline intellectual impairment. Further I am of the view that he also suffers from an avoidant personality disorder.”^[11]

17. [17]
    All three doctors assessed the respondent’s risk of sexual re-offending against children without supervision as high but reduced significantly if on supervision.
18. [18]
    For the current breach proceedings, Dr Beech and Dr Aboud examined the respondent and provided reports.
19. [19]
    Doctor Beech, in his report dated 14 July 2020, expressed his opinion as follows:

“Paul Griffin is a 34-year-old single man who was released to a supervision order in July 2018. He has a borderline intellectual functioning and has required community support through the NDIS. Mr Griffin has history of offending against young female children in New Zealand and Queensland. He has described an attraction to female children and fantasies about them. He has been formally diagnosed with Paedophilia.

On the supervision order, in many ways he has been reasonably settled and he has progressed. He moved to a Stage 5 curfew. He was able to find part-time work in a wrecker’s yard and to pursue his interest in cars and the speedway. He has very few social supports but he does have the support of his grandfather and granduncles. His behaviour was generally settled although he is prone to emotional instability when he is stressed. Throughout the supervision period though, there were multiple infractions for things such as not charging the tracking device, detouring from his set itinerary or over-staying at places, but nothing of immediate concern. I think he does have a laid-back attitude to supervision but generally he has complied with it. He was engaged with psychological treatment and was thought to have interacted reasonably well.

However, I agree with Dr Oertel^[12] that Mr Griffin is likely to give unreliable accounts of his internal sexual activities. Early on, he deleted data from his phone. He reported fantasising and masturbating to child images when stressed. Overall, I think there is evidence that he remained sexually preoccupied with his paedophilic interests but restricted this to holding onto mental images of children he saw opportunistically, viewing online images, and eventually to accessing child exploitation material. The sexual preoccupation may have increased during periods of stress, and the material generally indicates that he is easily overwhelmed and has poor problem-solving abilities.

It is my opinion that the sexual preoccupation with child exploitation material and the accessing of CEM is a sign that the acute risk of re-offending is elevated. I think it was one of the conduits to earlier offending. He has hidden this and his deception has expanded to possessing two illicit phones, which enabled him to use the Internet.

However, the supervision order restricts his activities (although clearly he has a tendency to overstay or detour) and restricts his ability to access potential victims in person. To that end, I think that the supervision order substantially reduces the risk overall of re-offending because it prevents him having contact with young children and befriending them in a social situation, which appears to be his entre to direct physical contact with a child and the offending.

I believe that the risk has returned to the baseline risk prior to his release on the supervision order. He could be managed again on a supervision order. He clearly requires community support and I think that he needs further extensive psychological interventions if he is to curtail the sexual fantasies. He might benefit from medication for this but this could be addressed with him in the community.

Supervisors will need to be alert to the possibility that he has obtained Internet access or purchased more phones, so he will require surveillance.

In the longer term, it should be noted he has few social supports other than his grandfather and his grand-uncles. I think this should be another focus for rehabilitation, expanding his area of social and recreational pursuits and social supports.”^[13] (emphasis added)

20. [20]
    Doctor Aboud, in his report dated 8 August 2020, opined:

“Paul Griffin carries with a range of vulnerability factors associated with future offending. He is impulsive, somewhat avoidant and sexually deviant, with a strong paedophile drive. He tends to cope with psychosocial stressors by becoming sexually preoccupied. He has a deep seated emotional congruence with children, and enjoys their company and their interests. He has developed infatuations with female children who he has had close contact with, and he has used grooming behaviours (of both the child and their parents) to further that contact. He appears to have used sexual behaviour as a means with which to cope with emotional difficulties, negative affect, and stress, and also in the context of paraphilic urge in respect of masturbatory behaviour associated with fantasy regarding female children with whom he has become familiar. This has been further driven by use of child pornography. He has been more vulnerable to offending when experiencing relationship and sexual frustration, feeling lonely and isolated, experiencing low self-regard, and especially when he has access to potential female child victims. I am aware that he has participated in adapted sexual offender treatment programs in custody in both New Zealand (2012) and Queensland (2016). I am also aware that he reoffended in 2014, following deportation from New Zealand, and after participating in the first treatment program. Most recently, he breached conditions of his supervision order, by acquiring contraband mobile phone devices and using them to access pornography, including, it would seem, child exploitation material. It appears that in the latter part of 2019, and likely until the time of his return to custody in March 2020, he was possibly becoming more sexually preoccupied.

Taking into consideration the various actuarial and dynamic assessments of future violence and sexual violence risk that have been applied, it is my view that Mr Griffin’s current unmodified risk would remain high in respect of sexual reoffending and low in respect to violent offending. If he was released into the community without any supervision, monitoring or support, I would be concerned that he would be vulnerable to encountering higher risk situations. Such higher risk situations would be associated with his experiences of psychosocial problems (such as intimate and non-intimate relationship difficulties, loneliness and isolation, interpersonal conflict, financial hardship) which cause negative affect or any contact with female children living in his vicinity. In my opinion, the supervision and monitoring and supportive measures available under the provisions of a supervision order would reduce his risk of sexual reoffending to between moderate and low.

If he was released to the community, important management considerations would include: re-engagement with a psychologist (with an emphasis on motivational work in respect of compliance with conditions/requirements of the order, and to continue to address sexual deviance, problem solving, maladaptive coping, avoidant coping, intimacy deficits, low self-esteem, management of negative affective states, emotional congruence with children); possible assessment by a private psychiatrist, with a view to considering the benefits of medication treatment to reduce deviant sexual drive (i.e. antilibidinal hormonal medication); assistance to develop a social support network and to re-establish useful employment. In the first instance, it will be also be important to ensure: appropriate accommodation; electronic monitoring; curfew arrangements; abstinence from alcohol and illicit substances; no access to public places or public transport at times when there is a high likelihood of the presence of young girls (i.e. school children). In the longer term, some of these more restrictive measures might be reviewed. It would be important, however, given his history of previously escalating sexual preoccupation following contact with a female child, he should have no unsupervised access to children in the long term. Similarly, given his previous history of escalating sexual preoccupation in the context of using child pornography, he should have no unmonitored access to the internet.

In essence, it is my view that Mr Griffin could be re-released to the community, subject to an unamended supervision order.”^[14] (emphasis added)

Statutory context

21. [21]
    Final determination of contravention proceedings is governed by s 22 of the DPSOA which provides, relevantly:

“22 Court may make further order

3. (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).

3. (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—

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

2. (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. (3)
   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—

1. (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

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

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

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

22. [22]
    Section 22 refers to “the adequate protection of the community”.^[15] That concept appears in Division 3 of Part 2 in the DPSOA. The pivotal section in Division 3 is s 13, which provides:

“13 Division 3 orders

3. (1)
   This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).

3. (2)
   A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—

1. (a)
   if the prisoner is released from custody; or

2. (b)
   if the prisoner is released from custody without a supervision order being made.

3. (3)
   On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—

1. (a)
   by acceptable, cogent evidence; and

2. (b)
   to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.

3. (4)
   In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

(aa) any report produced under section 8A;

1. (a)
   the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

2. (b)
   any other medical, psychiatric, psychological or other assessment relating to the prisoner;

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

4. (d)
   whether or not there is any pattern of offending behaviour on the part of the prisoner;

5. (e)
   efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;

6. (f)
   whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history;

8. (h)
   the risk that the prisoner will commit another serious sexual offence if released into the community;

1. (i)
   the need to protect members of the community from that risk;

10. (j)
    any other relevant matter.

3. (5)
   If the court is satisfied as required under subsection (1), the court may order—

1. (a)
   that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

2. (b)
   that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).

3. (6)
   In deciding whether to make an order under subsection (5)(a) or (b)—

1. (a)
   the paramount consideration is to be the need to ensure adequate protection of the community; and

2. (b)
   the court must consider whether—

1. (i)
   adequate protection of the community can be reasonably and practicably managed by a supervision order; and

2. (ii)
   requirements under section 16 can be reasonably and practicably managed by corrective services officers.

3. (7)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

23. [23]
    Section 13 operates in this way:

    1. (a)
       The test under s 13 is whether the prisoner is “a serious danger to the community”.^[16]
    2. (b)
       That initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”^[17] if no order is made.
    3. (c)
       If that conclusion is reached, then a supervision order (as opposed to a continuing detention order) can only be made where the adequate protection of the community can be ensured by the making of a supervision order.^[18]
    4. (d)
       Where the “adequate protection of the community” can be ensured by a supervision order, then the making of a supervision order ought to be preferred to the making of a continuing detention order.^[19]
24. [24]
    The respondent bears the onus of satisfying the court on the balance of probabilities that adequate protection of the community can be ensured by a supervision order despite his contraventions of the existing order.^[20]
25. [25]
    A primary objective of the DPSOA is the provision of adequate protection of the community from the commission of a “serious sexual offence”.  The term “serious sexual offence” is defined by the DPSOA, relevantly as:

“serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—

1. (a)
   involving violence; or

2. (b)
   against a child; or …”

26. [26]
    Here, the respondent suffers from paedophilia.  His offences have been against young children.  In context, the “adequate protection of the community” here involves a consideration of protection against the commission by the respondent of “offences of a sexual nature … against children”.
27. [27]
    While the supervision order has been contravened, the respondent has not committed an offence of a sexual nature against a child, or any other sexual offences, while the supervision order has been in place.  As explained by Jackson J in Attorney-General (Qld) v Fardon,^[21] breaches of a supervision order are only relevant to the extent that they pertain to a consideration of any statutorily prescribed question which here is the adequate protection of the community against the commission of an offence of a sexual nature against a child.
28. [28]
    I accept the evidence of Doctors Beech and Aboud that the respondent’s risk of reoffending has been elevated by him accessing child exploitation material.  I also accept their evidence that the respondent’s unsupervised risk of reoffending is high.
29. [29]
    However, I accept the evidence of the two psychiatrists that the supervision order will operate so as to restrict the respondent’s access to children and to generally restrict his activities in such a way as to significantly lower the risk of sexual reoffending.
30. [30]
    The contraventions of the supervision order were admitted by the respondent and I find them as proved.
31. [31]
    I am satisfied that the adequate protection of the community can, despite the admitted contraventions, be ensured by release of the respondent on the supervision order in its current terms.
32. [32]
    For those reasons I made the orders that I did.