Attorney-General v Robinson[2020] QSC 287

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application brought by the Attorney-General for orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) consequent upon the respondent’s alleged breach of conditions of a supervision order to which he was subject.

History relevant to the current application

2. [2]
   On 15 June 2015, the respondent was placed on a supervision order under the DPSOA for a period of five years expiring on 15 June 2020.^[1]
3. [3]
   Over the period of the supervision order the respondent has been convicted of various offences which were not of a sexual nature but resulted in him serving a total period of 170 days in custody.  By force of ss 23 and 24 of the DPSOA, the supervision order was thereby extended and now expires on 2 December 2020.^[2]
4. [4]
   It is alleged that over a period up to 24 April 2020 the respondent committed various breaches of the supervision order.  On 24 April 2020, a warrant was issued for his arrest pursuant to s 20 of the DPSOA.  He was arrested on 25 April 2020 and appeared before Holmes CJ on 28 April 2020.  An application was filed seeking orders under s 22 of the DPSOA.
5. [5]
   On 28 April 2020, Holmes CJ ordered, pursuant to s 21(2)(a) of the DPSOA, that the respondent be detained in custody until final hearing of this contravention application.
6. [6]
   The respondent later made application under s 21(2)(b) of the DPSOA for an order that he be released pending the final determination of the contravention proceedings.
7. [7]
   On 24 July 2020, I made the following orders that:

1. Order (2) of the order of Chief Justice Holmes^[3] made 28 April 2020 be rescinded.
2. Pursuant to s 21(2)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody on 24 July 2020 and be subject to supervision on the requirements of the supervision order of Bond J made 15 June 2015, until the application filed on 28 April 2020 is finally decided.

8. [8]
   On 6 August 2020, I delivered reasons for making those orders.^[4]
9. [9]
   This is the final hearing of the application for orders under s 22 of the DPSOA.

General background

10. [10]
    In my reasons for judgment in Attorney-General for the State of Queensland v Robinson,^[5] I recorded:

    1. (a)
       the respondent’s relevant criminal history;^[6]
    2. (b)
       the respondent’s history under the DPSOA;^[7]
    3. (c)
       the current alleged contraventions of the supervision order;^[8] and
    4. (d)
       the psychiatric evidence then available.^[9]
11. [11]
    There is no need to reproduce again any of that history.  The contraventions are admitted.  They had been admitted before the orders of 24 July 2020 were made.^[10]
12. [12]
    When the respondent’s application for release came before me on 24 July 2020:

    1. (a)
       Both psychiatrists who had examined the respondent and prepared reports (Doctors Harden and Sundin) were of the view that the risk of the respondent committing a serious sexual offence was manageable on supervision.^[11]
    2. (b)
       Dr Harden recommended that upon the final hearing of the contravention proceedings the respondent should be released on supervision but the term of the supervision order should be extended by three years.^[12]
    3. (c)
       Dr Sundin thought that there should be no extension to the supervision order.^[13]
    4. (d)
       The applicant indicated that on the final hearing of the contravention proceedings she would not seek the rescission of the supervision order and the making of a continuing detention order.^[14]
13. [13]
    Upon an analysis of the evidence, I agreed with the application’s submission that an order rescinding the supervision order would not be an appropriate result of the contravention proceedings.  Therefore, at that time the only real issue on the final hearing of the application would be the conditions of his release on supervision, and in particular whether the supervision order should be extended.  On that basis, I made orders releasing the respondent until final hearing.
14. [14]
    The evidence adduced on the final hearing of the contravention proceedings did not indicate that the position had changed.  The applicant did not submit that the supervision order should be rescinded.  The only real issue was whether it should be extended.

Statutory context

15. [15]
    The orders are sought under s 22 of the DPSOA which provides relevantly as follows:

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

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. …”

16. [16]
    By s 22(7), the onus falls upon the respondent to prove that the adequate protection of the community can be ensured by his release back on the supervision order either in its present form or as amended.
17. [17]
    The notion of adequate protection of the community in s 22 is a central theme throughout the DPSOA and appears in s 13 which is the provision authorising the making of either a supervision order or a continuing detention order upon the initial application of the Attorney-General for orders under the DPSOA.  Section 13 has been the subject of frequent judicial consideration.  Section 13 operates in this way:

    1. (a)
       the test under s 13 is whether the prisoner is “a serious danger to the community”;^[15]
    2. (b)
       that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”^[16] 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;^[17] and
    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.^[18]
18. [18]
    Section 13A of the DPSOA provides as follows:

“13A Fixing of period of supervision order

3. (1)
   If the court makes a supervision order, the order must state the period for which it is to have effect.

3. (2)
   In fixing the period, the court must not have regard to whether or not the prisoner may become the subject of—

1. (a)
   an application for a further supervision order; or

2. (b)
   a further supervision order.

3. (3)
   The period can not end before 5 years after the making of the order or the end of the prisoner’s period of imprisonment, whichever is the later.”

19. [19]
    Section 13A applies to the making of orders under s 13, not the making of orders under s 21(7) consequent upon a breach of a supervision order.
20. [20]
    However, in Attorney-General v KAH,^[19] I observed, of the operation of s 13A:

“[68] It follows then that setting a period of supervision under s 13A must involve an assessment now of the prisoner’s current state but predicting when he will be an acceptable risk in the community without a supervision order.”^[20]

21. [21]
    Applegarth J, in Attorney-General for the State of Queensland v DXP,^[21] put the question this way:

“In considering the period of the order, the Court makes a current assessment of future risks and asks: when will the respondent reach a point at which he is an acceptable risk without a supervision order?”^[22]

22. [22]
    Often orders extending a supervision order are made on contravention proceedings as an amendment to “the existing order” under s 22(7)(b).^[23]
23. [23]
    Both s 13 (and the power under s 13A), and s 21(7) vest discretionary powers which are to be exercised for the same aim, namely ensuring the adequate protection of the community against the risk of commission by a respondent of a “serious sexual offence”.  Where that can be achieved by either imposing a supervision order (s 13) or extending a supervision order (s 22(7)), the term of the order must be set to expire at the point when the respondent is an acceptable risk without being subject to supervision.
24. [24]
    As can be seen from my earlier judgment,^[24] the respondent has frequently breached the supervision order.  There have been various cases which have considered the impact upon the exercise of discretion under s 21(7) of the fact of persistent breaches.^[25] 
25. [25]
    Jackson J reviewed the authorities in Attorney-General (Qld) v Fardon^[26] and concluded that persistent breaches of the supervision order can only be relevant to the extent that it impacts upon consideration of the statutorily defined question which is here the “adequate protection of the community”.^[27]  The principle as stated by Jackson J must, in my view, be correct.  It follows that what is necessary is a consideration of all the evidence including the past breaches to determine the risk of the commission of a serious sexual offence by the respondent and whether supervision past 2 December 2020 is necessary to ensure the adequate protection of the community against that risk.

The evidence

26. [26]
    Both Doctors Sundin and Harden provided reports and both gave evidence before me.  In the reports, the two doctors agreed on many things.  Both doctors are very experienced in the field of forensic psychiatry and both have been involved in the respondent’s case for some time.  The matters of agreement included:

    1. (a)
       The diagnosis of a severe personality disorder with anti-social and psychopathic traits, although there are some differences in the exact formulation of the personality disorder.^[28]
    2. (b)
       That the persistent breaches of the supervision order resulted from attitudes consistent with the respondent’s personality disorder leading to oppositional behaviour towards those supervising him.
    3. (c)
       That the respondent has a good therapeutic relationship with the psychologist, Dr Morgan.
    4. (d)
       That the taking anti-depressant medication is of assistance.
    5. (e)
       That, while the respondent has not committed a serious sexual offence since 1997, there have been transgressions of a sexual nature since that date.  Dr Sundin thought the assault of the prison officer in 2008 (prior to release on supervision) had a sexual context.  She also thought that an incident in 2016 where the respondent made a sexually explicit telephone call to an intellectually handicapped cousin was of concern.^[29]  Doctor Harden thought that the 2017 breach of the supervision order where the respondent approached a woman had a sexual connotation.^[30] 
27. [27]
    Dr Sundin, in her report, opined that the risk of further sexual recidivism persisted.  She observed:

“He continues to have an above average risk for future sexual recidivism based on historical factors, and he continues to show elevated features with respect to psychopathic personality traits…”^[31]

28. [28]
    After mentioning the respondent’s non-compliance with supervision, Dr Sundin then observed:

“These issues of compliance will continue to be a source of difficulty for supervising case officers, but I think it is an error to confuse Mr Robinson’s anti-authoritarian and obstructive attitudes with a rising risk of sexual recidivism.”^[32]

29. [29]
    After observing the positive aspects of the respondent’s recent behaviour (his relationship with the psychologist and the medication regime being examples), she observed that the present regime of supervision of the respondent in The Precinct was counterproductive given the conflict between the respondent and Corrective Services officers.  This led to her ultimate conclusion:

“I would therefore respectfully recommend to the Court that Mr Robinson can be released back into the community under his existing supervision order. I do not recommend an extension of his supervision order given the length of time since he last committed a serious sexual offence and his lack of serious sexual offending while on an order in the community.”^[33]

30. [30]
    In his report, Dr Harden observed that unmodified risk of sexual reoffending in the community without supervision was in the moderate-high range.^[34]
31. [31]
    Dr Harden’s view was that the adversarial relationship which had arisen between the respondent and those supervising him was preventing his social integration into the community.  That social integration was necessary for the risk to fall, thus leading Dr Harden to say:

“I would recommend the supervision order be extended. I recommend an extension for approximately three years. This is the kind of period over which he could demonstrate improved compliance and pro social integration into the community.”^[35]

32. [32]
    During their oral evidence before me, the views of the two doctors could be seen to be really quite similar in substance.
33. [33]
    Doctor Sundin spoke of the respondent’s self-destructive conduct being a product of his personality disorder and that conduct being provoked (my term, not hers) by the close supervision imposed upon him at The Precinct which he resented.^[36]  Doctor Sundin’s point then was that, given the advances that the respondent has made, the removal of the supervision order and therefore the removal of the requirement to live at The Precinct would be positive advances.^[37]
34. [34]
    Doctor Harden, while also acknowledging the respondent’s advances in some respects, categorises the oppositional behaviour, not as something which itself increases risk, but which inhibits his social reintegration and therefore rehabilitation.^[38]
35. [35]
    Both doctors agreed that the respondent ought to be housed in accommodation in the community and not at The Precinct.^[39]  Unfortunately, though, there is no jurisdiction for me to direct Queensland Corrections as to how to transition the respondent into the community.^[40]  If accommodation had been identified, then the court does have power to include a condition that the respondent reside at that specified address.  Making such an order would be exceptional, as the general position is that Corrective Services directs a released prisoner where he will live.^[41]  There is no evidence before me upon which I could, or should require, as a condition of the supervision order, that the respondent live at a particular address.
36. [36]
    The respondent remains oppositional.  The respondent has been incapable of complying with supervision orders.  This has inhibited his reintegration and rehabilitation and I find that at present the risk posed by him in the community unsupervised is unacceptable.
37. [37]
    Two questions remain.  Firstly, whether that risk will subsist in December (when the supervision order expires) and, secondly, if the risk will subsist then, for how long will it subsist?
38. [38]
    Doctor Harden was asked about this:

“HIS HONOUR:  There is one thing that flows from that, though. You speak about - well, you make a recommendation that there be a three-year extension to the order. Now, as I understand your evidence as you further explained it, is that three-year period effectively designed as a period over which he would stop fighting with Corrective Services and get on with his rehabilitation?---Yes, your Honour.

All right. I see. Why three? I know that it’s not your job to set the orders, but you may be able to give some opinion as to where on his rehabilitation journey that three years fits in?---I think it would take at least two years to undertake - you know - enough additional pro-social integration to be more sanguine about the lack of constraint of a supervision order, given that he will still fit, statistically, into that above average risk group at that time. And three years allows for some stuffing around, to be frank, but without he and Corrective Services coming to some agreement about milestones and how he might be allowed to do that, it will just all possibly continue to go around and around as it currently is.”^[42]

39. [39]
    It is obvious from the medical evidence that the respondent must transition out of The Precinct.  It is unlikely that the respondent will be stable in the community unsupervised for some time.  Both doctors opined that the transition from The Precinct would be destabilising for the respondent. 
40. [40]
    While Dr Sundin recommended a different course, her underlying findings are very similar to Dr Harden’s.  She agreed that transition into the community will be destabilising.  She agreed that the respondent continues to have an “above average” risk of sexual reoffending.^[43]  She agreed that housing the respondent in adequate accommodation while still under supervision is desirable.^[44]  She agreed that the respondent needs to socially engage in order to re-integrate.^[45]
41. [41]
    The two doctors together provided a solid body of expert evidence upon which the statute can be applied.
42. [42]
    Doctor Harden’s timeline is reasonable and I accept his evidence.  Dr Harden’s reference to “stuffing around” was taken by me to be a reference to time needed for the respondent to settle, given his tumultuous period in conflict with Corrective Services.  There is then a two year period for the respondent to properly establish his rehabilitation.  Dr Sundin’s approach to solving the issue with Corrective Services was to allow the supervision order to expire.  However, once it is accepted (as I do) that supervision should continue, Dr Sundin’s evidence^[46] supports the view that the extended term should be substantial.  
43. [43]
    It is important that Corrective Services understand and act upon the evidence of the psychiatrists.  Continuing to house the respondent at The Precinct will be counterproductive and no doubt lead to further conflict and breaches of the supervision order.  He must be progressed into the community.
44. [44]
    The breaches are admitted and I find them proved.  I find that the respondent has discharged the onus under s 22(7) and that adequate protection of the community can be ensured by his release on a supervision order notwithstanding the contraventions, but with the order amended so that it expires on 1 September 2023.
45. [45]
    For the sake of clarity, I should explain that my intention is that, unless the respondent is sentenced to terms of imprisonment in the future, the supervision order is to expire on 1 September 2023.  In other words, I have taken into account the fact that ss 23 and 24 of the DPSOA have operated so as to extend the supervision order to 2 December 2020 and I intend him to be on supervision for three years from now,^[47] not three years plus the 170 days he has spent in custody and which extended the order to 2 December 2020.

Orders

46. [46]
    I order that:

The court, being satisfied to the requisite standard that the respondent Nigel Patrick Robinson has contravened a requirement of the supervision order made by Bond J on 15 June 2015 (the supervision order), order that:

1. The respondent Nigel Patrick Robinson remain subject to the supervision order as amended by order 2.
2. The supervision order is amended so as to delete the date 15 June 2020 and insert the date 1 September 2023.