Attorney-General v Oakley[2020] QSC 290

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant seeks an order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).  The applicant acknowledges that, on the evidence, it is open to conclude that adequate protection of the community can be ensured by a supervision order in the terms proposed.  The respondent concedes on the evidence, including the expert evidence, that the Court would be satisfied to the requisite degree that he is a serious danger to the community in the absence of a division 3 order.  The respondent submits that the proposed supervision order will be effective in reducing the risk that he will commit a serious sexual offence.
2. [2]
   Whilst the making of a supervision order in the terms proposed for five years is not opposed, the making of any supervision order is a very serious matter, and I should give reasons as to why I have decided to make such an order.  The objects of the Act and its scheme are well-established, and it is not necessary for me to quote the terms of s 13 and the other provisions.
3. [3]
   The first inquiry is whether or not the respondent is a serious danger to the community in the absence of a division 3 order.  This statutory test is whether there is an unacceptable risk that the prisoner will commit a serious sexual offence if released without a division 3 order.  That matter must be proven by sufficient cogent evidence, and the Court is required to consider each of the matters stated in s 13(4).
4. [4]
   If satisfied to the high degree of probability required that if released without a division 3 order, there is an unacceptable risk that the respondent will commit a serious sexual offence, then the second inquiry is as to the form of the order to be made, whether it be a continuing detention order or a supervision order.
5. [5]
   In considering these matters, the paramount consideration is to ensure the protection of the community.  Other judges and I have surveyed the scheme.  I happened to do it relatively recently in Attorney-General for the State of Queensland v DXP [2019] QSC 77, and I adopt what I said there.  The principles are also conveniently set out in the applicant’s submissions.  There is no contest as to the relevant principles.
6. [6]
   The respondent is 37 years old.  He was born in Rockhampton and raised in Woorabinda.  He is the middle child of seven siblings.  He spent a lot of his time as a young person with his maternal grandparents.  He witnessed fighting between his parents and, sadly, violence and intoxication were prevalent features in his community.  He attended school to grade 10.  He left school and did various labouring jobs.  He lived with his parents until early adulthood.  Unfortunately, he started drinking alcohol at the age of 17 or 18 and that became a problem when he drank to excess.  He started using cannabis around the same time, and in his high school years engaged in some petrol sniffing.
7. [7]
   The respondent has a criminal record.  It is set out in paragraph 32 of the applicant’s submissions and I will not dwell upon the details.  The index offence was committed on 9 April 2010, and the respondent was convicted in the District Court at Rockhampton on 17 June 2013 in relation to that and other matters.  The index offence is assault with intent to commit rape.  He was sentenced on that count and on other counts, and was sentenced to four years’ imprisonment on the index offence.  
8. [8]
   The sentences were concurrent with each other.  He had a parole eligibility date on 17 July 2015.  He had a custodial end date of 24 July 2020.  That has been extended by an interim detention order, which expires at midnight tonight.  The respondent has other criminal history and that is set out at paragraph 32 of the applicant’s submissions.
9. [9]
   The circumstances of the index offence are that the respondent was 26 years old at the time.  The victim was a 21 year old deaf woman.  They came into company when the victim was drinking.  Matters developed in the circumstances outlined in the written submissions.  She was walking away from the area.  The respondent followed her and attacked her.  A struggle ensued.  He tried to force her to “give him a head job”.  She refused.  She tried to run away.  The respondent jumped on top of her and a violent struggle ensued.  She eventually managed to get up and make her way some distance, where she hid overnight.  She was found by police the next morning.  The sentencing judge described the aggravating features as a violent attack on a vulnerable, deaf and mute victim, and noted the respondent’s lack of remorse.
10. [10]
    The respondent has two previous offences of a sexual nature.  The first arises from his plea of guilty on 13 May 2002 to one count of indecent treatment of a child under 16.  He was 18 at the time.  He had been drinking heavily and the victim, who was a cousin aged 13, was indecently touched with his hands underneath her pants and underwear, stroking the outside of her vagina.  There was no digital penetration.  He stopped when she told him to.  His excuse is that he thought it was another girl.  He was sentenced to a period of 159 days’ imprisonment.
11. [11]
    About four years later, on 17 February 2006, he pleaded guilty to one count of entering a dwelling and committing an indictable offence, namely indecent assault of a female.  He was 20 years old at the time, and this again was a case in which he indecently dealt with a female.  He denied any involvement.  He was sentenced to a period of 18 months’ imprisonment, and on another count of indecent assault, received a two year period of probation.
12. [12]
    The respondent’s conduct in prison has involved some breaches, but he has been largely compliant with conditions.  He has been subject to court-ordered parole on different occasions.  The matter is a somewhat complex one, concerning the circumstances under which his parole was suspended.  The short history appears at paragraphs 67 to 74 of the applicant’s submissions.  However, further detail is provided in the respondent’s submissions at paragraph 3.  His performance on parole and his compliance with parole orders is relevant to the likelihood that he will comply with supervision orders.  The January 2020 breach involved unreported contact with a vulnerable woman.  He says that he wanted to have a talk with her.  He readily made admissions to the breaching conduct.  His breaches involve failing to observe a curfew and failing to report an intimate relationship.  It is not said that he interfered with the woman or any child.
13. [13]
    He was released to his sister’s address in April 2020 and, unfortunately, there was alcohol and cannabis being consumed at her home.  He was charged with possession of cannabis.  He says he planned to sell the cannabis and so there was a breach of parole in May 2020.  Ultimately, the respondent’s counsel submits that these matters are relevant in that, under a less rigorous supervisory scheme, his breaches of parole were relatively minor, did not involve deception and were easily detected.  This has relevance to the prospect that if he succumbs to alcohol or drug use in breach of any supervision order, there will be similar early detection before the risk of committing a serious sexual offence escalates.  It is apparent that the respondent has experienced his frustrations with the parole system and he had an expectation of being granted a fixed date of parole.  Nonetheless, he finds himself returned to custody in the circumstances that have been outlined.
14. [14]
    The respondent has done various educational and vocational programs in custody.  He did a limited sexual offending program assessment in 2007.  Unfortunately, the material tends to indicate that he presented during different programs with little or no insight into his sexual offending, and that has been a cause of concern.  He did a pre-program interview in July 2015 for the sexual offending program for Indigenous males.  He was transferred to Lotus Glen to commence it but withdrew from the program in October 2015.  He said he was innocent of the index offence and believed he would be released without completing the program.  So he only completed 48 hours of treatment over 16 sessions before leaving the program.
15. [15]
    The respondent has been subject to a variety of psychological and psychiatric assessments during his time in custody.  I have had regard to the report of Dr Gavan Palk, a psychologist, from 29 November 2016.  Dr Palk considered the respondent exhibited many antisocial tendencies and a substance use disorder.  He was assessed by a psychologist, Shelley Jacks, on different dates in 2019.  It appears that he made some headway, but a difficulty has been that he has never taken responsibility for the current offence.  He has indicated a willingness to remain abstinent from substances and seemed motivated to improve his circumstances.
16. [16]
    Dr Sundin provided a report dated 23 June 2019 which was relied upon in bringing the present proceedings.  Dr Sundin administered a number of actuarial instruments and assessed that he was a moderate to high risk of future sexual offence.  She again noted that he had maintained his innocence and asserted that the complainants had lied.  Given that high level of denial and intransigence towards intervention, Dr Sundin made certain recommendations and she provided a supplementary report on 1 June 2020, which noted the respondent’s noncompliance with drug and alcohol rehabilitation.
17. [17]
    Dr McVie has provided a comprehensive risk assessment report dated 26 July 2020.  She administered a number of tests and considered a number of matters.  Ultimately, she concluded that the respondent met the diagnosis criteria for antisocial personality disorder with a substance abuse disorder for alcohol and cannabis, and that he had significant psychopathic features.  She assessed his overall risk at a high level of reoffending sexually and a high risk of general criminal non-sexual violent offending.  Of course, it is the former that I am predominantly concerned with; however, the respondent’s risk of committing other offences is something of a background factor.
18. [18]
    Dr McVie considered that if the respondent was released from custody without supervision, he would be at a high risk of “rapid reinstatement of his alcohol and cannabis use disorder, further criminal offending and also a high risk of sexual reoffending”.  She expressed the opinion that a supervision order would reduce his risk to moderate to low; that strict monitoring would be required to ensure abstinence from alcohol and illicit substances, and that he engage with a psychologist who had the skills to manage Indigenous offenders who deny their offending.
19. [19]
    Dr Harden provided a report dated 28 July 2020, which I also read with interest.  He administered a number of tests and on the basis of them and his clinical judgment, diagnosed the respondent as having a personality disorder, not otherwise specified, with antisocial, borderline and narcissistic features.  Dr Harden concluded the respondent suffers from polysubstance abuse which is in remission during incarceration.  He thought that the risk of re-offending was high if released in to the community and that a supervision order would reduce that risk to moderate.  Dr Harden identified, what is probably apparent from my remarks thus far, that the critical issue was substance intoxication, especially alcohol.  He observed that if the respondent can be prevented from drinking, that the risk of sexual offending is substantially reduced. 
20. [20]
    He also identified other risk factors as involving an anti-social attitude, emotional instability, attitudes in support of domestic violence and other matters, which are lesser risk factors than alcohol intoxication, but still provide a pathway to sexual re-offending particularly if he is intoxicated.  Dr Harden thought that any supervision order should be for five years and if possible, and I emphasise if possible, the respondent should undertake both group and individual treatment for sexual offending.  He also recommended that the respondent undergo a full neuropsychological evaluation.
21. [21]
    Ultimately, I conclude, placing reliance upon the various matters set out in s 34, which I have considered, that the respondent suffers from an antisocial personality disorder with some psychopathic traits.  He presents a high risk of sexual re-offending if released into the community in the absence of a division 3 order, and the evidence suggests that a supervision order would reduce the risk to moderate or even moderate to low.  The key is abstinence from intoxicants, especially alcohol.
22. [22]
    The respondent accepts, as I have indicated, that the evidence before the Court is capable of supporting a finding that the respondent is a serious danger to the community in the absence of a division 3 order and I find that he is.  I am satisfied, by acceptable cogent evidence, to a high degree of probability, that there is an unacceptable risk of the commission of a serious sexual offence in the absence of a Division 3 order.
23. [23]
    As indicated, the applicant Attorney-General, considering the matters which I have addressed, and the evidence, acknowledges that the evidence permits the conclusion to be reached that a supervision order is capable of providing adequate protection of the community.  Of course, I have to consider the matter independently.  If a supervision order is capable of providing that adequate protection, then the preference of the Court is to make such an order rather than a continuing detention order. 

24. [24]
    I have regard to the affidavit of Ms Marinov, dated 31 July 2020 which, on information and belief, indicates that the respondent has a plan and is motivated to stop using alcohol, has prosocial plans for his release from custody and is willing to comply with conditions for a supervision order.  I should observe that it is not absolutely necessary to establish that there will be compliance with a supervision order in order to make one, but a preparedness to comply is, of course, highly relevant.   I take into account Ms Marinov’s affidavit in which the respondent has told her that he understands that a condition of the supervision will be that he not consume intoxicating substances.  He is aware that he will be subject to other conditions, including a curfew.
25. [25]
    His plan is to return to live with his family in Woorabinda.  It will be a matter for the authorities with management of the supervision order to address his transition out of temporary accommodation and the circumstances in which he can be supervised and supported at Woorabinda.  The respondent understands that there are likely to be restrictions on his ability to go there immediately.  He has to ensure, in his own interests, as well as the community’s interests, that he has a highly developed plan to not relapse into intoxication.  I would expect that he will be permitted to go to Woorabinda if there is a reasonable degree of assurance that the circumstances of his accommodation and his plans for how he will spend his time reflect some pro-social aspects.  He says that he wants to contribute to the cultural life of his community at Woorabinda by playing the didgeridoo and producing artwork.  I certainly hope he does so and can remove himself from antisocial influences and the consumption of alcohol and other intoxicants.
26. [26]
    In the circumstances, the critical issue, which has already been identified, is whether a supervision order which requires him to remain abstinent from alcohol and other intoxicants provides adequate assurance of reducing the risk of sexual offending to an acceptable standard.  The applicant’s submissions helpfully identify the fact that the supervision order serves, despite the respondent’s personality difficulties, to reduce the risk of committing a serious sexual offence that otherwise would exist.  And as is said in paragraph 164 of those submissions, the consumption of alcohol is a matter that can ordinarily be detected before any escalation risk manifests itself in the commission of a serious sexual offence.  No grant of a supervision order is risk free.  It is possible to imagine that the first misuse of alcohol could escalate into a situation that was broadly similar to the index offence.  However, the probability is that misuse of alcohol will be detected before any such offence is committed.  So I am satisfied that the supervision order will be effective in reducing the risk of the commission of a serious sexual offence to an acceptable level.
27. [27]
    This is not a case in which it is said that the respondent requires continuing detention to undertake further treatment.  I have already mentioned his entrenched denial of culpability and inability to positively engage with programs in the past.  Nonetheless, regard should be had to what has been said in the reports concerning the importance of him having some kind of therapeutic relationship with a psychologist or some other professional who can engage with someone who has those attitudes, and who can work through those issues, and give the respondent some additional skills and a framework to address what has gone on in the past and to avoid a repetition.  I am satisfied that this an appropriate case for a supervision order to be made.
28. [28]
    As to the duration, the authorities indicate the test for the duration.  I am not governed by the opinions of the psychiatrists, however, it seems to me appropriate that the supervision order be for a term of five years.  If the applicant remains abstinent from alcohol and other intoxicants for five years, and complies with the supervision order, then I would think that his risk of sexual reoffending will be reduced to an acceptable level.  If he cannot do that or if he breaches the order in other ways, then he can expect to be returned to custody and the supervision order will be cancelled.  It is up to the respondent, largely, to follow through on his plans.  If he follows through on them and establishes good habits and remains abstinent, then that maturation and sobriety should feature in a marked reduction in his risk of sexual reoffending.
29. [29]
    In all the circumstances, I am minded to make an order in the terms submitted, and I will initial that order.  It will have the effect of rescinding the continuing detention order which was to operate until 11.59 tonight.  The respondent is subject to, now, the supervision order.  And I expect he will get a copy, and he will have to be very familiar with it and comply strictly with it.