Attorney-General v Sampton[2020] QSC 305

SUPREME COURT OF QUEENSLAND

1. [1]
   The respondent is a prisoner the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) by Applegarth J on 17 October 2016^[1] (the supervision order).  The Attorney-General sought orders under s 22 of the DPSOA alleging breaches of the supervision order.
2. [2]
   The respondent admitted the breaches alleged but submitted that he ought to be released back into the community subject to the supervision order without the supervision order being amended.^[2]  The applicant agreed that was the appropriate outcome.
3. [3]
   On 25 September 2020, I made the following orders:

“1. The respondent be released from custody and continue to be subject to the requirements of the supervision order of Applegarth J dated 17 October 2016.

2. The review of the application on 19 October 2020 be vacated.”

4. [4]
   These are the reasons for making those orders.

Background

5. [5]
   This is the third time contravention proceedings have been brought against the respondent.  The first was in July 2018 leading to his release on 27 November 2018 back on the supervision order.^[3]  The second contravention proceedings were commenced in September 2019 leading me to release him back on the supervision order on 6 March 2020.^[4]
6. [6]
   The respondent’s criminal history was summarised by Applegarth J in Attorney-General for the State of Queensland v Sampton^[5] and it is unnecessary to record that history in these reasons.  The respondent’s history under the DPSOA was described by me up to the point of the second contravention in Attorney-General for the State of Queensland v Sampton.^[6]
7. [7]
   Both previous contraventions involved the consumption of substances.  The first contravention concerned the consumption of cannabis and methylamphetamine and the second the consumption of cannabis.  Although the first contravention also involved the respondent having a woman at his unit in breach of the supervision order, there was no suggestion of any sexual misconduct.
8. [8]
   The current contravention (like earlier contraventions) is a breach of condition 23 of the supervision order which is in these terms:

“23. Abstain from the consumption of alcohol and illicit drugs for the duration of this order.”

9. [9]
   The particulars of the contravention are:

“On 11 August 2020, QCS staff were called to [a] Men’s Group as information had been received that Mr SAMPTON was presenting as under the influence of an intoxicating substance. As per condition 24,^[7] at 8:20pm Mr SAMPTON was directed to provide a sample of breath for testing which returned a positive result to alcohol at the level of 0.216% BAC. At 8:40pm, Mr SAMPTON provided another sample of breath for testing which returned a positive result to alcohol at the level of 0.244% BAC. Mr SAMPTON made admissions to drinking one and a half cups of rum a half hour prior to undertaking the first breath test. Mr SAMPTON’s positive breath tests are direct contravention of condition 23.

Mr SAMPTON has demonstrated mixed compliance since his re-release on 06 March 2020. This is the first time SAMPTON’s use of alcohol has been seen whilst he has been subject to the Supervision Order. Noting SAMPTON’s offending history, that being whilst intoxicated with alcohol he has committed two rapes against known and stranger females, alcohol use is considered to elevate his risk to a level that is not able to be managed in the community.”^[8]

10. [10]
    The respondent was arrested pursuant to a warrant issued under s 20 of the DPSOA and on 13 August 2020 I ordered, pursuant to s 21(2)(a) of the DPSOA, that the respondent be detained in custody until final determination of the contravention proceedings.

The current contravention proceedings

11. [11]
    Supervision orders may be contravened in a myriad of ways.  However, in a very broad way, the breaches can be categorised into two groups.  The first is criminal offending or other behaviour of a sexual nature.  The second category are breaches of the order but which do not have a sexual nature.
12. [12]
    Almost invariably, and for obvious reasons, contravention proceedings will be commenced where the breaches fall into the first category.  Often, breaches which fall into the second category are not the subject of contravention proceedings.  It is a matter for the executive, not the court, as to what contraventions are acted upon.  Often, though, proceedings are brought because, although the conduct is not sexual in nature, the breach may indicate an escalation in risk of committing a serious sexual offence.
13. [13]
    The present case is a typical one.  Consumption of alcohol and intoxicants has been identified as a risk factor relevant to sexual offending by the respondent.  A decision was made to commence contravention proceedings, no doubt as a result of concerns for the adequate protection of the community.
14. [14]
    What often occurs in cases like this, is that once the applicant has the benefit of psychiatric advice as to the breaching behaviour, it becomes apparent that the breach is not such as to justify termination of the supervision order.  An unfortunate consequence of the need to take contravention proceedings in most circumstances is that a respondent can often be in custody for a considerable period of time awaiting determination of the contravention proceedings and his release back onto the supervision order.  It is important in these sorts of cases that steps are taken to quickly deal with the contravention and return a respondent to the supervision order, if that is to be the result.
15. [15]
    Here, the applicant ought to be commended for acting quickly.  Psychiatrist, Dr Josephine Sundin, was consulted and provided a report in which she opined:

“In my opinion, Mr Sampton’s diagnoses remain the same. In addition to his Anti-Social Personality Disorder, he clearly has a quite significant Substance Use Disorder, having abused both cannabis and alcohol during his most recent period of time in the community.

In my opinion, his unmodified risk for sexual offending is high.

His risk is escalated by the presence of intoxicants; particularly alcohol but also in the presence of cannabis.

His greatest risk for sexual violence is to an intimate partner, but if intoxicated there would be a significant risk of sexual violence to an adult female stranger.

The material from both the IOMS and Dr Walkley suggest that Mr Sampton continues to have reduced insight into the nature and risks associated with his sexual offending. He continues to minimise the seriousness of his sexual offending and his degree of drug dependence.

Consistent with his personality, he takes limited responsibility for the direction of his life and achievement of goals. He continues to externalise blame and appears to be only mildly perturbed by the likely consequences of his continued pattern of contravention.

His comments that he might seek to have the length of his supervision order reduced is a clear sign of reduced insight in the face of these repeated contraventions.

It is clear that both QCS staff and Dr Walkley have made considerable efforts to support Mr Sampton within the community. He has been attending regular sessions with a psychologist.

He has been referred to a drug rehabilitation program. He has been supported by [an] Indigenous Men’s Group. He has been referred to an employment service. He has been assisted to find suitable independent accommodation.

It would appear from this recent period of time in the community that the concerns I expressed in my January 2020 report have occurred in that Mr Sampton has quite easily accessed cannabis whilst in the Townsville community.

His claim that he drank the alcohol because of distress at distance from his family seems a trite and manufactured excuse. I think it more likely that Mr Sampton drank the alcohol simple because he chose to do so.

It is possible given his repeated reversions to use of intoxicating substances that he does struggle with chronic cravings; for which reason I would recommend that he be considered for the Subutex program to limit the impact of his cravings and his pattern of recurrently seeking to access illicit substances and alcohol to modify his mood state.

In my opinion, Mr Sampton’s risk to the community has not elevated during this period of time.

He has not committed a further sexual offence.

His behaviour in the community is entirely consistent with his primary psychiatric diagnosis.

I would again make the recommendation that consideration be given to placing him in a different precinct to Townsville. If Brisbane is unacceptable to him then Rockhampton may be worthy of consideration although as I understand it, there is no High-Risk Offender Management Unit in the Rockhampton area which may preclude that city.

I think it is likely that Mr Sampton will continue to contravene by way of use of cannabis and alcohol until he decides for himself that the behaviour is not worth the inevitable sanctions which follow.

I respectfully recommend that Mr Sampton can be returned to the community under the existing supervision order.

I recommend that he continue to see a clinical/forensic psychologist within the community to address his well-documented risk factors and that he be considered for the Subutex programme.”^[9]

16. [16]
    The application was to be mentioned before me on 19 October 2020 in the usual course of managing the DPSOA list, but once the report of Dr Sundin was received, the applicant made arrangements to bring the matter on for hearing.

Determination

17. [17]
    Section 22 of the DPSOA provides, relevantly, as follows:

“22 Court may make further order

1. (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).

2. (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. …

7. (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.

8. (8)
   The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”

18. [18]
    The applicant concedes that the respondent has satisfied the onus of proving that despite the contravention, the adequate protection of the community can be ensured by the existing supervision order.
19. [19]
    The applicant’s concession is properly made in light of the following:

    1. (a)
       The contravention does not involve the commission of an offence of a sexual nature.
    2. (b)
       While the supervision order has now been the subject of three contravention proceedings, none of the breaches have involved the commission of a sexual offence.
    3. (c)
       This contravention and the earlier contraventions have been easily and quickly detected.
    4. (d)
       The psychiatric opinion is that the current contravention does not represent an elevation of risk of committing a sexual offence.
    5. (e)
       The psychiatric opinion is to the effect that the respondent can be managed on supervision.
20. [20]
    I find the alleged contravention proved.^[10]
21. [21]
    I accept the expert opinions expressed in Dr Sundin’s report.  I find that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its current terms.
22. [22]
    For those reasons, I made the orders which I did.