Attorney-General v Cooper[2020] QSC 334

SUPREME COURT OF QUEENSLAND

1. [1]
   This is a decision on an application by the Attorney-General for orders against the respondent under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act).  The respondent is presently in custody under an interim detention order made under the Act. 
2. [2]
   The objects of the Act are set out in s 3.  They are, in brief, to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community, and to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.  Those objects are implemented by a scheme in the Act providing for the detention of prisoners beyond the expiry of their sentences or their release under supervision.

The respondent’s criminal history

3. [3]
   The respondent is now 60 years of age.  Before the interim detention order was made, he was in custody for offences including two counts of rape, one count of an attempt to commit rape, one count of sexual assault and five other counts of sexual assault.  His history of offending has been described by one of the reviewing psychiatrists as “episodic”.  It is also notable that the offending appears to begin relatively late in his life. 
4. [4]
   The first offence of a sexual nature was of sexual assault.  On 26 November 2003, the respondent was found guilty of sexual assault in the District Court at Maryborough.  The offence was committed in a public place at Hervey Bay against a 14 year old girl.  The sentencing judge, Boulton DCJ, described the circumstances of the offending in this way:

“You approached the young girl, who was then only 14 years of age.  You had earlier made rather crude sexual comments relating to the young girl and, on this occasion, had followed to where she had gone, some distance away.  You made sexual propositions to her of a very crude kind and, while doing that, and when seated, you masturbated yourself only a short distance from where she was seated, facing her in a position where she could plainly see what you were doing.  You also could be said to have, if not terrified the young girl, greatly distressed her.”

5. [5]
   The second relevant set of offending is a group of offences to which the respondent pleaded guilty in the District Court at Gladstone in 2009.  All of the offences involved the same complainant.  She was 36 years of age and profoundly deaf since birth.  Her ability to communicate was severely impaired.  She mainly used sign language.  She, her partner and a newborn baby were living in the same caravan park where the respondent resided, and he had some social contact with them prior to the offending.
6. [6]
   The offences involved two rapes, one attempt to commit rape, one sexual assault by contact with the genitalia or anus and five sexual assaults.  The details are set out in the sentencing remarks of Britton SC DCJ.  They are, to say the least, extremely distressing circumstances.  Even without taking into account the vulnerability of the victim, they are of an extremely concerning order. 
7. [7]
   At the time of this offending, the respondent was subject to a suspended sentence imposed less than two months earlier in the Magistrates Court at Gladstone for dangerous operation of a motor vehicle while affected by intoxicating substance. 
8. [8]
   The next offending was in 2011.  The respondent pleaded guilty in the Magistrates Court at Hervey Bay to wilful exposure.  The offence was committed at a petrol station.  He arrived there wanting to borrow fuel.  He became argumentative when refused petrol.  He pulled his shorts down to his ankles and made hand gestures towards his genitals. 
9. [9]
   On 29 October 2015, the respondent pleaded guilty in the District Court at Maryborough to two assaults occasioning bodily harm.  Both of these offences were committed against women.  Reid DCJ, in his sentencing remarks, noted that he was sure that the respondent was hoping to take advantage of the first woman he assaulted because of her consumption of liquor.  His Honour noted:

“You struck her a significant blow to her chest, fracturing her sternum.  I accept that she had been behaving in a strangely provocative way, both sexually and in some ways aggressively towards you.  There’s some evidence she bit you on the face and seemed to be misbehaving significantly.  That gave you absolutely no right whatsoever to strike her in the way that you did.  I hope you feel absolutely ashamed that you behaved in that way towards a woman who was quite clearly vulnerable, as could be seen, in my view, when she gave evidence before me.” 

10. [10]
    The second offence on that occasion was committed at Bundaberg against a 31 year old woman.  Reid DCJ summarised that that offending in this way:

“You effectively pushed your way past the complainant into her unit.  She rang police.  For whatever reason, you punched her on the left side of her face, dragged her to the ground and continued to punch her face and body, kneeing her and probably stomping on her head while you yelled obscenities at her.  It seemed a deranged and somewhat prolonged attack, although not with a weapon.  She suffered contusions around both eyes, swelling of her left ear, contusions to the right scapular and tenderness of her left thorax.  She also appeared to have what are described as subtle fractures, which I assume mean undisplaced fractures, of the fourth and fifth ribs on the left side.  It was a brutal attack and is particularly concerning because of your attack on the complainant in the trial before me and your significant criminal history.

11. [11]
    The final relevant offending is a sexual assault.  On 5 April 2016, the respondent pleaded guilty in the Magistrates Court at Hervey Bay to a charge of sexual assault.  This offence was committed shortly after he had been released on parole.  It was committed against a 23 year old woman who was with her young daughter in a public car park in the early evening.  The respondent was staring at the victim in a public car park, making the victim feel uncomfortable, so she decided to leave.  As she walked towards her car, she felt the respondent grab hold of her left buttock, and he made a remark to her.  She was holding her daughter at the time and responded by saying, “If you touch me again, I will punch you.”  The respondent then said, “Go on.  Punch me.”  The victim then left the area and contacted the police. 

Psychiatric evidence

12. [12]
    In custody, the respondent has refused to participate in some sexual offender treatment programs, although he has been undergoing individual psychological counselling with a psychologist. 
13. [13]
    Three psychiatrists have provided reports in respect of the respondent, and those reports may be summarised in this way.  Firstly, that the respondent has a type of psychopathy.  Dr McVie identifies this as well as substance abuse and antisocial behaviour.  Dr Timmins concurs with the diagnosis that the respondent’s personality structure includes psychopathy but describes it as a mixed personality disorder with antisocial and narcissistic traits and with possible elements of paraphilia in the form of exhibitionism and sadism.  Dr Arthur considers that the clinical presentation and history of the respondent are consistent with a diagnosis of mixed cluster B personality disorder with prominent antisocial and narcissistic features.  His further comments, which are in tune with those of the other two psychiatrists, are:

“There is a longstanding pattern of disregarding and violating the rights of others with extensive criminality, impulsivity, aggressiveness, irresponsibility, reckless behaviour and a lack of remorse.  He presents as entitled and self-aggrandising.  There are prominent psychopathic personality traits evident.”

14. [14]
    In terms of the risk of reoffending, each of the psychiatrists expressed their views.  According to Dr McVie:

“The risk assessment indicates he remains a high risk of reoffending sexually.  He remains an untreated sexual offender.”

15. [15]
    Dr McVie also expressed the view that actuarial and structured clinic assessment indicates that the respondent is currently at a “high risk of reoffending sexually if released from custody”.  She says:

“Ideally, he should complete a High-Intensity Sexual Offender Treatment Program prior to release to the community.  His minimisation and denial of offending have been a barrier to his acceptance of any such group program.”

16. [16]
    Dr Arthur’s opinion is as follows:

“The most relevant risk factors for sexual recidivism are his antisocial/psychopathic personality and substance use … he should complete the sexual offender treatment program regardless of the fact that he continues to maintain his innocence in relation to his prior sexual offences.  He may gain benefit from exploring his offending in a group environment, providing him with an opportunity to develop insight in regard to his offending pathway, identify relevant risk factors/high risk situations, development a risk management plan and challenge his denial and avoidance coping.”

17. [17]
    Dr Arthur also expressed the view:

“Based on his personality structure and past history of non-compliance with community supervision, it may take longer than five years for him to development sufficient insight and motivation to implement lifestyle and attitudinal changes necessary to reduce his risk of reoffending.  Although this risk is offset somewhat by his age, he remains a physically vigorous man.  As such, I would recommend that a supervision order be in place for 10 years.”

18. [18]
    According to Dr Timmins:

“In summary, I am of the opinion that Mr Cooper’s risk of sexual reoffending is HIGH if released into the community without a supervision order.  His reoffending may take several forms and is likely to involve sexual offending as well as other forms of general offending with or without violence.  His sexual offending may or may not involve a period of planning … he is prone to either predatory or opportunistic behaviour towards females, most likely strangers, although any female in a relationship is at risk of sexual and physical violence.  His victim may be as young as early teens.  He will seek to ensure his sexual needs are met regardless of the effect on the victim.  He may become physically violent if his sexual needs are not met.  He may use illicit substances on his victim.  His risk of sexual violence will increase if he is intoxicated himself.  He tends to minimise and justify his own behaviour.  He externalises blame onto his victims and the court system.  He has little empathy for his victims and has poor insight into his behaviour.  He avoids responsibility and has declined several programs.  His outstanding treatment needs include [sic] for his violence/anger, substances and sexual offending, are best done before he is released into the community.

19. [19]
    Significantly, Dr Timmins also states:

His risk may be modified by a supervision order under the [Act].  He would still fall into a moderate-high risk category of sexual reoffending given his history…I am guarded as to how successful supervision is likely to be given his poor insight, externalisation of responsibility and poor response to previous community-based orders.

20. [20]
    For today’s hearing, further short responses were provided by each of the psychiatrists, and each of them attended to give oral evidence at today’s hearing. 
21. [21]
    Dr McVie clarified her view.  She noted that the respondent’s psychopathy and issues with substance abuse and antisocial behaviour do not amount to a mental illness. However, his actions suggest an antisocial personality disorder.  A diagnosis of this is prevented by the absence of evidence of any childhood offending, which is a necessary requirement for such a diagnosis.  Dr McVie confirmed her view that he was at high risk of recidivism for both sexual offending and violent offending.  Given his history, Dr McVie thought it was likely that he would reoffend shortly after release from custody.  The key factor, according to Dr McVie, was that the respondent does not accept responsibility for his actions, and it is extremely difficult to manage a person in that position under a supervision order.
22. [22]
    Dr McVie noted that the respondent had attended 10 sessions with a psychologist while in custody on a one-to-one basis.  She encouraged that that process should continue with a view to the psychologist reaching a level of rapport with the respondent that might encourage him to undertake a relevant treatment program, such as the High-Intensity Sexual Offender Program.  This, according to Dr McVie, would be a method of addressing the respondent’s minimisation of his past conduct and his absence of acceptance that he is a sexual offender.  Under cross-examination, Dr McVie confirmed her view that the respondent’s risk of reoffending was still well above average, notwithstanding that he is now more than 60 years of age.  She explained that the respondent has a lot of dynamic factors under the RSVP assessment that mean he is a higher risk of reoffending than might otherwise be the case with an average person of his age.  She noted that the respondent started his sexual offending relatively late in life and the pattern of his offending suggests an increase in that offending as he aged.
23. [23]
    Dr Arthur, in his oral evidence, identified the narcissistic traits as most significant in an assessment of the risk that the respondent might reoffend.  According to Dr Arthur, the respondent’s attitude towards authority, the law and the rights of other people is such that he sees himself as someone who does not need to comply with or consider those things.  Dr Arthur expressed the view that it was likely that the respondent would reoffend after release, as he had reoffended notwithstanding his being subject to a suspended sentence.  Dr Arthur placed particular emphasis upon the fact that the respondent had told people that he intended to abstain from drugs on release but has, in fact, used drugs whilst in custody.  In Dr Arthur’s view, the respondent is unlikely to follow rules and is likely to breach the terms of any supervision order.
24. [24]
    Of particular concern to Dr Arthur was that the respondent appears to still be in denial as to his offending.  This means that firstly, the respondent is not in a position to develop a self-management strategy to implement upon release from custody, and that secondly, the absence of participation in a group program of appropriate intensity means that those seeking to structure the terms of a supervision order are unable to determine with any precision the mechanisms that might best address the respondent’s risk of reoffending.  Dr Arthur expressed the view that individual therapy is not a substitute for high-intensity group therapy, that the benefits of group therapy are not available in individual therapy and that an equivalent result would take many, many years of individual therapy.
25. [25]
    The additional concerning factors identified by Dr Arthur were the respondent’s propensity to use violence in association with his sexual offending and the apparent evidence that the respondent was unable to regulate his substance abuse while in custody, so that there was little prospect that he would be able to do so on release from custody.  Dr Arthur indicated that the respondent remained a fit and healthy man for his age, and so his aging had not affected the assessment that Dr Arthur made of the risk of his reoffending on release.
26. [26]
    Dr Timmins gave evidence that confirmed her view that the respondent has a mixed personality disorder with narcissistic and antisocial traits.  She identified that, unless the respondent was prepared to take responsibility for his behaviour, there is a serious problem of managing the risk of reoffending.  Dr Timmins also identified that, because of the extraordinary range of prior offending behaviour, it was very difficult to predict the respondent’s behaviour upon release.  Under cross-examination, Dr Timmins did not accept the proposition that the statistical risk of persons over 60 reoffending on release was practically zero. 

Consideration

27. [27]
    I am satisfied that the respondent has been convicted of a serious sexual offence and is also a prisoner for the purposes of the application brought by the Attorney.  As to whether the respondent presents a serious danger to the community in the absence of an order, I have considered the remarks of McMurdo J in Attorney-General for the State of Queensland v Sutherland,^[1] where his Honour said:

“The assessment of what level of risk is unacceptable, or, alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion.  It is a matter for judicial determination requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”

28. [28]
    Section 13(4) of the Act compels the Court to have regard to the reports prepared by the psychiatrists.  However, the ultimate question as to whether the test for an order has been fulfilled is one for the court.  Having considered the written reports of the three psychiatrists and listened to their oral evidence, I accept and intend to act upon that evidence.
29. [29]
    The issue under s 13 is not the respondent’s risk of reoffending generally, of course.  It is only the risk of reoffending in the commission of a serious sexual offence.  For that reason, some of the remarks by the psychiatrists in their reports and in their oral evidence are not of direct relevance, because they concern other offending in the past and the risk of any future offending of a nature that could not be described as a serious sexual offence.  However, all of the psychiatrists have assessed that the respondent is at risk of violently and sexually offending if released without supervision of any kind.  All identified a risk of violent offending which was likely to have a sexual element.
30. [30]
    I regard the evidence of the three psychiatrists as cogent, and I am satisfied to a high degree of probability that the respondent is an unacceptable risk of committing serious sexual offences if released without an order under Division 3 of the Act. 
31. [31]
    The Court has a discretion to either make a continuing detention order, to make a supervision order or to make no order, under s 13(1).  Having found that the respondent is an unacceptable risk of committing a serious sexual offence in the absence of an order, I would not exercise the discretion in a way that resulted in the making of no order under that provision.  It follows that, in determining whether to make a continuing detention order or a supervision order, I must consider s 13(6), which requires the court to have regard to the adequate protection of the community as “a paramount consideration”, and also to consider whether that protection can be “reasonably and practicably managed by a supervision order”. 
32. [32]
    I have also considered whether the mandatory requirements under s 16 of the Act could be described as “reasonably and practicably managed” by the Corrective Services authorities.  Given the evidence before the Court from each of the psychiatrists who thought that the respondent should complete a high-intensity sexual offender program and that release from custody without completing such a program would essentially put an untreated sexual offender back into the community (and I accept that evidence as an important consideration) it must be the case, as each of the psychiatrists accepted, that releasing the respondent under supervision would favourably affect the risk of the respondent committing a serious violent offence – that is, it would reduce it.  However, the extent of risk reduction that could be achieved by a supervision order would not, in my view, sufficiently reduce that risk so as to afford adequate protection of the community from the risk of the respondent committing a serious violent offence.
33. [33]
    I have considered whether conditions could be imposed that would enable the respondent to be managed within the community; however, I am unable to accept that conditions could be imposed at present which could ensure adequate protection of the public against the risk which the respondent poses of committing a serious sexual offence. 
34. [34]
    I have concluded that the respondent is an unacceptable risk of committing a serious sexual offence unless he continues to be detained.  I have reached these conclusions to a high degree of probability upon the evidence of the three psychiatrists which I have identified and which I regard as cogent.

Disposition

35. [35]
    In the circumstances, I will make an order in terms of the draft prepared by the applicant, which will provide for the respondent to be detained in custody for an indefinite term for control, care or treatment.