Attorney-General v Jarratt[2021] QSC 105

SUPREME COURT OF QUEENSLAND

1. [1]
   Allan Terry Jarratt, previously known as Allan Terry O'Brien, has been the subject of orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) since 18 November 2019 when he was placed on a supervision order by Ryan J.  Breaches of the supervision order were alleged against him.
2. [2]
   On 21 April 2021, I made the following order:

“Pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody at 9.00 am on 13 April 2021 and continues to be subject to the supervision order made by Justice Ryan on 18 November 2019.”

3. [3]
   These are my reasons for making that order.

History

4. [4]
   The respondent was born on 11 March 1966 and is now 56 years of age.
5. [5]
   Mr Jarratt has a criminal history commencing in June 1986.  Between 1986 and 1998, he was convicted on numerous occasions of various offences generally involving dishonesty and drugs.
6. [6]
   On 3 November 1998, he was convicted of unlawful assault which was his first conviction for a violent offence.  He has convictions for various offences of violence thereafter.
7. [7]
   On 13 May 2007, he was convicted of the offence of rape which occurred on 6 August 1999.  Mr Jarratt broke into a house in the early hours of the morning armed with a knife.  He grabbed the complainant by the throat choking her before punching her in the eye and beginning to choke her again.  He then anally raped the complainant before demanding that she perform oral sex upon him during the course of which he ejaculated.  During a prolonged attack, Mr Jarratt anally raped the complainant a total of five times. 
8. [8]
   Mr Jarratt was sentenced to an effective head sentence of 14 years imprisonment.
9. [9]
   Although Mr Jarratt pleaded guilty to the offences, he sought to appeal.  That appeal was dismissed on 20 June 2008.^[1]
10. [10]
    It was that offending which founded the Attorney-General’s application under the DPSOA.
11. [11]
    On 18 November 2019, Mr Jarratt was released on a supervision by order made by Ryan J under the provisions of the DPSOA.
12. [12]
    Conditions of the supervision order included:

“(6) Must obey any reasonable direction that a corrective services officer gives you about:

o Where you are allowed to live; and

o Rehabilitation, care or treatment program; and

o Using drugs and alcohol; and

o Anything else, except for instructions that mean you will break the rules in this supervision order.

(23.) You are not allowed to take (for example, drink, swallow, eat, inject or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs”

13. [13]
    The particulars of the alleged contravention of conditions 6 and 23 are given in the application filed by the Attorney-General seeking orders under s 22 of the DPSOA:

“On 20 November 2020, the respondent was issued with a direction as per requirement (6) of his supervision order that he must ‘seek prior approval for any persons to visit or attend your place of residence, from an authorised Corrective Services officer’. The respondent refused to sign the direction.

On 10 December 2020 and 13 December 2020, QCS Surveillance Officers observed unapproved visitors at the respondent’s residence. On 15 December 2020, the respondent made admissions to having unapproved visitors at his residence; including his partner and various other family members. The respondent was temporarily relocated to the Townsville Contingency Precinct until his partner and family had sourced alternate accommodation. On 17 December 2020, the respondent returned to his residence.

On 30 December 2020, QCS Surveillance Officers observed the respondent’s partner enter his residence. A QCS officer made contact with the respondent and advised that his partner was required to leave his residence immediately. Subsequently, a home visit was conducted by QCS Surveillance Officers to ensure his partner had left the residence. During this home visit, the respondent made threats to punch his supervising officer in the face.

On 05 January 2021, a mobile telephone examination was conducted on the respondent’s mobile phone which revealed pornography in his internet search history with titles largely surrounding anal sex. The mobile telephone examination was ceased due to the respondent’s hostility and threats to leave the interview room.

On 08 January 2021, a mobile telephone examination was conducted which revealed text messages to his partner and son stating ‘coast is clear’ and mentioned a Kia parked across the road. This is the type of car utilised by QCS Surveillance Officers. Text messages were observed sent from the respondent to his partner on 31 December 2020 which included ‘Fuck face’, ‘leave me alone from now on you motherfucker dog fuck you ya piece of shit. Go suck someone else’s cock cunt face’.

On 8 January 2021 and 11 January 2021, the respondent was directed by QCS staff to provide a sample of urine as per requirement (24) of his supervision order, which states that he must, ‘take the drug test or alcohol test when a QCS officer tells you to. You must give them some of your breath, spit (saliva), pee (urine) or blood when they tell you to do this.’

Prior to testing, the respondent did not disclose having consumed any illicit drugs that would return a positive result. A screening test undertaken on the respondent’s urine returned a presumptive positive reading for Cannabis. The sample was then sealed and sent to Sullivan Nicolaides Pty Ltd for confirmation testing.

On 09 January 2021, the respondent was issued with a direction as per requirement (6) of his supervision order, that he must return to the Townsville Contingency Precinct due to suspicion that his partner was at his residence. The respondent refused to comply with this direction.

During an interview with QCS Officers on 11 January 2021, the respondent again refused to return to the Townsville Contingency Precinct, stating ‘I’ll go do something stupid to put myself back in jail’. The respondent then made threats towards police stating he would ‘knock them flat’.

A mobile telephone examination was subsequently conducted which revealed Google My Activity showing that the respondent had searched Google Maps on 07 January 2021 at approximately 11.02am for ‘Townsville Nursing Home’ and ‘Dan Murphy’s Townsville’. The examination revealed that the respondent had deleted all text messages with his partner.”

14. [14]
    A warrant was issued for the arrest of Mr Jarratt pursuant to s 20 of the DPSOA, alleging the contravention of the supervision order.  After Mr Jarratt’s arrest, he came before Williams J on 13 January 2021 and was ordered to be detained until finalisation of the proceedings under s 22 of the DPSOA.

Statutory context

15. [15]
    The DPSOA provides for the continued detention or supervised release of “a particular class of prisoner”.^[2]  That class of prisoner are those serving a term of imprisonment for a “serious sexual offence”^[3] which is “an offence of a sexual nature … involving violence” or “an offence of a sexual nature … against a child”.^[4]  Upon application by the Attorney-General, the court may make either a continuing detention order^[5] or a supervision order.^[6]  A continuing detention order requires the detention in custody of the prisoner beyond the date of expiry of the sentence then being served.  A supervision order provides for the release of the prisoner under supervision notwithstanding the expiry of the sentence.
16. [16]
    A pivotal provision of the DPSOA is s 13.  It has significance to the present application as the provisions which deal with breach of supervision orders^[7] adopt terms and concepts included in s 13.  It provides:

“13 Division 3 orders

1. (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;

7. (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.

5. (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).

6. (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.

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

17. [17]
    Therefore:

    1. (a)
       the test under s 13 is whether the prisoner is “a serious danger to the community”;^[8]
    2. (b)
       that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”^[9] 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;^[10]
    4. (d)
       where “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.^[11]
18. [18]
    If the supervision order is contravened, a prisoner may be arrested pursuant to a warrant issued pursuant to s 20.  The court’s jurisdiction to make further orders is conferred by s 22 which provides:

“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.

3. (3)
   For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—

1. (a)
   act on any evidence before it or that was before the court when the existing order was made;

2. (b)
   make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order—

1. (i)
   in the nature of a risk assessment order, subject to the restriction under section 8(2); or

2. (ii)
   for the revision of a report about the released prisoner produced under section 8A;

3. (c)
   consider any further report or revised report in the nature of a report of a type mentioned in section 8A.

4. (4)
   To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).

5. (5)
   If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.

6. (6)
   For applying section 11 to the preparation of the report—

1. (a)
   section 11(2) applies with the necessary changes; and

2. (b)
   section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.

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).”

19. [19]
    By s 22 once a contravention is proved the court must rescind the supervision order and make a continuing detention order^[12] unless the prisoner satisfies the court that his continuation on supervision in the community will ensure the adequate protection of the community.^[13]  It is well-established that the concept of “the adequate protection of the community” as appears in s 22(7) has the same meaning as it bears in s 13.^[14]  Consequently, it is upon the prisoner to prove that the supervision order will ensure adequate protection of the community by removing any unacceptable risk that he will commit a serious sexual offence.  If the prisoner fails to prove that fact then he must be detained under a continuing detention order.

Expert opinion on risk

20. [20]
    For the purposes of the current application, Mr Jarratt was interviewed by psychiatrists Dr Ken Arthur and Dr Josephine Sundin.  Mr Robert Walkley is a forensic psychologist engaged by the High Risk Offender Management Unit of Queensland Corrective Services to provide an evaluation of Mr Jarratt, to develop a treatment program, to provide individual counselling and treatment and to provide progress reports on that treatment.  On the present application there were reports before me from Drs Arthur and Sundin and Mr Walkley. 
21. [21]
    Dr Arthur’s diagnosis is as follows:

“His primary diagnosis remains an Antisocial Personality Disorder with prominent narcissistic features. He has a Substance Misuse Disorder, currently in remission in a controlled environment. Whilst there is no clear evidence of a Paraphilia, his apparent preference for anal sex and the Google Map search for Townsville nursing homes is concerning given the nature of his index sexual offence.”

22. [22]
    Dr Sundin’s diagnoses is:

“64. Mr Jarratt meets DSM V criteria for Anti-social Personality Disorder and Alcohol Use disorder-in sustained remission. He has elevated psychopathy scores but does not meet full criteria to attract the label of Psychopath.

65. He has the co-morbid medical diagnosis of Diabetes Mellitus and requires both insulin and oral hypoglycemics to maintain his blood sugars. He suffers hypertension and has elevated cholesterol levels. He is at elevated medical risk for adverse cardio-vascular events.”

23. [23]
    Mr Walkley has, clearly enough, encountered some difficulties in treating Mr Jarratt.  However, Mr Walkley is positive in relation to the prospects of future management.  Mr Walkley opined:

“CONCLUSIONS AND RECOMMENDATIONS

Alan Terry Jarratt is a 57 year old man who was released from Prison having served a 14 year term of imprisonment for offences of Rape, Housebreaking and Burglary. Mr Jarratt has always maintained an inability to recall his behaviour in this offence.

It is noted, after his conviction he engaged in a process seeking leave to appeal as he questioned the validity of his conviction. Presently he accepts his guilt, accepts the incontrovertible evidence of the DNA and accepts he did what he did although, at all times, provides the codicil he doesn’t recall what he did.

A review of Mr Jarratt’s upbringing revealed he was exposed to alcohol abuse in both his parents but it does not appear he was ensconced within an inherently violent domestic relationship. For the most part he was of sober habits until about the age of 19.

Prior to his present offences he had a significant criminal history comprised of many court appearances (56) and with many periods of incarceration of up to about 18 months in jail.

My formulation of the man was in accord with the three psychiatric opinions reviewed, that he demonstrated an Antisocial Personality Disorder (ASPD) was some psychopathic characteristics and Alcohol Use Disorder which is in remission due to his being in a controlled environment.

As is typical in those with ASPD, he is a man with a strong anti-authority attitude and distrustful of those with power over him. He does not respect rules or regulations and will often look for ways to circumvent imposed controls.

Over the time spent with Mr Jarratt, I formed the view he continues to represent a Low to Moderate risk of sexual recidivism mitigated by factors including:

• his age,
• ongoing community supervision and case management, ongoing psychological treatment,
• the provisions of his Supervision Order under the DPSO act, maintaining a stable living environment,
• a stable financial situation and
• the avoidance of substances, particularly alcohol.

He is a man of average intellect.

Over time he does seem to have developed symptoms of a depressive illness reactive to his present circumstances, to his interactions with the Department and in the development of the relationship he is seeking to have with [redacted]. These include moroseness, loss of appetite, weight loss, sleep disturbance and increased emotional instability.

With regards your specific queries raised of:

• Detail of any treatment gains;
• Your opinion regarding the current contravention; and
• Your assessment of his current risk of sexually re-offending.

From a treatment point of view, up until this juncture, treatment of Mr Jarratt seemed to be going well. Rapport was well-established, he seemed genuinely engaged and he had indicated sessions were both supportive and informative. He had achieved some of the goals set, had formulated and achieved others and until this issue with [redacted], had been doing quite well.

Trust was being established and built upon and he, at times, was willing to discuss aspects of his past offending and sexuality. Given his innate distrust of those in authority which includes a therapist appointed by the Department, it was hopeful that, over time, this could be overcome and more disclosures would result. If so, a better understanding would be gained of his offence, his offending pathway and mitigants to recidivism.

In my Initial Report, I made the comment given his antisocial personality and innate approach towards authority, rules and convention, over time, he might present difficulties. As was indicated and posited from his history, his response to supervision has previously resulted in a poor performance. In the past, he had been non-compliant and un-engaged in meeting his responsibilities and that this may, in fact, re-emerge as a problem. As it has on this occasion.

Aside from this impasse concerning [redacted] from a therapeutic perspective, treatments using cognitive behavioural therapy, psycho-education and insight­directed therapy, seemed to be having an increasing impact with Mr Jarratt.

I remain of the view given his Antisocial Personality Disorder, that a more generalist approach involving supportive counselling, non-judgemental opportunities for expression and the provision of alternate views of his situation and what strategies he could employ to deal with conflicts or problems, may prove to be the most effective means of interaction and to ensure compliance with his Order.

With regards his risk of sexual reoffending, I note the three psychiatric opinions and in particular, those of Drs Sundin, Arthur and Harden.^[15] All opined his risk to be Moderate and exacerbated by the presence of alcohol but which could be likely mitigated by community supervision.

I would certainly concur but suggest presently given the issues surrounding compliance and his relationship with [redacted] without him being in custody, the risk would be higher. His present level of anger, resentment and belief the system is not and cannot work in his favor, could precipitate a relapse in his abstinence from alcohol.

Given either his inability to recollect or choosing not to disclose the nature of his last offence and that it was committed whilst heavily under the influence of alcohol, this leaves us entirely uninformed, on that factor which, in tum, inevitably increases the level of risk posed.

In terms of the present contravention and return-to-custody, as far as I understand it, this emanated from a failure on his part to be compliant with both the verbiage of his Supervision Order as well as directions given by his case management team.

It seems he chose to circumvent these directions by refusing to comply and this raised concerns in terms of risk. Furthermore, his past previous domestic violence history involving [redacted] despite being many years ago - remained an ongoing concern given some of the texts which were seen emanating from Mr Jarratt to [redacted] as well as the level of rancour, anger, disrespect and aggression that had been evident in his presentation to QCS staff.

It is likely Mr Jarratt believed he did not present a risk to his previous partner and they, as mature adults, cognisant of all of their own history, were capable of making a decision as to whether-or-not they would proceed with their relationship. His view was strongly held this was a decision for them and them alone and the Department had no business intruding in this and he appeared intractable in this point of view.

Given his personality and attitude towards authority, it is also likely he believed if he persevered and did so with an overly assertive and at times, aggressive posture, that somehow the system would abide by his wishes and he’d achieve his goals.

From a psychological perspective - allowing for such a flagrant disregard of both the law as embodied by the Order and the authority embodied by case management directions - would reinforce his unacceptable approach and in all likelihood, lead to further difficulties moving forward.

From a treatment perspective, of course, a return-to-custody is a major setback given the likelihood he will forfeit his own residence, the independence he had worked towards and the gains he had made. This could, in fact, exacerbate his approach to compliance on his Order.

However with a longer-term view, if it does engender within him a recognition the system, the law and the Order under which he is managed does take precedent over his wishes and desires, then future management may prove to be easier.”

24. [24]
    Dr Arthur considered that Mr Jarratt’s unmodified risk of sexual recidivism on release is moderate but a supervision order would reduce the risk to low.  In particular, Dr Arthur opined:

“I believe that the supervision order was effective in identifying and managing known risk factors, monitoring his emotional state and allowing Corrections staff to act in a timely manner to contain the risk.”

25. [25]
    Dr Arthur did not recommend any amendments to the conditions or duration of the order.
26. [26]
    Dr Sundin assessed risk as follows:

“81. To sum up, I consider that Mr Jarratt now represents a moderate to low risk for future sexual violence. The supervision order further lowers his risk to the general community.

82. I respectfully recommend that Mr Jarratt be returned to the community under the existing supervision order, that he be allowed to co-habit with FM once she has obtained a residence for them and for Mr Jarratt to resume regular sessions with Dr Walkley. If it is at all possible I would suggest that he be assigned a male case manager.

83. I do not recommend an extension of the existing supervision order.”

Submissions of the parties.

27. [27]
    Mr Jarratt admits the breaches.  He submits that he has discharged the onus under s 22(7).
28. [28]
    In particular, in his counsel’s written submissions:

“8. Two aspects of Dr Sundin’s opinion warrant further consideration. Dr Sundin opines that:

a. While I appreciate the concerns of case managers with regard to the relationship with FM given Mr Jarratt’s past history of domestic violence; it seems unhelpful to me for this relationship to be opposed. I think Mr Jarratt would make better progress if this relationship continued and case managers worked with Mr Jarratt and FM on the quality of their relationship. The couple could attend joint sessions with Dr Walkley and could do relationship counselling and communication skills development through Relationships Australia.

b. I respectfully recommend that Mr Jarratt be returned to the community under the existing supervision order, that he be allowed to co-habit with FM once she has obtained a residence for them, and for Mr Jarratt to resume regular sessions with Dr Walkley. If it is at all possible I would suggest that he be assigned a male case manager. (emphasis added)

9. It is accepted that this Court has no power to dictate the way that the Respondent is managed in the community, or the treatment regime which is provided. Notwithstanding this, given the context which surrounds the contravention, these recommendations would seem particularly relevant to the effective management and treatment of the Respondent in the community.”

29. [29]
    The Attorney-General accepts that Mr Jarratt has discharged the onus upon him under s 22(7) of the DPSOA.

Conclusions

30. [30]
    I find that Mr Jarratt has breached the supervision order as alleged.
31. [31]
    I accept the evidence of the psychiatrists and Mr Walkley and conclude that Mr Jarratt has proved “that the adequate protection of the community can, despite the contravention … of the existing order, be ensured by a supervision order”.^[16]  That being so, release on supervision ought to be preferred to the making of a continuing detention order.^[17]
32. [32]
    In so concluding, I have taken into account particularly, the following:

1. While there have been difficulties in the relationship between Mr Jarratt and his partner, there has been no violence.
2. Mr Jarratt has not, while on supervision, committed any offences of a sexual nature let alone a serious sexual offence as defined by the DPSOA.
3. Mr Jarratt is making some guarded progress through his treatment with Mr Walkley.
4. Both psychiatrists, who are very experienced in the assessment of risk of sexual offenders reoffending, place that risk at low if Mr Jarratt is subject to a supervision order.

33. [33]
    While it is not for the court to direct how Mr Jarratt ought be supervised, it is important that those supervising him consider the psychiatric evidence available here, relevantly the views expressed by Dr Sundin.^[18]
34. [34]
    For those reasons, I made the orders which I did.