Attorney-General v O'Connor[2021] QSC 106

SUPREME COURT OF QUEENSLAND

1. [1]
   Peter Brian O'Connor has been the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) since 24 August 2020.  Bradley J released him on supervision on that day.^[1]  It is alleged that Mr O'Connor breached the terms of the supervision order.
2. [2]
   On 12 April 2021, I made the following orders:

“The court, being satisfied to the requisite standard that the respondent, Peter Brian O'Connor, has contravened requirement 26 of the supervision order made on 24 August 2020, orders that:

1. The respondent, Peter Brian O'Connor, be released from custody and be subject to the supervision order made on 24 August 2020.

And further:

2. The court directs that the report of Dr Elizabeth Ness McVie dated 6 February 2021 and the reports of Dr Josephine Sundin dated 18 February 20201 and 16 March 2021 respectively, be released to any treating practitioner providing psychological or psychiatric treatment to the respondent.”

3. [3]
   These are my reasons for making those orders.

Background

4. [4]
   Mr O'Connor was born on 18 April 1979.  He is therefore 42 years of age.
5. [5]
   Mr O'Connor has a significant criminal history involving offences of a sexual nature against children.  He was convicted of various such offences in New South Wales in 2005 and served about six years imprisonment.
6. [6]
   In 2014, he made contact with his father who was living in Townsville.  Living with Mr O'Connor’s father was Mr O'Connor’s stepsister who was 10 years of age.  Mr O'Connor indecently dealt with her by exposing his penis to her on several occasions, pulling down her pyjama pants and showing her an indecent cartoon on an iPad.  In an unrelated incident, he exposed himself to two 12 year old girls who were travelling to school on a bus.
7. [7]
   He was sentenced to four years imprisonment.  That was the offending which brought Mr O'Connor within the provisions of the DPSOA.
8. [8]
   In addition to the New South Wales offence that I have mentioned and the offending in Townsville, Mr O'Connor has a long criminal history for offences with a sexual element, dishonesty offences and offences of violence.
9. [9]
   On 14 September 2018, Burns J made a continuing detention order against Mr O'Connor.^[2]
10. [10]
    The continuing detention order was reviewed^[3] by Bradley J who on 24 August 2020:

    1. (a)
       affirmed the decision of Burns J that Mr O'Connor was a serious danger to the community in the absence of a Division 3 order;^[4]
    2. (b)
       rescinded the continuing detention order made by Burns J;^[5]
    3. (c)
       released Mr O'Connor subject to a supervision order.  The supervision order contained condition 26 in these terms:

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

11. [11]
    On 10 November 2020, Mr O'Connor was arrested pursuant to a warrant issued under s 20 of the DPSOA upon an allegation that he had contravened condition 26 of the supervision order.  The particulars of the contravention, as they appear in the application filed by the Attorney-General seeking orders under s 22 of the DPSOA, are as follows:

“On 9 November 2020, the respondent was directed to submit to a urinalysis test in accordance with the conditions of his supervision order.

During the urinalysis test, the respondent disclosed illicit intravenous use of Buprenorphine on 8 November 2020 and showed Queensland Correct Services (QCS) staff a needle mark on his left arm. Upon further challenging by QCS staff, the respondent stated he had injected Morphine on 8 November 2020. The respondent advised QCS staff that he ‘found’ the substance.

The respondent provided a urine sample for testing. The sample was presumptively positive to Buprenorphine. The sample was sealed and sent for confirmatory testing.

On 10 November 2020, a confirmatory report was received detecting Buprenorphine at a level of 6ug/L (cut off 2ug/L).

Queensland Correct Services have advised that the respondent has tested positive to Buprenorphine on four prior occasions since admission to the supervision order and has been afforded the opportunity to address his substance abuse via treatment prior to more formal contravention action taking place. The respondent has used non-prescribed Buprenorphine despite being engaged in substance abuse counselling with Drug Arm and ongoing treatment with a forensic psychologist.”

Statutory context

12. [12]
    The DPSOA provides for the continued detention or supervised release of a “particular class of prisoner”.^[6]  The class of prisoner affected by the DPSOA are those serving a term of imprisonment for a “serious sexual offence”^[7] which is “an offence of a sexual nature … involving violence” or “an offence of a sexual nature … against a child”.^[8]

13. [13]
    Upon application by the Attorney-General the court may make either a continuing detention order^[9] or a supervision order.^[10]  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.
14. [14]
    A pivotal provision of the DPSOA is s 13.  It has significance to the present application as the provisions which deal with breaches of supervision orders^[11] adopt terms and concepts included in s 13.  Section 13 is in these terms:

“13 Division 3 orders

3. (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.

3. (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).

3. (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.

3. (7)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

15. [15]
    Section 13 operates in this way:

    1. (a)
       the test under s 13 is whether the prisoner is “a serious danger to the community”;^[12]
    2. (b)
       that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”^[13] 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;^[14]
    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.^[15]
16. [16]
    As already observed, in 2018, Burns J made a continuing detention order.  Such orders are reviewed pursuant to Part 3 of the DPSOA.  On a review hearing, the court acts pursuant to s 30.  Section 30, which in relevant respects mirrors s 13, is in these terms:

“30 Review hearing

3. (1)
   This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division​ 3 order.

3. (2)
   On the hearing of the review, the court may affirm the decision 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 affirm the decision.

3. (3)
   If the court affirms the decision, the court may order that the prisoner—

1. (a)
   continue to be subject to the continuing detention order; or

2. (b)
   be released from custody subject to a supervision order.

3. (4)
   In deciding whether to make an order under subsection (3) (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.

3. (5)
   If the court does not make the order under subsection (3) (a), the court must rescind the continuing detention order.

3. (6)
   In this section—

required matters means all of the following—

1. (a)
   the matters mentioned in section 13 (4);

2. (b)
   any report produced under section 28A.”

17. [17]
    It was upon a review under s 30 that Bradley J rescinded the continuing detention order and made the supervision order.
18. [18]
    Upon an alleged breach of a supervision order, a prisoner subject to supervision may be arrested pursuant to a warrant issued pursuant to s 20 of the DPSOA and the court’s jurisdiction to make orders consequent upon the breach is vested by s 22.  That is in these terms:

“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. (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.

3. (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).

3. (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.

3. (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.

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.

3. (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^[16] unless the prisoner satisfies the court their continuation on supervision in the community will ensure the adequate protection of the community.^[17]  It is well-established that the concept of “the adequate protection of the community” in s 22(7) has the same meaning as it bears in s 13.^[18]  A prisoner facing an application under s 22 must prove that the supervision order will ensure adequate protection of the community by removing unacceptable risk that they will commit a serious sexual offence.  However, the issue under s 22 of the Act is not whether there is an unacceptable risk that the prisoner will breach the supervision order.  The issue is whether there is an unacceptable risk that he will commit a serious sexual offence.^[19] 

Expert evidence as to risk

20. [20]
    For the purposes of the present application, Mr O'Connor was interviewed by psychiatrists Dr Josephine Sundin and Dr Elizabeth McVie.
21. [21]
    Dr Sundin confirmed diagnoses that she had previously formed in relation to Mr O'Connor.  She said in her report:

“My formerly tendered diagnoses (DSM V) for Mr O'Connor have not changed.

I consider that he exhibits evidence of two clear paraphilias in the form of Exhibitionism and Paedophilia.

These occur in a man with an Anti-social Personality Disorder who meets the criteria for Psychopathy and Substance Use Disorder - opioids.

My previous assessment that his Substance Use Disorder was in sustained remission is clearly incorrect, given Mr O'Connor’s admission that he had been using opioids regularly in prison prior to his release from incarceration.

I remain of the opinion that he would have met the criteria for Conduct Disorder in childhood.

I doubt the diagnosis of Attention Deficit Hyperactivity Disorder, and consider that there is insufficient collateral information to support that diagnosis.”

22. [22]
    Dr McVie identified several paraphilias including exhibitionism, voyeurism, and an interest in troilism.^[20]  She thought that Mr O'Connor may also suffer from hebephilia.^[21]
23. [23]
    Both doctors considered risk.  Of some concern was an alleged sexual assault said to have been committed by Mr O'Connor upon another inmate at the Wolston Correctional Centre in August 2020.  That remains unsubstantiated. 
24. [24]
    As to risk, Dr McVie opined:

“Current risk assessment, actuarial and structured professional judgement, continues to indicate he remains at high risk of recidivism for sexual violence and for general criminal offending. This will not change in the short term.

A Supervision order will continue to reduce this risk to low while be remains compliant with the order. His recent contravention has not increased this risk.

Mr O'Connor requires continued individual treatment tailored to his learning capacity, to manage both his sexual offending and his substance abuse.

While I have concerns about opioid replacement therapy treatment for substance use, I note that the QCS records indicate he was more relaxed and amenable during the week in which he would have been using buprenorphine, suggesting a reflection of the drug effects on him.

If it is possible to place him on a depot (injectable) form of Suboxone, and this can be monitored regularly such that his urine drug tests will not conceal any other substance use, then it may be worthwhile trialling him on this program. This may decrease his high risk of relapse into substance use.

I would strongly advise that he be referred to a psychiatrist for ongoing review of symptoms and management of any prescribed medication. He has a complex history, has attracted multiple previous diagnoses, and by his self-report, may have previously experienced psychotic symptoms on both cannabis and amphetamine.

I would recommend he be referred to a psychiatrist with expertise in addiction psychiatry for assessment and management.

I reinforce my previous recommendations that he will need careful monitoring of his adjustment to this supervision. His risks will be elevated if he has difficulty coping with his environment or experiences any significant external stressors such as the loss of a close family member; or not being allowed supervised access to his daughter.

I also recommend that he attend a community based Sexual Offenders Maintenance Program in addition to his individual psychology treatment.

He should be engaged in some structured education program or employment.

There was mention of outstanding warrants in NSW. These may be in relation to breaches of his reporting conditions or for some other matters. It would be useful to know if these warrants exist as they may impact his longer term planning.

In addition to programs in drug and alcohol, he would also benefit from programs to address domestic violence, anger management and a specific violence reduction program.”

25. [25]
    Dr Sundin’s view on risk was:

“I remain of the opinion that Mr O'Connor’s risk for future sexual offending remains high and that he poses an unacceptable unmodified risk to the community for serious sexual offending.

The risk is founded on the basis of his history of substance use, Psychopathy, multiple paraphilias, past history of anti-social behaviours and most significantly having sexually re-offended in Queensland despite having completed a high intensity sex offender’s program in New South Wales from where he had received a satisfactory exit report.

I note that Mr O'Connor has only just begun to engage in drug and alcohol counselling within the community.

He has completed a Low Intensity Substance Intervention program in prison but not the Pathways program, a longer more intensive programme.

During his previous period of incarceration, it was not clear to me the frequency with which he was being subjected to urinary drug screens.

I concur with the opinion of Dr Morgan that it would be beneficial for Mr O'Connor to have achieved a clear period of abstinence from illicit drugs prior to his next release into the community, given the potentially dysregulating and disinhibiting effect of such substances on this man.

I recommend that Mr O'Connor should be linked to the Depot Suboxone program run through Alcohol and Drug Treatment Services as soon as he is released into the community. Ideally oversight of his progress into the community by a psychiatrist who specialises in drug and alcohol dependence would be of value.

I note that Duloxetine was being prescribed in the community but has been discontinued since Mr O'Connor's return to prison. Whilst he does not describe any change in his mood, this antidepressant medication does have an anxiolytic quality and may be worthy of consideration in his future management.

I would therefore respectively recommend to the court that the issue of this man’s substance use disorder warrants close attention with a detailed post-release management plan in place prior to his release into the community.

Once that plan is in place, I would respectfully recommend that Mr O'Connor could once again be released to the community under the existing supervision order which is serving its purpose in containing the risk that he potentially poses for future sexual recidivism.”

The position of the parties

26. [26]
    Mr O'Connor admits the contravention.  He submits that the psychiatric evidence supports his release back into the community on supervision.
27. [27]
    The Attorney-General seeks a finding that the supervision order has been contravened.  She accepts that it is open on the evidence to find that Mr O'Connor has discharged the onus cast upon him pursuant to s 22(7) of the Act, namely that the adequate protection of the community can be ensured by his release on supervision notwithstanding the contravention.

Conclusions

28. [28]
    I find that the Attorney-General has proved the alleged breach of the supervision order.
29. [29]
    I accept the evidence of the psychiatrists and I find that the adequate protection of the community can be ensured by the release of Mr O'Connor back onto the supervision order notwithstanding the contravention.  While Mr O'Connor’s risk for future sexual offending remains high if unsupervised, he has completed various sexual offender treatment programs in custody and a low intensity substance intervention program.  Further treatment is contemplated all of which, as the psychiatrists opine, lower risk.  While the ingestion of illicit substances no doubt increases Mr O'Connor’s risk of committing serious sexual offences, the supervision order has operated so that the ingestion was quickly detected and action taken.  The supervision order is therefore fulfilling its function as a tool through which the adequate protection of the community is ensured.
30. [30]
    As is apparent, the two psychiatrists have recommended further treatment for Mr O'Connor and their reports should be released to any treating practitioner providing psychological or psychiatric treatment to Mr O'Connor.
31. [31]
    For those reasons, I made the orders which I did.