Attorney-General v Wason[2021] QSC 107

SUPREME COURT OF QUEENSLAND

1. [1]
   The Attorney-General sought orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) consequent upon an alleged breach by Vincent John Wason of a supervision order made by Bradley J on 2 December 2019.
2. [2]
   On 13 May 2021, I made the following order:

“The court, being satisfied to the requisite standard that the respondent has contravened supervision requirement 26 of the order made by Bradley J on 2 December 2019 (‘the supervision order’), orders that:

1. Under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and continue to be subject to the requirements of the supervision order.”

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

Background

4. [4]
   Mr Wason was born on 2 August 1975. He is 45 years of age.
5. [5]
   As previously observed, Bradley J ordered Mr Wason’s release on supervision on 2 December 2019. His Honour described Mr Wason’s offending and psychiatric risk assessment at that point in these terms:

“He is currently serving his second period of imprisonment imposed for serious offences of a sexual nature. His first such offence was committed in 2008 and was the attempted rape of his three year old niece. He served the full five-year term of imprisonment for that offence.

The present offence is of attempted rape which was committed against a female tourist aged in her mid-20 s. It occurred shortly after the respondent was released from custody for the previous sexual offence. That presently relevant offence involved a degree of violence. The respondent was, at the time, living in a camp by a riverbed in Kuranda. The 25 year old female victim was an American tourist who was camped with friends a short distance from where the respondent was living.

During the course of the evening, the respondent introduced himself to the group. The following morning, he returned and attempted to make conversation with the victim. He was still drinking from the night before. When the victim was by herself, he approached her and lured her away to a secluded location near the riverbed, on the pretence of showing her some bush medicine. When the victim became aware of the seclusion of the location, she became worried and asked to return to her friends. This is when the respondent assaulted her.

He pulled her down into the gully, held her arms behind her back and grabbed her around the neck, causing her to fall face down in the dirt. He applied pressure to her throat when she struggled. He made threats to kill her when she screamed for help. And during the struggle, he removed the victim’s skirt and underwear, and tore her bikini top. He told her that if she had sex with him, he would let her go. The offending only ceased when the victim seized an opportunity to run from the respondent to the camp site, where she told her friends he had attempted to rape her.

Having reviewed his Queensland criminal history and the relevant records and sentencing remarks of his Honour Judge Harrison, I am satisfied that he is a prisoner currently serving a period of imprisonment for a serious sexual offence involving violence. The evidence before the court includes that of three psychiatrists. Dr Arthur has diagnosed the respondent with a mixed cluster B personality disorder with antisocial and narcissistic traits, and alcohol and cannabis misuse disorder. He identified that, unmodified, the respondent presents as a moderately high risk of future sexual re­offending. In Dr Arthur’s opinion, a five-year supervision order would reduce that risk to low.

Dr Beech also considered the respondent. He diagnosed the respondent with an antisocial personality disorder and a polysubstance use disorder. He assessed the respondent’s risk for re-offending to be in the moderate to high range. In Dr Beech’s view, if the respondent felt frustrated, thwarted, or angry, he would act violently to meet his sexual urges. Dr Beech thought it was difficult to know who the victim might be. He considers that a supervision order would substantially reduce the risk of re-offending and suggests a supervision order of five years.

The third psychiatrist, Dr Harden, expressed the view that the respondent’s future risk of sexual re-offending is high or well above average, with critical issues of substance intoxication and attitudes supportive of violence against women. Dr Harden is also of the view that supervision and intervention, consistent with a supervision order, will likely reduce the respondent’s risk of re-offending to the range of low to moderate. Dr Harden thought a supervision order ought to be of at least five years duration and contain conditions requiring the respondent to be abstinent from alcohol and illicit substances, to have regular psychological therapy with an appropriately skilled practitioner, and not to undertake serious emotional relationships with women without the support of an appropriately skilled practitioner.”^[1]

6. [6]
   In addition to the offence described in some detail by his Honour, Mr Wason has a significant criminal history commencing as an adult in 1992. That includes offences of violence which have in the main been committed in the context of domestic relationships and there are also drug offences. He has, from time to time, been the subject of various orders such as domestic violence orders, fine option orders, community service orders and probation orders, which he has breached.
7. [7]
   The supervision order contained various conditions, including condition 26 in these terms:

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

8. [8]
   On 17 July 2020, alcohol was detected in Mr Wason’s system and he was arrested pursuant to a warrant issued under s 20 of the DPSOA on an allegation of breach of condition26 of the supervision order. The breach was found proved and on 29 October 2020 Mr Wason was released by order of Flanagan J pursuant to s 22(7) of the DPSOA.
9. [9]
   On 10 April 2021, he was again tested and again alcohol was detected in his blood. After initially denying the consumption of alcohol, he later made admissions. Again, he was arrested and on 12 April 2021 he was ordered to be detained in custody until a final decision was made on the breach proceedings.^[2]
10. [10]
    The full particulars of the alleged contravention are stated in the Attorney-General’s application as follows:

“On 10 April 2021, the respondent submitted to a breath test in accordance with requirement (28) of his supervision order. He provided a sample of breath at 131l hrs with a positive BAC% 0.036. A second sample was taken at 133l hrs with a positive BAC% 0.052.

Prior to testing, the respondent denied any alcohol use. After the breath tests he stated the tests were positive due to hand sanitiser on his hands. After further questioning, he then made admissions to asking a member of the public not known him to purchase alcohol for him in Goodna. To QCS staff, the respondent stated that he consumed 2 x tallies of beer due to feeling stressed.

The respondent is in contravention of requirement (26.) of his Supervision Order …”

Statutory context

11. [11]
    The Act provides for the continued detention or supervised release of “a particular class of prisoner”.^[3] The prisoners the subject of the DPSOA are those serving a term of imprisonment for a “serious sexual offence”^[4] which is “an offence of a sexual nature … involving violence” or “an offence of a sexual nature … against a child”.^[5]
12. [12]
    The Attorney-General may apply to the court for either a continuing detention order^[6] or a supervision order.^[7] A continuing detention order results in 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.
13. [13]
    Section 13 of the DPSOA is a critical provision. It has significance to the present application as the provisions which deal with breaches of supervision orders^[8] adopt terms and concepts included in s13. Section 13 is in these terms:

“13Division 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).

2. (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.

4. (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 offence sin 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).”

14. [14]
    Section 13 operates in this way:

    1. (a)
       the test under s 13 is whether the prisoner is “a serious danger to the community”;^[9]
    2. (b)
       that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”^[10] 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;^[11]
    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.^[12]
15. [15]
    By s 20, a warrant may issue for the release of a prisoner on supervision upon suspicion of a contravention or likely contravention of the supervision order. By s 22, orders may be made by the court upon proof of contravention. Section 22 provides:

“22Court 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).”

16. [16]
    By s 22, once the contravention is proved, the court must rescind the supervision order and make a continuing detention order^[13] unless the prisoner satisfies the court that continuation on supervision in the community will ensure the adequate protection of the community notwithstanding the contravention of the supervision order.^[14] The concept of “the adequate protection of the community” in s 22(7) has the same meaning as it bears in s 13.^[15] Therefore, a prisoner facing an application under s 22 must 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.
17. [17]
    However, the issue under s 22 of the DPSOA is not whether there is an unacceptable risk that the prisoner will breach the supervision order. Rather, the issue is whether there is an unacceptable risk that he will commit a serious sexual offence.^[16]

Expert evidence as to risk

18. [18]
    Often supervision orders imposed upon prisoners under the DPSOA are breached through the ingestion of alcohol or illicit substances in contravention of particular conditions. Often it is necessary for the Attorney-General to take action on such breaches as the consumption of alcohol or illicit substances may herald an increase in the risk of the prisoner committing a serious sexual offence. Often though it doesn’t.
19. [19]
    On the occasion of Mr Wason’s first contravention in 2020, psychiatrist, Dr Beech, provided an opinion that:

“I would view this as a minor lapse into alcohol use in someone who has tended to resort to alcohol to manage stresses. Clearly, Mr Wason could have done better by contacting the supports around him but to his credit he had not absconded, had not gone onto a drinking binge off the Precinct, and had instead consumed a small amount of alcohol at his residence. There are no other indications that he had been rejecting supervision and instead I think the overall trajectory indicates an anti-social man who is maturing, settling down, and doing much better than he had on his previous release in 2013.

In my opinion, Mr Wason still remains at moderate-high risk of re-offending but this risk is significantly reduced, down to low, on the supervision order. I recommend, if he is released, that he returns to AODS for counselling. It would be helpful to facilitate his return to AA. I think it is important that he is assisted to find employment because that pro-social activity will lessen the risk in the longer term. He needs to return to Dr Madsen for ongoing psychological counselling and support.”

20. [20]
    Where a breach of this kind is alleged and actioned, it can often be some time before the proceedings are finalised. That is undesirable. The supervision order is designed not only to protect the public but also to rehabilitate and reintegrate the prisoner into the broader community.^[17] Long periods in custody during the term of the supervision order does not assist in achieving that aim.
21. [21]
    The Attorney-General clearly recognised here that the contravention, while significant, may not justify the rescission of the supervision order and the imposition of a continuing detention order. Steps were taken to ensure that the matter was quickly concluded. That included instructing one (rather than the usual two) psychiatrist to examine Mr Wason and prepare a report. That is a commendable approach.
22. [22]
    Psychiatrist Dr Arthur was retained. He opined that:

“Prisoner Wason was re-released to the supervision order on 29 October 2020, again residing at the Wacol Precinct. From the papers, it appears that his presentation over the next 6 months followed a similar trajectory in that he was described as a generally cooperative, respectful and compliant man who attended psychological therapy, did not show overt oppositional or hostile attitudes towards supervision and verbalised his intention to remain abstinent from substances. Again, there was a significant death in his family. He had been proactive about seeking treatment and was prescribed Naltrexone to help him manage cravings for alcohol. Whilst he did not attend drug and alcohol counselling he did reconnect with Alcoholics Anonymous, although it took him over 4 months to do so. He also connected with an employment provider and had plans to complete a forklift course.

In regard to stressors, it appears that there had been some minor conflict with another supervisee at The Precinct which had been resolved without incident. He had bought toys that he wished to send to his younger relatives via his mother; this was disallowed on the basis that it possibly represented attempts at grooming behaviour. Corrections also restricted prisoner Wason’s plans to sell his artwork through one of his brothers, although he was still allowed to distribute work through his mother and possibly his sister. He had indicated a desire to contact his children although it appears that they were not similarly motivated. There had been an interaction with his case manager on 8 April where he had to be reminded not to make plans (such as going fishing with another supervisee) without being given approval first. At the time his case manager noted a: ‘... faint glimmer of hostility’. He had also spoken about his brother’s mental health issues and gambling addiction.

In the days prior to the contravention, his mental state was described as stable although he was suffering from an upper respiratory tract infection and had been told to self-isolate until he was cleared of COVID-19. There appeared to be some confusion about his leave passes the day prior to the contravention but no indication that he was significantly frustrated or distressed by this.

He provided a positive breath test around 1 pm on 10 April 2021 and admitted to drinking two ‘tallies’ of beer which had been purchased for him by a stranger whilst he was shopping in Goodna. Based on his blood alcohol readings, it seems likely he consumed the alcohol that morning. He told staff that he was feeling stressed due to family fighting (of which there was no mention in the documentation). Although he did not state it, it is possible that he was also frustrated with not being able to go shopping when he needed to.

Prior to his return to custody, prisoner Wason had acknowledged various supports including family members, Dr Madsen, his AA sponsor, case manager and a Social Worker. He was unable to give an explanation as to why he did not contact these supports prior to using alcohol, with the inference that this was an impulsive decision. Given that the contravention occurred on Saturday morning, it was reasonable to assume that his Psychologist or case manager would not have been easily available.

In regard to his sexual functioning, whilst he described a reduced interest in sex (which he attributed to taking Naltrexone), he continued to actively source out pornographic DVDs and expressed an intention to visit the local brothel, although did not seem entirely comfortable with this. He remained circumspect in regard to discussing masturbatory practices.

I note some minor contraventions in regard to exclusion zones and not being contactable by phone.

Overall, it appears that prisoner Wason made some attempt to address the risk of alcohol use with medication and affiliation with Alcoholics Anonymous. In a similar fashion to his previous contravention, his drinking was a single episode which involved only moderate amounts of alcohol and was not associated with any emotional or behavioural disturbance.

This recent contravention highlights prisoner Wason’s vulnerability to impulsively using alcohol to manage emotional distress. Whilst it is likely that he was experiencing some frustrations with the restrictions of his order, there is no evidence of a rejection of supervision or any associated hostile/oppositional behaviour. It is not clear why he did not utilise the supports available to him, perhaps indicative of the impulsive nature of his actions, or alternatively his lack of self-awareness/self-monitoring.

RISK ASSESSMENT

I see no reason to modify my previous risk assessment. Based on structured clinical judgement, prisoner Wason’s unmodified risk of sexual reoffending remains moderately high, with the key risk factors being substance use, sex as coping and his underlying Antisocial Personality Disorder.

His estimated risk is reduced to low with the provisions of his current supervision order.

RECOMMENDATIONS

Prisoner Wason requires ongoing, high level support in regard to his alcohol use. Even with the use of Naltrexone and the involvement of AA (albeit relatively briefly), there was a lapse in control over his drinking. It was not clear why he did not return to drug and alcohol counselling with AODS, but given the gravity of his situation I would recommend that he take advantage of all possible treatment modalities including individual counselling, group therapy and medication. If not done, an emergency plan should be formulated which includes a list of people he can contact by phone at any time of the day or night. Consideration should also be given to increasing the dose of Naltrexone or augmentation with Acamprosate, as there are some studies that suggest a combination of these two drugs is more effective than taking them individually. Consideration should also be given to a trial of SSRI antidepressant (such as Citalopram or Paroxetine) which may assist with affect regulation and impulsivity.

As I noted in my previous report, he should continue with psychological therapy addressing his underlying personality vulnerabilities and negative attitude towards women. Employment and/or regular engagement in meaningful daytime activity would provide him an alternate source of self-esteem and further protect against a return to substance use. It seems that he may not have disclosed the level of distress he was feeling in relation to family matters. Access to cultural supports/counselling which would allow him to discuss these issues more openly may be helpful, as would closer monitoring of his interactions with family members.”

Position of the parties

23. [23]
    Mr Wason admitted the contravention. He submitted that he had discharged the obligation cast upon him by s 22(7) of the DPSOA, namely proving that the adequate protection of the community could be ensured by his release on supervision notwithstanding the contravention of the supervision order.
24. [24]
    The Attorney-General concedes that it is open on the evidence to conclude that Mr Wason has discharged the onus upon him and ought to be released.

Conclusions

25. [25]
    This is Mr Wason’s second contravention of the supervision order which has been in place since 2 December 2019. Mr Wason’s unmodified risk of serious sexual reoffending is considered by Dr Arthur to be moderately high. However, I accept Dr Arthur’s opinion that the supervision order has operated so that the consumption of alcohol by Mr Wason was detected and could be actioned. I accept DrArthur’s opinion that the supervision order reduces the risk of serious sexual reoffending by Mr Wason to low.
26. [26]
    In those circumstances, I find that Mr Wason contravened the supervision order as alleged.
27. [27]
    I find that the release of Mr Wason on the supervision order provides adequate protection of the community against the commission by Mr Wason of a serious sexual offence.
28. [28]
    Given that the adequate protection of the community can be ensured by the making of a supervision order, Mr Wason’s release on supervision ought to be favoured to his continued detention.^[18]
29. [29]
    For those reasons, I made the orders which I did.