Attorney-General v FJA No 2[2021] QSC 128

SUPREME COURT OF QUEENSLAND

1. [1]
   The Attorney-General sought orders pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) consequent upon an alleged breach by the respondent of a supervision order made by Ryan J on 1 December 2020. 

Background

2. [2]
   The respondent was born on 25 January 1990.  He is now 31 years of age. 
3. [3]
   He has a criminal history which involves sexual offending against boys.
4. [4]
   On 6 December 2018, Applegarth J made a continuing detention order against the respondent.^[1]
5. [5]
   The continuing detention order was reviewed by Ryan J pursuant to Part 3 of the DPSOA^[2] on 30 November 2020.
6. [6]
   On 1 December 2020, her Honour affirmed the decision of Applegarth J that the respondent was a serious danger to the community in the absence of an order under the DPSOA^[3] but rescinded the continuing detention order and released the respondent on supervision.
7. [7]
   The supervision order contained condition 27 in these terms:

“27. 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.”

8. [8]
   On 3 March 2021, the respondent returned a test result positive for the consumption of amphetamine and methylamphetamine.
9. [9]
   That constituted a breach of condition 27 of the supervision order.  He later admitted to the consumption of Lyrica, a controlled medication which was not prescribed to him.  That breached another condition of the supervision order.^[4]
10. [10]
    The respondent was arrested on 4 March 2021.^[5]
11. [11]
    On 4 March 2021 the applicant filed an application seeking orders against him.^[6]
12. [12]
    On 13 May 2021, I found that the breach then alleged had been proved but that the respondent ought to be released on the supervision order.  I ordered that to occur and it did.^[7]
13. [13]
    On 17 May 2021, the respondent again returned a positive result for amphetamine and methylamphetamine in his system.  He was arrested^[8] and the applicant sought orders pursuant to s 22 of the DPSOA.
14. [14]
    On 28 May 2021, I made the following order;

“The Court being satisfied to the requisite standard that the respondent has contravened supervision requirement 27 of the order made by Ryan J on 1 December 2020 (“the supervision order”) orders that:

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.”

15. [15]
    These are my reasons for making the order.

Statutory context

16. [16]
    The DPSOA provides for the continued detention or supervised release of “a particular class of prisoner”.^[9]  The prisoners the subject of the DPSOA are those serving a term of imprisonment for a “serious sexual offence”^[10] which is “an offence of a sexual nature … involving violence” or “an offence of a sexual nature … against a child”.^[11]
17. [17]
    The Attorney-General may apply to the court for orders against those prisoners.  The court may make a continuing detention order^[12] or a supervision order.^[13]  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.
18. [18]
    Section 13 is  pivotal to the DPSOA.  It has significance to the present application as the provisions which deal with breaches of supervision orders^[14] adopt terms and concepts included in s 13.  Section 13 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).

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).”

19. [19]
    Section 13 operates in this way:

    1. (a)
       the test under s 13 is whether the prisoner is “a serious danger to the community”;^[15]
    2. (b)
       that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”^[16] 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;^[17]
    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.^[18]
20. [20]
    If a contravention or likely contravention of a supervision order is suspected, a warrant may be issued pursuant to s 20 of the DPSOA.  The court is then empowered to make orders pursuant to s 22.  Section 22 provides as follows:

“22 Court may make further order

1. (1)
   The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).

2. (2)
   Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—

1. (a)
   if the existing order is a supervision order, rescind it and make a continuing detention order; or

2. (b)
   if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.

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).”

21. [21]
    By s 22, once a contravention is proved the court must rescind the supervision order and make a continuing detention order^[19] unless the prisoner satisfies the court that the adequate protection of the community can be ensured by his release back on supervision.^[20]  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.^[21]  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. 
22. [22]
    However, the issue under s 22 of the DPSOA is not whether there is an unacceptable risk that the respondent will breach the supervision order.  The issue is whether there is an unacceptable risk that he will commit a serious sexual offence.^[22]

Expert opinion on risk

23. [23]
    There has been extensive expert psychiatric examination of the respondent.  That has been recorded in various judgments.^[23]  It is unnecessary to descend into an examination of that evidence in detail.
24. [24]
    When the earlier contravention was before me on 13 May 2021, evidence included a report of Dr Harden, a psychiatrist very experienced in the assessment of risk of sexual offenders.
25. [25]
    He diagnosed the respondent as follows:

“In my opinion he meets a diagnosis of Alcohol and polysubstance Abuse. He meets criteria for Personality Disorder not otherwise specified with mixed features (antisocial, borderline, dependent) and some evidence of psychopathy.

Sexual preference for post-pubertal males in the form of Hebephilia is controversial as a paraphilia and does not always attract a diagnosis. He clearly has Hebephilia, sexually attracted to males, non exclusive.”

26. [26]
    It is unnecessary to analyse in detail Dr Harden’s opinion as to risk as that opinion was expressed during the previous breach proceedings.  It is sufficient to observe that he opined that the respondent’s risk of future sexual offence is high but reducing to low-moderate on a supervision order with the necessity to control the respondent’s substance abuse.^[24]
27. [27]
    Dr Harden was consulted in relation to the current contravention.  He found it unnecessary to interview the respondent and expressed an opinion in these terms:

“I have now reviewed the 5 documents provided (application dated 21 May; affidavit of B Fuller affirmed 21 May 21; IOMS Case notes 12 March – 20 May 2021; affidavit of the prisoner sworn 25.5.21 and QP9 for s 43AA charge) and my report of 23.4.21

 The material associated with this alleged contravention does not alter my opinions expressed in my report of 23 April 2021.”^[25]

Position of the parties

28. [28]
    As previously observed, the respondent admits the contravention but submits, in reliance upon Dr Harden’s evidence, that he has discharged the onus under s 22(7) of the DPSOA.
29. [29]
    While the Attorney-General presses for a finding that the respondent contravened the supervision order, she acknowledges that on the basis on Dr Harden’s opinion, it is open to the court to find that the respondent has discharged the onus under s 22(7).

Conclusions

30. [30]
    In addition to the applicant’s material, there is before me an affidavit of the respondent.  In the affidavit the respondent swears to the following effect:

    1. (i)
       He did use the drug ice;
    2. (ii)
       It was supplied to him by another person on supervision who was selling drugs;
    3. (iii)
       The person selling drugs pressured the respondent to purchase some;
    4. (iv)
       He regrets his actions;
    5. (v)
       He understands that such behaviour puts his freedom at risk.
31. [31]
    The Attorney-General did not seek to cross-examine the respondent on his affidavit and I should, therefore, accept the truth of what he says.
32. [32]
    I find that the respondent contravened the supervision order as alleged.
33. [33]
    I accept Dr Harden’s opinion that the present contravention does not increase the risk of commission of a serious sexual offence beyond the risk that was assessed upon the earlier contravention.^[26]
34. [34]
    I find that the adequate protection of the community can be ensured by the release of the respondent on the supervision order notwithstanding the contravention.
35. [35]
    For those reasons I made the order that I did.