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SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v Cosh  QSC 13
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
ALLAN JAMES COSH
BS No 2684 of 2017
Supreme Court of Queensland at Brisbane
12 February 2021
5 February 2021
The application for release under s 21(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 is dismissed.
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent contravened the supervision order made on 24 July 2017 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) by consuming cannabis – where the respondent is being held in custody pending finalisation of proceedings consequent upon the contravention – where two psychiatrists have been retained to examine the respondent and report as to risk – where one psychiatrist has provided a report which may support the release of the respondent notwithstanding the contravention – where the other psychiatrist has not yet reported – whether there are “exceptional circumstances” pursuant to s 21(4) of the DPSOA justifying release of the respondent pending final hearing of the contravention proceedings.
Criminal Code, s 339, s 349, s 355
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, followed
Attorney-General for the State of Queensland v Cosh  QSC 155, related
Attorney-General for the State of Queensland v Dugdale  QSC 358, followed
Attorney-General v Fisher  QSC 104, cited
Attorney-General v Francis  1 Qd R 396, cited
Attorney-General v Francis  QSC 69, cited
Attorney-General (Qld) & Anor v Francis (2008) 187 A Crim R 124, cited
Attorney-General v Francis (2008) 250 ALR 555, cited
Attorney-General for the State of Queensland v Friend  QCA 357, cited
Attorney-General for the State of Queensland v Holroyd  QSC 187, cited
Attorney-General v Phineasa  1 Qd R 305, cited
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, followed
Harvey v Attorney-General for the State of Queensland (2011) 220 A Crim R 186, cited
R v Cosh  QCA 156, related
R v Kelly  1 QB 198, cited
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed
Westpac Securities Administration Ltd v Australian Securities and Investments Commission  HCA 3, followed
J Rolls for the applicant
C Reid for the respondent
GR Cooper, Crown Solicitor for the applicant
Legal Aid Queensland for the respondent
- Allan James Cosh is the subject of a supervision order made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) on 24 July 2017 (the supervision order). It is alleged that he contravened the supervision order. He is presently in custody consequent upon an allegation of contravention of the supervision order. Mr Cosh, who is the respondent in the principal proceedings, applies for an order releasing him on supervision pending determination of the contravention proceedings.
- Mr Cosh was born on 9 September 1966. He is presently 54 years of age. His criminal history commenced with convictions for property offences as a child in 1983 when he was 16. Between then and April 2005, Mr Cosh was convicted of numerous offences. On some occasions, community based orders were made, on others he was imprisoned. Most were property offences but there were convictions for assault, breach of domestic violence orders and minor drug offences.
- In April 2005, Mr Cosh was charged with 11 offences arising out of his attack upon a female complainant known to him. He faced trial in August 2006, was convicted of five offences and acquitted of the others. The convictions were on counts 2, 3, 5, 6 and 8 on the indictment. He was sentenced to various terms of imprisonment which amounted to an effective head term of 12 years. Time served in pre-sentence custody was declared as time served on the sentence.
- On Mr Cosh’s unsuccessful application to appeal sentence, McMurdo P described the 2005 offending in these terms:
“The applicant met the female complainant about six months prior to the commission of the offences. During the afternoon of 30 April 2005 she saw him at the Melbourne Hotel at West End where she was drinking with friends and said hello to him. During the afternoon she became intoxicated and the bar staff refused to serve her. She agreed to his suggestion to have dinner. They went to the Boundary Hotel where they drank together for about an hour. She believed they were leaving the hotel to go to a nearby Chinese restaurant but her next recollection is them arriving at his one-room flat on Hampstead Road, Highgate Hill.
The applicant opened some sparkling wine which had been bought along the way. The complainant drank some. They conversed for about half an hour. When the subject turned to the applicant’s ex‑girlfriend he became agitated and suddenly turned and punched her in the head with a number of blows. This constituted count 3.
She started to cry. He told her to stop snivelling. She noticed blood on her hand which had apparently come from her nose. She said she wanted to go home. He replied, ‘You’re not going anywhere. Shut the fuck up and lay down. Just take your clothes off.’ She was terrified and complied. He threw her clothes across the room. She covered herself with a sheet. She said she needed to go to the toilet. He grabbed her by the back of her hair and walked her down a corridor and a flight of stairs. He thrust her into the bathroom. Her nose bled profusely on to the toilet seat. She stated the obvious, ‘There’s blood everywhere.’ He dragged her to the basin, turned the tap on and splashed water on to her face. She was sobbing loudly and screaming at him. He began to hit her again. When she had finished in the toilet he made an effort to clean up the blood. She attempted to escape but he held her around the waist and prevented it. He then grabbed her hair and marched her back up the stairs. She tripped onto her knee. She was hysterical and shouting. He forced her back to the flat where he pushed her on to the bed and told her to lie down. She sat on the bed. He came back from the kitchen with a knife which he held to her throat and moved it back and forth. He said, ‘I’ll cut you up so badly you’ll wish you never came here.’ She was by this time, understandably, sobbing and hysterical. He removed his clothes and got into bed with her, lay on top of her and penetrated her vagina with his penis, count 5.
When he withdrew he told her, ‘You don’t say anything.’ Ten minutes later he began to fondle and caress her breasts and vagina with his hands and lips penetrating her vagina with his tongue, count 6.
After about 10 minutes he pushed her head on to his penis and told her to suck it. She resisted because her mouth was sore. He kept pushing her and compelled her to perform oral sex on him. He did not ejaculate. This episode went on for no more than 10 minutes, count 8.
After a while she again asked to be allowed to go home. He replied, ‘No. You need to get some sleep and go home in the morning.’ He gave her Panamax tablets for pain. She was too frightened to move because she feared he would hit her again. In the morning he continued to refuse to let her leave. This repeated refusal to allow her to leave constituted count 2.
He said, ‘I think I hit you too hard. You used to be pretty.’
He stripped the bed linen from the bed because it had blood on it. He arranged for another person to call a taxi for her. She discovered she did not have money in her purse. He offered her some but she refused. He asked her if she wanted to go to hospital. She said she wanted to go home. He asked her to call him when she got home otherwise he would come around. She did not have his phone number and he did not know her address. She went to a friend’s place where she made a complaint. Friends took her to hospital and the police were contacted.”
- The 2005 offences were Mr Cosh’s first convictions for sexual offending.
- It is unnecessary to analyse the psychiatric evidence available in 2017. That evidence was examined in some detail by Mullins J (as her Honour then was) when making the supervision order. For present purposes, it is sufficient to observe:
- Dr Sundin opined:
- (a)Mr Cosh met the criteria for diagnosis of anti-social personality disorder, psychopathy and substance abuse disorder in respect of alcohol and cannabis, in remission while in custody;
- (b)Mr Cosh’s risk of reoffending escalates upon use of intoxicating substances;
- (c)alcohol was a significant factor in the commission of the 2005 offences;
- Dr Beech opined:
- (a)Mr Cosh met the criteria for a diagnosis of anti-social personality disorder which may be settling as Mr Cosh ages;
- (b)there may be an alcohol abuse related disorder;
- (c)there was no primary mental disorder or specific sexual paraphilia;
- (d)future sexual violence may involve alcohol;
- Dr Grant opined:
- (a)Mr Cosh met the criteria for anti-social personality disorder with psychopathic personality and alcohol and drug abuse currently in remission in custody;
- (b)alcohol abuse was a contributor to the 2005 offending;
- (c)alcohol was a risk factor for future offending.
- Mullins J found that the adequate protection of the community could be ensured by release of Mr Cosh on a supervision order. It is well settled that release on supervision should be preferred to continuing detention unless continuing detention is necessary to provide adequate protection of the community against the commission of a serious sexual offence. Mullins J ordered Mr Cosh’s release on the supervision order which included a condition that Mr Cosh “abstain from the consumption of alcohol or illicit drugs for the duration of this order”.
- Since his release, Mr Cosh has formed a relationship with a lady who is referred to in the material as “T”. Mr Cosh and Ms T plan to marry despite the fact that Mr Cosh has been violent in their relationship on two reported occasions.
- Drug testing of Mr Cosh revealed consumption of cannabis on each of 16 and 30 July 2020, 3, 13 and 26 September 2020, 11 and 25 October 2020 and 5 November 2020.
- A warrant alleging breaches of the supervision order constituted by the consumption of cannabis issued for Mr Cosh’s arrest on 12 November 2020. He was subsequently ordered to be detained pending determination of the contravention proceedings.
- Two psychiatrists have been retained by the applicant to prepare reports relevant to the contravention proceedings. Dr Beech has provided his report. Dr Sundin’s report, at this stage, is outstanding.
- Dr Beech, in his report dated 28 January 2021:
- (a)confirms his earlier diagnosis of anti-social personality disorder with elevated psychopathic traits;
- (b)considered Mr Cosh’s behaviour overall on supervision as “better than expected”;
- (c)observed “The material points to two incidents of alleged domestic violence that I believe are very concerning, but there is nothing that points to inappropriate sexual behaviour, sexual preoccupation, or the use of sex to meet emotional needs. Instead, he has had some support from family and friends, and remained in regular albeit restricted contact with T throughout”;
- (d)opined “I think Mr Cosh developed an Adjustment Disorder with depressed mood through 2020 in the context of supervision order conditions, difficulties with T, COVID, and the general settling into the community and the demands of independent living after being in prison for 12 years. It is credible that he resorted to cannabis use to deal with his lowered mood, idleness, and difficulties with supervision but he may also have simply returned to a long-term cannabis habit. I agree with Mr Hamilton that alcohol is likely to be a much more problematic substance use with regards to the risk of re-offending. In a general way, a return to cannabis use, repeated denial of drug use, frustration and lowered mood, and difficulties with supervision would indicate an increase in risk of reoffending. But, in this case, I think that risk increase overall was relatively low and the trajectory was halted by his return to custody”;
- (e)concluded “Ultimately, it is my opinion that the risk of sexual violent re-offending has reduced to below moderate and a supervision order would reduce that risk even further. The main issues are around a return to alcohol abuse and intoxication, increasing difficulties in his personal relationship with a return to domestic violence, and a lack of supports to help him deal with the vicissitudes of living in the community, adjusting to independent living, and participating in pro-social activities”;
- (f)opined that an extension of the supervision order was not warranted.
- The DPSOA establishes a system of preventative detention designed to protect the community from the commission of “serious sexual offences”. “Serious sexual offences” are ones which are “… of a sexual nature … involving violence or … against a child”. Although the DPSOA looks to protect against future offending, it is only an offender who has been previously convicted of a serious sexual offence who will fall within the “particular class of prisoner” to whom the DPSOA applies.
- Core to the system is the notion of “adequate protection of the community” from the risk of the commission of a “serious sexual offence”. Where adequate protection of the community requires continuing detention, a continuing detention order may be made. An offender who poses a relevant risk may be released upon a supervision order if such a course provides “adequate protection of the community” against the risk he poses.
- It is contemplated by the DPSOA that expert psychiatric opinion will form part of the evidence upon which the court considers risk. Both upon the making of initial orders and upon the periodic review of a continuing detention order (if one is made), the court orders reports from two psychiatrists.
- When, as here, an offender has been released on a supervision order and, as here, the terms have been contravened, proceedings may be taken upon the breach.
- Section 20 of the DPSOA provides that a warrant may issue for the arrest of the offender. Section 20 provides, relevantly:
“20 Warrant for released prisoner suspected of contravening a supervision order or interim supervision order
- (1)This section applies if a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the released prisoner’s supervision order or interim supervision order.
- (2)The officer may, by a complaint to a magistrate, apply for a warrant for the arrest of the released prisoner directed to all police officers and corrective services officers to arrest the released prisoner and bring the released prisoner before the Supreme Court to be dealt with according to law. …”
- Section 21, which is critical to the present application, provides that upon the return of the warrant, the court may either order the offender’s detention or his interim release. Section 21 provides:
“21 Interim order concerning custody generally
- (1)This section applies if a released prisoner is brought before the court under a warrant issued under section 20.
- (2)The court must—
- (a)order that the released prisoner be detained in custody until the final decision of the court under section 22; or
- (b)release the prisoner under subsection (4).
- (3)The released prisoner may, when the issue of his or her custody is raised under subsection (2), or at any time after the court makes an order under that subsection detaining the prisoner, apply to the court to be released pending the final decision.
- (4)The court may order the release of the released prisoner only if the prisoner satisfies the court, on the balance of probabilities, that his or her detention in custody pending the final decision is not justified because exceptional circumstances exist.
- (5)If the court adjourns an application under subsection (3), the court must order that the released prisoner remain in custody pending the decision on the application.
- (6)If the court orders the released prisoner’s release, the court must order that the prisoner be released subject to the existing supervision order or existing interim supervision order (each the existing order) as amended under subsection (7).
- (7)For subsection (6), the court—
- (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
- (b)may amend the existing order to include any other requirements the court considers appropriate to ensure adequate protection of the community.”
- Section 22 deals with the final determination of contravention proceedings. It provides:
“22 Court may make further order
- (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)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—
- (a)if the existing order is a supervision order, rescind it and make a continuing detention order; or
- (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)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—
- (a)act on any evidence before it or that was before the court when the existing order was made;
- (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—
- (i)in the nature of a risk assessment order, subject to the restriction under section 8(2); or
- (ii)for the revision of a report about the released prisoner produced under section 8A;
- (c)consider any further report or revised report in the nature of a report of a type mentioned in section 8A.
- (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)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)For applying section 11 to the preparation of the report—
- (a)section 11(2) applies with the necessary changes; and
- (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)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—
- (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
- (b)may otherwise amend the existing order in a way the court considers appropriate—
- (i)to ensure adequate protection of the community; or
- (ii)for the prisoner’s rehabilitation or care or treatment.
- (8)The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”
The parties’ submissions
- Mr Cosh applies for his release pursuant to s 21(2)(b). He accepts that he bears the onus cast upon him by s 21(4) to prove “that his … detention in custody pending [determination of the contravention proceedings] is not justified because exceptional circumstances exist”. Mr Cosh submits that the exceptional circumstances here are:
“(a) The evidence does not indicate that the drug would have had an intoxicating or disinhibiting effect upon the Applicant such that his risk of re-offending is increased;
- (b)The evidence does not indicate that the alleged breach, even if proved, has increased his risk of re-offending if released from custody under a supervision order;
- (c)The Applicant’s risk of reoffending may be considered to be low given the relatively short period of time until the final determination of the matter;
- (d)The Applicant’s risk of re-offending is likely to be further reduced by the likely increased supervision and monitoring of him if released upon a supervision order; and
- (e)The proposed supervision order is apt to address the level of risk posed by the Applicant if released from detention.”
- The Attorney-General resists the application. She submits:
- (a)before the discretion arises to order Mr Cosh’s release, “exceptional circumstances” must be shown;
- (b)there are no circumstances here which can be relevantly said to be “exceptional”;
- (c)to the extent that an assessment of the prospects of Mr Cosh obtaining release under s 22(7) is relevant to an application under s 21(4), that assessment is impossible given that Dr Sundin’s report has not been received.
- Mr Cosh relies heavily on Dr Beech’s report which is favourable to him. Mr Cosh is highly likely to be released back on supervision if Dr Beech’s opinions are ultimately accepted. The case raises again the relevance of prospects of success on the final hearing to considerations for interim release under s 21(4).
- The meaning of the term “exceptional circumstances” used in s 21(4) will be determined having regard to the context and purpose of the DPSOA and the mischief sought to be addressed. As observed by Gordon J in Westpac Securities Administration Ltd v Australian Securities and Investments Commission, a section in a statute “is to be read as a whole and given its ordinary meaning in light of its context and purpose. It is not to be dissected into separate words or phrases the meanings of which are then amalgamated into some composite meaning”.
- However, various Queensland decisions which have considered s 21(4) have had regard to Lord Bingham’s general statement as to the meaning of the word “exceptional” in R v Kelly. There, his Lordship said:
“ We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
- The object of s 21(4) is obvious. By the time the discretion reposed by s 21(4) falls to be exercised, the offender has been placed on a supervision order and he has been alleged to have breached it. In order to have been placed on a supervision order, there must have been a finding that there is an unacceptable risk that the offender would commit a serious sexual offence unless subject to the order. In other words, the adequate protection of the community requires him to be subject to a supervision order. The conditions of the order are designed to reduce risk to an acceptable level.
- Where there has been an alleged breach of the supervision order, it is necessary, under s 22 (the final hearing of the contravention proceedings), to firstly determine whether a contravention has occurred and secondly to reassess risk consequent upon the contravention if found. Section 21(4) no doubt reflects the dominant purpose of the DPSOA which is to provide adequate protection of the community against commission of a serious sexual offence. That requires the offender to remain in custody while the assessment of risk occurs unless there are “exceptional circumstances”.
“ ‘Exceptional circumstances’ justifying interim release will usually be demonstrated where the court can be satisfied that the adequate protection of the community can be ensured by the release of the prisoner notwithstanding that the issues relevant to the contravention have not been fully ventilated at a final hearing. That is, of course, not an exhaustive statement of the circumstances where ‘exceptional circumstances’ will exist.”
- Holroyd was a case where all the evidence had been filed by the time an application for release under s 21(2)(b) was made. The Attorney-General conceded that upon final determination under s 22 the prisoner ought to be released. The objects of the DPSOA were not advanced by him remaining in custody in the meantime.
- In Attorney-General for the State of Queensland v Dugdale, Applegarth J made this comment:
“The legislative requirement to show exceptional circumstances should not be undermined by regarding any case in which there is a prospect that there will not be a continuing detention order made at the contravention hearing as exceptional.”
- In my view, that statement should, with respect, be accepted. The policy behind s 21(4) is that an offender against whom contravention proceedings are pending should remain in custody until assessment of risk at the final hearing under s 22. Exceptional circumstances will exist though if, like in Holroyd, that final assessment can be made upon an application under s 21(4). Where there are matters in contention, it will often be the case that an application under s 21(4) will fail.
- It is not possible to assess risk at this stage. Dr Beech’s report looks promising for Mr Cosh. However, there is other evidence, namely that of Dr Sundin which has not been received. The alleged contraventions concern the ingestion of intoxicants which are a relevant risk factor to the prospect of Mr Cosh reoffending.
- In light of Mr Cosh’s criminal history, it cannot be said that the contraventions are trivial. It has not been established that Mr Cosh will necessarily be successful in discharging the onus under s 22(7). All that can be found at this point is that there is a basis, on the evidence presently available, upon which it could be said that Mr Cosh has reasonable, and perhaps good, prospects of success.
- Until at least the receipt of Dr Sundin’s report, the question of risk cannot be determined. Exceptional circumstances have not been shown.
- The application for release under s 21(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 is dismissed.
 Sections 13(5)(b) and 16.
 Sections 20 and 22.
 R v Cosh  QCA 156.
 Assault occasioning bodily harm, Criminal Code, s 339.
 Rape involving penile penetration, Criminal Code, s 349(2)(a).
 Rape involving penetration with the tongue, Criminal Code, s 349(2)(b).
 Rape involving felatio, Criminal Code, s 349(2)(c).
 Deprivation of liberty, Criminal Code, s 355.
 Sections 5, 8 and 13.
 For the preliminary hearing, see ss 5 and 8.
 Both for the purposes of the final hearing, see ss 8 and 13.
 Attorney-General for the State of Queensland v Cosh  QSC 156.
 Sections 13(5)(b), 13(6).
 Attorney-General v Francis  1 Qd R 396 at .
 Requirement 3.
 Mr Cosh’s treating psychologist.
 Section 3.
 Sections 3, 5 and 13.
 Definition of “serious sexual offence”, s 2, Schedule 1, Dictionary.
 Section 3.
 Section 5(6) and generally see Attorney-General v Phineasa  1 Qd R 305.
 Sections 3, 13, 16C, 19, 19A, 21, 22 and 30.
 Section 13(5)(a).
 Section 13(5)(b).
 Sections 8 and 13.
 Attorney-General for the State of Queensland v Dugdale  QSC 358, Attorney-General for the State of Queensland v Holroyd  QSC 187.
 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at , , Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at  and -.
  HCA 3.
 At .
  QB 198.
 Followed in Attorney-General for the State of Queensland v Friend  QCA 357 at  and Attorney-General (Qld) & Anor v Francis (2008) 187 A Crim R 124.
 Section 13(1), s 13(2).
 Section 16(2).
 Attorney-General v Francis  QSC 69, Attorney-General v Francis (2008) 250 ALR 555, Attorney-General v Fisher  QSC 104 and Attorney-General for the State of Queensland v Dugdale  QSC 358.
  QSC 187.
 See paragraph .
  QSC 358.
 See cases such as Harvey v Attorney-General for the State of Queensland (2011) 220 A Crim R 186 at .
- Published Case Name:
Attorney-General for the State of Queensland v Cosh
- Shortened Case Name:
Attorney-General v Cosh
 QSC 13
12 Feb 2021
- Selected for Reporting: