Attorney-General v Possum[2021] QSC 145

SUPREME COURT OF QUEENSLAND

1. [1]
   Danrick Dale William Possum is the subject of a supervision order made by Bowskill J on 22 October 2018 pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA).  The Attorney-General alleges that Mr Possum contravened the order and she seeks further orders pursuant to s 22 of the DPSOA.
2. [2]
   On 11 June 2021, I made the following order.

“THE COURT, being satisfied to the requisite standard that the respondent, Danrick Dale William Possum, has contravened a requirement of the supervision order made by Bowskill J on 22 October 2018, ORDERS THAT:

1. The respondent, Danrick Dale William Possum, be released from custody and continues to be subject to the supervision order made by Bowskill J on 22 October 2018.”

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

Background

4. [4]
   Mr Possum is an indigenous man born on 22 May 1995.  He is now 26 years of age.
5. [5]
   From the age of 14 years, he began committing offences against girls and women and those offences had sexual overtones.  In July 2016, he was convicted of a number of offences, including deprivation of liberty and rape.  It is unnecessary to descend into the details of that offending as it was analysed by Bowskill J when placing Mr Possum on supervision.^[1]
6. [6]
   The convictions in July 2016 brought Mr Possum within the provisions of the DPSOA and led to the supervision order being made.
7. [7]
   For the purposes of the proceedings which led to the supervision order being made, Mr Possum was examined by forensic psychiatrists, Doctors Moyle, Beech and Arthur.  Again, it is unnecessary to descend into any analysis of that evidence as it was examined in detail by Bowskill J when making the supervision order.^[2]
8. [8]
   Mr Possum was released pursuant to the order of Bowskill J on 22 October 2018.  He was returned to custody in May 2020 after breaching requirement 23 of the supervision order which prohibited him from consuming illicit substances and alcohol.  The breach consisted of the consumption of alcohol and he recorded a blood alcohol reading of .229 per cent.  On 21 June 2020, he was released back on the supervision order.
9. [9]
   On 19 December 2020, he was arrested again upon a breach of requirement 23 of the supervision order.  It was alleged that he had been drunk at the Townsville contingency accommodation and engaged in a physical altercation with another person subject to a supervision order.  Analysis of his breach revealed a blood alcohol content of .163 per cent.  Mr Possum was released back on the supervision order on 12 March 2021.^[3]
10. [10]
    The current contravention, which is the third, occurred on 7 May 2021.  At that time, Mr Possum was living at the Townsville contingency accommodation.  The particulars of the contravention as alleged in the application filed by the Attorney-General seeking orders under s 22 of the DPSOA are as follows:

“In accordance with requirement 24 of his supervision order, the respondent was directed to supply a sample of his breath for testing. The respondent complied with the direction and admitted to drinking a few glasses of wine the night prior. The breath test returned a positive reading to alcohol at a level of 0.013% BAC. A secondary confirmation test was completed approximately 20 minutes later which returned a positive reading to alcohol at a level of 0.009% BAC.

The respondent is in contravention of requirement 23 of his supervision order, namely not consume or take any illicit drugs for the duration of this order.”

11. [11]
    Mr Possum was arrested on 7 May 2021 and has been in custody since.  It is an offence by s 43AA of the DPSOA to contravene a supervision order.  Mr Possum has been charged with one offence against s 43AA.  The particulars of that offence are the same as the particulars of the contravention of the supervision order alleged in the current proceedings.
12. [12]
    The proceedings under s 43AA have not been concluded.  They are to be mentioned in the Magistrates Court on 2 July 2021.  However, in these proceedings, Mr Possum has admitted the contravention.

The psychiatric evidence

13. [13]
    The psychiatric evidence available on the proceedings for the second contravention is explained in Attorney-General for the State of Queensland v Possum.^[4]
14. [14]
    Dr Arthur has, as earlier observed, given expert evidence in relation to Mr Possum previously.  For the purposes of the present application, Dr Arthur interviewed Mr Possum by telephone on 31 May 2021.  Dr Arthur also had regard to various materials and opinions concerning Mr Possum.  It is unnecessary to descend into an examination of those materials.  Dr Arthur produced a report which was before me.
15. [15]
    As to diagnosis, Dr Arthur opined:

“74. His diagnosis remains chronic paranoid Schizophrenia (currently in remission), Foetal Alcohol Syndrome associated with a Mild Intellectual Disability, Polysubstance Abuse (predominantly alcohol and cannabis), currently in remission in a controlled environment, and an Antisocial Personality Disorder.”

16. [16]
    As to risk, Dr Arthur had regard not only to his clinical observations but also to various diagnostic tools.  He then observed:

“79. Based on the above factors I maintain the opinion that prisoner Possum’s unmodified risk of sexual recidivism remains high or in the ‘well above average’ range.

80. The drivers for future sexual offending include sex as coping and experiencing intense sexual urges whilst intoxicated. He is likely to continue to seek out casual sexual encounters and may struggle to form meaningful relationships due to attachment difficulties, social isolation, intellectual impairment and possibly the effects of his psychotic illness. When faced with feelings of loneliness, rejection or grief, he will return to his main coping strategy of substance use. Alcohol may act as a disinhibitor and increase the intensity of his sexual drive.
81. Factors that would indicate an acute escalation in risk would include evidence of increased sexual preoccupation, a return to substance abuse (particularly alcohol), the presence of negative emotional states and possibly a worsening of his psychotic illness.”

17. [17]
    Dr Arthur offered various recommendations in these terms:

“82. Despite this recent contravention, I remain of the opinion that his risk of sexual recidivism can be adequately managed in the community under the auspices of his current supe1'vision order, Again, it appears that prisoner Possum's supervision order has functioned effectively in that his substance use has been closely monitored and HROMU acted promptly to mitigate risk. His mental illness has been well-managed and he describes few if any positive symptoms of Schizophrenia since being transitioned to his current depot.

83. Boredom and aimlessness continue to be problematic. It appears that he still has a significant amount of unstructured time: an increase in support hours might facilitate engagement in meaningful activities and perhaps redL1ce the risk of future relapses into alcohol and cannabis use, but only if prisoner Possum agrees to engage. He has identified that he would like to go to the gym and go fishing.
84. Ongoing specialist psychological treatment is indicated, although his response thus far has been modest. He may still gain benefit from treatment programs addressing substance use, in addition to trials of medication which may help to reduce his cravings for substances.
85. Any future accommodation changes will require careful consideration of both his functional and emotional support needs. At this point in time I would be cautious of prisoner Possum residing in unsupported accommodation. Until appropriate accommodation can be found, the Townsville Precinct appears to be the most appropriate placement.”

Statutory context

18. [18]
    Section 22 of the DPSOA provides, relevantly as follows:

“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. (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]
    Here the contravention is admitted.  Consequently, the onus falls upon Mr Possum under s 22(7) to satisfy the court that, notwithstanding the contravention, the adequate protection of the community can be ensured by his release back on supervision.  It is well-established that the notion of “the adequate protection of the community” encompasses protection from the commission by Mr Possum of serious sexual offences as that term is defined in the DPSOA.^[5]

Position of the respective parties

20. [20]
    The fact that this is Mr Possum’s third contravention of the supervision order is of concern.  However, persistent breaches of a supervision order are only relevant to the extent that they impact upon consideration of the statutorily defined question, which is whether “adequate protection of the community” can be ensured by release on supervision.^[6]

The position of the parties

21. [21]
    Mr Possum submits, in reliance upon Dr Arthur’s evidence, that he has discharged the onus upon him under s 22(7) and ought to be released back on the supervision order.
22. [22]
    The Attorney-General, having considered the evidence, no doubt primarily Dr Arthur’s, concedes that Mr Possum has discharged the onus cast upon him by s 22(7) and ought to be released back on supervision.  No variation of the supervision order is sought.

Consideration

23. [23]
    I find the contravention as particularised proved.
24. [24]
    The concession by the Attorney-General that Mr Possum has discharged the onus upon him under s 22(7) of the DPSOA is a concession properly made.  This is Mr Possum’s third breach of the supervision order.  However, he has not committed any sexual offences, let alone a serious sexual offence whilst on supervision.  While the ingestion of alcohol is obviously a risk factor for Mr Possum, the supervision order has led to the detection of consumption of alcohol and steps have been taken.
25. [25]
    I find that the adequate protection of the community against the commission by Mr Possum of a serious sexual offence can be ensured by his release on the supervision order in its current terms.
26. [26]
    For those reasons, I made the orders which I did.
27. [27]
    One complication is that Mr Possum is still on remand in relation to the s 43AA offence and the matter is not going back before the Magistrates Court until 2 July 2021. 
28. [28]
    Because Mr Possum has admitted the contravention for the purposes of the proceedings under s 22 of the DPSOA, it is reasonable to suspect that Mr Possum may not contest the charge laid under s 43AA.  It is a matter for the Magistrates Court of course to determine the appropriate sentence.  However, clearly relevant on the question of sentence is the seriousness of the contravention.  The sentencing magistrate may take into account the fact that Mr Possum has, notwithstanding the contravention, been held to be appropriate for release back onto the supervision order.