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Attorney-General v Jahdell Plummer-Dean[2021] QSC 165

Attorney-General v Jahdell Plummer-Dean[2021] QSC 165

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Jahdell Plummer-Dean [2021] QSC 165

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

JAHDELL PLUMMER-DEAN

(respondent)

FILE NO:

BS 2566 of 2021

DIVISION:

Trial Division

DELIVERED ON:

7 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

5 July 2021

JUDGE:

Freeburn J

ORDER:

The respondent be subject to a supervision order for a period of 5 years until 13 July 2026, on conditions to be agreed between the parties.

CATCHWORDS:

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 was convicted of in 2015 of various offences, including one count of rape and three counts of sexual assault while armed – where the sentencing judge imposed a head sentence of six years and six months’ imprisonment – where the applicant now  seeks an order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’) declaring that the respondent is a serious danger to the community and that he be subject to a continuing detention order or alternatively a supervision order under Division 3 of the Act – where the respondent concedes that the court should be satisfied that there is an unacceptable risk that he would commit a serious sexual offence upon his release in the absence of an order under Division 3 of the Act – where the respondent contends that his risk of reoffending would be appropriately managed by a supervision order – whether the adequate protection of the community can be ensured by the making of a supervision order in respect of the respondent – whether the requirements of such a supervision order could be reasonably and practicably managed by corrective services officers

COUNSEL:

M Maloney for the applicant

L Reece for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    The respondent, Mr Plummer-Dean, will complete his prison sentence next week. However, the Attorney-General applies for an order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 declaring that Mr Plummer-Dean is a serious danger to the community and that he ought to be subject to a continuing detention order or alternatively a supervision order.

Legislative Regime – The First Issue

  1. [2]
    Section 13 of the Act applies if the court is satisfied that the prisoner is a serious danger to the community in the absence of such an order.
  2. [3]
    Under s 13(2), a prisoner is a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody, or if released from custody without a supervision order being made.
  3. [4]
    There are some hurdles for the Attorney-General to overcome.  Under s 13(3), on the hearing of the application the court may decide that it is satisfied that the prisoner is a serious danger to the community only it if is satisfied:
  1. (a)
    by acceptable, cogent evidence; and
  1. (b)
    to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.

  1. [5]
    Section 13(4) sets out the matters the court must have regard to in deciding whether the prisoner is a serious danger to the community.  Before considering each such matter under s 13(4) it is necessary to explain the respondent’s position and the legislative regime that applies if I am satisfied that Mr Plummer is a serious danger to the community under section 13(1) and (2).
  2. [6]
    The respondent’s counsel conceded that the psychiatric evidence did establish, to the requisite standard, that Mr Plummer-Dean was an unacceptable risk of committing a serious sexual offence if he were to be released, or if he were to be released without a supervision order. The respondent’s position was that the appropriate order was a supervision order.

Legislative Regime – The Second Issue

  1. [7]
    If the court is satisfied that the prisoner is a serious danger to the community under s 13(1) then the court may make either of two orders:
    1. (a)
      the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order);
    2. (b)
      the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).[1]
  2. [8]
    In deciding whether to make either of those orders:
    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. adequate protection of the community can be reasonably and practicably managed by a supervision order; and
      2. requirements under section 16 can be reasonably and practicably managed by corrective services officers.[2]
  3. [9]
    The evidence that is relevant to both issues overlaps.
  4. [10]
    I now turn to factors relevant to the first issue, namely whether or not Mr Plummer-Dean is a serious danger to the community under section 13(1).

Section 8A Reports

  1. [11]
    There are no reports of the Chief Executive for the Attorney-General under s 8A of the Act.

Antecedents

  1. [12]
    Mr Plummer-Dean is a 24 year old indigenous man.
  2. [13]
    He was fostered out as a young boy, possibly from alcoholic parents.  He had disruptive childhood behaviours and was diagnosed with a hyperactivity disorder.  In high school this progressed to a conduct disorder and substance abuse.  He was expelled from school in 2014 – the same year of the index offences.
  3. [14]
    Mr Plummer-Dean has a limited employment history.

Criminal history

  1. [15]
    He also has what the Attorney-General’s submissions describe as a “limited criminal history” prior to the index offences.  On 28 March 2014 he was convicted in the Bundaberg Magistrates Court for offences of public nuisance and assaulting and obstructing police.  He was fined $300.  The offence took place in the context of a large group of people making noise and kicking letterboxes at 11.45pm at night.  He swore at police and ran way.
  2. [16]
    On 21 September 2014 the index offences occurred.  I will come back to the details of those offences in a moment.  However, the likelihood is that Mr Plummer-Dean was given bail.
  3. [17]
    Early in 2015 Mr Plummer-Dean was convicted of breach of two bail conditions and ordered to pay $750 and $500.  This was because one bail condition imposed on him a requirement that he not consume alcohol.  He was breath tested and returned a result of 0.72.  The other breach of bail involved a failure to report.
  4. [18]
    On 5 March 2015 at the Bundaberg Magistrates Court Mr Plummer-Dean was convicted of a public nuisance offence and an obstructing police offence.  He was fined $700.  These offences involved a group of youths from a party, including Mr Plummer- Dean.  Police were called to the party.  Mr Plummer-Dean screamed profanities at them.  They arrested him and Mr Plummer-Dean struggled with them as he was arrested.

The Index Offences

  1. [19]
    On 19 June 2015, at the District Court in Bundaberg, Mr Plummer-Dean pleaded guilty to and was convicted of entering a dwelling with intent (burglary), rape and three counts of sexual assault whilst armed.  Those were the relevant offences that had occurred on 21 September 2014.
  2. [20]
    At the time of the index offences Mr Plummer-Dean was 17.  He was 18 when he was convicted.  The victim was not known to Mr Plummer-Dean.  She was 17 and a high school student.  He entered the house, became violent, produced two knives, threatened the victim and then raped her.
  3. [21]
    Smith DCJ imposed a head sentence of six and a half years in relation to the burglary and rape offences.  Mr Plummer-Dean was also sentenced to three years each for two charges and two years for a fifth charge, with the terms of imprisonment to be served concurrently.
  4. [22]
    Smith DCJ did not make a serious violent offence declaration because it was, he said, a borderline case for making such a declaration.  Mr Plummer-Dean was young, the offence was not pre-meditated, there were pleas of guilty and there were no serious physical consequences of the offending.

Prison

  1. [23]
    Mr Plummer-Dean became eligible for parole on 18 March 2017.  However, he has not applied for parole.  His sentence will be completed on 13 July 2021 – in six days’ time.

Pattern of Offending Behaviour

  1. [24]
    There is, it can be seen, no pattern of offending behaviour. 
  2. [25]
    The offences, other than the index offences, are relatively minor.

Efforts to address causes of offending

  1. [26]
    Section 13(4)(e) requires that the court consider efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs.
  2. [27]
    Unfortunately, on this aspect, Mr Plummer-Dean’s efforts have been poor.
  3. [28]
    Mr Plummer-Dean did complete some programs whilst in custody (a resilience program, a first aid course and a literacy and numeracy program).  He did not complete:
  1. (a)
    a low intensity substance intervention program offered in 2015; or
  1. (b)
    a positive futures program in 2011.

But he did complete a substance abuse program in May 2018 and a positive futures program in October 2019.

  1. [29]
    Mr Plummer-Dean declined to participate in a Getting Started: Preparatory Program in 2016, 2017, 2019 and 2020.  He was to commence that program in March of this year but refused to attend.  He also failed to start a Medium Intensity Substance Intervention Program in April 2021.
  2. [30]
    In 2019 Mr Plummer-Dean expressed a willingness to participate in the Sexual Offending for Indigenous Males (SOPIM) program.  Participation in the Getting Started: Preparatory Program is required before entry into the SOPIM program.
  3. [31]
    However, the evidence establishes that on 15 June 2021 Mr Plummer-Dean commenced a drug treatment program, called Opiate Treatment Therapy, and that he is still undertaking that program.
  4. [32]
    Thus, whilst Mr Plummer-Dean has participated in some programs, a significant omission is his failure to complete a sexual offenders program.

Participation in Programs: Positive Effect

  1. [33]
    Section 13(4)(f) requires the court to consider whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner.
  2. [34]
    Here, it is difficult to tell.  There is certainly some resistance to engaging with the programs.  It seems that he did complete approximately five or six programs but has resisted others. 
  3. [35]
    The effect of the programs he did complete is not reported on.  However, there is a suggestion of a recent settling or maturing of Mr Plummer-Dean’s attitudes, behaviours and substance abuse (see page 11 of Dr Beech’s report) but that is not clear and even Dr Beech, in his oral evidence, expressed doubts that there had been some settling given some recent substance abuse.

Medical Psychiatric Reports

  1. [36]
    There are three reports of expert psychiatrists, namely:
  1. (a)
    Dr McVie’s report of 6 November 2020 (prepared after a two hour interview with Mr Plummer-Dean on 16 October 2020);
  1. (b)
    Dr Beech’s report of 27 May 2021 (prepared after an interview of an unstated duration on 11 March 2021);
  1. (c)
    Dr Sundin’s report of 16 June 2021 (prepared after a one and a half hour interview via video on 14 May 2021).

Dr McVie’s Report

  1. [37]
    Dr McVie’s report is lengthy. The Attorney-General’s submission helpfully summarised her opinion.
  2. [38]
    Dr McVie’s recommendations are as follows:

“Recommendations

Mr Plummer-Dean is an untreated sex offender.

In the absence of completion of any programs to address his sexual offending or his substance misuse, Mr Plummer-Dean presents a high risk of reoffending, both general reoffending and sexual reoffending.

His history of offending and custodial behaviour suggests he would have difficulty complying with the reporting requirements of the Child Protection (Offender Reporting) Act 2014.

Simply based on his custodial behaviour, he would be extremely difficult to manage on a supervision order, and as such, a supervision order is unlikely to substantially reduce his risk.

He should complete courses to address both his sexual offending and his substance use disorders prior to release.

I would recommend he participate in and complete the Sexual Offenders Program for Indigenous Males (SOPIM) in Lotus Glen Correctional Centre.

The information gained through this participation should inform future management.

Please contact me if you require any further information.”

[emphasis added]

  1. [39]
    There are two particular features of Dr McVie’s opinion that are worth noting.  The first is that Mr Plummer-Dean’s failure to attend treatment is a significant factor contributing to her conclusions.  That is why she concludes that Mr Plummer-Dean is an ‘untreated sex offender’.[3]
  2. [40]
    The second is that Dr McVie’s opinion, and the opinions of the other two experts, are based, at least in part, on a number of tests such as the Static 99R Coding test (see page 20 of Dr McVie’s report), the Hare Psychopathy Checklist (page 21), the Stable 2007 test, the RSVP (Risk for Sexual Violence Protocol 2003) and the Historical Scale.
  3. [41]
    I will come back to those tests.
  4. [42]
    Of course, as explained, Dr McVie’s opinion is also based on the concept that Mr Plummer-Dean is an ‘untreated sex offender’ who has refused or failed to attend a treatment program.
  5. [43]
    Dr McVie has prepared an addendum report dated 21 February 2021.  That report confirms her original opinions and concludes that Mr Plummer-Dean should complete courses to address both his sexual offending and his substance use disorders prior to release.

Dr Beech’s Report

  1. [44]
    Dr Beech’s interview with Mr Plummer-Dean explains why Mr Plummer-Dean had not enrolled in a sexual offender treatment program:

“Mr Plummer-Dean said he did not want to do a sexual offender treatment program (SOTP).  To enrol in such programs, ‘causes dramas’.  It is stigmatising because other prisoners find out he is a sex offender and that leads to fights.  He had agreed to start and SOTP but backed out when people threatened him.  There has been one-on-one counselling for ‘life stuff’ at MCC.  He though it helped a bit.  There has been no other treatment.  Mr Plummer-Dean  said that he would be prepared to do an SOTP in the community because there would be ‘no drama’ attending it.[4]

  1. [45]
    Dr Beech’s opinion is that Mr Plummer-Dean is at a moderate risk of sexual reoffending.
  2. [46]
    Dr Beech concludes:

“In my opinion, on a supervision order, that risk would be reduced to below moderate to low.

A supervision order would essentially substantially reduce the risk of a return to substances and intoxication, and circumstances in which he could offend.  It would provide the structure that is missing from his plans.

He could be a difficult supervisee if his prison behaviour transfers to the community.

If he is to be released to supervision, I would recommend a period of five years.

The conditions of any supervision should include abstinence.  I would also recommend individual counselling to assist with stress and coping and to maintain abstinence.  If he is to be released into the community he should be referred to a medium intensity sexual offender treatment program.

If he is not released to supervision, then I would offer that the risk would be reduced with individual counselling to address impulsivity and substance use, and participation in a sexual offender treatment plan to address unmet treatment needs.”[5]

Dr Sundin’s Report

  1. [47]
    Dr Sundin is more pessimistic:

“He is currently an untreated sexual offender who has either refused participation within programmes or effectively not attended beyond the first session.  He has dropped out of drug treatment programmes.

His custodial behaviour suggests that he will be an extremely difficult individual to manage on a community supervision order.  He is likely to rapidly re-engage with the abuse of illicit substances that would raise his risk.

In my opinion, given his youth, the seriousness of the index sexual offending and the elevated scores on the Psychopathy Rating Scale; Mr Plummer-Dean is an individual who should be detained in custody for the purpose of treatment.

I recommend that he should participate in a Sexual Offenders Programme for Indigenous Males, available at the Lotus Glen Correctional Centre, and also undertake an appropriate drug intervention treatment programme whilst in custody prior to release.

His participation in such programmes provides the opportunity for him to gain greater insights into his risk for sexual offending and will assist in development of future management strategies.”[6]

The Tests Relied on by the Experts

  1. [48]
    As mentioned, all three experts relied on a variety of psychiatric testing. The reliance was reasonably consistent and pronounced.[7]
  2. [49]
    I have some doubts that those tests really have a solid empirical base or at least that they ought to be regarded as a solid platform for the opinions that relied on the tests.  The Static 99R Coding test, for example, involves a score of zero or one based on 10 questions.  Questions 1 and 2 are as follows:
  1. 1.Age at release –18 to 34 (1)Score

35 to 39 (0) 1

40 to 59 (-1)

60 or older (-3)

  1. 2.Ever lived with a lover for at least 2 years (‘no’ – 1; ‘yes’ – 0)1
  1. [50]
    Mr Plummer-Dean’s total score for the 10 questions was 4.  That put him into the “above average” risk category.  His age at release (24 years of age) meant that he scored 1 for question 1. The fact that he had not lived with a lover for at least two years meant that he also scored 1 for that question.  Of course, given that Mr Plummer-Dean was 17 at the time of the offence and was 18 when he was incarcerated and has been in custody since he was 18 there was no opportunity for him to live with a partner for two years.
  2. [51]
    The point of this illustration is that the testing, if that is the correct description, seems to be a comparison of the offender’s profile as against some others in the population. And so Dr McVie described the Static 99R test as:

“The current coding rules are from 2016, though the original Static-99 was developed in the 1990s. It’s been tested on thousands of sex offenders – particularly in the northern hemisphere, as well as hundreds in Australia. It’s – the fact that it’s an actuarial instrument – what they do is they look at different risk factors, and they biol them down ton the ones that have – that show consistency over time. It’s also done on all sorts of sex offenders, from paedophiles, rapists, exhibitionists – so it’s not specific to any type of sex offender. It doesn’t take into account previous treatment. There’s a lot of factors that don’t come up in this, but it puts somebody in a category where they’re – they measure them against the average risk of offending for sexual offenders, so somebody with a higher than average risk tends to get more treatment.”[8]

  1. [52]
    All of the psychiatrists described the testing as ‘actuarial’.[9]
  2. [53]
    I have some misgivings about expert opinion on the specific risk that a particular person presents as being gauged against an unidentified portion of population and that the specific risk being assessed on that basis.
  3. [54]
    The population against which Mr Plummer-Dean was being profiled is not clear.  Mr Plummer-Dean is a young indigenous man. There is some doubt about whether the actuarial evidence includes indigenous men, and whilst the tests may be applied to young men there may be doubt about whether the Static 99R Coding test, for example, can be sensibly applied to a young indigenous man.[10]
  4. [55]
    Indeed, Dr Sundin was careful to point out that the accuracy of the tests varied depending on the score and that caution needed to be exercised in applying the Static 99R test to a young offender.[11] There are also some uncertainties in applying the Hare Psychopathy Checklist.[12]
  5. [56]
    The issues raised by the testing was not raised in any detail in the evidence.  Mr Plummer-Dean’s counsel cross-examined quite effectively on the reliance that could be placed on this type of testing but, given the stance taken by Mr Plummer-Dean on this application, there was no thorough and critical examination of the accuracy of this type of testing. Nevertheless, I am doubtful that this type of testing is a solid basis for assessing the risk of the prisoner committing another serious sexual offence if released into the community.
  6. [57]
    It must be acknowledged, of course, that all three expert psychiatrists rely on this type of testing.  Plainly, these tests are a conventional psychiatric tool.
  7. [58]
    The focus of section 13 is to assess whether Mr Plummer-Dean is a serious danger to the community.  In making that assessment, the court is required to be satisfied by “acceptable, cogent evidence” and to a high degree of probability.  In so far as the experts base their opinions on the tests, it is hard to be so satisfied.
  8. [59]
    That said, there was no evidence to the contrary, and the three experts all applied their clinical judgment, as well as the results of the testing, in drawing their conclusions.
  9. [60]
    Further, it is necessary to acknowledge the inherent difficulty of the task for experts and the court, particularly in a case like this. The value judgment that is being made requires an assessment of whether there is a risk of criminal offending in circumstances where there is very little evidence. Mr Plummer-Dean was only 17 when he committed the index offences. He has been in custody since he was 18. To be fair to the experts, there may well be little more to go on than the index offences, Mr Plummer-Dean’s failure to complete a course for sexual offenders, and a comparison with actuarial evidence. That is why Dr Sundin explained:

“Given the recent history, I’m going to cite the late American Defence secretary who talked about the concept of known unknowns. That’s where we are with Mr Plummer-Dean, as we are with anyone who’s committed a sex offence who hasn’t participated in some form of treatment modality. We just don’t know enough as yet…”[13] 

Conclusions from the Expert Reports

  1. [61]
    The opinions of all three experts rely on the testing.  For the reasons stated, I am concerned that, to the extent the reports rely on the testing, they rely on a relatively blunt instrument which does no more than compare the personal and other characteristics of Mr Plummer-Dean against an unidentified population.
  2. [62]
    Nevertheless, the opinions of the experts are also based on other foundations, including interviews and Mr Plummer-Dean’s the lack of participation in a treatment program.
  3. [63]
    On one aspect all three experts agree.  Mr Plummer-Dean should complete a sexual offenders program.  However, Dr McVie considers that Mr Plummer-Dean should complete such a program prior to release. Dr Sundin agrees, concluding that Mr Plummer-Dean should be detained in custody for the purpose of treatment.  On the other hand, Dr Beech considers that the risks would be reduced below moderate to low if Mr Plummer-Dean were released but placed on a supervision order with conditions which include abstinence, counselling, and a medium intensity sexual offender program.

The Risk and the Need to Protect the Community

  1. [64]
    Sections 13(4)(h) and (i) of the Act require that the court have regard to:

“(h) the risk that the prisoner will commit another sexual offence if released into the community;

  1. (i)
    the need to protect members of the community from that risk.”
  1. [65]
    Assessment of the risk that, if released, Mr Plummer-Dean will commit another sexual offence is a difficult exercise.  The Attorney-General has the onus of proving that Mr Plummer-Dean is a serious danger to the community.[14]  As Chesterman JA (with whom Muir JA and Margaret Wilson J agreed) said in Attorney-General v Lawrence:

“…[i]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney.  The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated.  The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.”[15]

  1. [66]
    Importantly, the first question to be answered is whether there is an unacceptable risk that Mr Plummer-Dean will commit a serious sexual offence if released from custody or if released from custody without a supervision order.
  2. [67]
    On that issue all of the factors considered above are relevant.  Of those factors, my view is that the most persuasive are the following.
  3. [68]
    First, the index offences were very serious.
  4. [69]
    Second, there is no evidence of a pattern of similar offending, although, of course, Mr Plummer-Dean was only 17 at the time of the offences and he has been in custody since he was 18. That factor, Mr Plummer-Dean’s youth at the time of offending and the absence of a pattern of offending, is a powerful factor suggesting that in ordinary circumstances a person in Mr Plummer-Dean’s position would not meet the requirements of section 13 and be declared a serious danger to the community.
  5. [70]
    Third, all three of the experts appear to accept that there is an appreciable risk of offending.  Dr McVie rates the risk as a “high risk of reoffending”.[16]  Dr Beech assesses the risk as moderate.[17]  Dr Sundin expresses the opinion that Mr Plummer- Dean’s “unmodified risk for sexual violence is moderate to high.”[18]
  6. [71]
    On balance, and with some hesitation having regard to the circumstances explained above, I am persuaded that there is a serious danger to the community because there is an unacceptable risk of a serious sexual offence.

Continuing Detention or Supervision?

  1. [72]
    That being the case, the next issue is whether the court should order that Mr  Plummer-Dean be detained in custody for an indefinite term for control, care of treatment (continuing detention order), or whether he should be released from custody subject to the requirements it considers appropriate (a supervision order).[19]
  2. [73]
    In deciding whether to make either a continuing detention order or a supervision order the paramount consideration is the need to ensure adequate protection of the community and the court must consider whether:
  1. (i)
    adequate protection of the community can be reasonably and practicably managed by a supervision order; and
  1. (ii)
    requirements of s 16 can be reasonably and practicably managed by Corrective Services Officers.[20]
  1. [74]
    On this question, it is worth noting the remarks of Margaret McMurdo P in Yeo v Attorney-General (with whom White JA agreed):

“Under s 13(6), the paramount consideration in determining whether to order a continuing detention order or a supervision order is the need to ensure adequate protection of the community.  This requires the judge to make a value judgment based on the evidence.  It is impossible to eliminate all risk of criminal offending, including offending against children, from a community.  A judge must determine what is adequate protection of the community in all the circumstances (Attorney-General v Sutherland [2006] QSC 268, [28]-[30]; Attorney-General v DGK [2011] QSC 73, [28]).  The Respondent has not persuaded me that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers.  It follows and I must release the appellant on an appropriate supervision order.”[21]

  1. [75]
    The central role of the supervision order in protecting against the risk was emphasised by the Chief Justice (with whom Fraser JA and Mullins J agreed) in Attorney-General v Fardon:

“These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control.  Of substantial present concern is the Respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that ‘there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order’.”[22]

  1. [76]
    It is true that Mr Plummer-Dean has shown some reluctance to complete sex offender programs but, as Dr Beech’s report shows,[23] it may be that the reluctance will evaporate once the program is offered in a community rather than a custodial setting. And I am conscious that a condition of a supervision order could be that Mr Plummer-Dean follow relevant health directions, or that there be a specific condition requiring participation in such a program.
  2. [77]
    It is true also that the experts are divided on the question of whether the risks can be appropriately managed by a supervision order.  However, my impression is that the psychiatrists who favoured continued detention over a supervision order had a concern that really involved risks at a few levels. First, it was thought that Mr Plummer-Dean was not good at abiding by rules. He was resistant to the imposition of rules. Second, that meant that there was a risk of substance abuse. And, third, that gave rise to a further risk of sexual offending, including serious sexual offences.
  3. [78]
    Thus, understandably, the focus has been on Mr Plummer-Dean’s rule-breaking and rather disruptive character. In a sense that distracts from the more direct issue, which is whether there is an unacceptable risk of a serious sexual offence being committed and whether conditions of a supervision order can adequately protect the community. The need to have Mr Plummer-Dean abide by rules should not become an end in itself.
  4. [79]
    On this point it is worth noting two decisions in a slightly different context.[24] The first is Attorney-General v Robinson where Jackson J remarked:

“In my view, it is important to keep in view that the only relevant question is the risk of the respondent committing a serious sexual offence. If the respondent’s contrariness causes him to contravene conditions of his supervision order, and that leads to both proceedings against him for an offence contravening the order and tighter surveillance and more trouble for QCS officers, those are prices to be paid for being subject to and costs of administering the DPSOA system but, in my view, that does not necessarily reflect an increased risk of the respondent committing a serious sexual offence.”[25]

  1. [80]
    The second is Attorney-General v Francis where Byrne SJA said:

“But where contravention of a supervision order is proved, the Act does not require continuing detention unless the prisoner can show that the supervision order would in future be complied with. Rather, continuing detention is the consequence unless ‘adequate protection of the community’ can be ensured by a supervision order.

The inquiry focuses on whether the supervision order would be efficacious in preventing the commission of a violent sexual offence.”[26]

  1. [81]
    Thus, on the more direct issue of whether there is an unacceptable risk of Mr Plummer-Dean committing a serious sexual offence, and whether conditions of a supervision order can adequately protect the community, it is worth noting this evidence:
    1. (a)
      all the expert psychiatrists seemed to accept that the conditions of a proposed supervision order could provide some measure of control and some measure of protection to the community;[27]
    2. (b)
      all of them also appeared to accept that Mr Plummer-Dean would be in a very different (and much more favourable position) if he had completed one of the sexual offenders treatment programs;
    3. (c)
      under a supervision order a condition could be imposed requiring him to complete such a program or to at least to comply with the treatment plan of his treating psychiatrist;
    4. (d)
      the index offences occurred in the context of Mr Plummer-Dean being, to use Dr McVie’s words, “young, impulsive and intoxicated”[28] whereas a supervision order would provide at least some measure of control;
    5. (e)
      excluding the index offences, there is no evidence that Mr Plummer-Dean has acted in a sexually inappropriate way, for example to female prison staff.[29] 
  2. [82]
    In the circumstances, I am satisfied that the adequate protection of the community can be ensured by the proposed supervision order with a specific provision about treatment.
  3. [83]
    The evidence is that a supervision order of 5 years is appropriate.[30]

Footnotes

[1]Section 13(5) of the Act.

[2]Section 13(6) of the Act.

[3]This is an expression that was used by all three expert psychiatrists.

[4]Dr Beech’s report at p 5.

[5]Dr Beech’s report at pp 11-12.

[6]Dr Beech’s report at pp 11-12.

[7]See, for example, Dr McVie at Transcript T1-20 at line 13: “It’s one episode of offending but when we assess the risk – when the actuarial instruments assess risk, it takes into account a number of other factors as well.” 

[8]Transcript at T1-28 line 11.

[9]Transcript at T1-28 line 11 (Dr McVie); Transcript at T1-41 line 10 (Dr Sundin).

[10]Transcript at T1-16 line 35; Dr Sundin’s report at page 22.

[11]Dr Sundin’s report at page 22.

[12]Transcript at T1-19 line 20 (Dr McVie).

[13]Transcript T1-31 line 35.

[14]Section 13(7) of the Act; Attorney-General v Lawrence [2009] QCA 136 at [33].

[15][2009] QCA 136 at [33].

[16]Dr McVie’s report at p 18.

[17]Dr Beech’s report at p 11.

[18]Dr McVie’s report at p 23.

[19]Section 13(5) of the Act.

[20]Section 13(6) of the Act.

[21][2011] QCA 170 at [73].

[22][2011] QCA 155 at [29].

[23]Dr Beech’s report at p 5.

[24]These decisions were made in a context where a supervision order had already been made and the Attorney-General was seeking an order under section 22.

[25][2017] QSC 332 at [62].

[26][2012] QSC 275 at [64], [65].

[27]See, for example Dr McVie’s evidence at Transcript T1-20 line 46.

[28]Transcript at T1-13 line 16.

[29]Transcript at T1-14 line 31 (Dr McVie); Transcript T1-38 line 29 (Dr Sundin).

[30]Transcript at T1-51 line 11 (Dr Beech); Transcript at T1-34 line 34 (Dr Sundin).

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Jahdell Plummer-Dean

  • Shortened Case Name:

    Attorney-General v Jahdell Plummer-Dean

  • MNC:

    [2021] QSC 165

  • Court:

    QSC

  • Judge(s):

    Freeburn J

  • Date:

    07 Jul 2021

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General v DGK [2011] QSC 73
1 citation
Jump To
Cite 1 - [2011] QSC 73
Attorney-General v Fardon [2011] QCA 155
1 citation
Jump To
Cite 1 - [2011] QCA 155
Attorney-General v Francis [2012] QSC 275
1 citation
Jump To
Cite 1 - [2012] QSC 275
Attorney-General v Lawrence[2010] 1 Qd R 505; [2009] QCA 136
2 citations
Jump To
Cite 1 - [2009] QCA 136
Cite 2 - [2009] QCA 136
Attorney-General v Robinson [2017] QSC 332
1 citation
Jump To
Cite 1 - [2017] QSC 332
Attorney-General v Sutherland [2006] QSC 268
1 citation
Jump To
Cite 1 - [2006] QSC 268
Yeo v Attorney-General[2012] 1 Qd R 276; [2011] QCA 170
1 citation
Jump To
Cite 1 - [2011] QCA 170

Cases Citing

Case NameFull CitationFrequency
Attorney-General v Plummer-Dean [2024] QSC 2942 citations
1

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