Attorney-General v Giddy[2021] QSC 222

SUPREME COURT OF QUEENSLAND

1. [1]
   The respondent to this application is now 34 years of age.  He has a lengthy criminal history but it contains only one entry that relates to a sexual offence.
2. [2]
   It is not necessary, for current purposes, to particularise his relationship with the victim of that offence.  It is enough to record that she was known to him, that he used a knife to threaten her and indeed “pricked her in the back” with that weapon.  A one year old child was present throughout the incident, and other children were nearby.
3. [3]
   In the result, he entered pleas of guilty to two counts of rape – both arising out of this incident - and, on 1 May 2015, was sentenced to imprisonment for a period of seven years.
4. [4]
   He was released on parole on 27 March 2019 and returned to custody on 27 November of that year.  He was released again on 10 March 2020 but his parole was suspended consequent upon his being charged again with an offence of rape.
5. [5]
   That charge was predicated on allegations which bore some similarity to the circumstances of the offences to which he pleaded guilty. Again a demand for intercourse was accompanied by threats of harm, albeit that on this occasion there was no weapon involved. There were, however, at least two significant differences. One was that the respondent was in fact in some sort of a relationship with the woman involved.
6. [6]
   More importantly, the respondent stood trial on this charge and was acquitted.  He is therefore held in custody now only by reason of the sentence that was imposed in 2015.  He would, if that ran its full course, be released tomorrow, on 1 September 2021.  However, the Attorney-General seeks orders under Part 2 Division 3 (s 13) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act).  That is, the Attorney-General seeks either an order that the respondent be detained in custody for an indefinite term - a “continuing detention order” - or, in the alternative, an order that if the respondent is to be released from custody, he be subject to the mandatory statutory and other conditions that would attach to a “supervision order”.
7. [7]
   As is now well understood in applications of this nature, there must first be a determination by the Court as to whether, if one of the orders sought was not made, the respondent would represent a serious danger to the community within the meaning of the Act.  The respondent will be found to be such a danger if there is an unacceptable risk that he will commit a serious sexual offence if released without such an order being made.
8. [8]
   There is significance, in this case, to the requirement that the risk be assessed by reference to the possibility of a sexual offence being committed.   The respondent has a criminal history which suggests that the risk of his committing an offence of some kind will exist even if a supervision order is made.  Of itself, however, his criminal history - containing as it does only the one conviction for a sexual offence - does not mandate a similar conclusion about the likelihood of a sexual offence.
9. [9]
   A question arises as to whether such a conclusion may be informed (and if so to what extent) by considering the circumstances of the case in which the respondent was acquitted.
10. [10]
    In theory it would, I think, be open to do that.  An acquittal means only that proof to the criminal standard was not achieved in the circumstances of the trial.  That might have been so for any number of reasons.  Depending upon the nature of those reasons it may be that there is nothing, in an application of this nature, to prevent proof of such circumstances with a view to their establishment to the standard for which the Act provides – which is a “high degree of probability” (see s 13(3)(b)), and not beyond reasonable doubt.  They could - notwithstanding an acquittal, but I emphasise theoretically - amount to a “relevant matter” of the kind contemplated by s 13(4)(j) of the Act.
11. [11]
    For such a circumstance to be considered, however, it would have to be proven within these proceedings, either by evidence or agreement.
12. [12]
    That has not happened, and yet it is to be suspected that Mr Giddy’s case attracted this application only because he was charged with the offence of which he was acquitted.  Apart from the opinion evidence given by the doctors, assessment as to the risk of sexual offending is informed, in reality, by reference to a single incident committed in circumstances that are unlikely to be replicated.  In the criminal court, that incident was punished by seven years’ imprisonment.  That was a severe sentence, but it is not one that, of itself,^[1] signals the need for an order pursuant to the Act.  If it was, then the administration of this legislation would – at current levels of resourcing – become unworkable very quickly.
13. [13]
    For all of that, this application must be determined on the evidence and, as fairly put by Mr Tate on behalf of the Attorney-General: “the psychiatric evidence is all one way”.  Three psychiatrists – Dr Beech, Dr McVie and Dr Sundin – have provided their opinions.  Their consensus is that the respondent presents at least a moderate risk of committing a further sexual offence if released, unsupervised, into the community. 
14. [14]
    Dr McVie in fact assessed the risk as “moderate to high”.
15. [15]
    On that evidence the applicant builds the submission that, since in this case the risk should be characterised as one that involves the sexual assault or rape of an adult female, and since the consequences of such risk materialising would be so serious, then its existence is unacceptable, even at a moderate level.
16. [16]
    In these applications the expert evidence obviously is highly influential, but not of itself decisive.  The ultimate decision is one for the Court.  That is significant when, as here, there are legitimate questions to be asked about the basis for the expert opinion.  Those questions are raised because each doctor has made use of the actuarial tool known as the “Static 99R”.  The “score achieved” by the respondent in this exercise supports the proposition that he presents a moderate risk of sexual recidivism.  The difficulty with the use of that forecast is that the “score” is influenced by the very fact that the respondent was charged with the offence of which he was acquitted. 
17. [17]
    I do not regard it as appropriate, in this particular situation, for that circumstance to have any bearing on the outcome of the application.  As noted, the applicant has not sought to establish, in these proceedings, any fact that may have comprised one of the circumstances involved in the incident which was the subject of the acquittal.  Whilst the fact of being charged may have statistical relevance to the prospects of recidivism, I am of the view it should have no impact on the outcome of this application.
18. [18]
    That said, it seems to me that the “Static” score did not actually have much influence on the experts’ opinions.  They agreed that, as a tool, the “Static” had much utility in indicating whether a risk was high or low, but was not as useful in this type of situation, where the conclusion fell somewhere between those points.  A number of other analytical tools (the “PCL-R”; the “Stable 2007”; the “RSVP” and the “HCR-20”) were also engaged by the doctors in their making of what was ultimately a clinical judgment.  The effective unanimity of their judgments must be respected. 
19. [19]
    Nevertheless, the respondent’s case – ably argued by Ms Smith - is one that has caused me much difficulty.  The entire basis for the application really reduces to two propositions – the respondent has committed a (single) serious sexual offence and has an anti-social personality disorder.  It is open to query – as I did in argument – just how many in the prison population might match those characteristics. 
20. [20]
    They are characteristics that do suggest a compelling need for the psychological treatment and supervision – of the kind provided on parole - on release.^[2]  There is an absence of any demonstrable stability in the respondent’s life that might have suggested otherwise. 
21. [21]
    However, the need for an order under the Act is not as clear.  There is no ongoing pattern of sexual offending, nor even an entrenched history of violent behaviour.
22. [22]
    In the result, however, cogent evidence is  found in the circumstances of the rape that the respondent did commit.  In particular, the proximity of young children at the time of the offending goes further than establishing (as it does) that the respondent is an anti-social individual who needs treatment and supervision.  It demonstrates that there is something more disturbing at work.  Given the diagnosis of an anti-social personality disorder and the respondent’s demonstrated potential for violence, the sort of offending that might be envisaged has the potential to take a turn in a way that makes the relevant risk unacceptable.
23. [23]
    It is accepted by the applicant (upon information from the doctors, again unanimous) that this risk can be reduced by a supervision order.  At almost 35 years of age, the respondent is at a point where his maturation is a relevant consideration, and the significance of his anti-social personality disorder may also reduce over time.  For such reasons it was agreed that the order need extend for only five years. 
24. [24]
    The shared opinions and corresponding submissions are, in the circumstances, understandable.  An order of the kind proposed is targeted at the sort of influences that would inflate the relevant risks.  If appropriately enforced, such an order will reduce that risk to the extent that adequate protection of the community will be ensured.
25. [25]
    I am therefore prepared to allow the application, and make orders as outlined in ‘Schedule A’.

SCHEDULE A

1. You are being released from prison but only if you obey the rules in this supervision order.
2. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison.
3. You must obey these rules for the next five years.

Reporting

4. On the day you are released from prison, you must report before 4 pm to a Corrective Services Officer at the Community Corrections office closest to where you will live. You must tell the Corrective Services Officer your name and the address where you will live.
5. A Corrective Services Officer will tell you the times and dates when you must report to them.  You must report to them at the times they tell you to report.  A Corrective Services Officer might visit you at your home.  You must let the Corrective Services Officer come into your house.

To “report” means to visit a Corrective Services Officer and talk to them face to face.

Supervision

6. A Corrective Services Officer will supervise you until this order is finished. This means you must obey any reasonable direction that a Corrective Services Officer gives you about:
   1. Where you are allowed to live; and
   2. Rehabilitation, care or treatment programs; and
   3. Using drugs and alcohol; and
   4. Who you may have contact with; and
   5. Anything else, except for instructions that mean you will break the rules in this supervision order.

A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation.

If you are not sure about a direction, you can ask a Corrective Services Officer for more information, or talk to your lawyer about it.

7. You must answer and tell the truth if a Corrective Services Officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.
8. If you change your name, where you live or any employment, you must tell a Corrective Services Officer at least two business days before the change will happen.

A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday.

No offences

9. You must not break the law by committing a sexual offence.
10. You must not break the law by committing an indictable offence involving violence.

Where you must live

11. You must live at a place approved by a Corrective Services Officer. You must obey any rules that are made about people who live there.
12. You must not live at another place. If you want to live at another place, you must tell a Corrective Services Officer the address of the place you want to live. The Corrective Services Officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a Corrective Services Officer to live at another place.

This also means you must get written permission from a Corrective Services Officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place.

13. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a Corrective Services Officer. You are allowed to leave Queensland only after you get written permission from a Corrective Services Officer.

Curfew direction

14. A Corrective Services Officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction.

Monitoring direction

15. A Corrective Services Officer has power to tell you to:
    1. Wear a device that tracks your location; and
    2. Let them install a device or equipment at the place you live. This will monitor if you are there.

This is called a monitoring direction. You must obey a monitoring direction.

Employment or study

16. You must, within 48 hours, inform a Corrective Services Officer that you have started a job, started studying or started volunteer work.
17. When you inform Queensland Corrective Services, you must tell the Corrective Services Officer these things:
    1. What the job is;
    2. Who you will work for;
    3. What hours you will work each day;
    4. The place or places where you will work; and
    5. (if it is study) where you want to study and what you want to study.
18. If a Corrective Services Officer tells you to stop working or studying you must obey what they tell you.

Motor vehicles

19. You must tell a Corrective Services Officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the Corrective Services Officer these details immediately (on the same day) you get the vehicle.

A vehicle includes a car, motorbike, ute or truck.

Mobile phone

20. You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a Corrective Services Officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone.
21. You must give a Corrective Services Officer all passwords and passcodes for any mobile phones you own or have. You must let a Corrective Services Officer look at the phone and everything on the phone.

Computers and internet

22. You must get written permission from a Corrective Services Officer before you are allowed to use a computer, phone or other device to access the internet.
23. You must give a Corrective Services Officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a Corrective Services Officer look at the computer, phone or other device and everything on it.
24. You must give a Corrective Services Officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things.

No contact within any victim

25. You must not contact or try to contact any victim of a sexual offence committed by you. You must not ask someone else to do this for you.

“Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.

Rules about alcohol and drugs

26. You are not allowed to take (for example, swallow, eat, inject, or sniff) any alcohol.  You are also not allowed to have with you or be in control of any alcohol.
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.
28. A Corrective Services Officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, spit (saliva), pee (urine) or blood when they tell you to do this.
29. If you intend to go to pubs, clubs, hotels or nightclubs which are licensed to supply or serve alcohol, you must first notify a Corrective Services Officer of that intention.
30. If you want to go to any business that is licensed to supply alcohol, you must first notify a Corrective Services Officer of your intention to do so.

Rules about medicine

31. You must tell a Corrective Services Officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a Corrective Services Officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.
32. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor.

Rules about rehabilitation and counselling

33. You must obey any direction a Corrective Services Officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.
34. You must obey any direction a Corrective Services Officer gives you about participating in any treatment or rehabilitation program.
35. You must let Corrective Services Officers get information about you from any treatment or from any rehabilitation program.

Speaking to corrective services about what you plan to do

36. You must talk to a Corrective Services Officer about what you plan to do each week.  A Corrective Services Officer will tell you how and when to do this (for example, face to face or in writing).
37. You must also tell a Corrective Services Officer the name of new persons you have met.

This includes:  people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly.

38. You may need to tell new contacts about your supervision order and offending history.  The Corrective Services Officer will instruct you to tell those persons and the Corrective Services Officer may speak to them to make sure you have given them all the information.

Offence Specific Conditions

39. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offending.  You must talk about this with a Corrective Services Officer when asked.
40. You must advise your case manager of any personal relationships you have started.