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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v Allen  QSC 24
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
ROBERT KELLY ALLEN
BS 11156 of 2016
Supreme Court of Queensland at Brisbane
DELIVERED EX TEMPORE ON:
Orders made and reasons delivered on 9 February 2021
9 February 2021
THE COURT being satisfied to the requisite standard that the respondent Robert Kelly Allen, has contravened the requirement/s of his supervision order as made 4 March 2019 ORDERS THAT:
“You are not allowed to go to pubs, clubs, hotels, nightclubs or bottle shops which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission you are not allowed to go.”
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 a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where urine samples provided by the respondent detected the presence of illicit substances – where the consultant psychiatrist opined that the risk of the respondent committed sexual violence was dramatically enhanced by the presence of intoxicants – whether the respondents risk of engaging in serious violent offending appeared to be contained by the supervision order – where the psychiatric evidence supports extensive psychological and drug and alcohol treatment – where the existing supervision order is amended to allow the respondent attend licenced venues that do not operate for the primary purpose of selling and consuming alcohol – where the court is satisfied the respondent has contravened the supervision order – where the court is satisfied the adequate protection of the community is ensured by the existing supervision order.
Child Protection (Offender Reporting) Act 2004 (Qld)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13, 20, s 22
Attorney-General for the State of Queensland v Allen  QSC 58, cited
J Rolls for the applicant
J Horne for the respondent
GR Cooper, Crown Solicitor for the applicant
Legal Aid Queensland for the respondent
- This is an application by the Attorney-General for orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The respondent to the application is Mr Allen. He is presently 34 years of age. The submissions put to the court contain a brief summary of Mr Allen’s criminal history drawn principally from the reasons of Mullins J in an earlier case.
- On 9 February 2012, Mr Allen pleaded guilty to four charges of carnal knowledge of a child under 16 and another count of carnal knowledge of a different child under 16. These offences were committed between 26 January and 2 February 2011. He was sentence to an effective sentence of two years imprisonment, suspended for three years after the time he had spent in presentence custody, which was 352 days. He was also placed on probation for two years in respect of the fifth count of carnal knowledge.
- The offences were committed when he was 24 and involved intercourse with a girl who was 14 years old. According to the material, there was no coercion involved.
- Within about three month of Mr Allen’s release from custody for those offences, he offended again by forming a relationship with a 15 year old girl who was in the custody and care of the Department of Child Safety. He returned to custody and remained there until he was dealt with by the District Court at Bundaberg on 6 September 2012.
- The balance of his suspended sentence that had been imposed earlier was activated. He was resentenced for the original offences in respect of which probation had been ordered and was required to serve 378 days in prison. For breaches of the probation order, he was sentenced to three months imprisonment which was concurrent with the sentence for the original offences. For breach of a prohibition order under the Child Protection (Offender Reporting) Act 2004 (Qld), he was sentenced to nine months imprisonment, and 18 months imprisonment for failure to comply with other aspects of the prohibition order.
- On 10 July 2015, he was convicted of carnal knowledge of a child under 16, which had occurred in about October of 2014. He was sentenced to two years and six months imprisonment.
- On 10 April 2017, Mr Allen was found to be a serious danger to the community in the absence of an order under Division 3 of the Act. He was ordered to be detained in custody for care, control and treatment.
- On 4 March 2019, that order was reviewed, the continuing detention order was rescinded and Mr Allen was released from custody subject to requirements of a supervision order. It was to endure until 4 March 2024.
Contravention of the supervision order
- However, on 10 April 2019, Mr Allen was returned to custody. On 27 August 2019, he was found to have contravened the supervision order by consuming illicit drugs, namely methylamphetamine, during the currency of the order. Mr Allen was able to satisfy the court on that occasion, that despite the contravention, the adequate protection of the community could be ensured by his release under a supervision order. So he was released in that way.
- On 18 May 2020, Mr Allen was found to have contravened the supervision order again by the ingestion of methylamphetamine. He again discharged the onus to persuade the court that a supervision order was sufficient to ensure the adequate protection of the community and he was released under the supervision order.
- On 26 May 2020, Mr Allen was directed to submit urine for analysis.
- On 29 May 2020, the confirmatory report detected the presence of amphetamine and methylamphetamine, at relevant levels.
- On 16 June 2020, he was again directed to provide urine for analysis.
- On 18 June 2020, the confirmatory report was received detecting the presence of cannabis, methylenedioxyamphetamine and methylenedioxymethylamphetamine. On this basis, a warrant was issued under s 20 of the Act and Mr Allen was bought before the court. He has been detained since then, pending a decision.
Evidence before the Court
- It is not surprising, given that history, that there are a number of reports about Mr Allen’s situation. For today’s purposes, the report by Dr Josephine Sundin and Dr Andrew Aboud have been relied upon. Each of those persons has provided a number of reports.
- Dr Sundin’s reports conclude that Mr Allen met the diagnostic criteria for antisocial personality disorder, psychopathy, substance abuse disorder with respect to amphetamines, methamphetamines and cannabis, and conduct disorder in childhood and adolescence. Dr Sundin’s view is that Mr Allen’s conduct may be explained by virtue of his antisocial personality disorder and a longstanding substance abuse issue.
- Dr Sundin has, over time, conducted a number of assessments to give a measure of the risk that Mr Allen might pose to the community. On the Static-99RS measure, Dr Sundin assessed Mr Allen as scoring nine. This places him in a group of offenders considered to be at well above average risk for future sexual offending. On the Harepsychology rating measure, Mr Allen achieve a score of 30, which is above the cut-off for a diagnosis of psychopathy. On the RSVP measure, Dr Sundin noted a number of relevant items to be present. Having regard to the relevant guidelines, Dr Sundin considered that Mr Allen’s risk for future recidivism remained moderate to high and, on the historical clinical risk scale, or HCR-20 measure, Mr Allen was assessed as presenting with a high risk for non-sexual violence.
- In Dr Sundin’s view, Mr Allen’s unmodified risk for sexual offending was moderate to high, the risk for violent offending was high, and the risk for general offending was moderate to high. Dr Sundin considered that any future sexual offence by Mr Allen was likely to involve vulnerable females aged in the teens or early 20s. In her view, the risk of sexual violence was dramatically enhanced by the presence of intoxicants.
- In her most recent report, dated 3 February 2021, Dr Sundin confirmed her earlier assessments, however, she observed that the risk of Mr Allen engaging in serious violent offending appeared to be contained by the supervision order. Her concern was that that very risk was elevated by the use of methylamphetamines. Dr Sundin’s view was that Mr Allen was likely to continue to use illicit substances, that he was in need of active, ongoing drug addiction treatment backed by intensive random urinary drug screening. In Dr Sundin’s view, Mr Allen should be referred to an experienced addiction specialist. She also noted that participation in an out-patient drug addiction program, such as those run through hospitals and community based AODs programs, would be beneficial. As well, Dr Sundin expressed the view that Mr Allen should be under the care of a forensic psychologist.
- Dr Sundin’s ultimate conclusion was that the existing supervision order was serving its purpose in identifying and maintaining a watchfulness over the risk for sexual offending posed by Mr Allen. Notwithstanding the supervision order, in Dr Sundin’s view, Mr Allen remains a chronic moderate to high risk of sexual recidivism in an unmodified circumstance.
- Dr Aboud’s report is dated 8 January 2021. In it, he has had the opportunity to consider observations made previously in report that stretch back to March 2017. In this reflective mode, Dr Aboud expressed views that are of assistance. He expressed the opinion that Mr Allen most likely does not harbour a paedophilic inclination. Rather, his offending is related to poor judgement, poor impulse control, high sexual urge, possible intoxication and self-serving indiscriminate tendencies associated with psychopathy.
- Dr Aboud also applied the Static-99R measure and recorded the same score as Dr Sundin, that is, nine. He applied the Matrix-2000/S measure, on which he placed Mr Allen in the group regarded as being at very high risk of reoffending. On the Risk Matrix 2000/V measure, he placed Mr Allen in the group regarded also as being at very high risk of reoffending. He assessed Mr Allen as having a score of 32 out of 40 on the psychopathy checklist measure, that is a sufficient score for a diagnosis of psychopathy to be made. This is the same diagnosis that Dr Sundin had made. On the HCR-20 measure, Dr Aboud scored Mr Allen as having a high risk with clear static loading. The risk, on the application of this particular measure, was associated with future destabilisation in the community setting if there was a lack of support and structure. On the RSVP measure, Dr Aboud suggested the result indicated Mr Allen would be most likely to offend by engaging in sexual activity with an underaged adolescent girl. In his view, such a person was likely to be sexually mature, post pubescent and seemingly consenting to the activity.
- In Dr Aboud’s assessment, violence or threats were unlikely, however, Mr Allen might use subtle psychological coercion. In Dr Aboud’s view, the victim may be a disadvantaged person, whether by reason of being homeless or intoxicated and sexual activity may occur following an opportunistic meeting. In his view, Mr Allen’s offending was likely to occur in the context of substance or alcohol intoxication and psychological stressors. But the main driver for the offending would be an urge by Mr Allen to meet his own physical sexual needs.
- As a result of consideration of all of these measures, in different ways, Dr Aboud reached the conclusion that Mr Allen presented a high risk of reoffending. The risk profile, in Dr Aboud’s words, is:
“Heavily impacted by Mr Allen’s psychopathy and history of general antisocial behaviour.”
- In Dr Aboud’s view, Mr Allen’s general risk of offending, that is in a non-sexual way, is actually higher than his risk of sexual offending. The risk of offending involving sexual violence was assessed by Dr Aboud as being moderate to high. Dr Aboud expressed the opinion that this risk of sexual reoffending on the part of Mr Allen would be reduced to below moderate with the presence of a supervision order.
- In Dr Aboud’s view, Mr Allen would need to engage with a psychologist to assist with abstaining from substances and Mr Allen may benefit from attending a program like AODs. Dr Aboud also recommended psychological assistance and treatment. He raised the possibility that a reference to a private psychiatrist may also be necessary. In Dr Aboud’s view, Mr Allen should be supported to remain abstinent from illicit drugs and alcohol, he should be randomly tested because, in Dr Aboud’s view, substance use is:
“The single biggest obstacle to his success under community supervision.”
- Dr Aboud also observed that any future living arrangements, where Mr Allen would have ready access to family supports, by way of visits or telephone contact, would also be of assistance.
Consideration of the evidence
- In the course of the hearing today, a number of issues have been discussed as to the supervision, support and treatment, and other assistance that would be available to Mr Allen if he were released under a supervision order of the kind contemplated by this application.
- The court has been informed that a Corrective Services officer would meet with Mr Allen twice a week during the initial period of any release under supervision and a case officer would be available for him to contact during office hours, Monday to Friday. An additional line of contact could be made if Mr Allen sought assistance by contacting the monitoring and curfew centre which operates 24 hours a day. Officers in that centre could refer any request by Mr Allen to a Corrective Services officer who may be able to respond to it at some time.
- In terms of treatment, the court’s been informed that a forensic psychologist, with experience of seeing Mr Allen on at least, I think, four occasions in the past, would be engaged to meet with Mr Allen for treatment sessions weekly during the first six weeks of any release under a supervision order. That Mr Allen could, of his own volition, attend a narcotics anonymous meeting or similar meeting as frequently as he wished. He would be exempted from his curfew to attend such meetings on request. He would need to arrange his own transportation to attend those meetings but he could obtain assistance from a Corrective Services officer to identify where and when such meetings are held.
- The court’s also been informed that Corrective Services would encourage Mr Allen to undertake an AODs program. As the court understands it, an important element of those programs is that participants voluntarily undertake them. So itis not appropriate for an order of the court in any form to require Mr Allen to do so.
- Mr Allen’s principal family and social supports are not in Brisbane, they are in Central Queensland and in the Wide Bay area. In order to provide Mr Allen with the supervision, support, treatment and access to other services that are recommended by Dr Sundin and Dr Aboud, it seems unlikely that he could reside in Central Queensland or Wide Bay in the short term. However, the court has been informed that Mr Allen will be provided with access to a mobile phone were he to be released under a supervision order, so he would be able to make, at least, telephone contact with members of his family as often as he wished. Given the psychiatrists’ comments about the importance of social and family support, this is an important topic.
- The existing supervision order contains, at present, about 34 separate requirements. Only one of those has been the subject of any reconsideration for today’s purposes. It is the existing prohibition on Mr Allen attending licensed premises. After that matter was considered by one of the psychiatrists, proposal was put to the court that the condition should be modified so that the restriction was on attending pubs, clubs, hotels, nightclubs or bottle shops. In my view, an amendment of that kind is appropriate because it directs the prohibition to places where the primary purpose of attending is to consume alcohol and would allow Mr Allen to attend other premises such as coffee shops and, perhaps, cafes and restaurants that might be licensed but do not operate, primarily, as drinking establishments.
- The evidence before the court establishes, on the balance of probabilities, that Mr Allen contravened clause 21 of the supervision order by consuming illicit drugs. That is not contested by Mr Allen. He concedes that the court may be satisfied that he has contravened the supervision order in that respect. However, he contends that, on the balance of probabilities, the adequate protection of the community can, despite the contravention, be ensured by his release on the existing supervision order. In my view, the most critical element in that decision is the confidence that the court may have that Mr Allen will be able to avoid relapsing into the use of illicit drugs, which may affect, in a very significant way, an assessment of the risk that he presents to the community.
- Given the conditions in the supervision order and the further information that has been provided to the court, through the Attorney’s representative, as to the measures that Corrective Services proposes to put in place, I am satisfied, on the balance of probabilities, that the protection of the community can be ensured by the release of
- Mr Allen on the conditions set out in the supervision order with the amendment I have mentioned.
- There are some steps that will need to be put in place to best allow for Mr Allen’s release from custody and seek to avoid a recurrence of what happened on the last occasion. Some of those things are practical matters to do with the release of someone from custody who has been detained for a considerable period of time. This includes their establishment in the community, their linking up with social services and the provision of many ordinary things that are needed to exist outside of custodial premises. For that reason, the draft order provided to the court provides for his release from custody before 12.00 pm tomorrow, 10 February 2021, and I am content to make an order in those terms.
- I will make an order in terms of the draft, initialled by me and placed with the papers.
To Robert Kelly Allen you must:
- Report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence on the day of release from custody and, at that time, advise the officer of his current name and address;
- Report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;
- Notify a Corrective Services officer of every change of his name, place of residence or employment at least two business days before the change happens;
- Be under the supervision of a Corrective Services officer;
- Comply with a curfew direction or monitoring direction;
- Comply with any reasonable direction under section 16B of the Act given to him;
- Comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;
- Not leave or stay out of Queensland without the permission of a Corrective Services officer;
- Not commit an offence of a sexual nature during the period of the order;
- Seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;
- Notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two (2) days prior to commencement or any change;
- Reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
- If this accommodation is of a temporary or contingency nature, you must comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
- Not stay at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer;
- Not have any direct or indirect contact with a victim of his sexual offences;
Activities and associates
- Respond truthfully to enquiries by a Corrective Services officer about his activities, whereabouts and movements generally;
- Disclose to a Corrective Services officer the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
- Notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;
- Submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
- If directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by Corrective Services officer who may contact such persons to verify that full disclosure has occurred;
Alcohol and drugs
- Abstain from the consumption of alcohol and illicit drugs for the duration of this order;
- Submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer;
- Disclose to a Corrective Services officer all prescription and over the counter medication that he obtains;
- Not go to pubs, clubs, hotels, nightclubs or bottle shops which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission you are not allowed to go.
Treatment and intervention
- Attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer, at a frequency and duration which shall be recommended by the treating intervention specialist;
- Permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;
- Attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
Contact with children
- Not have any supervised or unsupervised contact with female children under 16 years of age except with prior written approval of a Corrective Services officer;
Technology, telephones and devices
- Notify a Corrective Services officer of any computer or other device connected to the internet that he regularly uses or has used;
- Supply to a Corrective Services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device and allow any device where the internet is accessible to be randomly examined using a data exploitation tool to extract digital information or any other recognised forensic examination process;
- Supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords;
- Allow any other device including a telephone to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer;
- Advise a Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use and includes reporting any changes to mobile phone details;
- Except with prior written approval from a Corrective Services officer, not own, possess or regularly utilise more than one mobile phone.
 Attorney-General for the State of Queensland v Allen  QSC 58.
- Published Case Name:
Attorney-General for the State of Queensland v Allen
- Shortened Case Name:
Attorney-General v Allen
 QSC 24
09 Feb 2021