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Attorney-General v Griffin[2021] QSC 299

Attorney-General v Griffin[2021] QSC 299

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Griffin [2021] QSC 299

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

PETER SCOTT GRIFFIN

(respondent)

FILE NO/S:

BS No 1774 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Date of orders:  1 November 2021

Date of publication of reasons:  19 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2021

JUDGE:

Williams J

ORDER:

THE COURT DECLARES THAT:

1.  The respondent was in custody serving a term of imprisonment for a period of 61 days between 30 November 2018 and 29 January 2019 for an offence other than an offence of a sexual nature.

2.  By operation of s 24 of the Dangerous Prisoners (Sexual Offenders) Act 2003 the period for which the supervision order made on 29 October 2012 and amended on 5 November 2018 (‘the supervision order’) has effect is extended by 61 days to 29 December 2022.

THE ORDER OF THE COURT IS THAT:

3.  Under s 22(7) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the supervision order is amended so that the respondent is subject to the requirements until 1 November 2026.

4.  Pursuant to s 22(7) of the Dangerous Prisoners (Sexual Offenders) Act 2003 the respondent is released from custody to be subject to the requirements of the supervision order as amended.

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 released to the community under a supervision order in October 2012 – where the supervision order was for a period of 10 years – where the supervision order was amended in November 2018 – where the respondent was alleged to have contravened the supervision order – where the respondent accepts that he has contravened the supervision order – where the respondent contends that the adequate protection of the community can be ensured by the making of an amended supervision order extending its duration by two years – where the applicant sought an order that the Court rescind the supervision order and order that the respondent be detained in custody for an indefinite term for control, care or treatment pursuant to section 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSO Act) or the respondent be released on the supervision order subject to such amended conditions as the Court considers appropriate and stated in the order pursuant to section 22(7)  of the DPSO Act – where the applicant also sought an order that the supervision order be extended for a period of five years and a declaration that the period of the supervision order is extended by 61 days pursuant to section 24 of the DPSO Act – whether the applicant has satisfied the Court on the balance of probabilities that the respondent has contravened the supervision order – whether the respondent has satisfied the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its current form or as amended

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 13A, s 16, s 22, s 23, s 24

Attorney-General for the State of Queensland v Barney [2020] QSC 120, considered

Attorney-General for the State of Queensland v DBJ [2017] QSC 302, considered

Attorney-General v Griffin [2018] QSC 260, considered

Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329; [2019] QSC 36, considered

Attorney-General for the State of Queensland v McKellar [2019] QSC 92, considered

Attorney-General for the State of Queensland v Ruhland [2020] QSC 33, considered

Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, considered

COUNSEL:

B Mumford for the applicant

C R Smith for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    This is an application for orders under Division 5 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSO Act) in respect of a contravention by the respondent.
  2. [2]
    By order of Martin J, the respondent was released on a supervision order on 29 October 2012 for a period of 10 years, expiring on 29 October 2022.  The supervision order was amended by Davis J on 5 November 2018 (the Supervision Order).
  3. [3]
    The contravention by the respondent related to condition 9 of the Supervision Order, namely “not commit an offence of a sexual nature during the period of this order”.
  4. [4]
    On 9 December 2020, the respondent was charged with a number of offences and he pleaded guilty to those offences on 31 August 2021 in the Rockhampton Magistrates Court. 
  5. [5]
    The applicant sought an order that:
    1. (a)
      the Court rescind the Supervision Order and order that the respondent be detained in custody for an indefinite term for control, care or treatment pursuant to s 22(2)(a) of the DPSO Act; or
    2. (b)
      the respondent be released on the Supervision Order made by Martin J on 29 October 2012 subject to such amended conditions as the Court considers appropriate and stated in the order pursuant to s 22(7) of the DPSO Act.
  6. [6]
    The applicant also sought:
    1. (a)
      an order that the Supervision Order be extended for a period of five years; and
    2. (b)
      a declaration that the period of the Supervision Order is extended by 61 days by virtue of s 24 of the DPSO Act.
  7. [7]
    On 1 November 2021 the application was heard by me.  At the end of the hearing, I ordered as follows:

“THE COURT DECLARES THAT:

  1. The respondent was in custody serving a term of imprisonment for a period of 61 days between 30 November 2018 and 29 January 2019 for an offence other than an offence of a sexual nature.
  2. By operation of s 24 of the [DPSO Act], the period for which the supervision order made on 29 October 2012 and amended on 5 November 2018 (‘the supervision order’) has effect is extended by 61 days to 29 December 2022.

THE ORDER OF THE COURT IS THAT:

  1. Under s 22(7) of the [DPSO Act], the supervision order is amended so that the respondent is subject to the requirements until 1 November 2026.
  2. Pursuant to s 22(7) of the [DPSO Act], the respondent is released from custody to be subject to the requirements of the supervision order as amended.”
  1. [8]
    I indicated that my reasons for making the orders would be published at a later time.  These are my reasons for the orders made on 1 November 2021.

Index offences and supervision order

  1. [9]
    On 8 November 2011, Byrne SJA found that the respondent was a serious danger to the community in the absence of an order under Division 3 of the DPSO Act and made a Continuing Detention Order.
  2. [10]
    Byrne SJA summarised the respondent’s history of sexual offending as follows:

“Dr Harden, in his report, described the respondent as a 43-year old man who had committed a series of sex offences beginning in his adolescent years with recurrent exhibitionism and progressing to more overt sexual assaults. He then had nearly 10 years with no detected sexual offences before the sexual assault of three different stranger women at night time which led to the sentence he is now serving: in aggregate, 13 years’ imprisonment in relation to 12 sexual and property offences, the most serious of which led to a sentence of 13 years’ imprisonment for rape.

The offences, which occurred in the night, had increased in severity and violence. They involved assaulting women who were strangers to the respondent in the street and forcing them to perform oral sex upon him with, in one case, a rape.

Dr Harden summarises the circumstances attending the offences as involving considerable threats and violence with the apparent purpose of causing psychological distress or humiliation to the victims. One victim was choked briefly.

According to Dr Harden, it is possible to link his offending to sexual matters and violence in the respondent’s psychological background, partly because of sexual abuse he suffered at the hands of a female teacher in her twenties when he was in his early teens. He also came from what Dr Harden characterises as an ‘extremely prejudicial background’, with a highly dysfunctional family associated with his violent, alcoholic father and his absent mother. He has a history of other offences but they are by the way for present purposes.”

  1. [11]
    On 29 October 2012, the Continuing Detention Order was reviewed by Martin J and the respondent was released on the Supervision Order.

Previous contravention proceedings

  1. [12]
    There have been five previous contravention proceedings in respect of the respondent: 
    1. (a)
      The respondent was returned to custody in January 2013 and was released on the Supervision Order on 13 May 2013, after a period in custody of about five months.  This related to a contravention described as “personal sexual activity in a car park”. 
    2. (b)
      The respondent was returned to custody in October 2013 and was released on an interim supervision order in November 2013, and then released on the Supervision Order on 19 May 2014.  A time of approximately one month was spent in custody.  This contravention involved “a display of anger followed by obstruction of police officers”.
    3. (c)
      The respondent was returned to custody in July 2014 and he was released from custody on 27 January 2015, after a period of approximately six months in custody.  The proceedings arose in the context of the respondent becoming angry, confrontational and agitated, and a deterioration in his behaviour as a result of difficulties in a proposed relationship with a woman.  He made continuing threats of contravention to Queensland Corrective Services and ceased using anti-libidinal medication and anti-depressant medication.  The respondent also acted in a threatening manner towards Queensland Corrective Services’ staff.  The contravention proceedings were brought on the basis that the respondent was “likely” to contravene a condition of his order. 
    4. (d)
      The respondent was returned to custody in May 2016 and was released from custody in November 2016, after a period in custody of approximately five months.  These proceedings were discontinued on 16 June 2017.
    5. (e)
      The respondent was again returned to custody on 14 May 2018 and he spent approximately 11 months in custody.  It was alleged that the respondent contravened requirement 7 (that he comply with every reasonable direction, here the respondent was permitted to attend a shopping centre in the company of his niece or sister and he went unaccompanied) and 26 (that he not use the computer or the internet without prior written consent, here he contacted women who were overseas and received sexually explicit images and messages from them).  It was also alleged that the respondent was “likely” to contravene requirements 9 (not commit an offence of a sexual nature) and 15 (not commit an indictable offence).  The alleged “likely” contraventions were discontinued on 5 November 2018 on the day on which the contravention proceedings were heard before Davis J.  Davis J found that the respondent pushed his mobile phone under a door of a change room in a clothing store and attempted to take images of a woman while she was undressed.  His Honour released the respondent on the Supervision Order with amendments.[1]
  2. [13]
    Since the Supervision Order was made in October 2012, the respondent has been in custody for about 33 months: being two years, nine months.

Current contravention

  1. [14]
    The current contravention is the sixth time that the respondent has been subject to contravention proceedings.
  2. [15]
    On 9 December 2020, a complaint was made to a Magistrate alleging that the respondent had contravened requirement 9 of the Supervision Order, namely “not commit an offence of a sexual nature during the period of this order”.
  3. [16]
    On 9 December 2020, a warrant was issued pursuant to s 20 of the DPSO Act and the respondent was produced to Court pursuant to that warrant.  The respondent has been detained in custody since that date.
  4. [17]
    The respondent was charged with four offences, namely:
    1. (a)
      Commit indecent act in public (s 227 Criminal Code Act 1899 (Qld), maximum penalty two years imprisonment);
    2. (b)
      Commit public nuisance (s 6(1) Summary Offences Act 2005 (Qld), maximum penalty 10 penalty units or six months imprisonment);
    3. (c)
      Wilful damage (s 469(1) Criminal Code Act 1899 (Qld), maximum penalty five years imprisonment);
    4. (d)
      Contravene supervision order (s 43AA of the DPSO Act, maximum penalty two years imprisonment).
  5. [18]
    The respondent pleaded guilty to the offences on 30 August 2021 in the Rockhampton Magistrates Court.  Agreed facts in relation to the offending were set out in a Sentencing Schedule.
  6. [19]
    The relevant agreed facts included as follows:
    1. (a)
      At about 1.00pm on 9 December 2020, the respondent was in a Bunnings Warehouse in a suburb of Rockhampton.  He was seen by a witness in an aisle of the store walking towards a young woman, who had her back to the respondent.  The respondent was using his right hand to hold his pants away from his body.  His left hand was in the vicinity of his genitals and his hand and arm were “moving back and forth in a rapid jerking motion”.
    2. (b)
      The witness confronted the respondent who ran away.  The respondent tipped over a pile of chairs behind him, causing the chairs to fall across the ground, “causing a nuisance by being disorderly” (public nuisance).
    3. (c)
      The respondent forced his way through the automatic glass doors, pushing them outwards, forcing them off their rails and rendering them unable to open or close (wilful damage).
  7. [20]
    The respondent was convicted and sentenced to 264 days imprisonment.  The Magistrate declared 264 days of pre-sentence custody from 9 December 2020 to 29 August 2021 to be time served under the sentence. 

Statutory provisions

  1. [21]
    Section 22 of the DPSO Act deals with contravention proceedings and states as follows:

22  Court may make further order

  1. (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).
  1. (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
  1. (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.
  1. (3)
    For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—
  1. (a)
    act on any evidence before it or that was before the court when the existing order was made;
  1. (b)
    make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order—
  1. (i)
    in the nature of a risk assessment order, subject to the restriction under section 8(2); or
  1. (ii)
    for the revision of a report about the released prisoner produced under section 8A;
  1. (c)
    consider any further report or revised report in the nature of a report of a type mentioned in section 8A.
  1. (4)
    To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a).
  1. (5)
    If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies.
  1. (6)
    For applying section 11 to the preparation of the report—
  1. (a)
    section 11(2) applies with the necessary changes; and
  1. (b)
    section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist.
  1. (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
  1. (b)
    may otherwise amend the existing order in a way the court considers appropriate—
  1. (i)
    to ensure adequate protection of the community; or
  1. (ii)
    for the prisoner’s rehabilitation or care or treatment.
  1. (8)
    The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”
  1. [22]
    Davis J in Attorney-General for the State of Queensland v McKellar[2] considered the operation of s 22 of the DPSO Act and observed:

[12] By s 22, once a contravention is proved, the Court shall rescind the supervision order and make a continuing detention order[3] unless the prisoner satisfies the Court that continuation on supervision in the community (either on the supervision order as it stands, or with amendment) will ensure the adequate protection of the community.[4] It is well established that the concept of ‘the adequate protection of the community’ in s 22(7) has the same meaning as it bears in s 13.[5] Therefore, prisoners facing an application under s 22 must prove that the supervision order will ensure adequate protection of the community by removing unacceptable risk that they will commit a serious sexual offence.”

  1. [23]
    Accordingly, it is relevant to consider s 13 of the DPSO Act, which states as follows:

13 Division 3 orders

  1. (1)
    This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).
  1. (2)
    A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—
  1. (a)
    if the prisoner is released from custody; or
  1. (b)
    if the prisoner is released from custody without a supervision order being made.
  1. (3)
    On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it 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. (4)
    In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

(aa) any report produced under section 8A;

  1. (a)
    the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
  1. (b)
    any other medical, psychiatric, psychological or other assessment relating to the prisoner;
  1. (c)
    information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
  1. (d)
    whether or not there is any pattern of offending behaviour on the part of the prisoner;
  1. (e)
    efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
  1. (f)
    whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
  1. (g)
    the prisoner’s antecedents and criminal history;
  1. (h)
    the risk that the prisoner will commit another serious sexual offence if released into the community;
  1. (i)
    the need to protect members of the community from that risk;
  1. (j)
    any other relevant matter.
  1. (5)
    If the court is satisfied as required under subsection (1), the court may order—
  1. (a)
    that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
  1. (b)
    that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
  1. (6)
    In deciding whether to make an order under subsection (5)(a) or (b)—
  1. (a)
    the paramount consideration is to be the need to ensure adequate protection of the community; and
  1. (b)
    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 under section 16 can be reasonably and practicably managed by corrective services officers.
  1. (7)
    The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
  1. [24]
    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 released without a supervision order being made (s 13(2) DPSO Act).
  2. [25]
    The relevant risk here is the risk of commission of a serious sexual offence, being an offence of a sexual nature involving violence or against children to the extent of post-pubertal children.[6]
  3. [26]
    It is recognised by s 13(6) of the DPSO Act, that the paramount consideration is the need to ensure adequate protection of the community.  An unacceptable risk is a risk which does not ensure adequate protection of the community.  In effect, the relevant issue is whether a supervision order will ensure adequate protection of the community by removing an unacceptable risk that the respondent will commit a serious sexual offence.
  4. [27]
    Bowskill J in Attorney-General for the State of Queensland v DBJ,[7] made the following comments in relation to what constitutes an “unacceptable risk”:

[12] As to what constitutes an ‘unacceptable risk’, that is ‘a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty’. The test is not satisfied by evidence of any risk that the released prisoner may commit a further serious sexual offence. What must be established by the Attorney-General, to the requisite standard, is an unacceptable risk, the determination of which involves a balancing of competing considerations. The notion of an unacceptable risk recognises that some risk can be acceptable consistently with the adequate protection of the community.

[13] In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates …

[14] As observed in Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [6]:

‘Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.’

[15] For present purposes, what is required is an assessment of the risk of the released prisoner committing a serious sexual offence in the absence of a further supervision order. Relevantly, the object of the DPSOA is to ensure adequate protection of the community (s 3(a)). That does not mean the purpose of the legislation is to guarantee the safety and protection of the community. If that were the case, every risk would be unacceptable …” (footnotes omitted)

  1. [28]
    It is also relevant to consider s 16 of the DPSO Act and whether Corrective Services can reasonably and practicably manage the requirements of the supervision order.
  2. [29]
    The following issues therefore require determination:
    1. (a)
      Whether the applicant has satisfied the Court on the balance of probabilities that the respondent has contravened the supervision order.
    2. (b)
      If so, whether the respondent has satisfied the Court on the balance of probabilities, that adequate protection of the community can, despite the contravention, be ensured by the Supervision Order in its current form or as amended.

Finding in respect of contravention of supervision order

  1. [30]
    The applicant relies upon the respondent’s pleas of guilty in the Rockhampton Magistrates Court on 30 August 2021 as being an admission as to the contravention of the Supervision Order as alleged.
  2. [31]
    Further, the respondent accepts that he has contravened requirement nine of the Supervision Order and that the Court can be satisfied in accordance with s 22(1) of the DPSO Act that the respondent has contravened a requirement of the supervision order.
  3. [32]
    In these circumstances, on the evidence I am satisfied on the balance of probabilities that the respondent has contravened the Supervision Order made under the DPSO Act.
  4. [33]
    Consequently, the Court must rescind the Supervision Order and make a Continuing Detention Order, unless the respondent can satisfy the Court, on the balance of probabilities, that the adequate protection of the community can be ensured by the existing Supervision Order, with or without amendments under s 22(7) of the DPSO Act.

Psychiatric evidence

  1. [34]
    For the purposes of these contravention proceedings, reports have been prepared by Dr Josephine Sundin dated 28 September 2021 and Dr Scott Harden dated 14 October 2021.

Dr Josephine Sundin

  1. [35]
    Dr Sundin interviewed the respondent for two and a half hours by video-link on 2 September 2021 at the Capricornia Correctional Centre and prepared an updated report.  Dr Sundin has previously prepared reports in respect of the respondent dated 24 May 2010, 27 August 2012, 23 November 2013, 8 October 2014 and 16 September 2018.
  2. [36]
    Dr Sundin is of the view that the respondent meets the diagnostic criteria for:
  1. Mixed Personality Disorder: paranoid, narcissistic and antisocial personality traits.
  2. Exhibitionistic Disorder.
  3. Frotteuristic Disorder.
  1. [37]
    Dr Sundin also notes that other psychiatrists who have evaluated the respondent have been satisfied that he meets criteria for Sexual Sadism Disorder based on his history.
  2. [38]
    In relation to risk, Dr Sundin expressed the following opinion:

“I have undertaken formal risk assessments of Mr Griffin in the past using actuarial tools and structured physician’s guidelines. The previously administered tests have indicated that Mr Griffin’s risk for future sexual recidivism continues to be well above average. In my opinion, these assessments continue to be relevant to his current assessment of risk for sexual recidivism.

Mr Griffin’s ongoing risk for sexual recidivism without supervision remains high/well above average.

He is an individual who needs to continue to be closely monitored. Management of him in the community is made more difficult by his paranoid and secretive attitudes, and by his regression into sexual acting out behaviour at times of heightened emotional distress.

On the positive side in the community in this most recent period of time, he has not abused alcohol or illicit substances. He has maintained a relationship with his sister and one or two male friends. Otherwise, he has a fairly limited support network and a limited range of interests. He has expressed a future interest in re-engaging with church based activities.

In my opinion, the high level of supervision to which Mr Griffin has been subject has been reducing his overall risk for recidivism to moderate. It renders the risk he poses manageable. The supervision order needs to remain in place. Hopefully Mr Griffin will re-engage with his psychologist in the future so that she can address the problematic consequences of his defensive, hostile and secretive behaviours.

His principal risk group remains adult women, although he has offended against girls in the past this was at a less serious level than the escalated later offences..

The anxieties about the adverse impacts of intoxicating substances that have been flagged in the past are now less relevant. Mr Griffin has managed alcohol on the modified order of Justice Davis. Those modifications with respect to consumption of alcohol to a legal limit can safely remain in place.”  (emphasis added)

  1. [39]
    Dr Sundin provided a brief addendum to her report by email dated 16 October 2021 as follows:

“Given that Mr Griffin has a poor record of compliance with community supervision, has been deceptive with his psychologist and case managers and has committed a further sexual offence (even give it is one of a low level of seriousness); I recommend that his supervision order should be extended by a further 5 years.”

Dr Scott Harden

  1. [40]
    Dr Harden interviewed the respondent at Capricornia Correctional Centre by video-link for about an hour on 9 September 2021 for the purposes of his report.  Dr Harden has previously prepared reports in respect of the respondent in 2011, 2012, 2013, 2014 and 2018.
  2. [41]
    In respect of the respondent, Dr Harden expressed the following diagnosis:

“He most likely meets diagnostic criteria for the paraphilia of Sexual Sadism. He may also have some form of exhibitionism.

In my opinion he still has a Personality Disorder Not Otherwise Specified with antisocial, borderline and narcissistic features. With regard to this his borderline personality features seem more prominent with time, with exquisite sensitivity to perceptions of rejection in his relationships to women and subsequent anger and rage.”

  1. [42]
    In relation to the assessment of the risk, Dr Harden expressed the following view:

“The actuarial and structured professional judgement measures I have previously administered suggest that his future risk of sexual reoffence continues to be high (well above average). My assessment of this risk is based on the combined clinical and actuarial assessment. This assessment takes into account all information made available.

It is my opinion based on the current information that I have available that his risk of sexual reoffence would still be high if he were to be released from custody without further monitoring or intervention. This will still be the case at the time of the expiration of his current supervision order in 2022.

I have previously said that risk of sexual recidivism was most likely to emerge in a period of interpersonal conflict or negative emotion particularly conflict with females. Increased risk in him is likely to be associated with withdrawal from interaction with others and failure to use other people as support when under emotional stress. The highest risk time for him would still be associated with the loss of a close or intimate relationship particularly with a female.

The nature of this and other contraventions is concerning.

Readmission to custody was an appropriate step given the situation and the acute increase in risk at that time.

His emotional state seems again to have settled with time and a period of incarceration, as is usually the case in him.

High level compulsory supervision and treatment in the community consistent with a supervision order would most likely still reduce his risk of commission of a more serious sexual offence to moderate. However, the risk of a less serious (public masturbation or exposure) sexual offence on a supervision order is probably in the moderate to high range. In this man it seems that the supervision order acts to reduce the severity of sexual offending with a lesser effect on reducing likelihood.

Due to the difficulties with risk reduction and the complexity of his paraphilia it is likely that it will require another five years under supervision in the community to see a meaningful possibility of risk reduction.”

  1. [43]
    Dr Harden makes the following recommendations in respect of the respondent:

“His supervision order (if he were released again on a supervision order) should be extended five years from the current date.

I recommend that he have ongoing individual psychological therapy. This should occur even if he is not released on a supervision order.

Psychological therapies and psychological containment are important in his management.

Substance use conditions in the current order seem appropriate.

His potential victim group is adult women, I see no need for specific restrictions on his contact with children and young people.

Appropriate caution should be exercised with his attending public places such as shopping centres. It might be better if he could have material delivered to his residence.”

Treating psychologist

  1. [44]
    The respondent has also been treated by a psychologist based in Rockhampton, Ms Wheat, from April 2019 until December 2020.
  2. [45]
    Ms Wheat prepared a report dated 17 December 2020.  Relevantly, Ms Wheat identified the risk factors as follows:

“Mr Griffin [h]as never disclosed any sexually deviant or illegal sexual activities in therapy sessions. He also continued to deny significant sexual arousal or inappropriate sexual activity.

Although the current offences are less serious than the index offences in the past, Mr Griffin’s lack of disclosure makes it difficult to interpret the triggers. He had spoken about his risk recently and asserted should he feel sexually aroused in public he would immediately drive home to keep himself safe. Thus possibly, he had used this strategy recently; maybe on the episode for which he is charged, he risked discovery or was unable to manage his impulsivity.

His masturbation in public at Bunnings follows his previous sexual offending pattern in that:

  • He offended in public spaces; his rapes were in public and his previous masturbating was in view of the public.
  • His offences all appeared to be impulsive.
  • All his offences are against strangers.
  • This pattern appears to demonstrate Mr Griffin needs the danger of sexual activity in public possibly to increase his arousal.

Interestingly, this calls into question his regular visits to Bunnings in terms of whether he has been offending over a period of time without discovery. Because of Mr Griffin’s non-disclosure, it is safest to conclude he has been offending at that venue. The pattern is already evident in the behaviours from the past.

Whether his current decompensation is linked to anger is also a likelihood given his current challenges. Mr Griffin has found the challenges posed with the loss of contact with his niece difficult to manage and has perceived this as a targeted aggravation by the Department. The recent removal of his phone possibly resulted in him losing access to a mode of pornography. It is unclear the effect of accessing pornography on his behaviours. It is only possible to speculate as to the underlying motivations for his current offending. Mr Griffin actively articulated he was determined to successfully complete his Order and was adamant he was ensuring he kept himself in a low risk environment. His offending shows a loss of control and continued impulsivity, and given his age [52], he is likely to continue to be impulsive in his behaviours.”

  1. [46]
    Ms Wheat’s report stated the following conclusion in respect to the respondent:

“Mr Griffin’s prognosis remains poor given his continuing lack of meaningful disclosure in therapy. He has returned to a pattern of sexual behaviours, which as currently apprehended, is less harmful for victims than his index offences. However, the offences follow a clear consistent pattern from the past. Given his pattern of offending against strangers in public, his need for inherent objectification in his sexual patterns remains a significant untreated risk.

Currently, it is not possible to clearly assess Mr Griffin’s risk factors as these can only be inferred from his past behaviours and the external factors which are able to be ascertained from the facts as we know. These do not appear to have markedly increased recently, and it appeared on the surface he had developed some insight into appropriate treatment focus. Therefore his internal risk factors are likely to be most relevant, and Mr Griffin has actively concealed these factors.

Given the significant therapy opportunities which Mr Griffin has accessed, in future he may need more structured constraints on his activities when he is released from custody.”

Issue of accommodation

  1. [47]
    A further issue arose in relation to suitable accommodation if the respondent was released on a Supervision Order.
  2. [48]
    The respondent filed an affidavit stating that he cannot currently reside with his sister as his niece is temporarily residing at that address.  He will be able to return to his sister’s address once his niece finds alternative accommodation.
  3. [49]
    The respondent also stated that he wants to continue to reside in Rockhampton.  This is, in part, so he can continue to undertake the activity of constructing toy boxes, as the items required for him to undertake that activity are located in Rockhampton.
  4. [50]
    The respondent also stated that he has been advised by Crown Law that the Rockhampton precinct was full.  The respondent indicated that he would like to move to the Rockhampton precinct as soon as a room becomes available.
  5. [51]
    The affidavit of Jolene Monson affirmed on 27 October 2021 also addressed the issue of accommodation for the respondent.  Ms Monson confirmed that accommodation was currently available at the Wacol Precinct if the respondent was released on a Supervision Order.  Further, there was currently no availability at the Rockhampton contingency accommodation. 
  6. [52]
    Ms Monson indicated that should a vacancy become available then the High-Risk Offender Management Unit will assess the respondent’s suitability to reside at the Rockhampton contingency accommodation.
  7. [53]
    While the issue of where the respondent is to reside is left to Queensland Corrective Services to manage if the respondent is released on a Supervision order, this issue was addressed further with the psychiatrists in oral evidence.

Further psychiatric evidence at hearing

  1. [54]
    Both Dr Harden and Dr Sundin gave oral evidence at the hearing and were cross-examined.
  2. [55]
    Dr Harden gave evidence including as follows:
    1. (a)
      In respect of the risk of further offending:

“… you opine there that high level compulsory supervision and treatment in the community consistent would still mostly reduce his risk of commission [indistinct] more serious sexual offence to moderate.  When you use the phrase there, ‘More serious sexual offence’, what kind of sexual offending did you have in contemplation?Hands-on sexual offending such as when he committed the rapes.

So, then you in that same paragraph describe the risk of a less serious sexual offence, and you there give examples of either him masturbating in public or exposing himself.  It’s probably in the moderate to high range?Yes.

Yes.  Could I draw your attention to the next sentence where you offer the opinion that:

In this matter it seems that the supervision order acts to reduce the severity of sexual offending with a lesser effect on reducing likelihood.

?Yes. 

In the context of that particular sentence, which commences at line 33, what are you referring to there in terms of then reducing the severity of sexual offending?The two incidents of public masturbation that have occurred when he’s been on the order, in my opinion, are probably what’s called offense paralleling behaviour in that they replicate a lot of the internal psychological features that drove his more serious offending – the rapes of strangers, but they have been modified effectively, I think, by the constraints of the order.  They may have been modified also by internal changes in Mr Griffin.  I’m not sure, but I suspect it’s more likely the constraints of the order knowing that he’s being monitored and the strictures of the order that have changed the offending.

Right?So, we now have this less serious public masturbation instead of, you know, rape of a stranger.

All right.  And that’s the effect of the order, in your opinion.  Is that correct?Yes.”

  1. (b)
    In respect of the issue of whether the supervision order should be extended and for how long:
    1. (i)
      “Well, there are two matters of which I want to ask you about.  When you say five years, is that a point where it might be thought that the respondent presents an acceptant risk to the community in the absence of a supervision order?Yeah.  That’s a really complex question … there’s a meaningful possibility of getting to low risk and the minimum period of that, in my opinion, is probably five years. 

Right.  And when you speak of risk reduction, the second aspect of that paragraph, what is the risk that you are referring to there?  Is it the risk of contact offending, or what you’ve described as paralleling behaviour or a combination of both?It’s the risk of serious sexual re-offence in the form of contact offending. 

All right?In my opinion of Mr Griffin, the risk of less serious offending, so exposure, or public masturbation or some other kind of non-contact offending, is always going to be a little bit higher.”

  1. (ii)
    “In the event of a supervised release order being extended for a period of two further years, how would you expect Mr Griffin’s risk to reduce in that period of time, if at all?In the case of Mr Griffin, due to his level of paraphilia, and the complexity of his paraphilias, and the persistence of the behaviour, I think it’s very unlikely there’ll be any significant change in a two-year period.  I’ve specified a five-year period, because that’s my opinion as to the minimum period in which we might reasonably see reduction of the risk to the extent I described …”
  1. (c)
    In respect of the risk of offending against children:
    1. (i)
      “All right.  Now, can I take you to page 40 in your report.  At line 14 you express the view that the respondent’s potential victim group is adult women, and you opined that you’ve seen no need for specific restrictions on his contact with children and young people.  When you have opined adult women, does that include women – females who have the appearance of being adults?Yes, it does.

All right?And I should have specified.

No, that’s all right.  So from then the distinction you’re drawing between women who – or females, I should say, who would appear to be adult and above?Yes.  Post-pubertal females, really. 

Yes.  But not children   ?No, there’s no material to   

   10 year olds or younger?There’s no material to suggest he poses a risk to prepubertal children.”

  1. (ii)
    “there’s no risk in relation to prepubertal children?---Correct.”
  1. (d)
    In respect of accommodation arrangements:

“… having the support of his sister is a protective factor for him?Probably.

And having the ability to engage in some paid work is a protective factor for him?Yes, I think so.

And so, to the extent that it is possible within the strictures of the order, would it be favourable for him to be able to return to an area where he has some possibility of having that support and having some paid employment?Yes.  That would be my   -”

  1. [56]
    Dr Sundin gave further evidence including as follows:
    1. (a)
      In respect of the issue of whether the supervision order should be extended and for how long:
      1. (i)
        “In your opinion, and having heard the evidence of Dr Harden, is there a need to extend the present supervision order?Yes.

And by how much?Five years.

Okay.  All right.  And can you explain the basis for such an extension?Yes.  Mr Griffin is a complex gentleman.  He has a 40 year history of sexual offending and significantly, over the course of that history, there has been an escalation in the seriousness of that offending.  So early on he had a series of offences which primarily involved exposure and aggravated assault on peripubertal females, but – and that was back in the early 80s.  But by the late 1990s he then escalated to offences of rape against vulnerable women and these rapes were associated with assault.  This occurs against a background of a man who had a very prejudicial history – he was, himself, the subject of child sexual abuse – and a man who was the subject of abuse by a female teacher.  He appears, over the years, to have developed and held a range of persisting angry belief systems around women which have never entirely gone away;  some of that is reflected in the pattern of interactions he has with female Corrective Services officers.  So my concern with Mr Griffin was that whilst the two offences – whilst he has been on a supervision order – of a sexual nature were, in themselves, low spectrum – they were exposure, public masturbation – they occur against this background of escalation from exposure and masturbation to aggravated assault in an angry man with limit [sic] insight and an ongoing history of impulsivity.  We know that all of these are factors that keep him at well above average risk for serious sexual offending – and by that I mean a serious violent assault against a female of a sexual nature.

HER HONOUR: And that’s without a supervision order in place?Without a supervision order.  And I thought that in Dr Harden’s report he very wisely separated out the two issues as regards to the way the supervision order is working.  The order is serving its purpose in protecting adult females of the community – or girls who look like women – from serious assaults like rape.  The order is not really capable of stopping him from doing these acts of masturbation or exposure – that’s continuing on.  But that really isn’t my worry;  I don’t mind that he does that – I would prefer he didn’t – but it’s not a serious sexual offence.  It’s the rape that worries me and the aggravated assault.

But there may be some benefit in some further engagement with a psychologist to perhaps assist in that latter type of offending that you referred to?Yes, your Honour, it’s certainly worthwhile.  A lot has been tried;  he has seen a series of very good forensic psychologists.  The most recent seems to have – in terms of the report that she wrote it was particularly helpful, but all of them have touched on this issue of chronic aggressive belief systems around women which have not remitted as yet and which need to be, as your Honour says, the subject of further treatment.”

  1. (ii)
    “If Mr Griffin can go five years with a clearly modified pattern of behaviour and pattern of relating within the community – particularly towards women – without any further contraventions or, more particularly, any further sexual offences, even low grade sexual offences, then yes;  his risk would be reduced to the low-moderate.”
  1. (b)
    In respect of accommodation arrangements:

“And, in relation to Mr Griffin’s proposed living arrangements, have you had an opportunity to see his affidavit?Yes.  I believe he’s very keen to get back to Rockhampton, ideally to live with his sister.  I’m supportive of all of those – those aspirations.  I think he goes better in Rockhampton, he does better when he’s near his sister and one of the most recently he seems to have been, to some degree, benefitting from building an alliance with his psychologist, although there’s fair work to go there.” 

Respondent’s position

  1. [57]
    The respondent opposed the imposition of a Continuing Detention Order.  The respondent submitted that the adequate protection of the community could be ensured by his release, subject to the existing Supervision Order, if the order was amended to extend its duration by two years.
  2. [58]
    It was also submitted on behalf of the respondent that the Supervision Order had been effective in detecting the non-compliance of the respondent on this occasion. 
  3. [59]
    Further, it was contended that the DPSO Act is aimed at containing the risk that the respondent will commit a “serious sexual offence” if he is released from custody and a supervision order is made.
  4. [60]
    The current contravention offending is public masturbation.  Reference was made to the decision of Attorney-General for the State of Queensland v Barney[8] in relation to the risk where contraventions involve public masturbation.  Davis J in that case considered that the Court must assess the likelihood of a serious sexual offence occurring and the consequence of that event. His Honour stated:

“Under the [DPSO Act], the relevant consideration is not risk of any offending, or even risk of sexual offending, but offending by commission of a ‘serious sexual offence’ which relevantly here is ‘an offence of a sexual nature involving violence’ or ‘an offence of a sexual nature against a child’.”[9]

  1. [61]
    It was submitted that the relevant risk in respect of the respondent is not in relation to offending against children generally,[10] nor is it in relation to physical violence.  In respect of the respondent’s contraventions, it was further submitted that these have not involved any physical violence. 
  2. [62]
    Further, it was submitted that the requirements of a supervision order should only be as onerous as is necessary to protect the community from serious sexual offences being committed by the respondent.
  3. [63]
    It was recognised that both Dr Harden and Dr Sundin are of the opinion that the existing supervision order should be extended by a further five years.  However, it was contended that this is ultimately a decision to be made by the Court and this needed to be a value judgment as to the risk against the serious alternative of the deprivation of a person’s liberty.  The respondent submitted that he should be released on the existing order with an extension to the order of two years.
  4. [64]
    Further, the respondent accepted that a declaration ought to be made that the Supervision Order is extended by 61 days by virtue of s 24 of the DPSO Act. 

Applicant’s position

  1. [65]
    The applicant contended that the central issue on the current application is whether the respondent can discharge the onus on him pursuant to s 22(2) of the DPSO Act.
  2. [66]
    The applicant acknowledged that Dr Harden and Dr Sundin held the opinion that despite the contraventions, the risk that the respondent will commit a “serious sexual offence” can be adequately managed if the respondent is released to the community on the Supervision Order.
  3. [67]
    The applicant submitted that the contraventions are serious, as they involve the respondent engaging in sexualised behaviour in a public place, in circumstances where he was unable to control his urges.
  4. [68]
    The onus is on the respondent to satisfy the Court that notwithstanding the established contravention, the adequate protection of the community can be ensured by his release on the existing order, or through an order, as amended under s 22(7) of the DPSO Act.
  5. [69]
    The applicant noted that Dr Harden’s view was that with a supervision order the risk of commission of a more serious sexual offence would be reduced to moderate.  However, the risk of a less serious (public masturbation or exposure) sexual offence remained moderate to high on a supervision order, that is, that the supervision order “acts to reduce the severity of sexual offending with a lesser effect on reducing likelihood”.

Whether a supervision order, despite the contravention, ensures the adequate protection of the community?

  1. [70]
    Given the finding that the contravention has occurred, the onus is on the respondent to prove that the supervision order, in its existing terms or as amended, will ensure the adequate protection of the community by removing an unacceptable risk that the respondent will commit a serious sexual offence.
  2. [71]
    The assessment of the risk and whether and what terms of a supervision order would provide for the adequate protection of the community is not a matter for expert, particularly psychiatric, opinion.  It is a matter for the Court.  As recognised by McMurdo J in Attorney-General for the State of Queensland v Sutherland[11] at [30], the exercise requires a:

“… value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”

  1. [72]
    Each of the two psychiatrists have provided their opinions in respect of their assessment of the risks and their clinical diagnoses in respect of the respondent. Their views are of assistance in the task of evaluating the risk in respect of the respondent and I accept the opinions of the two psychiatrists.
  2. [73]
    The evidence supports a conclusion that the operation of the supervision order reduces the risk of a serious sexual offence to moderate.  However, the risk of other less serious sexual offending, such as public masturbation, remains higher.
  3. [74]
    The question then is whether the risk of a serious sexual offence is “unacceptable” in the context discussed by Bowskill J in Attorney-General for the State of Queensland v DBJ.[12]  This involves a consideration of the risk against the serious alternative of the deprivation of a person’s liberty.
  4. [75]
    Considering the evidence before the Court and in particular the psychiatric evidence, I am satisfied that on the balance of probabilities the adequate protection of the community can, despite the contravention, be ensured by the supervision order.
  5. [76]
    As part of the consideration of the appropriate terms of the supervision order under s 13A, I am to consider the length of the supervision order.  Davis J in Attorney-General for the State of Queensland v KAH[13] considered s 13A of the DPSO Act and the relevant considerations when faced by various opinions by psychiatrists in respect of the length of the supervision order.  At [56], his Honour stated:

“… The correct legal consideration is ‘when will the respondent reach a point at which he/she is an acceptable risk without a supervision order?’ Assessment of the risk as ‘acceptable’ or otherwise is a matter for the Court not the psychiatrists, but the psychiatrists can, and do, express risk in terms of degree; high, moderate or low. The psychiatrists should be requested to report (if they can) on their predictions as to when the risk will reduce to low, for instance. That evidence will then be directly relevant to the determination under s 13A.”

  1. [77]
    I am also satisfied on the evidence given by the psychiatrists that it is appropriate to amend the supervision order to extend the operation period of the supervision order for a further five years, so that the respondent is subject to its requirements until 1 November 2026.
  2. [78]
    Further, in Attorney-General for the State of Queensland v Ruhland,[14] Davis J stated at [19]:

“Given the powers vested in corrective services officers to control and manage the respondent under the supervision order, and given the consequences for the respondent of a breach of the supervision order, it is in my view in the interests of both parties that the effect of the operation of s 23 and s 24 of DPSOA upon the supervision order be the subject of declaration.”

  1. [79]
    In that matter, his Honour proceeded to declare the additional period by operation of s 23 and s 24 upon the supervision order and the date that the supervision order had been extended to.
  2. [80]
    In the current matter, I considered it preferable to specifically declare the 61 days under s 24(2) of the DPSO Act to avoid any potential uncertainty in the future. 
  3. [81]
    Further, it is also desirable to identify the date that the supervision order is extended to, taking into account the declared period and any additional operational period for the supervision order to ensure that the objectives of s 13A are met. 
  4. [82]
    For these reasons, the following orders were made:

THE COURT DECLARES THAT:

  1. The respondent was in custody serving a term of imprisonment for a period of 61 days between 30 November 2018 and 29 January 2019 for an offence other than an offence of a sexual nature.
  2. By operation of s 24 of the [DPSO Act], the period for which the supervision order made on 29 October 2012 and amended on 5 November 2018 (‘the supervision order’) has effect is extended by 61 days to 29 December 2022.

THE ORDER OF THE COURT IS THAT:

  1. Under s 22(7) of the [DPSO Act], the supervision order is amended so that the respondent is subject to the requirements until 1 November 2026.
  2. Pursuant to s 22(7) of the [DPSO Act], the respondent is released from custody to be subject to the requirements of the supervision order as amended.

Footnotes

[1]Attorney-General v Griffin [2018] QSC 260 at [40].

[2]  [2019] QSC 92.

[3]  Section 22(2) DPSO Act.

[4]  Section 22(7) DPSO Act.

[5]Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]; see also Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36].

[6]  See evidence of Dr Sundin and Dr Harden set out below.

[7]  [2017] QSC 302.

[8]  [2020] QSC 120.

[9]Attorney-General for the State of Queensland v Travers [2018] QSC 73 at [30] followed in Attorney-General for the State of Queensland v Fardon [2019] QSC 2 at [19].

[10]  At least prepubertal children.

[11]  [2006] QSC 268.

[12]  [2017] QSC 302.

[13]  [2019] QSC 36.

[14]  [2020] QSC 33.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Griffin

  • Shortened Case Name:

    Attorney-General v Griffin

  • MNC:

    [2021] QSC 299

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    19 Nov 2021

Appeal Status

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

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