Attorney-General v Penningson
[2021] QSC 330
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- Attorney-General v Penningson[2021] QSC 330
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Attorney-General v Penningson[2021] QSC 330
Attorney-General v Penningson[2021] QSC 330
SUPREME COURT OF QUEENSLAND
CITATION: | Attorney-General for the State of Queensland v Penningson [2021] QSC 330 |
PARTIES: | ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v PAIS WANMAN PENNINGSON (respondent) |
FILE NO/S: | BS 2031 of 2016 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 30 November 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 November 2021 |
JUDGE: | Kelly J |
ORDER: | The Court declares that:
The order of the Court is that:
|
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 subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the respondent contravened a requirement to not take any illegal drugs – where the applicant applied for an order that the supervision order be rescinded or amended – whether the supervision order should be rescinded or amended. Attorney-General v Francis [2012] QSC 275, cited Kynuna v Attorney-General [2016] QCA 172, cited Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 22 |
COUNSEL: | Applicant: M Maloney and GR Cooper Respondent: C Reid |
SOLICITORS: | Applicant: Crown Law Respondent: Bell Dore Lawyers |
- [1]By an application filed 7 May 2021, the Attorney-General has applied under s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’) for rescission of a supervision order made by his Honour Justice Davis on 5 November 2019 and an order that the respondent be detained in custody for an indefinite term for care, control or treatment. In the alternative, the Attorney-General has applied pursuant to s 22(7) of the Act to amend the supervision order.
- [2]The 5 November 2019 order, relevantly, contains the following requirement:
“(24) 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.”
- [3]The respondent concedes that he contravened this requirement. The relevant circumstances which led to the discovery of the contravention may be set out as follows.
- [4]On 28 April 2021 at 0902 hours the respondent submitted to a urinalysis test at the Townsville HROMU district office. The sample was deemed invalid due to abnormalities with the temperature, creatine and pH levels. The respondent made no admissions of using illicit substances. The test results were presumptive clear to all substances. Due to the invalid test, a decision was made by an acting district manager for a further test to be conducted later on that date.
- [5]After his urinalysis test, the respondent was observed in the waiting room of the relevant HROMU district office asleep on the bench seating. Due to a fire drill at the district office, the respondent was woken by staff to exit the building. The respondent presented as lethargic and disinhibited, and he was very difficult to rouse.
- [6]Later, on the 28th of April 2021 at 1418 hours the respondent submitted to a further urinalysis test at the Townsville HROMU district office. The sample was deemed valid and tested presumptive positive to THC and BUP. The respondent made no admissions of using any illicit substances.
- [7]The respondent then participated in a case management meeting with his senior case manager. During the interview, the respondent made admissions of cannabis use in the days prior and reported that his presentation was due to him being tired and his depot injection which he had received the day prior. The respondent was questioned about the invalid sample he had provided earlier in the day. He denied the sample was fake or had been altered in any way.
- [8]The respondent then became heightened and dismissive throughout the case management meeting, raising his voice, standing in a boxing type stance with his hands in closed fists, describing himself as an “angry man” and stating that he “didn’t give a fuck” and “would knock any cunt out.” He further stated he would “smash any cunt” and that no one should “mess with him” because he’s an “angry man trying to keep cool.”
- [9]The respondent denied having any issues with illicit substances and stated that he would not participate in any interventions to address substance use. Throughout the case management meeting, the senior case manager stopped to allow the respondent time to compose himself when he began sobbing. The respondent denied experiencing any life stresses or changes. The respondent proceeded to tell his senior case manager he was “not doing his job right” and “neither is Tracey” (his treating psychologist). When asked what else he believed his senior case manager and treating psychologist could assist him with, the respondent was unable to identify any additional ways he could be supported.
- [10]On 30 April 2021, the respondent’s treating psychologist opined that the respondent was significantly impacted by substances at the time of her appointment with him on the afternoon of 28 April 2021. She further advised that he was agitated and it was:
“…difficult to follow his line of conversation as he seemed preoccupied jumping from topic to topic.”
- [11]She reported that the respondent was:
“…very erratic and then at times had very slow motor movement..
“[The respondent] is very vulnerable at the moment and his presentation makes his risk unpredictable.”
- [12]She opined that his dishonesty around substance misuse, erratic behaviours, and making impulsive plans, make him very vulnerable.
- [13]On 5 May 2021, confirmatory test results were received which were positive to cannabis at a level of 32 ug/L, buprenorphine at a level of 13 ug/L.
- [14]Having regard to the evidence before me, I find that the respondent has contravened requirement 23 of the 5 November 2019 order. Pursuant to s 22(2) of the Act, upon being satisfied on the balance of probabilities that the respondent has contravened the requirement of a supervision order, then unless the respondent satisfies the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured, the Court must, in the case of an existing supervision order, rescind the order and make a continuing detention order. The onus is on the respondent to demonstrate that the adequate protection of the community can be ensured by his release again on supervision.
- [15]In Kynuna v Attorney-General [2016] QCA 172 at [60] the Court observed:
“The reference to ‘the adequate protection of the community’ in s 22(2) and s 22(7) is clearly a reference to that term as explained in section 13, that is, adequate protection of the community from the unacceptable risk that the appellant will commit a serious sexual offence, namely one involving serious violence of the kind discussed in Phineasa, which caused or was likely to cause significant physical injury or significant psychological harm.”
- [16]In Attorney-General v Francis [2012] QSC 275, Byrne SJA observed at 64 and 65:
“But where contravention of the supervision order is proved, the Act does not require continuing detention unless the prisoner can show that the supervision order would in future be complied with. Rather, continuing detention is the consequence unless “adequate protection of the community” can be ensured by a supervision order. The inquiry focuses on whether a supervision order would be efficacious in preventing the commission of a violent sexual offence.”
- [17]The respondent concedes that he bears the onus to satisfy this Court on the balance of probabilities that the adequate protection of the community can, despite his contravention, be ensured by the supervision order in its current form or as amended. Ultimately, the respondent’s submission is that despite his contravention, the adequate protection of the community can be ensured by the supervision order in its current form. Two psychiatrists, Dr Arthur and Dr Harden, have provided reports in relation to the present application. Dr Harden provided a report dated 4 November 2021 and has relevantly opined:
“Diagnoses
Antisocial personality disorder.
Psychotic disorder not otherwise specified.
Poly-Substance abuse, specifically alcohol, marijuana and opioids. Some evidence of alcohol dependence. In remission because of incarceration.
Likely Childhood Attention Deficit Hyperactivity Disorder, may be residual features present.
Intellectual impairment – moderate.
Seizure Disorder.
Risk
His ongoing unmodified risk of sexual re-offence in the community is in my opinion at least moderate – high in the absence of a supervision order or other modifiers.
His greatest risk factors are in my opinion, substance intoxication, impulsiveness, poor problem-solving skills, negative emotionality and problems cooperating with supervising authorities.
If he were to reoffend sexually, it is likely to be while intoxicated. The victims are likely to be adult females and are likely to be opportunistic victims. They could be known to him or strangers. Physical injury is possible. The use of weapons is likely.
If he were on a supervision order in the community, in my opinion the risk of sexual recidivism is low to moderate.
He will still require a level of personal care and support in the community, provided either by his family or paid service providers to undertake day-to-day activities.
Recommendations
If released into the community he should continue on the current supervision order conditions.
He should be abstinent from alcohol and substance intoxication permanently.
Participation in an opioid replacement program should still be considered.
He should continue in appropriate individual psychological therapy focusing on risk factors for sexual offending and substance misuse.”
- [18]Dr Arthur has provided a report dated 18 October 2021. Dr Arthur has relevantly opined as follows:
“His diagnosis remains Intellectual Developmental Disorder, Antisocial Personality Disorder, Psychotic Disorder Not Otherwise Specified, Substance Misuse Disorder (cannabis, buprenorphine) and an historical diagnosis of Epilepsy.
…
Opinion
[The respondent] continues to represent an above average risk of further sexual violence. He is a young, physically active man with an intellectual disability, prominent antisocial personality traits and anti-authoritarian attitudes.
Ultimately, I believe the supervision order has been effective in managing his risk by identifying his substance use in a timely manner and providing the requisite controls sufficient to limit victim access.
It appears that The Precinct continues to be a problematic environment, in that it provides easy access to illicit substance and (apparently) a peer group of co-supervisees who both normalise and facilitate ongoing drug use. This is a significant area of concern, due to both the association between substance use with his index sexual offence and the negative effects on his mood and behaviour. The combination of intoxication, negative emotionality, high levels of sexual preoccupation, poor self-regulation and antisocial attitudes equates to a significant risk of interpersonal violence and opportunistic sexual offending.
I remain of the opinion that he would be best placed in supported accommodation, either an independent arrangement with daily support or alternatively a men’s hostel where he is provided with meals, the supervision of medication and is isolated from easy access to substances. It is important that he find a pro-social way of managing his sexual frustration, although he has previously expressed a distaste for brothels.
Initially he should be provided with a high level of supervision and not be given unescorted access into the community with a high degree of vigilance in regard to substance use, particularly given his propensity to provide false urine samples. Given his history of indiscriminate seeking out of sexual partners, his use of the internet and social media should continue to be closely monitored to ensure he does not engage with underage or vulnerable women.
He should be encouraged to maintain contact with his son and other family members, albeit under supervised conditions.”
- [19]The Attorney-General has submitted as follows:
“The psychiatrists agree that the supervision order has worked as it is intended to intervene when the use of substances was detected indicating an increase in the risk of further sexual offending. Both are of the view that the individual psychological treatment should continue.
The psychiatric evidence in these proceedings supports the contention that the Respondent’s risk of sexual recidivism can be managed by a supervision order.”
- [20]The respondent has made a submission in similar terms, as follows:
“The psychiatrists agree that the supervision order has worked as it is intended to intervene when the use of substances was detected indicating an increase in the risk of further sexual offending. Both are of the view that the individual psychological treatment should continue.
The psychiatric evidence in these proceedings supports the contention that the respondent’s risk of sexual recidivism can be managed by supervision order.
The respondent submits that the Court can be satisfied on the evidence that the adequate protection of the community can, despite the contravention, be ensured by the Respondent’s return to the existing supervision order.”
- [21]I find on the basis of the psychiatric evidence that the respondent has discharged his onus of establishing that the adequate protection of the community can be ensured by the respondent’s return to the existing supervision order. Accordingly, I am prepared to make the following orders:
The Court declares that:
- The respondent was detained in custody on remand for an offence other than an offence of a sexual nature for a period of 71 days between 1 December 2020 and 9 February 2021.
- The respondent was further detained in custody on remand for an offence other than an offence of a sexual nature for a period of 13 days between 2 September 2021 and 14 September 2021.
- By operation of s 24 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the period for which the supervision order of Davis J made on 5 November 2019 (the supervision order) has effect is extended by 84 days to 29 January 2025.
The order of the Court is that:
- The respondent be released from custody by 9 am on 1 December 2021, to be subject to the requirements of the supervision order until 29 January 2025.