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Attorney-General v Smith[2021] QSC 357

Attorney-General v Smith[2021] QSC 357

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Smith [2021] QSC 357

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

STUART MCKAY SMITH

(respondent)

FILE NO/S:

BS 87 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 November 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

4 November 2021

JUDGE:

Applegarth J

ORDER:

  1. The respondent be released from prison and must follow the rules in the supervision order made by Boddice J on 19 June 2017 until 28 June 2027; and
  2. Liberty to apply.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT SEXUAL OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent contravened that supervision order by consuming illicit drugs – where the applicant made an application under section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether adequate protection of the community can be ensured by the terms of the existing supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22

COUNSEL:

M Maloney, counsel for the applicant

E Engwirda, counsel for the respondent

SOLICITORS:

Crown Law for the applicant

Creevey Russell Lawyers for the respondent

  1. [1]
    This is an application under section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).  The existing supervision order was made by Justice Boddice.  There was a contravention of the supervision order by the respondent’s consumption of illicit drugs.  The circumstances leading to his arrest are described in paragraphs 13 to 16 of the affidavit of Ms Fuller affirmed on 21 May 2021. 
  2. [2]
    The respondent has the onus of proving – the breach having been accepted – that, despite the contravention, adequate protection of the community can be ensured by the terms of the existing supervision order. 
  3. [3]
    The relevant law is helpfully set out in Ms Maloney’s written submissions.  Also, the submissions helpfully summarise the relevant psychological and psychiatric reports of Dr Madsen dated 10 August 2021, Dr Karen Brown dated 5 October 2021 and Dr Beech.
  4. [4]
    This is a sad and complicated case.  I will not delay to address the respondent’s different problems and his somewhat dated but significant history.  For a variety of reasons relationships have ended poorly.  He resorted to methylamphetamine use in May 2021 after suffering a depressive decline that occurred in the course of his frustrations with the conditions around his supervision.  There are unresolved emotional difficulties concerning his relationship with his former wife who is in poor health.  He has had frustrations because, despite submission of various accommodation options, he remained placed in the Precinct.  Just prior to the most recent contravention, his male partner told him that he had another partner in prison.  There are demands placed upon him by his wife about her health needs.  And he used a large amount of methylamphetamine allegedly given to him by another Precinct resident in a reckless element of self-medication. 
  5. [5]
    The concerning matter is that it is similar to the circumstances in which he offended in the 1990s.  The problems facing the applicant are many and, as I said at the callover, these difficult cases call for intense case management.
  6. [6]
    The respondent receives and has the benefit of one-on-one therapy with Dr Madsen who is an expert in this field.  Dr Madsen noticed improvements.  However, he also noted that in the recent months leading up to the contravention, the respondent’s mental health declined with concerns about intimate relationships and the like.  Unsurprisingly, perhaps, the deterioration in his condition led to conflict with his case managers and he struggled to have a plan for his future.  Things ended poorly.  He resorted to methylamphetamine when he was in what he perceived to be a hopeless situation.
  7. [7]
    The need for him to be properly accommodated away from the Precinct is important.  Dr Beech, in his report, confirms that the respondent resorted to methylamphetamine to deal with a depressive decline in his conditions and frustrations with the conditions around his supervision.  Dr Beech recommends that a suitability assessment is formally undertaken and a decision made in relation to the respondent’s accommodation.  Of course, the decision may not go in the respondent’s favour.  However, as Dr Beech, whose opinion I greatly respect, says, while this may or may not frustrate Mr Smith and an individual called S who the respondent has asked to live with “[a] final determination might remove one area of conflict”.  Dr Beech continues, “In my opinion, his accommodation in the Precinct is unhelpful”.
  8. [8]
    However, Dr Beech cannot think of any other suitable accommodation at the moment.  Dr Beech says – and I would emphasise in the strongest terms, I agree with this – that finding suitable accommodation should be a priority.  Dr Beech is not an accommodation agent;  nor am I.  But it is apparent that for this respondent, like so many others in his predicament, long-term accommodation in the Precinct is unhelpful to the respondent and unhelpful to other people who are in that Precinct.
  9. [9]
    So I am persuaded, and the Crown does not argue to the contrary, that adequate protection of the community can be ensured by the terms of the existing supervision order.  The respondent has discharged the onus under section 22.  And the Court’s expectation is that the advice and wisdom of Dr Beech and others will be recognised.  Ms Maloney helpfully directed me to the affidavit of Ms Monson about matters that need to be attended to.  Unless these matters are progressed, it seems – I will not say inevitable – but likely that the respondent will encounter further problems and undergo psychological reversals.  And there is a risk, if he does so, he will, again, given his fragile psychology and past problems with illicit drugs, resort to illicit drugs to self-medicate.  That would be in no-one’s interests. 
  10. [10]
    I will make a supervision order in the terms of the draft order which has been submitted and which I signed.
Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Smith

  • Shortened Case Name:

    Attorney-General v Smith

  • MNC:

    [2021] QSC 357

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    04 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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