Attorney-General v Kitchener[2021] QSC 37

SUPREME COURT OF QUEENSLAND

1. [1]
   William Lucas Kitchener is the subject of a supervision made order by Byrne SJA on 13 January 2014 pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).  The Attorney-General alleges contraventions of the supervision order and seeks orders consequent upon those contraventions.
2. [2]
   On 12 February 2021, I ordered:

“THE COURT, being satisfied to the requisite standard that the respondent has contravened requirement 21 of the supervision order made by Justice Byrne on 13 January 2014, and as later amended (‘the supervision order’) ORDERS THAT:

1. Under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and continue to be subject to the requirements of the supervision order.”

3. [3]
   These are my reasons for those orders.

Background

4. [4]
   On 16 November 2020, I published reasons for orders made in relation to a contravention of the supervision order by Mr Kitchener in June 2020^[1] (the earlier judgment).
5. [5]
   In the earlier judgment, I detailed Mr Kitchener’s criminal history and his history while on supervision.  It is therefore only necessary here to give a brief summary:

   1. (a)
      Mr Kitchener is an indigenous man born on 16 April 1983.  He now 37 years of age.
   2. (b)
      Upon his conviction for a series of offences committed in February 2003, Mr Kitchener was sentenced to 11 years imprisonment.  Those offences included rape.  Of some significance, Mr Kitchener was under the influence of intoxicants when he offended.
   3. (c)
      On 13 January 2014, after Mr Kitchener was unsuccessful in his parole applications, the supervision order was made.
   4. (d)
      The supervision order contained, relevantly, two conditions, namely that Mr Kitchener:

“(5) comply with a curfew or monitoring direction;

21. (21)
    abstain from the consumption of alcohol and illicit drugs for the duration of this order;”

5. (e)
   Before the current proceedings, Mr Kitchener had contravened the supervision order and had been the subject of contravention proceedings on five occasions:

   1. 1 December 2015:  breach of condition (21);
   2. 6 October 2016:  breach of condition (21);
   3. 15 May 2018:  breach of condition (21);
   4. 14 February 2019:  breach of both conditions (5) and (21); and
   5. 25 June 2020:  breach of both conditions (5) and (21).
6. (f)
   On each occasion, the breaches were proved but Mr Kitchener was released back onto the supervision order.  On some occasions the supervision order was amended.
7. (g)
   As a result of the June 2020 contraventions, Mr Kitchener was detained.  He was released on 30 October 2020 pursuant to ss 21(4) and (6) of the DPSOA before the contravention proceedings were finalised.  On 6 November 2020, final orders were made that he continue to be subject to the supervision order.^[2]

The current contravention

6. [6]
   The particulars of the current contravention are:

“Since his release on 6 November 2020, the respondent has tested positive to cannabis on five occasions. Confirmatory reports received indicate the respondent tested positive to cannabis on the following dates: 29 November 2020 at a level of 51ug/L (cannabis cut off level is l5ug/L), 5 December 2020 at a level of 73ug/L, 10 December 2020 at a level of 127ug/L and 15 December 2020 at a level of 27ug/L. Notably, the respondent provided a clean urine sample on 21 December 2020.

The most recent positive urinalysis result relates to 11 January 2021. The respondent provided a urine sample for testing. The sample was presumptive positive to cannabis. The sample was sealed and sent for confirmatory testing. The respondent made no admissions to cannabis use during the test. When questioned later that day by his Senior Case Manager, the respondent disclosed cannabis use on 9 January 2021. During the phone call, he became hostile, yelled at his Senior Case Manager and indicated the positive result was the fault of QCS^[3] for ‘telling me what to do’.

On 14 January 2021, a confirmatory report was received detecting cannabis at a level of 31ug/L. This urinalysis result indicates new cannabis use since 21 December 2020.”

7. [7]
   Similarly to the five previous contraventions, the Attorney-General alleges breaches of requirement (21) of the supervision order, although here, unlike on other occasions, there is no breach of requirement (5).
8. [8]
   The contraventions are admitted by Mr Kitchener.

Statutory context

9. [9]
   Section 13 of the DPSOA empowers the court to make either a supervision order or a continuing detention order upon the application of the Attorney-General.  Section 13 is, relevantly, in these terms:

“13 Division 3 orders

3. (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).

3. (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

2. (b)
   if the prisoner is released from custody without a supervision order being made.

3. (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

2. (b)
   to a high degree of probability;

that the evidence is of sufficient weight to justify the decision….

3. (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

2. (b)
   that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).

3. (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

2. (b)
   the court must consider whether—

1. (i)
   adequate protection of the community can be reasonably and practicably managed by a supervision order; and

2. (ii)
   requirements under section 16 can be reasonably and practicably managed by corrective services officers.

3. (7)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

10. [10]
    A “serious sexual offence” is, relevantly here “an offence of a sexual nature … involving violence”.^[4]  Section 13 orders may be made where there is a “unacceptable risk that the prisoner will commit a serious sexual offence” if released without an order.  Section 13(5) empowers the court to make either a supervision order or a continuing detention order.  However, a supervision order may only be made if supervision will “ensure adequate protection of the community”.  Protection in that sense does not mean protection from all offending or all sexual offending, but protection from the commission of a “serious sexual offence”.
11. [11]
    If the protection of the community can be ensured by the making of a supervision order, then the making of a supervision order should be preferred to the making of a continuing detention order.^[5]
12. [12]
    Upon contravention of the supervision order, a warrant for the arrest of a person on supervision may issue.^[6]  The return of the warrant vests jurisdiction in the court to make orders under s 22 although, as a matter of practice, an application seeking specific orders is filed by the Attorney-General.^[7]
13. [13]
    Section 22 is, relevantly here, in these terms:

“22 Court may make further order

3. (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).

3. (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

2. (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. …

3. (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

2. (b)
   may otherwise amend the existing order in a way the court considers appropriate—

1. (i)
   to ensure adequate protection of the community; or

2. (ii)
   for the prisoner’s rehabilitation or care or treatment.

3. (8)
   The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”

14. [14]
    By s 22(7), the onus falls upon the prisoner to prove that the adequate protection of the community can be ensured by his release on supervision.  Those concepts bear the same meaning as they do in s 13.^[8]

Psychiatric evidence

15. [15]
    Experienced forensic psychiatrist, Dr Josephine Sundin, examined Mr Kitchener’s history and the details of the current contraventions and prepared a risk assessment report for the purposes of the current proceedings.  She did not examine Mr Kitchener as she did not consider it necessary to do so.  She has examined him on previous occasions and has provided earlier reports.
16. [16]
    On previous occasions, Dr Sundin has diagnosed Mr Kitchener as suffering anti-social personality disorder and substance use disorder.  That diagnosis has not changed.
17. [17]
    As to risk, Dr Sundin says in her most recent report:

“It can be hypothesised that during this very brief period of time in the community (two months) that over the course of the first month that Mr Kitchener was increasingly troubled and struggling with life in the community and began acting out through use of cannabis, non-compliance with supervision requirements and increasingly hostile and aggressive behaviour towards case management staff. It is congruent with his personality disorder that he displaced responsibility for his difficulties onto supervising staff, rather than acknowledge his own poor-problem solving skills and take responsibility for the consequences of his actions.”

And later:

“I have previously opined that a rising risk for sexual recidivism would be flagged by patterns of emotional dysregulation, disrupted intimate partner relationships, verbal hostility to women (including female case management staff) and reversion to use of intoxicants. These risk flagging behaviours were evident in Mr Kitchener’s behaviour in December 2020. In my opinion, QCS have acted appropriately by seeking to have Mr Kitchener returned to custody.”

And later:

“Previous risk assessments of Mr Kitchener have indicated that his unmodified risk for sexual re-offending remains moderate to high and that the presence of a supervision order reduces that risk to moderate or moderate to low.

These assessments remain current and valid.

He is not at imminent risk for sexual offending if released under a supervision order. In the short to medium term, it is likely that he will continue to breach the existing supervision order through use of cannabis or non-compliance with curfews and movement directions.

The order is serving its designated purpose in identifying/continuing rising risks for sexual recidivism.

Critical in managing that risk has been the requirement to ensure Mr Kitchener’s abstinence from the use of intoxicants and to decrease his reliance upon use of such substances to manage negative emotional states.

Mr Kitchener’s behaviour in the community is congruent with his significant personality disorder and reflects his continued anti-authoritarian attitudes, perception of self as a victim of the system, poor problem-solving skills, general impulsivity and lack of appropriate alternative prosocial coping strategies to rely-upon in the face of difficulties.”

And later:

“I therefore respectfully recommend to the Court that he can be released back into the community under the existing supervision order.” (emphasis added)

18. [18]
    The Attorney-General conceded that Mr Kitchener had discharged the onus under s 22(7) and ought to be released back onto the supervision order.  In my view, that concession was properly made.
19. [19]
    Mr Kitchener has been on supervision for over seven years, although he has spent significant periods in custody consequent upon breaches of the order.  He has not though committed any sexual offences.
20. [20]
    The pattern of Mr Kitchener’s performance on supervision is, to say the least, frustrating.  When released, he consumes prohibited intoxicants, is returned to custody and then released back onto the supervision order because, despite the contraventions, he has not posed an unacceptable risk.  The point of the supervision order is to reduce and manage that risk against the commission by the person supervised of a serious sexual offence.  The supervision order ought not contain unnecessary conditions.  In Mr Kitchener’s case, there is a temptation to form the view that the prohibition upon the consumption of alcohol and drugs is unnecessary.  That is because, notwithstanding the regular breach of those conditions, he is invariably found to be an acceptable risk and released back onto the order.
21. [21]
    However, I accept Dr Sundin’s evidence.  She opines that Mr Kitchener’s risk is related to emotional dysregulation which is in turn related to, or manifests in, the use of intoxicants.  Therefore, notwithstanding Mr Kitchener’s pattern of performance on supervision, the prohibition upon ingestion of intoxicants is an important aspect of the management of risk.
22. [22]
    I find the contraventions established.  That finding is inevitable given that Mr Kitchener admitted the contraventions.
23. [23]
    I find that the adequate protection of the community against the commission by Mr Kitchener of a serious sexual offence can be ensured by his release back on the supervision order.
24. [24]
    There is no evidence suggesting that any amendments to the order are necessary.
25. [25]
    For those reasons, I made the orders which I did.