Attorney-General v Possum[2021] QSC 47

SUPREME COURT OF QUEENSLAND

1. [1]
   Danrick Dale William Possum is the subject of a supervision order made on 22 October 2018 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA).  The duration of the order was 10 years.  The Attorney-General alleges that Mr Possum has contravened the order and seeks further orders pursuant to s 22 of the DPSOA.
2. [2]
   On 12 March 2021, I made the following orders.

“THE COURT, being satisfied to the requisite standard that the respondent, Danrick Dale William Possum, has contravened a requirement of the supervision order made by Bowskill J on 22 October 2018, ORDERS THAT:

1. The respondent, Danrick Dale William Possum, be released from custody on 10 March 2021 and continues to be subject to the supervision order made by Bowskill J on 22 October 2018.”

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

Background

4. [4]
   Mr Possum is an indigenous man born on 22 May 1995.  He is now 25 years of age.
5. [5]
   Mr Possum’s early life is described in some detail by Bowskill J when making the supervision order against him.^[1]  It is unnecessary to repeat that history save to record a passage from her Honour’s judgment which refers to a psychiatrist’s report which her Honour thought summarised the situation.  Her Honour said this:

“[10] As Dr Moyle^[2] says in his supplementary report dated 18 October 2018, at page 3, the documented history in relation to Mr Possum:

‘… paints the picture of a young man who was subject to profound degrees of neglect of his needs, pain, suffering, medical ill health, and failing to thrive that would impair the formation of a meaningful attachment to his fellow human beings. That alone would lead to the absence of empathetic concern for others and impulse driven behaviour unrestrained by normal moral reasoning and inhibitions. Foetal alcohol syndrome probably predisposed him to having difficulties in behaviour and cognition, including intellect, from the start, even before neglect in childhood. This beginning to life is well known to cause significant damage to brain development and, in particular, the connections between the frontal lobe and the other lobes through the white matter circuits. This often leads to impulsive behaviours, poorly considered actions, when the impulse that occurs in some part of the brain is not modified by the front part of the brain using reason and calming of arousal. This seems to have been the pattern of Mr Possum’s childhood, exacerbated or brought out when using substances.’”

6. [6]
   At 14 years of age, Mr Possum’s criminal history commenced with convictions for common assault, drug possession and offences of dishonesty.  Also from the age of 14, he began committing offences against girls and women which psychiatrists later considered had sexual overtones. 
7. [7]
   The convictions which led ultimately to orders made under the DPSOA occurred in July 2016.  On that occasion, Mr Possum was convicted of a number of offences in varying types, including deprivation of liberty and rape.  Bowskill J described that offending as follows:

“[16] It is the convictions of deprivation of liberty and attempted rape on 8 May 2015 which have resulted in Mr Possum being the subject of this application. The victim was an eight year old girl, a cousin of Mr Possum’s who lived at Kowanyama. The victim was playing with friends inside a house when she was approached by Mr Possum. It was at night, and one of the children had turned the lights off. He grabbed her and took her into another bedroom and closed and locked the door. The child was struggling to break free from his grip and started to scream for help. He placed a hand over her mouth to stop her. Mr Possum then removed his shorts and exposed his genitals to the child. Adults who were at the house came to help and tried to get into the room. Mr Possum then released the child, unlocked the door, and the child ran away. The defendant was arrested that night. The following afternoon, he participated in an interview and told police he had consumed a large quantity of alcohol prior to the events. He made extensive admissions to police, including saying to police that he wanted to have sex with the child and if he had not been disturbed by others, he would have gone further, taking both their clothes off, and as he apparently said, ‘put my wiggly in her hole’. He was also recorded as telling police he had sexual urges on a daily basis and was unable to control these urges on this occasion, as he had consumed too much alcohol. (See the affidavit of Mr Fuller at pages 364-5, the police brief and 371-2 of the schedule of facts on sentence.)”^[3]

8. [8]
   Of some significance, Mr Possum was intoxicated when he offended against his very young cousin. 
9. [9]
   Mr Possum did not obtain parole and an application was made under the DPSOA.  For the purposes of that application, forensic psychiatrists, Drs Moyle, Beech and Arthur examined Mr Possum.
10. [10]
    Mr Possum’s assessment was difficult.  Not only does Mr Possum suffer from foetal alcohol syndrome but he also suffered a head injury.  Dr Moyle’s diagnoses were as follows:

“● Chronic Psychosis (possibly organic);

● Probable Foetal Alcohol Organic Brain Syndrome (with cognitive impairment);

● Marked Antisocial Personality Disorder and significant Psychopathic Traits;

● Alcohol, Marijuana and Tobacco Dependency; and

● Limited survival skills outside of a structured environment.”

11. [11]
    While in prison, Mr Possum undertook sexual offender treatment programs and received other treatment.  The psychiatric opinion before Bowskill J was to the effect that the adequate protection of the community could be ensured by Mr Possum’s release on supervision.  He was released on 22 October 2018.
12. [12]
    In May 2020, about six months after being released, Mr Possum breached requirement 23 of the supervision order which prohibited him from consuming illicit substances and alcohol.  On that occasion, he had consumed alcohol and recorded a blood alcohol reading of .229 per cent. 
13. [13]
    The consumption of alcohol was a matter of some concern given that Mr Possum was intoxicated when he committed the index offences.  However, those proceedings resulted in Mr Possum being released back onto the supervision order on 21 June 2020. 

The current contravention

14. [14]
    It is alleged that Mr Possum again breached requirement 23 of the supervision order in that he consumed alcohol.  The breach was further complicated by the fact that whilst intoxicated he became involved in an altercation with other men who were also subject to supervision orders and living at the Townsville contingency accommodation.
15. [15]
    The particulars of the contravention as alleged in the application brought by the Attorney-General are as follows:

“On 19 December 2020, QCS Surveillance Officers received information that the respondent was at the Townsville contingency accommodation, under the influence of alcohol and engaging in physical altercation with another person subject to a supervision order. Queensland Police Services (‘QPS’) and Queensland Ambulance Services (‘QAS’) were contacted and directed to attend the contingency accommodation.

When QCS and QPS attended the contingency accommodation, the respondent was observed to have lacerations and swelling to his face.

In accordance with requirement 24 of his supervision order, the respondent was directed to supply a sample of his breath. The respondent complied with the direction but did not admit to drinking alcohol. At 6:15pm, the respondent returned a positive breath test at a level of 0.163% BAC.

QPS arrested the respondent and charged him with contravening a requirement of his supervision order pursuant to s 43AA of the Act.

The respondent is in contravention of requirement 23 of his supervision order, namely not consume or take any illicit drugs for the direction of this order.

On 19 December 2020 a s. 20 warrant was sought and executed on the respondent.”

16. [16]
    As a result of the contravention, Mr Possum was charged with two counts under s 43AA of the DPSOA.^[4]  One charge concerned the consumption of alcohol on 19 December 2020 which resulted in his return to custody.  He pleaded guilty to that charge on 21 December 2020 and was sentenced to three months’ imprisonment wholly suspended for an operational period of 12 months.  The second offence arose from an incident on 6 November 2020.  Mr Possum had supplied a small amount of cannabis to another person subject to a supervision order.  An argument ensued and that resulted in violence.  That constituted a breach of the supervision order.  On 9 March 2021, he pleaded guilty to that offence.  He was sentenced but not required to spend more time in custody.
17. [17]
    Mr Possum admits the contraventions.
18. [18]
    Dr Arthur interviewed Mr Possum by teleconference on 11 February 2021 at the Townsville Correctional Centre.
19. [19]
    Dr Arthur, in his latest report, confirmed the diagnoses of Mr Possum of chronic paranoid schizophrenia (currently in remission), foetal alcohol syndrome (associated with a mild intellectual disability), polysubstance abuse (predominantly alcohol and cannabis, currently in remission in a controlled environment) and anti-social personality disorder.  Dr Arthur assessed risk over a number of considerations, namely:

“Propensity to reoffend

Based on both static and dynamic risk factors, Prisoner Possum’s unmodified risk of sexual recidivism remains high. While he has not committed a further sexual offence during his time in the community, the majority of his dynamic risk factors remain salient.

Despite being provided with significant interpersonal and psychological support, he continues to utilise previous maladaptive coping strategies. His use of alcohol has been associated with physical violence. Whilst he does not report sexual preoccupation, I note that he has contravened conditions of his supervision order by accessing social media sites with the intention of meeting women for sex. He continues to display limited self-awareness, minimises his future risk of offending and displays a lack of appreciation for his risk factors.

Pattern of offending

Prisoner Possum has displayed a pattern of impulsive/opportunistic sexual offending in the context of extreme intoxication, negative emotional states and increased sexual preoccupation. He has used physical coercion.

Attempt to change

Prisoner Possum continues to engage in individual therapy although this has strongly been focused on his substance use. In more recent times he has rejected drug and alcohol counselling.

Effects of treatment programs

It is my impression that prisoner Possum has gained at most modest benefit from treatment thus far. He appears to have retained little information from his sessions with Ms Richards. Whilst it appears the frequency of his substance use has reduced since his last return to custody, he now reports significant cravings for cannabis and abused alcohol twice during his last period in the community. By his own report, he has struggled to apply any new coping strategies and has developed little self-awareness or insight into the nature of his sexual offending or relevant risk factors.”

20. [20]
    Dr Arthur ultimately summarised his opinions on risk in these terms:

“[116] Based on the above factors, I maintain the opinion that prisoner Possum’s unmodified risk of sexual recidivism remains high or in the ‘well above average’ range.

[117] The drivers for future sexual offending include sex as coping and experiencing intense sexual urges whilst intoxicated. He is likely to continue to seek out casual sexual encounters and may struggle to form meaningful relationships due to attachment difficulties, social isolation, intellectual impairment and possibly the effects of his psychotic illness. When faced with feelings of loneliness, rejection or grief, he will return to his main coping strategy of substance use. Alcohol may act as a disinhibitor and increase the intensity of sexual desire.

[118] Factors that would indicate an acute escalation in risk would include evidence of increased sexual preoccupation, a return to substance abuse (particularly alcohol), the presence of negative emotional states such as grief, loss or rejection and possibly a worsening of his psychotic illness.

[119] Even with NDIS funded supports and psychosocial interventions, he has been unable to maintain abstinence from substances, develop prosocial networks or engage in meaningful daytime activities. He continues to overestimate his capacity to live independently and his long term goals of returning to Kowanyama are fraught with potential difficulties. I note that his treating Psychologist has expressed concerns about his capacity to cope with family-related stressors.”

21. [21]
    Dr Arthur’s opinion that Mr Possum’s current unmodified risk of future serious sexual offending remains “well above average” must be viewed against his other expressed opinion, namely that Mr Possum’s risk of sexual recidivism can be managed safely in the community under the supervision order.  The supervision order is operating as designed to identify risk behaviour (such as alcohol consumption) before risk of sexual offending escalates.

Consideration

22. [22]
    Section 22 of the DPSOA provides, relevantly, as follows:

“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).”

23. [23]
    The contravention of the supervision order is admitted by Mr Possum and I find it as proved.  Therefore, the onus falls upon Mr Possum under s 22(7) to prove that, notwithstanding the contravention, the adequate protection of the community can be ensured by his release upon supervision.
24. [24]
    The Attorney-General concedes that Mr Possum has satisfied that onus.
25. [25]
    The concession is properly made.  Mr Possum’s medical circumstances are complicated and are clearly relevant to the risk of reoffending.  However, he has obtained some treatment and is obtaining more.  The supervision order has operated and will operate as tight control over him and I accept Dr Arthur’s evidence that escalation of risk will be detected through the constraints of the supervision order.
26. [26]
    I accept Dr Arthur’s opinion that Mr Possum can be managed in the community under the control of the supervision order.
27. [27]
    For those reasons, I made the orders which I did.