Attorney-General v Bennett[2021] QSC 48

SUPREME COURT OF QUEENSLAND

1. [1]
   William Henry Bennett has been the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) since 9 November 2015.  The Attorney-General alleges that Mr Bennett has contravened the terms of the supervision order and seeks orders against him pursuant to s 22 of the DPSOA.
2. [2]
   On 9 March 2021, I made the following orders:

“THE COURT being satisfied to the requisite standard that the respondent, William Henry Bennett, has contravened the requirements of the supervision order made by Justice Dalton on 9 November 2015 and as amended by Justice Boddice on 29 August 2016, Chief Justice Holmes on 26 March 2018 and Justice Ryan on 30 September 2019, ORDERS THAT:

1. The respondent, William Henry Bennett, be released from custody and continues to be subject to the supervision order made by Justice Dalton on 9 November 2015 and as amended by Justice Boddice on 29 August 2016, Chief Justice Holmes on 26 March 2018 and Justice Ryan on 30 September 2019.

2. The applicant arrange for copies of the reports prepared by Dr Josephine Sundin, dated 1 March 2021 and Dr Scott Harden, dated 21 February 2021, to be provided to the respondent’s treating psychiatrist and psychologist, and any other social worker, counsellor or mental health professional involved in his treatment.”

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

History

4. [4]
   Mr Bennett was born in February 1979.  He has just turned 42 years of age.
5. [5]
   On 22 May 2020, I made orders in relation to proceedings brought against Mr Bennett for earlier contraventions of the supervision order and I published reasons for making those orders on 29 May 2020.^[1]  In those reasons, I analysed in some detail Mr Bennett’s criminal history and his history under supervision.  It is only necessary then to record those things here by way of summary.
6. [6]
   As to Mr Bennett’s criminal history:

   1. (a)
      Mr Bennett’s criminal history commenced while he was a juvenile;
   2. (b)
      there were a number of convictions for drug offences and he graduated to offences of dishonesty;
   3. (c)
      Mr Bennett served a term of imprisonment of four years from November 1997 for a series of offences, including assaults which were of a sexual nature;
   4. (d)
      Mr Bennett was charged again in July 2000 for offences of wilfully setting fire to a building.  Those offences occurred in 1996 and 1997 before his conviction and sentence of four years’ imprisonment in November 1997.  In 2000, he was sentenced to eight years’ imprisonment^[2] but recommended for release on parole after serving 18 months;
   5. (e)
      the convictions which ultimately saw him the subject of proceedings under the DPSOA were suffered in April 2011.  He was sentenced to six years’ imprisonment for a series of offences, including assault with intent to commit rape^[3] when he attacked a woman unknown to him.
7. [7]
   As to Mr Bennett’s history under supervision:

   1. (a)
      the supervision order was, as already observed, made on 9 November 2015;
   2. (b)
      in January 2016, just over two months after his release, Mr Bennett was arrested as he had ingested cannabis in contravention of the supervision order.  The contravention was found to be proved, but he was released back onto the supervision order (as amended) on 29 August 2016;
   3. (c)
      Mr Bennett was arrested again in March 2017, about six months after being released on 29 August 2016.  On this occasion, he had unlawfully removed his monitoring device.  He was sentenced to 12 months’ imprisonment for an offence against s 43AA(2) of the DPSOA.  He was then released back on supervision on 26 March 2018;
   4. (d)
      about two months after being released, he breached the supervision order again.  On this occasion, he had ingested buprenorphine and also accessed websites promoting violent non-consensual sexual activity.  The breaches were proved.  He was released back onto the supervision order in December 2018;
   5. (e)
      in early April 2019 (about four months after being released), he tested positive to methamphetamine and amphetamine and was against arrested.  He was released on 1 October 2019;
   6. (f)
      on 9 December 2019 (about two months after being released for the previous breach), he tested positive to methamphetamine and buprenorphine and was again taken back into custody.  He was released back onto the supervision order on 10 June 2020.^[4]
8. [8]
   Originally, the supervision order was made for a period of five years and was due to expire on 17 November 2020.  By force of ss 23 and 24 of the DPSOA and by force of an order made on 30 September 2019, the supervision order now expires on 17 November 2024.

The current contravention

9. [9]
   Mr Bennett was arrested on 12 November 2020, some five months after being released on 10 June 2020.  This is his sixth contravention of the order since it was first made against him on 9 November 2015.  As the history detailed above shows, he has actually spent very little time in the community subject to the order.
10. [10]
    The particulars of the current contravention appear in the application filed by the Attorney-General seeking orders under the DPSOA in these terms:

“The Present Contravention

7. On 12 November 2020, Patricia Dennis, the Acting Principal Adviser with the High Risk Offender Management Unit within Queensland Corrective Services, made a complaint to a Magistrate alleging that the respondent has contravened requirement (25) of the supervision order, namely ‘abstain from the consumption of alcohol and illicit drugs for the duration of this order’.

8. On 10 June 2020, the day on which he was released by an order made by Davis J,^[5] a reasonable direction was issued to the respondent requiring that he abstain from the consumption of alcohol and illicit drugs.

9. On 10 November 2020, at the third attempt, the respondent provided a urine sample that presumptively tested positive for the presence of buprenorphine. That sample was confirmed to be positive for the presence of buprenorphine, at a level of 6 nanograms (the accepted cut off is 2 nanograms). Ms Dennis deposes that the respondent also returned positive results for buprenorphine on 21 October 2020 (at a level of 35 nanograms) and 27 October 2020 (at a level of 4 nanograms).

10. Ms Dennis deposes that, prior to contravention proceedings being initiated, the respondent was provided with opportunities to address his substance use through ongoing treatment in the community with a forensic psychologist and a psychiatrist specialising in addiction. Ms Dennis notes that, whilst in the community, the respondent has also attended counselling programs at Drug Arm since 12 October 2020 and Narcotics Anonymous since 22 October 2020.

11. On 12 November 2020, a warrant was signed by a Magistrate pursuant to Section 20 of the Act, and the respondent appeared in Court having been arrested on that warrant.

12. The respondent has been detained in custody since that time, a period of about four months.

13. On 27 November 2020, the respondent pleaded guilty in the Brisbane Magistrates Court to one offence against Section 43AA of the Act. The particulars of that offence mirror the contravention alleged in this instance. The respondent was convicted and sentenced to two months imprisonment, wholly suspended for eight months.”

11. [11]
    Mr Bennett admits the current contraventions and on 27 November 2020 he pleaded guilty to offences of contravening the order.^[6]  The particulars of those offences are the same as the particulars of the contraventions alleged against him.

The medical evidence

12. [12]
    Forensic psychiatrists, Drs Scott Harden and Josephine Sundin interviewed Mr Bennett and provided reports for the purposes of the current proceedings.  Mr Nick Smith is a psychologist who has been treating Mr Bennett.  Dr Gregory Apel is a psychiatrist who specialises in drug and alcohol addiction.  He has been treating Mr Bennett.  Both Mr Smith and Dr Apel also provided reports.
13. [13]
    Dr Harden diagnosed Mr Bennett in these terms:

“Personality disorder, severe, mixed type (predominantly borderline with antisocial, dependent and avoidant elements).

Polysubstance abuse.

Possible paraphilia associated with coercive sexual contact with female strangers.”

14. [14]
    Dr Sundin’s diagnoses was similar:

• “Cluster B Personality Disorder, primarily borderline and anti-social traits, moderate to severe intensity

• Substance Use Disorder (amphetamines and heroin); not in remission Sexual Sadism”

15. [15]
    The three psychiatrists (Drs Harden, Sundin and Apel) and Mr Smith all opined that various circumstances and stressors experienced by Mr Bennett in the community led to him resorting back to drug use, although encouragingly not to methamphetamine. 
16. [16]
    While in the community, Mr Bennett had been attempting to address his substance abuse problems.  He had regular contact with Mr Smith and Dr Apel.  He was engaged in a Drug Arm 12 week program and had contact with Narcotics Anonymous.  He had struck up a friendship with a woman who was involved in the Drug Arm treatment group and he hoped to see that friendship develop but the woman terminated the relationship.  He also had arguments with his family.
17. [17]
    Dr Apel described “the decompensation” of Mr Bennett in these terms:

“Part C: The Decompensation

Mr Bennett essentially fell to pieces over the last four weeks in November, with relapse into Suboxone use. I note at the time he was asking for help from myself but was clearly cautious about this, not wanting to prejudice his prospects of release after so many years.

The issues going on at the time were firstly his contact with his sister was disrupted for a number of weeks, and then when she regained contact she was asking for money from him. He indicated this pattern had occurred before and reflected a return to methamphetamine use in his sister. He previously maintained to me that she was now 50 years old and fully abstinent.

The second issue at the time was his progress and completion of the High Intensity Alcohol Program run by Drug Arm at Ipswich. Such programs are, by their nature, quite challenging and stressful.

The third issue is that with his release he was regularly travelling to Ipswich and had fallen into conversation with a woman attending this program on the train. He clearly read much more into this relationship than she had. This raised the spectre of re-offending.

As such, we have had a relapse into drug use as has happened previously. I note in the precinct housing, there is exposure to others using Suboxone and opportunity to do so. These factors are omnipresent. The factors that were different are the increased stressors in his life. I think the foremost of this was his imminent release from the prison system. I think he was quite excited and anxious about this, and the state of anxiety and arousal I think has always been previously associated with drug and alcohol use. This is about his childhood abuse but that he had been able to do that. He said that just prior to being reincarcerated ‘I just got a sponsor with NA (Narcotics Anonymous)’.”

18. [18]
    As to risk, Dr Harden opined:

“It is clear that there are two major drivers of sexual offence risk in this man and they are his very severe personality pathology with marked emotional instability and a stereotyped template which I suspect represents deviant sexual arousal associated with sexual assault on an adult female stranger in a public or semi-public environment. The offending is also associated with intoxication particularly with amphetamines.

He had a significant pre-existing criminal history of break and enters and associated arson to conceal the crime (on his account).

He came from a dysfunctional early environment with a father who was a violent alcoholic and his father was very physically abusive leading to significant physical injuries. He left the home environment at an early age and had no stable environment from about 10 years of age.

He moved into polysubstance abuse and criminal behaviour from an early age. He has had difficulty forming and sustaining close relationships and has a marked sensitivity to perceived rejection.

He has previously coped poorly with release on a supervision order with recurrent breaches as documented. His treating psychologist correctly identifies that he suffers from difficulties with emotional regulation and problem-solving and becomes easily frustrated in the community with subsequent use of substances as a dysfunctional coping strategy. This seems to be improving slowly with time although he has again relapsed into substance use, however, he has avoided use of amphetamines and instead used an opiate which he was previously prescribed in an opiate replacement program.”

19. [19]
    Dr Sundin’s opinion as to risk is:

“Mr Bennett is a 42-year-old man with a significant history of sexual and non-sexual offending leading to lengthy periods of incarceration as an adult. He appears to have been out of gaol for less than 2 years as an adult. He is very institutionalised. He has viewed prison as a safe haven in the past. He has repeatedly breached community supervision.

He has been involved in opportunistic sexual offences, with intoxication at the time of offending a relevant risk factor. Amphetamines are a significant risk factor for this man. The index offence occurred after many hours of retaliatory fantasies when Mr Bennett acted out his anger at a vulnerable victim. Mr Bennett was in a heightened emotional state of anger and felt out of control when the index offence occurred. Over time, there was an escalation in the severity of his offences. As recently as 2018 he was engaging with violent pornography.

He has been repeatedly deceptive about his use of illicit substances and accessing of prescribed medications via other prisoners. He has been deceptive in his disclosures to case managers. He has not been honest in his disclosures to his treating clinicians. He continues to externalise responsibility but to a slightly lesser degree than in the past.

He has relied on illicit substances to modulate his mood. He has made some effort at internalising the strategies for emotional self-regulation taught to him by Nick Smith and did better at calming down after the angry outburst at his case manager over the Ms A issue. He apologised the next day.

He continues to struggle with emotional self-regulation, impatience and avoidant coping. He experiences feelings of personal inadequacy, genital inadequacy and sexuality fluidity/identity diffusion. He idealised the relationship with Ms A and reacted poorly when she severed ties.

I consider that Mr Bennett represents an unmodified moderate to high risk for future sexual offending.

Future victims are likely to be post-pubescent female strangers with the offence occurring either in an unplanned manner or as an act of retaliation at a time when Mr Bennett has regressed, and his behaviour is disinhibited by the consumption of licit or illicit substances, particularly alcohol or amphetamines.

There is a risk that a future victim who was less capable of self-defence could be the subject of a completed rape and/or would be at risk for physical violence.

The risk for future offending is heightened by relapse into abuse of mood-altering substances, emotional regression, fractured intimate relationships, feeling vulnerable and insecure and seeking a return to gaol as a safe place.

I consider that Mr Bennett represents an unmodified moderate to high risk for future sexual offending. I consider that a supervision order has reduced his risk, but I will not feel confident that there is any enduring reduction of his risk profile while he continues to abuse mood altering substances and is deceptive about his abuse and cravings.

I am pleased that Dr Apel now considers Mr Bennett suitable for the Suboxone programme, but strongly urge that he be placed on the depot suboxone programme rather than any oral replacement version given the level of his past deceptiveness regarding illicit drug use and drug diversion.

Mr Bennett should re-engage with Drug Arm and continue to attend NA. He should continue to see Mr Smith and Dr Apel. He should repeat the SOMP on the community.

I therefore respectfully recommend that Mr Bennett can be released under a supervision order into the community.”

20. [20]
    Mr Smith reported that Mr Bennett attended 16 sessions with him between June 2020 and his return to custody in November.  He concluded:

“Mr Bennett has struggled during previous periods in the community, both in Townsville and at Wacol. While he has previously attributed this to a lack of community support, it also appears that coping skill deficits have also played a role, regardless of his location. As a result he has now destabilised on five occasions and used substances. Mr Bennett continues to present with an ongoing risk of rapid deterioration, as a result of poor adaptive-coping and emotional-regulation skills, as well as the difficulty in structuring intervention to build his capacities sufficiently before a destabilisation occurs.

However, it is important to note that Mr Bennett’s most recent treatment episode was longer than previously, and he successfully engaged with a wider range of supports and treatment providers. He has shown a capacity to learn from past experiences, although the pace of growth and positive change continues to be gradual.”

21. [21]
    Dr Apel’s recommendations were as follows:

“Hopefully he will have the opportunity to return to precinct housing again and I would suggest a more drawn out process with more increased graded exposure to civilian life outside of prison environment. I think with practice and time he will become a little more desensitised and have less sexualised first impressions upon meeting women, but only time and practice will improve this.

A second question is whether he would have done better being on maintenance Suboxone. I think in hindsight the answer to this is yes, that his drug dependency is of a gravity and lifelong duration that an abstinent life is not a practical option in this man. Any stressors that arise will be linked to relapse into drug use in this fellow. I think we have had a decent try at doing a drug-free approach, with William’s full cooperation, but I think this is seen to be a failure and the next time round, I think a fairly decent dose of maintenance Suboxone would be worthwhile. Methadone would be a fair alternative because it allows meaningful drug screens as Suboxone is his drug of choice.

A third issue is I think he needs further community drug treatment programs to attend. This is both to get him used to the subject, but also just to generally increase his exposure to stressful psychological matters in the community context.

I think with hindsight, I would see Nick Smith’s role as critical in matters and in some ways more critical to the story than my own. Should the opportunity arise, I would be very happy to catch up with William again and see him on a regular basis.”

Statutory context

22. [22]
    Here, the contraventions are admitted.  Section 22 of the DPSOA governs the orders which may be made in those circumstances.  Section 22 provides, relevantly, 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).

2. (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. …

7. (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.

8. (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]
    By s 22(7), the onus falls upon Mr Bennett to demonstrate “that the adequate protection of the community can, despite the contravention … be ensured by a supervision order …”.  Section 13 of the DPSOA is a pivotal section in the Act.  It is the one which empowers the court to make either a supervision order or a continuing detention order against a prisoner.  The notion of “adequate protection of the community” appears in s 13.  Section 13 is, relevantly, 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).

2. (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. …

5. (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).

6. (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.

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

24. [24]
    The effect of s 13 is:

    1. (a)
       the court must consider whether the prisoner is a “serious danger to the community in the absence of a Division 3 order”;^[7]
    2. (b)
       a prisoner is a “serious danger to the community” where there is an unacceptable risk that the prisoner will commit a “serious sexual offence” in the absence of an order;^[8]
    3. (c)
       a “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence …”;^[9]
    4. (d)
       orders under Division 3 are:

       1. a continuing detention order;^[10]
       2. a supervision order;^[11]
    5. (e)
       if there is a finding that the prisoner is a serious danger to the community in the absence of a Division 3 order, then the court may:

       1. make no order;
       2. make a continuing detention order;
       3. make a supervision order;^[12]
    6. (f)
       in determining what, if any order to make, “the paramount consideration is to be the need to ensure adequate protection of the community” from the commission by the prisoner of a “serious sexual offence”;^[13]
    7. (g)
       if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;^[14]
    8. (h)
       if the adequate protection of the community can be ensured by a supervision order, then supervision ought to be preferred to the making of a continuing detention order.^[15]
25. [25]
    In context, the onus which is cast upon Mr Bennett by s 22(7) is to prove that despite the contravention, adequate protection of the community against the commission by the respondent of an offence of a sexual nature involving violence can be provided by the supervision order if he is released.
26. [26]
    It can be seen that the aim of the DPSOA is to provide adequate protection of the community from the commission by the respondent of a “serious sexual offence”.  It is not to protect the community from offending generally or sexual offending generally, but only offending in a particular way, namely by the commission of “a serious sexual offence”.  While Mr Bennett has breached the supervision order now on six occasions, the only relevance of his persistent breaching is the extent to which that is relevant to the statutorily prescribed tests, namely the assessment of risk of the commission of a “serious sexual offence”.^[16]
27. [27]
    I find that the contravention is proved.  That finding is inevitable given that Mr Bennett admits the contravention.
28. [28]
    I accept the evidence of the three psychiatrists and Mr Smith.  The Attorney-General, properly and sensibly, also accepts that evidence and accepts that Mr Bennett has discharged the onus cast upon him under s 22(7) of the DPSOA, namely that the adequate protection of the community can be ensured by his release on supervision.
29. [29]
    The concession by the Attorney-General is clearly a proper one because:

    1. (a)
       while Mr Bennett has breached the terms of the supervision order, he has not committed a serious sexual offence while on supervision.  He has not committed any sexual offence of any kind;
    2. (b)
       the breaching of the supervision order on now six occasions is explained (but not excused) by Mr Bennett’s personality disorder and substance abuse disorder which lead him to resort to illicit substances when under emotional pressure;
    3. (c)
       the psychiatric evidence which I accept, is to the effect that the supervision order reduces the risk of Mr Bennett committing a serious sexual offence to acceptable, manageable levels.
30. [30]
    For those reasons I made the orders which I did.