Attorney-General v Thaiday[2022] QSC 106

SUPREME COURT OF QUEENSLAND

1. [1]
   This is a contravention proceeding by which the Attorney-General for the State of Queensland seeks orders under Part 2, Division 5, being section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 in relation to the respondent, Aloysius John Thaiday.  Under section 22, if the Court is satisfied that the released prisoner is likely to contravene, is contravening or has contravened a requirement of the supervision order, the onus of proof then passes to the respondent to satisfy the Court that the existing supervision order, despite the contravention, provides adequate protection to the community.
2. [2]
   The orders sought today are not contentious between the parties.  The parties submit that the evidence establishes that the respondent has contravened the supervision order but also that the respondent has satisfied the onus that despite the contravention, the supervision order provides adequate protection to the community.  Ultimately, it is for the Court to be satisfied of these matters and it is appropriate that these matters be considered in a bit more detail.  I will be brief.
3. [3]
   The contraventions are in relation to the requirements of paragraphs 6, 14 and 25 of the existing supervision order, which relate to the use of cannabis, alcohol and breach of curfew directions.  These are as follows:

“6.  A corrective services officer will supervise you until this order is finished.  This means you must obey any reasonable direction that a corrective services officer gives you about:

1. (a)
   where you are allowed to live; and

2. (b)
   rehabilitation, care or treatment programs; and

3. (c)
   using drugs and alcohol; and

4. (d)
   who you may have contact with; and

5. (e)
   anything else, except for instructions that mean you will break the rules in this supervision order.

A ‘reasonable direction’ is an instruction about what you must do, or what you must not do, that is reasonable in that situation.  If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it.

…

14. A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times.  This is called a curfew direction.  You must obey a curfew direction.

…

25. 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.”

4. [4]
   The original supervision order was made by Justice Applegarth on 2 September 2021 in the matter of Attorney-General for the State of Queensland v Thaiday [2021] QSC 227.
5. [5]
   The circumstances of the contraventions are that on 25 October 2021, the respondent submitted urine analysis testing with a presumptive positive and this was later confirmed to be cannabis.  On 26 November 2021, the respondent further submitted to urine analysis testing, which returned a presumptive positive and this, subsequently, was confirmed as being cannabis.  On 29 November 2021, the respondent submitted to further urine analysis testing, which returned a presumptive positive and again, further confirmatory testing confirmed the presence of cannabis.
6. [6]
   On 15 December 2021, the respondent left the High Risk Offender Management Unit in the Townsville District, where he was required to remain due to Stage 1 curfew and escorted movements.  The respondent was located in a carpark with three other males.  The Corrective Services officer approached the respondent.  He said the respondent was verbally directed to return to the office as per his curfew requirements.  The respondent became aggressive and stated he would not return.  At that stage, the Queensland Corrective Services officer departed, and Queensland Police Services were contacted.
7. [7]
   The respondent is said to have contravened condition 25 of the supervision order by consuming illicit substances and he further failed to comply with an order, being conditions 6 and 14, by failing to comply with a reasonable direction of a Queensland Corrective Services officer, and a curfew direction, by absconding.
8. [8]
   The respondent, in submissions to the Court, accepts that he contravened requirements 6, 14 and 25 of the supervision order.  Further, it is conceded that the Court would be satisfied on the balance of probabilities that the respondent has contravened the supervision order triggering the application of section 22(2) and (8) of the Dangerous Prisoners (Sexual Offenders) Act.  In these circumstances, the onus is then on the respondent to satisfy the Court that the existing supervision order, despite the contravention, provides adequate protection to the community. 
9. [9]
   In the circumstances, I am satisfied that the contravention has been made out and that the onus is thereby on the respondent.
10. [10]
    In respect of the application today, a further report has been provided by Dr Sundin.  In Dr Sundin’s opinion, adequate protection of the community can be ensured by the respondent’s release from custody on a supervision order.  In considering this view of Dr Sundin, it is necessary to consider some of the history of this matter.
11. [11]
    For the purposes of the hearing before Justice Applegarth, the respondent was examined by Dr Sundin, Dr Beech and Dr Timmins.  Their diagnoses in respect of the respondent are set out in detail in the previous reasons of Justice Applegarth.
12. [12]
    Dr Sundin examined the respondent for the purpose of these contravention proceedings and there has been no change in her diagnosis.  The respondent’s current unmodified risk of future serious sexual offending remains at high, or the well above average category.  Further, Dr Sundin is of the view that if the respondent was released back into the community on his current supervision order, the supervision order has been serving its purpose in containing the potential risk that the respondent poses to the community. 
13. [13]
    I note the comments of Dr Sundin as set out in Section C: Risk Assessment, and Section D: Advice, in her report, as follows:

“Section C: Risk Assessment

My risk of Mr Thaiday has not substantially reduced since my report of January 2021.

1 consider that Mr Thaiday continues to represent a well above average or high unmodified risk for future sexual offending.

As indicated in my earlier report, the critical factor in managing Mr Thaiday is preventing intoxication; particularly intoxication with alcohol. Alcohol intoxication has been clearly linked with his sexual offending in the past.

Section D: Advice

Whilst Mr Thaiday has been in the community for only a relatively short period of time (September - December 2021), the supervision order has been serving its purpose in containing the potential risk that Mr Thaiday poses to the community.

In particular it was able to ensure that he abstained from the use of alcohol until the day that he was returned to the Townsville Watchhouse. At that time, Mr Thaiday had contravened with cannabis on several occasions and had come into conflict with QCS staff over his associations and brief of curfew. I think it highly likely that after that interaction, Mr Thaiday understood that he would be returning to prison and went on an alcohol binge in expectation of that event.

All other alcohol testing had been negative during the three months that he was in the community.

The community records continue to show features that have been evident in Mr Thaiday’s behaviour in all past assessments.

He has an intellectual impairment, he is impulsive, becomes easily emotionally dysregulated, and is sensitive to any perceived disrespect.

The combination of his ongoing insightless attitudes of grandiosity and entitlement combined with his continuing sexual preoccupation suggest an ongoing heightened risk of sexual recidivism.

Given his self-appraisal that he is now homosexual, the risk of sexual offending has potentially transitioned from vulnerable females to vulnerable males.

There remains the potential for Mr Thaiday to become intoxicated and disinhibited with this combination leading to him seeking to coercively achieve intercourse with a man.

His risk for sexual offending against females appears to have lessened, given his expressed change in sexual orientation.

I am uncertain as to whether Mr Thaiday’s NDIS package includes supported accommodation. If this was available it would be advantageous and would remove him from the adverse and triggering interactions with precinct residents.

There would seem to be some utility in a case conference between QCS/HROMU staff the NDIS service provider prior to Mr Thaiday’s next release so that detailed plans for his activities and a clear understanding of exclusion zones is understood.

It is clear that Mr Thaiday has limited resources for coping with change. The more structured and predictable his community management can be, the better he is likely to manage.

In summary, in an individual like Mr Thaiday with an intellectual impairment, longstanding alcohol dependence, poor problem-solving skills and ongoing impulsivity; it is likely that his management in the community will remain challenging in the foreseeable future.

It is going to take time for Mr Thaiday to understand and better accept that he will be required to comply with the clauses of a supervision order.

Nonetheless, in my opinion, the supervision order is serving its purpose.

I therefore respectfully recommend to the Court that Mr Thaiday could return to the community under the auspices of the existing supervision order.”

14. [14]
    It is also relevant to the current considerations, as recognised by Justice Applegarth in the original reasons, that the respondent’s intellectual functioning provides a critical context.  Justice Applegarth, at paragraphs 72 and onwards, sets out the history and statements in respect of the respondent’s level of functioning.  I note that the January 2021 report stated that the then current cognitive testing put the respondent’s functioning at an extremely low range, equivalent to that of a nine year old child.
15. [15]
    As indicated previously, the statutory scheme provides, in section 22, that the onus passes to the respondent to satisfy the Court where a contravention has been established.  Further, the section provides that 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 may otherwise amend the existing order in a way the Court considers appropriate.  The Court could rescind the supervision order and make a continuing detention order or return the respondent to the community under the supervision order with amendments, if appropriate.
16. [16]
    The evidence before the Court from Dr Sundin is that the existing supervision order provides adequate protection of the community.  The submissions on behalf of the respondent are that on the balance of probabilities, the adequate protection of the community can, despite the contravention, be ensured by the respondent’s release.  Reliance is placed on the expert medical opinion to support such a finding.  It is also submitted that the supervision order has been effective in containing the respondent’s risk of sexual reoffending and that the order has allowed for the timely identification of risk behaviours and enabled intervention. 
17. [17]
    It is ultimately submitted that the supervision order moderates the risk and that the order is serving its purpose in containing the respondent’s risk.  It is in these circumstances that it is submitted that the evidence supports the conclusion that the community is adequately protected by the close monitoring of the respondent, as was evident in the detection of the contravention in the current circumstances.
18. [18]
    An issue has been raised in the expert opinions in respect of accommodating the respondent in contingency accommodation, given the potential for triggering interactions between the respondent and other residents.   However the expert opinion does not suggest that the adequate protection of the community cannot be achieved if the respondent was released back to the contingency accommodation.  In an ideal world, it may be preferable that alternative accommodation is investigated but this is difficult in the current circumstances, as the respondent’s NDIS funding does not currently extend to supported accommodation.
19. [19]
    The views expressed by Dr Sundin are that the supervision order is serving its purpose and while it is likely that the respondent’s management in the community will remain challenging in the foreseeable future, on balance, Dr Sundin’s opinion is that the respondent could return to the community under the existing supervision order.
20. [20]
    There is further material before the Court from Mr Walkley, who is the respondent’s treating psychologist.  Mr Walkley is happy to resume therapeutic intervention with the respondent and he believes that the necessary rapport and trust was being built between them to form the foundation for some therapeutic gains in the future.  Mr Walkley does recognise that retaining the respondent within the precinct does seem to be the only option but does recognise that this does expose him to the collective attitudes of some long-term recalcitrant individuals who may influence him in an adverse manner. 
21. [21]
    On balance, on the material before the Court, I accept Dr Sundin’s view and I am satisfied that in the circumstances, the existing supervision order, despite the contravention, provides adequate protection for the community.
22. [22]
    In the circumstances, I am satisfied that it is appropriate for the respondent to be released from custody on a supervision order on the same terms as he was previously subject to.  In the circumstances, I will make the orders in the terms of the proposed draft.