Attorney-General v Berndt[2022] QSC 192

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HINDMAN J

No 11642 of 2021

ATTORNEY GENERAL FOR

THE STATE OF QUEENSLAND Applicant

and

DANIEL MARK BERNDT Respondent

BRISBANE

10.08 AM, MONDAY, 25 JULY 2022

JUDGMENT

HER HONOUR: The respondent is presently held in custody under an interim detention order made pursuant to section 9A of the Dangerous Prisoners (Sexual Offenders) Act 2003. The Attorney-General has applied for orders against the respondent under section 13 of that Act. That application is presently not resisted by the respondent.

It is not necessary for me to set out in any detail the elements of the statutory scheme except to note that the objects of the legislation are set out in section 3, that a section 8 preliminary hearing occurred on the 22^nd of October 2021, and that the section that I particularly need to be concerned with today is section 13 of the Act.

As a consequence of the preliminary hearing, reports have been obtained supplementary to those already produced by the Attorney-General on the preliminary hearing.

In terms of the history of the respondent relevant to this application for final orders, focusing on his previous offences of a sexual nature, that offending commenced in February 1981, when the respondent was aged 14, at which time he indecently assaulted a girl aged 16 years at a showground by pushing her to the ground on three occasions, removing her underpants and rubbing her vagina. That offence does not appear on the respondent’s criminal history, given he was a juvenile at the time.

The second offending occurred in March 1984, when the respondent, then aged 17, assaulted a female aged 16 years in circumstances of aggravation due to her being under 17 years of age, when he walked past and pinched her on the breast. He did not know the victim. She was standing in a yard of a residence with some friends when the respondent was walking past on the footpath outside.

The third offending occurred in February 2002. At that time, the respondent was aged 36. He was caring for an 11 year old child after her grandmother fell ill and was admitted to hospital. The respondent was a family friend. The circumstances of the offending were that the respondent slid his hand up the child’s leg to upper thigh while she was watching television. The respondent admitted to kissing and cuddling the child and touching her buttocks at times.

The fourth offending occurred in May 2003. The respondent was then aged 37. He was staying as a guest in the spare room of a woman who was confined to a wheelchair. The woman was aged 48. The respondent decided to have sex with the woman. He woke her up, dragged her into the lounge room, partially undressed her, digitally penetrated her and attempted penile penetration however was unable to obtain an erection.

The fifth offending occurred in October 2008. Whilst the offending was resolved with a plea of guilty to manslaughter, it involves a sexual element in that on the 4^th of October 2008, the respondent, then aged 45, was at Musgrave Park with a victim and others. Both respondent and the victim were itinerants. The respondent was seen lying on top of the victim. It appears that they had sex, the respondent said consensually. Witnesses saw the victim with blood on her chest and with injuries to her face. She was distressed and asking for help. Those witnesses did not assist. Police were later advised that the victim was deceased under a blanket in a park. A post-mortem revealed two stab wounds. The respondent was interviewed by police. He described a brief but consensual sexual encounter followed by the victim pulling out a knife and throwing it at him. He threw it back at her, and, ultimately, he stabbed her in the chest, resulting in her death.

That leads then to the index offences, which occurred in June 2017. The index offences are two counts of enter dwelling with intent by break at night, use or threaten violence; one count of enter dwelling with intent by break at night; one count of assault occasioning bodily harm; and one count of sexual assault. The circumstances were that the respondent and the victim were living in the same supported accommodation. She had asked for some assistance carrying some boxes to her room. It appears that the respondent took the key from the door to her room at that time. He then proceeded back to her room on three occasions.

On the first occasion, he opened the door with the key that had been taken. The victim fought the respondent off, and the respondent told her that he would be back. Sure enough, about 20 minutes later, the respondent did return. The victim fought him off again, kicking at the respondent. The respondent put his hands over her mouth so that she could not breathe and then sexually assaulted her by squeezing her left breast. Again, he told the victim that he would be back. She called the police at that stage, but, again, the respondent came in. She attempted to stop him coming into the room by pushing herself up against the door and, when the door was slightly opened by him, stabbing at him with some scissors. She suffered scratches and bruises to her face, neck, breast and thighs as well as cuts inside her mouth. It was obviously serious that the respondent put hands around her throat such that he left marks.

In the sentencing remarks, whilst it was noted that the sexual assault was of a relatively minor nature, what was scary about the circumstances was that the respondent kept coming back.

The respondent is presently 56 years old. His sentence of imprisonment for the index offences concludes in December last year. There is no dispute that the index offences I have described are sufficient to found the jurisdiction to make the orders that are sought today.

Turning then to the medical evidence. There is medical evidence available from three psychiatrists.

Dr Sundin’s report was prepared on instructions from Crown Law when the application was originally made. What Dr Sundin, in summary, concludes is that there is a history of escalation in the sexual offending, particularly subsequent to a serious head injury suffered by the respondent in 1998. It is said that prior to that, he had two sexual offences in 1981 and 1984, but from 2002 onwards, he has a significant offending history, with indecent assault of a child, rape, attempted rape, an assault with intent to rape and, most recently, a sexual assault accompanied by an assault occasioning bodily harm in December 2015. The index offences are noted as being quite prolonged and associated with a serious level of physical violence and threats.

In terms of the respondent’s impairment, Dr Sundin notes that he has significant cognitive impairments that have interfered with his capacity to accept and recognise that he does have difficulties with behavioural dysregulation and adverse consequences from consumption of alcohol. He has not understood the necessity of participating and rehabilitation programs, perceiving that he had capacity to do the full time and be released without the need to participate in such programs. Various interviewers have commented on his general reduced comprehension and his difficulties in retaining information.

Dr Sundin has diagnosed the respondent as suffering from intellectual development disorder of a moderate nature; probable comorbid neurocognitive disorder secondary to acquired brain injury; alcohol use disorder, although in sustained remission whilst in a controlled environment; and antisocial personality traits. Dr Sundin has assessed the respondent using risk assessment tools for the purposes of predicting the risk of further sexual misconduct. He has scored such that he is placed at well above average risk of a category of reoffending, that he is at the high-risk category for sexual recidivism and that it was a high unmodified risk for future sexual misconduct. On the question of risk, Dr Sundin suggests as follows:

Taking his account globally, he is an individual who I consider represents an unacceptable unmodified risk to the community for future sexual violence. His risk will be escalated in the presence of intoxicants. He is at risk for impulsive sexual violence. I am not confident that a supervision order would adequately contain the risk he poses, given the level of impulsiveness evident in his history.

Dr Sundin goes on to suggest that:

In the first instance, I would respectfully recommend to the committee that Mr Berndt is an individual who should be detained in prison for treatment, specifically for participation in the Getting Started preparatory program and Inclusion sexual offenders program and possibly the low-intensity substance intervention program. When he is ultimately released to a supervision order, I respectfully recommend that the order be for a period of 10 years, given that many of the risk factors underpinning his potential for sexual recidivism are chronic and unlikely to change over time.

Dr Timmins is a consultant psychiatrist who provided a report in response to the orders made at the preliminary hearing. Dr Timmins diagnoses the respondent as suffering from antisocial personality traits, if not a disorder; substance abuse disorder, mainly alcohol but in sustained remission in controlled environment; and a neurodevelopmental disorder with a full-scale IQ of between 58 to 66, which falls within the moderate range of impairment.

Dr Timmins also carried out assessment on a number of risk assessment tools in respect of sexual misconduct, placing the respondent at the high or well-above-average risk category.

In respect of the question of risk, Dr Timmins’ opinion is consistent with that of Dr Sundin. I highlight these aspects:

He has used violence during the sexual offending and is likely to have also been intoxicated with at least alcohol. There is evidence of psychological manipulation in his offending, but he is more likely to use frank violence to ensure he gets his sexual needs met rather than psychologically manipulate his victim. His sexual offending is likely to be driven by the combination of low intellect, poor problem-solving and decision-making, antisocial personality structure, difficulties with emotional and sexual regulation and intoxication with substances.

He has very poor insight into his offending pathway and no understanding of risk mitigation to protect the communication or himself from reoffending. I am not confident that Mr Berndt’s risk of sexual reoffending will be significantly modified by a community supervision order under the Dangerous Prisoners (Sex Offender) Act 2003. He would be unlikely to be able to contribute in many ways to mitigate his risk, given his poor insight into its pathway to sexual offending. He may very well not fully comply with an order.

The third doctor is Dr Brown, who again provided a report in response to the orders made at the preliminary hearing. Dr Brown diagnoses the respondent as suffering from mild intellectual disability further complicated by an acquired brain injury, antisocial personality disorder and substance use disorder, both alcohol and cannabis. Again, Dr Brown assessed the respondent using risk assessment tools and in respect of the risk of sexual misconduct again scored the respondent at a level of high or well above average. Several risk factors for sexual violence were also identified.

On the question of risk, Dr Brown’s report or opinion is again consistent with that of the other two doctors, concluding that the unmodified risk of sexual and violent offending is high, that risk factors include the past offending, the respondent’s low IQ, his substance use disorder and his failure to complete or benefit from sexual offender treatment. Dr Brown notes that offending by the respondent may be impulsive or planned and may involve strangers or those known to him. Offending may include indecent assault, digital or penile rape and physical assault and coercion.

Dr Brown has indicated that the respondent has significant support needs in the community and will require a 24-hour supported male-only environment, that he will require assistance with activities of daily living, financial management and the establishment of a prosocial routine without use of substances. Dr Brown’s ultimate view is that the respondent’s risks cannot be safely managed in the community at this time.

Other evidence has been put before the Court on behalf of the respondent. In particular, there is a functional capacity assessment report, which concludes that the respondent requires one-on-one assistance from a support worker at all times when accessing the community, that he requires complete assistance with his instrumental activities of daily living and that the support that would be required is for up to 11 hours per day. Two different types of housing options are identified: private rental with an individualised living option under the NDIS or, in the alternative, shared accommodation with a minimum staff to tenant ratio of one to four.

The question that I need to address first is does the respondent present a serious danger to the community in the absence of a division 3 order. It is, of course, a matter of judgment as to whether a level of risk in any particular case is unacceptable. Psychiatrists on these applications are often asked to give opinions about that statutory test, and some of them have done so here. The ultimate question, though, of whether the test has been fulfilled is one for the Court. But I accept the evidence of the psychiatrists, and I intend to act upon that evidence. Here, the respondent has been diagnosed by all three psychiatrists as having conditions which mean that the assessment of the respondent’s risks of violently sexually offending without supervision is high.

I think it is particularly important that there does not seem to be a particular type of sexual offending and that the risks to women known to the respondent, not known to the respondent, of all different ages and abilities seems high. As I said, I accept the evidence of the psychiatrist, which I regard as cogent and powerful. I am satisfied to a high degree of probability that the respondent is an unacceptable risk of committing serious sexual offences if released without a division 3 order.

The question then is what order should be made. Once the finding under section 13(1) of the Act is made, the discretion arises to either make a continuing detention order or to make a supervision order or to make no order. Having found that the respondent is an unacceptable risk of committing a serious sexual offence in the absence of a division 3 order, I cannot see any basis upon which I would exercise the discretion in favour of making no order.

In determining whether to make a continuing detention order or supervision order, I must consider section 13(6) of the Act, which requires me to have regard to the adequate protection of the community as the paramount consideration and to consider whether that protection can be reasonably and practically managed by a supervision order. Further, I am to consider whether the mandatory requirements under section 16 of the Act can be reasonably and practically managed by Corrective Services officers.

If I am satisfied that adequate protection of the community can be ensured by a supervision order, then I should order the respondent’s release on supervision rather than order his continued detention.

The difficulty here is that it seems to me, presently, to be twofold. The first is that, effectively, the respondent currently seems to be an untreated sexual offender because at the moment he appears to have declined to participate in programs available to him. That treatment, it appears, can be better obtained in custody at the present time.

The second matter, which seems to me to the point needing to make a continuing detention order, is that the type of accommodation needs that the respondent has in the community can presently not be catered for. It does appear that he requires that 24-hour supervision in a male-only environment to ensure that the risks are brought to an adequately acceptable level, and that is presently not available. Further, it seems that the level of support that would be required from the NDIS to release the respondent into the community under a supervision order, whilst it looks like he would have some level of funding, it is not sufficiently at a level that would adequately address the risks that would be present if the respondent was released.

I am assured by counsel appearing for both parties that that part of the matter will remain under review so that if the circumstances change such that the two issues I have identified, but particularly the accommodation issue can be resolved, that the matter can be brought back before the Court for further consideration at that time.

Accordingly, I am not satisfied that adequate protection of the community can be ensured by the release of the respondent on supervision. The respondent is an unacceptable risk of committing a serious sexual offence unless he is detained. I have reached these conclusions to a high degree of probability on the evidence that I have identified, which I regard as cogent. In the circumstances, I propose to order that the respondent be detained in custody for an indefinite term for control, care or treatment.

I make orders in terms of the draft initialled by me and placed with the papers.

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