Attorney-General v Brown[2024] QSC 118

SUPREME COURT OF QUEENSLAND

1. [1]
   Troy Jimmy Charles Brown was alleged to have breached a supervision order made by Brown J on 14 June 2021, pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the DPSOA”).
2. [2]
   On 21 May 2024, I made the following order:

“The Court, being satisfied to the requisite standard that the respondent, Troy Jimmy Charles Brown, has contravened requirement 24 of the supervision order made on 14 June 2021, as amended on 24 April 2023, orders that:

3. 1.
   Pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and continue to be subject to the supervision order on 14 June 2021 as amended on 24 April 2023.”

3. [3]
   These are my reasons for making that order.

Background

4. [4]
   Mr Brown was born on 8 September 1980.  He is Indigenous.  He has a criminal history dating back to events in 1994, when he was 14 years of age.
5. [5]
   After being convicted of various offences of dishonesty, Mr Brown was convicted in July 1995 of the rape of an 86-year-old woman who was resident in a retirement village.  He was detained for a period of five years.  On 1 November 1999, Mr Brown was convicted of indecent assault.  That offence occurred on 16 July 1995, before his conviction for rape. 
6. [6]
   From 1999, Mr Brown regularly appeared in Magistrates Courts in Far North Queensland, charged mainly with offences of dishonesty and street offences.
7. [7]
   The offence which led to Mr Brown being subject to orders under the DPSOA were committed on 27 June 2002.  Mr Brown attacked a young woman who was in a public toilet cubicle.  He punched her and digitally penetrated her vagina without her consent.  At the time of the attack, Mr Brown was intoxicated by alcohol, cannabis and amphetamines.  He was sentenced to an effective head sentence of seven years’ imprisonment.  That offence of rape committed in 2002 is the last sexual offence committed by Mr Brown.
8. [8]
   An application under the DPSOA was made and on 16 June 2009, Martin J (as his Honour then was) made a continuing detention order.^[1]  That order was confirmed in 2011^[2] and 2012^[3] but on 28 April 2014, A Lyons J ordered Mr Brown to be released upon a supervision order.^[4]  The supervision order included a condition prohibiting Mr Brown from consuming illicit drugs.  Mr Brown did not comply with that condition of the supervision order and was breached in 2014, 2015, 2017, 2018 and 2019.  On each of those occasions, the breaching behaviour included the ingestion of cannabis.
9. [9]
   In 2020, Mr Brown was breached again.  Again, the breach involved the ingestion of cannabis.  Burns J rescinded the supervision order and made a continuing detention order.^[5]
10. [10]
    On 14 June 2021, Mr Brown was released on a supervision order made by Brown J.^[6]  Again, the supervision order contained a condition prohibiting Mr Brown from consuming illicit drugs.  He breached the order in 2021, 2022 and 2023.  On each occasion, the breaches involved the ingestion of substances, including cannabis. On each occasion he was released back into the community subject to the supervision order.
11. [11]
    Between 26 April 2023 and 3 September 2023, Mr Brown returned 20 positive urine analysis tests to cannabis.  A warrant issued pursuant to s 20 of the DPSOA and Mr Brown was brought before the Court on 11 September 2023.  He was remanded in custody, pending the determination of the breach proceedings.
12. [12]
    It was not in contest that Mr Brown is in breach of a requirement of the supervision order.

Psychiatric evidence

13. [13]
    Psychiatrists Dr Andrew Aboud and Dr Jane Phillips both examined and assessed Mr Brown for the purposes of the current application.
14. [14]
    Mr Brown has been examined by various psychiatrists on numerous occasions and many reports about him have been prepared since he first became subject to orders under the DPSOA.  A detailed analysis of all that evidence is not required.  The following observations suffice.
15. [15]
    Dr Aboud’s opinion was that Mr Brown’s unmodified risk of reoffending in a sexual way remains high, but that risk is reduced to below moderate when Mr Brown is subject to a supervision order.  Dr Aboud thought it likely that Mr Brown will continue to consume cannabis and thereby breach the supervision order.
16. [16]
    Dr Phillips also thought that, unsupervised, Mr Brown’s risk of serious sexual offending is high.  She considered that the supervision order will reduce that risk.  She also expressed the view that Mr Brown would continue to use cannabis.

Consideration

17. [17]
    By s 22(2) of the DPSOA, once a breach of a requirement of a supervision order is proved, the onus falls upon the prisoner to “satisfy the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention … be ensured by the existing order”.
18. [18]
    Two principles are well established.  Firstly, “the adequate protection of the community” refers to protection of the community from the commission, by the prisoner, of “a serious sexual offence”.^[7]  It is not a general protection against all offending by the prisoner.^[8]  The purpose of the DPSOA is most certainly not the regulation of cannabis consumption.  Secondly, the supervision order is not an end in itself.  A prisoner ought not remain in custody only because there is a risk of breach of the supervision order.  A prisoner remains in custody if he fails to prove that the adequate protection of the community against the commission by him of a “serious sexual offence” can be ensured by his release on supervision. ^[9]
19. [19]
    Here, the supervision order has fulfilled its purpose.  Mr Brown has not reoffended by committing any serious sexual offence.  Breaches of the order have been detected.  The medical opinion is that the supervision order reduces Mr Brown’s relevant risk, that is, of committing a serious sexual offence. The Attorney-General does not press for the recission of the supervision order and the making of a continuing detention order.
20. [20]
    Mr Brown discharged the onus cast upon him by s 22(2) of the DPSOA, so it was appropriate to order his release. 
21. [21]
    Mr Brown’s case shows weaknesses in the scheme established by the DPSOA.
22. [22]
    When a person released on a supervision order breaches a condition of that order, he may be arrested and brought before the court to face breach proceedings.^[10]  By s 21(4) of the DPSOA, the Court must order that the prisoner be held in custody unless the prisoner demonstrates that “his or her detention in custody, pending the final decision [on the breach proceedings] is not justified because exceptional circumstances exist.”^[11]
23. [23]
    That onus is often difficult for a prisoner to discharge. That is because risk is intended by the DPSOA to be assessed with the aid of expert evidence.^[12]   The psychiatrists are witnesses who are generally called by the State.  They are not witnesses to whom the prisoner has full access.  However, no discretion arises to release a prisoner unless “exceptional circumstances” are found.^[13]  Therefore, prisoners generally remain in custody, effectively on remand, pending determination of the breach proceedings. By s 43AA of the DPSOA, the breach of a supervision order is an offence which carries a term of imprisonment.  While a prisoner is awaiting finalisation of breach proceedings, they may be serving a sentence for breach of the supervision order.
24. [24]
    By ss 23 and 24 of the DPSOA, the period of the supervision order is extended by a time equivalent to the time which a prisoner spends either serving a sentence, for example for an offence against s 43AA of the DPSOA, or spends awaiting determination of breach proceedings.^[14] Therefore, breach proceedings prolong the time spent under supervision.
25. [25]
    Mr Brown was arrested in relation to the present breach on 11 September 2023.  He was released back into the community on 21 May 2024.  He has effectively served eight months imprisonment for ingesting cannabis in circumstances where that was ultimately held not to impact his suitability to continue on the supervision order.
26. [26]
    As the High Court observed in Fardon v Attorney-General for the State of Queensland,^[15] the objects of the DPSOA include the rehabilitation of the prisoner.  It is difficult to see how the rehabilitation of a prisoner is advanced when his supervision in the community is continually interrupted by significant periods of imprisonment. Mr Brown has not committed any sexual offence in the past 22 years. He has been subject to orders under the DPSOA for 15 years. He is still under supervision.
27. [27]
    Of course every case brings its own challenges, and questions arise as to the management of particular prisoners.^[16] However, those supervising prisoners like Mr Brown, should be careful to only commence breach proceedings where there is a proper basis to conclude that the breach reflects a heightening of risk to commit a serious sexual offence.  Steps should also be made to expedite breach proceedings where it is obvious that there is a likelihood that the prisoner will be released back on the supervision order.