Attorney-General v GFC[2024] QSC 185

SUPREME COURT OF QUEENSLAND

1. [1]
   GFC is the subject of a supervision order made by Applegarth J on 1 December 2023^[1] pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). The Attorney-General alleged that GFC contravened the supervision order, and she sought further orders pursuant to s 22 of the DPSOA.
2. [2]
   On 6 August 2024, I made the following order:

“The Court, being satisfied to the requisite standard that the respondent GFC has contravened a requirement of the supervision order made by Applegarth J on 1 December 2023, orders that:

1. The respondent GFC be released from custody and continues to be subject to the supervision order made by Applegarth J on 1 December 2023.”

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

Background

4. [4]
   GFC was born on 15 December 1978. He is now 45 years of age.
5. [5]
   GFC has a substantial criminal history both in Queensland and Victoria. He has been convicted on numerous occasions of offences of dishonesty but has also been convicted of numerous sexual offences.
6. [6]
   The offences which ultimately brough GFC within the ambit of the DPSOA were three counts of indecent treatment of a child, one count of sexual assault and one count of choking, suffocation and strangulation. He pleaded guilty to these offences in the District Court at Roma on 8 May 2020 and was sentenced to terms of imprisonment. His full-time release date was 8 December 2023.
7. [7]
   The counts of indecent treatment were historical. They dated back to the mid 1990’s. The children were aged then between 7 and 13.
8. [8]
   The count of sexual assault and the count of choking, suffocation and strangulation were committed on 24 January 2019 against a women with whom GFC had been in an intimate relationship. He broke into her house and attacked her.
9. [9]
   An application was made pursuant to s 5 of the DPSOA. In due course, the preliminary hearing was conducted,^[2] and GFC was psychiatrically examined.
10. [10]
    The Attorney-General’s application was heard by Applegarth J. His Honour summarised the examining psychiatrist’s opinions as follows, before going into greater detail which, for present purposes is unnecessary:

3. “[56]
   The examining psychiatrists have offered the following diagnoses of the respondent:

Dr Arthur

• Psychopathy;
• Mild Intellectual Disability;
• Antisocial Personality Disorder; and
• Substance Use Disorder (mainly amphetamines and opiates) in remission in prison.

Dr Phillips

• Mild Intellectual Disability;
• Stimulant And Opiate Use Disorder (in remission in a controlled environment);
• Previous Drug Induced Psychosis (currently in remission);
• Post Traumatic Stress Disorder (PTSD);
• Antisocial Personality Traits; and
• Psychopathic Traits (in the clinically significant range).

Dr McVie

• Borderline intellectual functioning;
• Substance abuse;
• Personality disorder with psychopathy;

Risk assessments

1. [57]
   Dr Arthur’s report described the respondent’s unmodified risk of sexual reoffending as “moderately high” or “above average”.

1. [58]
   Dr Phillips assessed the respondent’s risk as being high.

1. [59]
   Dr McVie also undertook a risk assessment based both on actuarial and structured clinical assessments. She concluded that he presented as “a high risk of reoffending with sexual violence if released without a supervision order. He would also present a high risk of general criminal reoffending”.”^[3]

11. [11]
    As already observed, Applegarth J on 1 December 2023 ordered that GFC be released on a supervision order. Relevantly, the supervision order contained the following provisions:

1. “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

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

1. (c)
   using drugs and alcohol; and

1. (d)
   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.

1. 7)
   You must answer and tell the truth if a Corrective Services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.

1. 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.

1. 38)
   You must also tell a Corrective Services officer the name of new persons you have met.

This includes people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly.”

12. [12]
    On 23 January 2024, GFC was arrested on a warrant issued pursuant to s 20 of the DPSOA. An order was made under s 21 detaining him in custody until determination of the breach proceedings. The following contraventions of the supervision order were alleged:

“Since his release from custody on 8 December 2023, the respondent has consistently provided false information to QCS about numerous Wacol Precinct residents and false information about himself, and has demanded to be relocated from his house on numerous occasions due to experiencing issues with multiple residents. He commenced the Suboxone program and received daily Suboxone strips, until commencing weekly injections in mid- January 2024.

The respondent commenced National Disability Insurance Scheme (NDIS)-supported community outings in mid-January 2024 and immediately sought to have the NDIS support worker transport him to unapproved locations.

The respondent has demonstrated a pattern of attending hospital via the Queensland Ambulance Service (QAS) on multiple occasions since his release. As at 23 January 2024, the respondent has admitted himself to the Princess Alexander Hospital (PAH) six times. On most occasions, the respondent discharges himself against medical advice and is returned to the Wacol Precinct. QCS undertook disclosure of specific information relating to the respondent with PAH staff during each of his admissions.

Most recently, the respondent contacted the QAS on 19 January 2024 in relation to shortness of breath and chest pains.

During his hospital stays, the respondent was directed to only leave the hospital a maximum of three times per day for cigarette breaks, given he remained subject to stringent curfew requirements (requirement 14).

Between 19 and 22 January 2024, the respondent breached his curfew on multiple occasions each day by leaving the hospital and going outside, over and above his three designated cigarette breaks. In response to enquiry by QCS, the respondent often denied being outside and at times became argumentative and hostile with QCS staff, for example on 20 January 2024 by yelling “I am walking back to my room now, I’m walking down the fucking hallway, can’t I get some fucking exercise” and 21 January 2024 “What is it a fucking crime to go get water” and “they only got cold water by the lift, watch the cameras if you don’t believe me.”

The respondent has a significant funding package with the NDIS and since his release from custody, significant communication has occurred between QCS, NDIS and the allocated service provider Care and Concern in order to have appropriate NDIS staff, supported by appropriate procedures, commence supporting the respondent in the community. The NDIS commenced this support on 15 January 2024.

Information was received by the respondent’s NDIS support company “Care and Concern” via email on 20 January 2024 stating the respondent had had in person contact on two occasions with a female NDIS client of theirs.

NDIS indicated on 19 January 2024, at approximately 2000 hours, the female requested her support worker take her to the PAH to “meet a friend”. She met with the respondent inside the ward, the respondent handed her two $50 notes, the respondent advised he wanted to have a shower, the female offered to assist him and they went in to the shower together. They then had a cigarette, kissed goodnight, the female took some of the respondent’s clothes with her to wash them at her house, and the female left the PAH with her support worker at approximately 2145 hours.

On the morning of 20 January 2024, the female rang the QAS and asked to be taken to PAH because she didn’t feel safe living at her current accommodation. She attended the PAH with her support worker and met with the respondent at approximately 0930 hours and spent time with him in his room and outside smoking.

NDIS indicated they do not know how the respondent and the female commenced and then remained in contact, noting the respondent is in possession of a QCS phone that prohibits him from making outgoing calls and sending text messages.

At no time during his multiple telephone and in person interactions with QCS staff between 19 and 22 January 2024 did the respondent disclose his association or movements with this female.

Further information was received by Care and Concern staff on 22 January 2024. It was confirmed the female in question is vulnerable, noting she has been experiencing psychotic episodes since she met with the respondent on 19 January 2024, is refusing to take her medications and has expressed numerous delusional thoughts including that the respondent is her husband. It is believed she may be a current patient of the PAH.

When questioned regarding the shower incident on 19 January 2024, Care and Concern advised the respondent initially refused the female’s help when having a shower, however she insisted, and the respondent asked her to just “wash his back”. The shower occurred with the door open, and the respondent came out of the shower and blurted out “she washed me from head to toe.^[4]

Between 20 and 21 January 2024, the respondent reportedly asked his support worker to “save him” from the female, however also mentioned he had been in contact with the female since the beginning of January.

On 22 January 2024, the respondent’s Senior Case Manager (SCM) attended the PAH as a result of the above information. Hospital staff advised they did not know if the respondent had received visitors during this admission, and noted visitors do not need to sign in. Their records indicate he was agitated his “girlfriend” couldn’t come to visit and was noted to use the hospital landline phone.

When questioned by his SCM regarding visitors, the respondent said he had been visited by his NDIS support worker and a “random girl”. When questioned further, he stated when admitted to the PAH on 19 January 2024, an unknown female asked him for a cigarette, he gave her a cigarette and that was it. He stated the female then started ringing the hospital claiming to be his girlfriend and stated she wanted to come and see him. He stated he did not see her again on 19 January 2024. He stated she visited him for approximately 20 minutes on 20 January 2024 and then he told her to leave. He stated he does not know her name, and he denied contacting her on a second phone or possessing a second phone. It was confirmed he had been stationed in a male only 4 bedroom since 19 January 2024.

The respondent was challenged one further time, by telephone on 22 January 2024. The respondent again stated he only met the female on 19 January 2024 when he gave her a cigarette and does not know her name.”

13. [13]
    GFC admitted the contraventions.

Statutory context

14. [14]
    Section 22 of the DPSOA provides, relevantly as follows:

1. “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).

1. (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

1. (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.

…

1. (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

1. (b)
   may otherwise amend the existing order in a way the court considers appropriate—

1.  to ensure adequate protection of the community; or

2.  for the prisoner’s rehabilitation or care or treatment.

8.  The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”

15. [15]
    The DPSOA establishes a scheme of preventative detention. The pivotal section is s 13 which provides that the Court shall, on the application of the Attorney-General, have jurisdiction to make orders against the prisoner if satisfied that “the prisoner is a serious danger to the community in the absence of [an] order [under section 13]”. Section 13(2) defines the notion of a “serious danger to the community” in these terms:

1. “(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.  if the prisoner is released from custody; or

2.  if the prisoner is released from custody without a supervision order being made.”

16. [16]
    The term “serious sexual offence” is defined in the dictionary to the DPSOA as:

“serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—

1.  involving violence; or

2.  against a child; or

3.  against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”

17. [17]
    The scheme under the DPSOA is not one the purpose for which is to protect the community from all criminal offending. The scheme is aimed at the prevention of a particular type of offending namely the commission of a “serious sexual offence”.^[5]
18. [18]
    By s 22(2), a prisoner against who a breach of a supervision order has been found assumes the burden of proving that “the adequate protection of the community can, despite the contravention or … of the existing order, be ensured by the existing order as amended under subsection (7)”. A failure to discharge that onus will lead to the Court rescinding the supervision order and making a continuing detention order. It is well established that the notion in s 22(2) of “the adequate protection of the community” encompasses protection from the commission by GFC of a “serious sexual offence” as that term is defined in the DPSOA.^[6]

Current psychiatric assessment

19. [19]
    For the purposes of the contravention proceedings, GFC was examined by psychiatrists Dr McVie and Dr Phillips, both of whom have enormous experience in this area.
20. [20]
    In their reports, both doctors opined that GFC presents certain management challenges for Queensland Corrective Services. They made various recommendations in relation to his treatment going forward.

The position of the parties

21. [21]
    GFC submits, in reliance upon the evidence of Dr McVie and Dr Phillips, that he has discharged the onus upon him under s 22 of the DPSOA and ought to be released back on the supervision order. The Attorney-General, having considered the evidence of the two psychiatrists concedes that GFC has discharged the onus cast upon him by s 22 of the DPSOA and ought to be released back on supervision. No variation of the supervision order was sought by the Attorney-General.

Consideration

22. [22]
    As earlier observed, GFC admits the contraventions. I formally find that the contraventions as particularised are proved.
23. [23]
    The concession by the Attorney-General that GFC has discharged the onus upon him under s 22 of the DPSOA is a concession properly made. The evidence of the psychiatrists, which I accept, leads to the conclusion that the adequate protection of the community can be ensured by releasing GFC back on the supervision order.
24. [24]
    For those reasons, I made the orders which I did.