Attorney-General v Currie[2024] QSC 188

SUPREME COURT OF QUEENSLAND

1. [1]
   The Attorney-General has brought an application against Joel George Currie for breach of conditions of a supervision order made under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA).  The result of such an application may be either the recission of the existing order and the making of a continuing detention order or, alternatively, release of the prisoner back on the supervision order but amended if necessary.
2. [2]
   The breaches which are alleged by the Attorney-General against Mr Currie are of conditions 6 and 11 of the supervision order made by me on 23 December 2022 and amended by Justice Muir on 1 May 2024.  At the time of the breaches, Mr Currie was living in the area known as “The Precinct”. 
3. [3]
   Provisions 6 and 11 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 (a) where you allowed to live; and (b) rehabilitation, care or treatment programs; and (c) using drugs and alcohol; and (d) who you may or may not have contact with; and (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…

(11)    You must live at a place approved by a Corrective Services officer.  You must obey any rules that are made about people who live there.

4. [4]
   Part of the process of induction of a prisoner onto a supervision order is the explanation of the order and then the giving of directions.  A direction was given pursuant to condition 6 to Mr Currie that he must remain contactable at all times.  The rules of The Precinct were that Mr Currie was not to be in a house at The Precinct which was not his residence.  They are the rules referred to in condition 11.
5. [5]
   The breaches consisted of Mr Currie not answering his mobile telephone.  Therefore, he was not contactable.  That constituted the breach of condition 6.  Mr Currie was found at another person’s house at The Precinct.  That constituted a breach of condition 11.  The breach of condition 11 did not involve any animosity between Mr Currie and the resident of that particular house.  The breach was not constituted by him causing any disruption. 
6. [6]
   Mr Currie admitted both breaches.  There were two other breaches alleged, but they were not pressed, and an amended application was filed formally abandoning them.
7. [7]
   The jurisdiction of the Court to deal with breaches of supervision orders is vested by s 22.  That is the jurisdiction which the Attorney-General seeks to engage.  Sections 22(1) and (2) provide as follows:

“22  Court may make further order

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. 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. if the existing order is a supervision order, rescind it and make a continuing detention order; or
   2. 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.”

8. [8]
   In s 22(2), there is reference to subsection (7).  It is unnecessary to set out subsection (7), suffice to say that it empowers the Court to amend the existing order to ensure adequate protection of the community or for the prisoner’s rehabilitation or care or treatment.
9. [9]
   Here, the breaches are proved.  Therefore, the onus falls upon Mr Currie under s 22(2) to convince the Court that despite the contravention, adequate protection of the community can be ensured by release under the supervision order, amended if necessary pursuant to s 22(7). 
10. [10]
    The concept of “adequate protection of the community” in s 22 has the same meaning as under s 13.  It is well established that these concepts in ss 13 and 22 are the same.  The DPSOA does not establish a general scheme of preventative detention against all offending.  It establishes a preventative detention and monitoring scheme against the commission of a “serious sexual offence” as that term is defined in the schedule, being the dictionary to the Act.
11. [11]
    Here, Mr Currie did not breach the supervision order by the commission of a serious sexual offence.  However, evidence was given by experienced forensic psychiatrists, Dr Aboud, Dr Harden and Dr Phillips.  All doctors identified significant personality disorders in Mr Currie and a polysubstance abuse disorder.  As explained by Dr Aboud, the various conditions are related.  A person suffering personality disorders is more likely to suffer a polysubstance abuse disorder.  A person suffering a polysubstance abuse disorder when active is likely to take substances which will then reduce inhibitions and lead to the offender acting anti-socially and criminally consistently with the personality disorder. 
12. [12]
    Mr Currie has a long history under the DPSOA, although it has been some 20 years since he offended sexually.  All psychiatrists opine that Mr Currie’s risk is acceptable provided he comply with the terms of the supervision order.  I accept that evidence.
13. [13]
    Compliance has been difficult given Mr Currie’s personality disorders. The psychiatrists opined that Mr Currie requires a lengthy period of psychotherapy with an experienced forensic psychologist in order to properly manage his personality disorder.  That is, in effect, the way in which Mr Currie will comply with the supervision order and progress and rehabilitate.  Psychotherapy with an experienced forensic psychologist has been problematic for Mr Currie in the past.  He has had access to such a health professional and has been unable to establish a proper clinical relationship.  Ironically, this is largely because of his personality disorder, which leads him to be distrustful and problematic as a patient.
14. [14]
    Unfortunately, experienced forensic psychologists with the knowledge and experience in order to properly treat and assist Mr Currie are thin on the ground.  However, a psychologist, Dr Brooks, has been identified.  It seems common ground that he is a properly experienced forensic psychologist who ought to be able to assist in the rehabilitation of Mr Currie.  He is a resident of New Zealand.  However, the sessions can be conducted by video-link.
15. [15]
    There are current provisions in the supervision order which concern Mr Currie obtaining treatment.  They are conditions 34 to 36.  They are in these terms:

“(34)  You must obey any direction a Corrective Services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor. 

(35) You must obey any direction a Corrective Services officer gives you about participating in any treatment or rehabilitation program. 

(36) You must let Corrective Services officers get information about you from any treatment or from any rehabilitation program.”

16. [16]
    It can be seen that those conditions very much rely upon the judgment of Corrective Services officers.  Under condition 34, it is Corrective Services officers who must decide to give a direction to Mr Currie.  Under conditions 35 and 36, the Corrective Services officers have powers, but that, of course, is conditional upon the direction being given, and to a point accepted, under condition 34 in the first place.
17. [17]
    One of the great ironies of Mr Currie’s condition, as explained by the psychiatrists, is that in one sense, he needs to have structure so that there is a lack of scope for Mr Currie to become embroiled in arguments about who can do what and when, and what he has to do and when.  On the other hand, the condition itself leads to Mr Currie being distrustful and at times belligerent towards those who are attempting to direct and help him.
18. [18]
    It seems to me that while conditions 34, 35 and 36 ought to remain in the supervision order, a further condition ought to be imposed.  This I will call condition “36A”, and it is in these terms:

“(36A) You must engage with psychologist Dr Brooks in therapeutic counselling sessions at such times and frequency as Dr Brooks shall, from time to time, prescribe in writing to QCS.”

19. [19]
    Mr Currie has already signed an authority to Dr Brooks, and that has been posted to QCS.  It should be with them by 4 pm on Thursday the 15^th of August, and I will explain the significance of that time and date soon.
20. [20]
    The new condition, 36A, is in very precise terms. It identifies the particular psychologist who Mr Currie is to seek counselling from. It empowers Dr Brooks to identify the times of the counselling sessions and the frequency. Although, obviously, the therapy sessions will have to be organised by QCS and facilitated by them, much of the management is being taken from QCS and given to Dr Brooks. That ought not to be taken as a criticism by me of QCS. However, QCS is a party who, to say the least, does not hold Mr Currie’s trust. Removing them from the direct management of his psychological treatment ought to assist.
21. [21]
    An issue has arisen about medicinal cannabis. Mr Currie believes that he needs to take cannabis in order to assist with conditions that he considers he suffers from such as anxiety. Medicinal cannabis is now available. None of the doctors, and by doctors I mean the psychiatrists, are convinced that Mr Currie has any need to take cannabis, be it medicinal or otherwise. They all say that the proper approach is for Mr Currie to be properly assessed, his particular conditions and needs to be identified and then a treatment regime be instigated. That may involve the prescription of medicinal cannabis or it may not. The question at the moment is not whether or not Mr Currie needs cannabis. The questions at the moment are what are Mr Currie’s conditions, what are the treatments for those conditions, what are the best treatment options for those conditions and finally does that mean that there should be a clinical assessment that he be prescribed cannabis.
22. [22]
    Cannabis contains tetrahydrocannabinol. That is the active ingredient in cannabis which has an intoxicating effect. Some medicinal cannabis contains tetrahydrocannabinol; some does not. The psychiatrists opine that tetrahydrocannabinol is problematic. That frankly appears to me to be fairly obvious and easily accepted. Mr Currie suffers from polysubstance abuse disorder. It is an easy inference to draw that the administration, whether by an illicit substance or a prescribed one, of tetrahydrocannabinol to a person with polysubstance abuse, is problematic.
23. [23]
    Evidence was heard that the QCS test for cannabis consumption by testing for tetrahydrocannabinol. It was said that if the medicinal cannabis contains tetrahydrocannabinol, then it will be impossible to determine by testing whether Mr Currie has ingested illicitly obtained cannabis or whether he has ingested medicinal cannabis. Even if the medicinal cannabis which was prescribed to Mr Currie, if in fact it were ever prescribed, contains tetrahydrocannabinol, I have great difficulties in accepting the evidence that was given.
24. [24]
    It is common knowledge that it is not only possible to test for the presence of tetrahydrocannabinol in one’s blood or urine, but it is also possible to quantify it, even having regard to the fact that tetrahydrocannabinol, like most substances, passes through the body over time. I just do not accept that it would not be possible to determine whether Mr Currie had ingested a prescription amount of tetrahydrocannabinol or something else. In any event, medicinal cannabis or some medicinal cannabis, as I have observed, does not contain tetrahydrocannabinol.
25. [25]
    During the hearing of the application, I proposed an amendment to condition 28 of the supervision order. Condition 28 specifically concerns cannabis. Conditions 26 and 27 are also relevant. They are:

“(26)  You are not allowed to take (for example, swallow, eat, inject or sniff) any alcohol. You are also not allowed to have with you or be in control of any alcohol. 

(27) 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.

(28) You are not allowed to take (for example, swallow, eat, vape, smoke or sniff) non-prescribed cannabis in any form. You are not allowed to take medicinal cannabis unless prescribed by a specialist medical practitioner in consultation with QCS. Before making any assessment allowing you to take medicinal cannabis, the specialist medical practitioner is to be provided with the reports of Dr Aboud dated 16 April 2024 and Dr Harden dated 30 January 2024 (which you consent to).”

26. [26]
    It was argued on Mr Currie’s behalf two things in relation to that proposed amendment. The proposed amendment to condition 28 is as follows: 

“(28)  You are not allowed to possess, take (for example, swallow, eat, vape, smoke or sniff) non-prescribed cannabis in any form.  You are not allowed to take medicinal cannabis unless prescribed by a specialist medical practitioner in consultation with QCS and then not prescription cannabis which contains tetrahydrocannabinol.^[1] Before making any assessment allowing you to take medicinal cannabis, the specialist medical practitioner is to be provided with the reports of Dr Aboud dated 17 July and 7 August 2024, Dr Harden dated 15 July and 6 August 2024 and Dr Phillips, 9 July and 7 August 2024”.^[2]

27. [27]
    The difference between the existing condition 28 and that proposed is that the specialist medical practitioner is effectively not authorised to prescribe to Mr Currie any medicinal cannabis which contains tetrahydrocannabinol.
28. [28]
    Mr Currie’s counsel, Ms Thorsen, made submissions against the amendment. She advanced two reasons why the amendment was either unnecessary or inappropriate. The first is that there is no current breach which alleges the ingestion of cannabis, be it prescription cannabis or otherwise. Secondly, she submitted that it was a matter for the specialist medical practitioner to determine the species of medicinal cannabis that should be administered to Mr Currie.
29. [29]
    Those submissions are rejected. The fact is that Mr Currie presently suffers from polysubstance abuse disorder. As was made clear by the psychiatrists, especially Dr Aboud, intoxication raises risk given Mr Currie’s personality disorder in particular. Therefore, the ingestion of an intoxicating substance such as tetrahydrocannabinol should be avoided. True that a specialist medical practitioner will have much greater expertise than I would in determining what species of medicinal cannabis ought to be administered to Mr Currie. However, there is a complete dearth of evidence at the moment as to whether it is appropriate to prescribe Mr Currie medicinal cannabis of any species whether it contains tetrahydrocannabinol or otherwise.
30. [30]
    As I have already explained, the doctors have opined that before any such decision could be made, it would be necessary for a specialist to properly examine the conditions from which Mr Currie is suffering which may be relevant to the prescription of cannabis. Ms Thorsen’s point that the specialist doctor who’s prescribing cannabis may wish to prescribe cannabis which contains tetrahydrocannabinol and that might be in Mr Currie’s interest, is answered, in my view, by ss 18 and 19 of the DPSOA. Section 18 provides:

“18  Application for amendment

1.  An application under this division must be made by–

1.  a prisoner released under a supervision order or interim supervision order (released prisoner); or

2.  the chief executive with the Attorney-General’s consent.”

31. [31]
    There is no need to refer to ss 18(2) and (3).  Section 19 then provides:

“19  Amendment of requirements of supervision order or interim supervision order

1. The Court may, on application, amend the requirements of a supervision order or interim supervision order if the court is satisfied that– 
   1. the released prisoner is not able to comply with the requirements of the order because of a change in the released prisoner’s circumstances; or
   2. an amendment of the requirements is necessary or desirable for any other reason.”

32. [32]
    It is unnecessary to set out ss 19(3) and (4).  While satisfaction that an amendment is necessary may be difficult, it is not a high bar to fulfil the precondition that amendment is desirable.^[3]  It may be “desirable” for “any other reason”. Without, of course, deciding the point, not having seen any evidence which may emerge on the topic, one can say with some justification that if there was strong medical evidence in favour of the administration of medicinal cannabis containing tetrahydrocannabinol, Mr Currie may be in a good position to prove that an amendment was desirable. The amendment to condition 28 should be made.
33. [33]
    Now, turning then to the statutory test in s 22, I find the breaches as proved. They are admitted by Mr Currie. I find that Mr Currie has satisfied the onus cast upon him by s 22(2). I find that with the amendment to condition 28 and the addition of condition 36A, the adequate protection of the community can, despite the contraventions of the supervision order, be ensured by the order as amended. They will be the orders.
34. [34]
    It is presently after 5 pm. Tomorrow is a public holiday. It is, in my view, important, given that Mr Currie is now, by force of these orders, to be released back on a supervision order, that there is proper opportunity for QCS to induct Mr Currie back on the supervision order.
35. [35]
    Therefore, I order that Mr Currie be released back on the supervision order as amended no later than 4 pm on Thursday, the 15^th of August 2024.