Attorney-General v Possum[2024] QSC 29

SUPREME COURT OF QUEENSLAND

1. [1]
   The respondent, Mr Possum, is the subject of a supervision order made on 22 October 2018 pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSOA).
2. [2]
   It is common ground that Mr Possum has contravened a condition of his supervision order.
3. [3]
   The Attorney-General now applies for a further order under s 22 of the Act. That section applies if the court is satisfied, on the balance of probabilities, that a prisoner released on a supervision order is likely to contravene, is contravening, or has contravened a requirement of that order. Where the section is engaged, s 22(2) provides that the respondent must satisfy the court, on the balance of probabilities, that the adequate protection of the community can, despite the contraventions of the existing supervision order, be ensured by that existing order. If the respondent fails to do that, the court must rescind the supervision order and make a continuing detention order pursuant to s 22(2)(a).
4. [4]
   On 26 February 2024, I made the following orders:

   1. The respondent, Danrick Dale William Possum, be released from custody at 10:00 am on Tuesday 27 February 2024 and continues to be subject to the supervision order made by Bowskill J (as her Honour then was) on 22 October 2018.
   2. The supervision order made by Bowskill J (as her Honour then was) on 22 October 2018 be amended to include the following additional requirements:

5. (42)
   You are not allowed to take (for example, swallow, eat, vape, smoke or sniff) tetrahydrocannabinol (THC) in any form, prescribed or non-prescribed. You are also not allowed to have with you or be in control of any products/substances that contain tetrahydrocannabinol (THC).

3. The applicant provides to Queensland Health and the National Disability and Insurance Agency and the respondent’s treating psychiatrist and psychologist copies of the following reports:

5. a.
   of Dr Ken Arthur dated 12 January 2023, addendum report dated 12 January 2023, second addendum report dated 20 April 2023 and third addendum dated 16 November 2023; and

5. b.
   of Dr Elizabeth ‘Ness’ McVie dated 20 January 2023, addendum report dated 14 March 2023, second addendum report dated 19 April 2023, third addendum report dated 14 June 2023 and fourth addendum report dated 16 November 2023.

5. [5]
   These are my reasons for making those orders.

Background to the present application

6. [6]
   Mr Possum is an Indigenous man born on 22 May 1995. He is now 28 years of age. From the age of 14 years, he began committing offences against girls and women which psychiatrists later considered had sexual overtones.
7. [7]
   In July 2016, Mr Possum was convicted of a number of offences, including deprivation of liberty and attempted rape. The convictions in July 2016 brought Mr Possum within the provisions of the DPSOA and led to the supervision order being made by Bowskill J (as the Chief Justice then was) on 22 October 2018.^[1] Her Honour described that offending as follows:

“[16]It is the convictions of deprivation of liberty and attempted rape on 8 May 2015 which have resulted in Mr Possum being the subject of this application. The victim was an eight year old girl, a cousin of Mr Possum’s who lived at Kowanyama. The victim was playing with friends inside a house when she was approached by Mr Possum. It was at night, and one of the children had turned the lights off. He grabbed her and took her into another bedroom and closed and locked the door. The child was struggling to break free from his grip and started to scream for help. He placed a hand over her mouth to stop her. Mr Possum then removed his shorts and exposed his genitals to the child. Adults who were at the house came to help and tried to get into the room. Mr Possum then released the child, unlocked the door, and the child ran away. The defendant was arrested that night. The following afternoon, he participated in an interview and told police he had consumed a large quantity of alcohol prior to the events. He made extensive admissions to police, including saying to police that he wanted to have sex with the child and if he had not been disturbed by others, he would have gone further, taking both their clothes off, and as he apparently said, ‘put my wiggly in her hole’. He was also recorded as telling police he had sexual urges on a daily basis and was unable to control these urges on this occasion, as he had consumed too much alcohol.”

8. [8]
   In these circumstances, the Attorney-General characterises the relevant risk under the DPSOA for the purposes of this application as the sexual assault or rape of a child or adult female.
9. [9]
   When the supervision order was first made, the risk posed by Mr Possum was described as “one that is primarily related to intoxication and his inability to regulate his behaviour, given the many other challenges that he faces, if he is intoxicated either by alcohol or drugs.”^[2]
10. [10]
    Mr Possum’s clinical presentation was addressed in reports provided by Dr Moyle, Dr Beech and Dr Arthur for the hearing in October 2018. Dr Moyle’s diagnoses were as follows:

• Chronic Psychosis (possibly organic);
• Probable Foetal Alcohol Organic Brain Syndrome (with cognitive impairment);

• Marked Antisocial Personality Disorder and significant Psychopathic Traits;
• Alcohol, Marijuana and Tobacco Dependency; and
• Limited survival skills outside of a structured environment.

11. [11]
    Dr Arthur’s diagnoses were:

• Chronic Paranoid Schizophrenia (currently in remission);
• Foetal Alcohol Syndrome (associated with a Mild Intellectual Disability);
• Polysubstance Abuse (predominantly alcohol and cannabis currently in remission in a controlled environment); and
• Antisocial Personality Disorder.

12. [12]
    In May 2020, Mr Possum contravened requirement 23 of the supervision order which prohibited him from consuming illicit substances and alcohol. He had consumed alcohol and recorded a blood alcohol reading of .229 per cent. He was returned to custody and then, on 21 June 2020, he was released back onto the supervision order.
13. [13]
    On 19 December 2020, Mr Possum contravened requirement 23 of the supervision order a second time. He was drunk at the Townsville contingency accommodation and engaged in a physical altercation with another person subject to a supervision order. Analysis of his breach revealed a blood alcohol content of .163 per cent. Mr Possum was released back onto the supervision order on 12 March 2021.^[3]
14. [14]
    On 7 May 2021, Mr Possum contravened requirement 23 of the supervision order a third time. Upon complying with a direction to provide a breath test, he admitted to drinking a few glasses of wine the previous evening. The breath test returned a positive reading to alcohol at a level of 0.013% BAC. A secondary confirmation test was completed approximately 20 minutes later which returned a positive reading to alcohol at a level of 0.009% BAC. Mr Possum was released back onto the supervision order on 11 June 2021.^[4]
15. [15]
    In January 2022, Mr Possum was arrested for contravening requirement 23 of the supervision order a fourth time. This fourth contravention related to multiple occasions on which he consumed cannabis between 9 September 2021 and 10 January 2022. Mr Possum was released back onto the supervision order on 2 September 2022.

The current contraventions

16. [16]
    The Attorney-General has identified 14 further occasions between 6 September 2022 and 10 November 2022 when Mr Possum returned a positive test for cannabis. On nine of those occasions, Mr Possum admitted using cannabis.
17. [17]
    On 18 November 2022, residents of the Townsville Contingency Precinct who lived with Mr Possum telephoned staff of Queensland Corrective Services (QCS) and informed them that Mr Possum was creating a disturbance and appeared to be under the influence of alcohol. QCS staff attended the Precinct and spoke with Mr Possum. Mr Possum admitted he had consumed alcohol overnight which he had purchased the previous day when he had left the Precinct on an approved leave pass to attend a cultural group. Mr Possum returned a BAC reading of 0.199% on a breath test administered at 7:56am and a BAC reading of 0.223% on a further breath test administered at 8:18am. Between the administering of the two breath tests, Mr Possum was directed to tip out the alcohol he had with him. In defiance of that direction, Mr Possum went to a nearby bathroom and was seen drinking the rest of the alcohol.

18. [18]
    On 6 March 2023, Mr Possum pleaded guilty to 8 offences under s 43AA of the DPSOA for contravening the supervision order made on 22 October 2018. He was sentenced to six months imprisonment, concurrent. A period of 108 days of pre- sentence custody was declared and parole was fixed at 17 May 2023. On the same day, Mr Possum was also pleaded guilty to one count of Serious Assault of a Corrective Services Officer on 27 December 2022. He was sentenced to 12 months imprisonment, concurrent. A period of 108 days of pre-sentence custody was declared and parole was fixed at 17 May 2023.

Statutory scheme

19. [19]
    Section 13 of the DPSOA is directed towards the making of orders to ensure the adequate protection of the community against the risk that a prisoner will commit a serious sexual offence. The term “serious sexual offence” is defined in Schedule 1 of the DPSOA to include an offence of a sexual nature involving violence or an offence against a child.
20. [20]
    The jurisdiction to make orders is enlivened once “… the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order”: see s 13(1). A prisoner will be characterised as a serious danger to the community “if there is an unacceptable risk that the prisoner will commit a serious sexual offence: (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made”: see s 13(2). Where, as here, such a finding was made, the question then is whether a continuing detention order, or a supervision order should be made: see s 13(5). Where a supervision order will ensure the adequate protection of the community from the commission of a serious sexual offence by a respondent, then the making of a supervision order ought to be preferred to the making of a continuing detention order.^[5]
21. [21]
    As previously noted, s 22 of the DPSOA concerns contraventions of a supervision order and where the contravention has been proved (as here), the section casts an onus upon the respondent to prove that “… the adequate protection of the community can … be ensured by a supervision order”. The term “the adequate protection of the community” as it appears in s 22 bears the same meaning as it bears in s 13 of the DPSOA.^[6]

22. [22]
    The relevant “protection” is not protection from any offending, or indeed from any sexual offending. The relevant “protection” is from the commission of a “serious sexual offence”. In Turnbull v Attorney-General (Qld),^[7] Morrison JA (with whom Philippides JA and Douglas J agreed) said:^[8]

“[36]The consideration required under s 13(6)(b)(i) is whether adequate protection of the community can be reasonably and practicably managed by a supervision order. The risk which leads to the need to protect the community is because, under s 13(1) and (2), there is an unacceptable risk that Mr Turnbull will commit a serious sexual offence if released without such an order. The means of providing the protection, and avoiding that risk, is a supervision order. When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection.”

23. [23]
    Consequently, the question under s 22 is whether the respondent has satisfied the court on the balance of probabilities that his release back into the community on a supervision order provides “adequate protection of the community” in the sense that he is an acceptable risk of not committing a serious sexual offence.
24. [24]
    Here, despite Mr Possum’s repeated contraventions of the supervision order in the manner described above, including the contraventions giving rise to the present application, he has not committed a sexual offence which would have constituted a breach of the condition which appears in all supervision orders by force of s 16(1)(f) of the DPSOA. He has not committed a “serious sexual offence”, so the purpose of the supervision order, being to protect the community against the commission of such offences, has been fulfilled to date.
25. [25]
    In circumstances where s 22 requires consideration of whether the supervision order reduces the risk of the commission of a serious sexual offence to an acceptable level, the fact that there might be a likelihood of a breach of the supervision order is but one factor to consider in that determination. Any risk of future breach of the supervision order must be considered in the light of its relevance to the protection of the community from the commission by Mr Possum of a serious sexual offence.^[9] Persistent breaches of a supervision order are only relevant to the extent that they impact upon consideration of the statutorily defined question, which is whether “adequate protection of the community” can be ensured by release on supervision.^[10]

The psychiatric evidence

26. [26]
    There was psychiatric evidence in the form of further reports from Dr Arthur and Dr McVie prepared for the purposes of the present proceeding.

Dr Arthur

27. [27]
    In addressing the risk of sexual reoffending Dr Arthur stated that, although Mr Possum had not committed a further sexual offence during his time in the community, the majority of his dynamic risk factors remained present. Mr Possum continues to use maladaptive coping strategies, shows limited self-awareness, minimises his future risk of offending and displays a lack of appreciation for his risk factors. He displays little interest in addressing his substance use or his risk factors for sexual recidivism. Dr Arthur stated that he had not seen any evidence of improvement in Mr Possum’s self-awareness or insight into the nature of his sexual offending from his treatment under the supervision order to date.
28. [28]
    In those circumstances, Dr Arthur considered that the risk that Mr Possum would commit a serious sexual offence in the future without the supervision order remained “high or in the well above average range”. He observed that, despite Mr Possum’s repeated returns to custody, the supervision order had been effective in managing the risk of sexual recidivism given that Mr Possum had not sexually reoffended, but noted that Mr Possum’s ongoing abuse of cannabis and alcohol was concerning given the context of his index sexual offence.
29. [29]
    In his most recent report dated 16 November 2023, Dr Arthur expressed the following opinion:

“Should the court see fit to release prisoner Possum to supervision, it is likely that he will return to contingency accommodation where he will once again be exposed to substance use and antisocial influences. NDIS and other support agencies are not able to provide basic services (apart from transport and activities off the Precinct) in this environment. QCS have indicated that he will most likely remain on a long term stage 1 curfew, as this is the only way they can effectively manage his risk. Under such circumstances, it is highly likely that prisoner Possum will return to substance use, most probably cannabis but possibly alcohol if it is available. This may have a negative impact on his mental state and could increase his risk of further psychotic symptoms (despite depot medication) and potential for violence. Ongoing drug use is also likely to limit his motivation and capacity to engage in any prosocial or capacity building activities.

On this basis, I would recommend that prisoner Possum remain in custody until suitable alternative accommodation is sourced and the necessary medical, social and psychological scaffolding is in place. He can then be provided with concrete information about his community management and given time to process this before release.

Regardless of where he is released to, it is imperative that he remains abstinent from all drugs of abuse, particularly cannabis and alcohol.”

30. [30]
    In his oral evidence, Dr Arthur expanded upon aspects this report. When asked whether there was a connection between Mr Possum living at the Precinct, his substance use and the risk of serious sexual offending, he gave the following response:^[11]

“Whilst he’s at the precinct, as I’ve said in previous reports, his victim access is low. So, I mean, he’ll use substances and he may become psychotic and aggressive but he’s not going to have access to a victim. The problem is he’s not going anywhere. He’s never going to get off the precinct if he behaves like that. So therefore, there is no progression and therefore, there’s no meaningful change … in his risk.

…

So if he’s given a chance to actually live in the community – and there’s an argument as to whether precinct even represents the community, because it really doesn’t have too many features of the community, then he actually has an opportunity to develop skills and develop pro-social interests and to develop an alternative to those sort of behaviours. And hopefully, he can – he can develop a sense of staying abstinent and seeing the benefits of abstinence which will then certainly reduce his risk.”

31. [31]
    In response to the proposition that releasing Mr Possum to appropriate NDIS supported accommodation being the most effective way of reducing his risk of serious sexual offending, Dr Arthur said:^[12]

“I think that it’s certainly gives him a better chance of progression and – you know, we can talk about managing risk and whilst he stays at the precinct, his risk is very low. The problem is, is that based on his past behaviour this man will never get off the precinct because while we’re waiting for NDIS to find appropriate accommodation at the precinct, chances are he’s going to run into the same problems and have the same issues. So I think that for him to progress – and by progress, actually learn some self-management techniques and actually develop some prosocial protective factors which will actually help him to manage his risk beyond the order, I think that he – he needs success in the community and so I just don’t think he’s going to get that if he’s released to the precinct and unfortunately he may sit at the precinct for 10 years and his risk doesn’t change. I mean, he’s still in the age group where he’s at high-risk. He’s still going to be in his 30s in 10 years’ time which still puts him in a high-risk group and if there’s no change to attitudes, no change to behaviours, there’s no change to his risk.”

32. [32]
    In his cross-examination, Dr Arthur accepted that Mr Possum would be able to obtain cannabis in the community if he was determined to do so, but continued to give the following answer:^[13]

“As I explained before, I think to give him an opportunity to be in a prosocial environment in the community where his needs are met where he’s not surrounded by people who encourage him to take drugs and he’s in an environment which isn’t actually driving him towards drugs as a way of coping, I think there’s a better chance that he may be able to – to get off that cycle. So, yes, if he wants to get cannabis, I’m sure he can. And the trick is – I suppose, is getting him to a state where he’s actually influenced in a positive way that there are better things than cannabis out there. …

[W]hen he was first released, he went into a boarding house, I think, for about six months, where he had some supported accommodation. He didn’t have the supports that he needs. He didn’t have people who were actually trying to get him to develop some living skills. He certainly didn’t have the level of support that the NDIS package affords him on paper, at least, and he didn’t have people who were monitoring his medication, ensuring that he was actually turning up to medical appointments. So I don’t know. I mean, I think we can be cynical about it and go, ‘Oh, it’s not going to work.’ We can be overly optimistic. I’d like to sit in the middle and go – my attitude is – is I – we haven’t tested it. It looks like a good thing, and I think we know pretty much with certainty what’s going to happen if he goes back to the precincts, so I think an alternative [is] better. My worry is if he’s released to the precinct first, he’s not even going to get a chance to get to the community because it’s almost inevitable he’s going to go back to substance use, there’s a chance that he’ll become psychotic, and then chances are he’s going to go back to custody.”

33. [33]
    Notwithstanding the concerns he expressed about the Precinct, Dr Arthur accepted that Mr Possum was a very low risk of committing a serious sexual offence while he resided at the Precinct because his access to victims will be low.^[14]

Dr McVie

34. [34]
    Dr McVie stated that Mr Possum appears to display limited insight into: his mental illness; his sexual offending (both its nature and its drivers); and the risk he presents to himself by his failure to comply with the supervision order. She stated that Mr Possum’s risk of re-offending remains high and is exacerbated by his continual use of substances. She concluded that while the supervision order has contained the risk to date, Mr Possum’s lack of progress indicates that his risk has not reduced.
35. [35]
    Dr McVie stated that the risks of releasing Mr Possum on the existing supervision order include his early return to cannabis use, rejection of NDIS supports and manipulation of his antipsychotic medication resulting in non-compliance with all treatment and relapse of psychosis. She recommended that Mr Possum be placed in supported accommodation with NDIS supports in place.
36. [36]
    In her oral evidence, Dr McVie gave the following response when asked about what reduction in risk would be achieved by the imposition of the supervision order:^[15]

“Well, the supervision order that’s been in place has contained any risk of sexual offending while it’s been in place … Certainly, at the precinct, he may not have done very well in terms of looking after himself and he certainly – the last time he was released, he resorted to cannabis use very quickly after his release and then deteriorated over that time period. So the supervision order has done something, but it’s very difficult to know what his sexual interests are, what his sexual focus is because he hasn’t been able to engage effectively in therapy to assess those things. But there’s no objective evidence that – as far as I’m aware that there’s been any increased sexual drive. Certainly not in the last episode of his release on the supervision order.”

37. [37]
    As to whether it would be more effective to delay Mr Possum’s release from custody until suitable supported accommodation is available with NDIS supports in place, Dr McVie stated that in an “ideal world” those things should be in place when Mr Possum is released.^[16]
38. [38]
    In her cross-examination, Dr McVie confirmed that her recommendation concerning Mr Possum’s release to supported accommodation was based upon her assessment that he would be better served in terms of his recovery from his illness and his long- term management if he lived in that form of accommodation.^[17] Dr McVie also confirmed that Mr Possum’s lack of progress in his treatment did not mean that there was an increased risk of him committing a serious sexual offence.^[18]

Other evidence

39. [39]
    Mr Possum also relied upon evidence of the position of the Office of the Public Guardian which was appointed on 23 May 2023 to make accommodation decisions on his behalf. In email correspondence with the solicitor for Mr Possum, the Office of the Public Guardian stated that it supports Mr Possum returning back to reside at the Precinct in the event the Court considers that option.

The position of the parties

40. [40]
    Mr Possum submitted that he discharged the onus upon him under s 22(7) and ought to be released back on the supervision order. That would mean he would return to live at the Precinct.
41. [41]
    The Attorney-General accepted that Mr Possum should be transitioned from custody into the community at some point but submitted that returning to the Precinct would be setting him up to fail having regard to his repeated contraventions of the existing supervision order. The Attorney-General submitted that Mr Possum’s release from custody should be delayed until supported accommodation is available with NDIS supports in place. The Attorney-General proposed that the Court should rescind the existing supervision order and make a continuing detention order. Once suitable accommodation became available, the Attorney-General would apply for a review of the continuing detention order at which time the court may order that Mr Possum be released under a new supervision order: see s 30(3) of the DPSOA.^[19]

Consideration

42. [42]
    In the circumstances referred to at [18] above, I was satisfied that the respondent contravened a requirement of the existing supervision order made on 22 October 2018. Accordingly, s 22 of the Act was engaged.
43. [43]
    I was also satisfied that the adequate protection of the community against the commission by Mr Possum of a serious sexual offence can, despite the contravention of the existing supervision order, be ensured by that order. Although the use of substances is a risk factor for Mr Possum, the supervision order has led to the detection of his use of cannabis and his consumption of alcohol. That has led to him being returned to custody. Despite his repeated contraventions of the supervision order, Mr Possum has not committed any sexual offences, let alone a serious sexual offence, whilst on supervision.

44. [44]
    The evidence of the psychiatrists does not support a finding that the existing supervision order will not provide adequate protection of the community against the risk of serious sexual offending. Neither Dr Arthur nor Dr McVie expressed a concern that, if Mr Possum returns to live at the Precinct, there would be an unacceptable risk of serious sexual offending. Their concern is that, if Mr Possum returns to the Precinct, he is likely to relapse into substance use and, upon detection as has occurred numerous times, be returned to custody. That is, the psychiatrists are, quite appropriately, concerned about the lack of progression in Mr Possum’s treatment and rehabilitation.
45. [45]
    While I share that concern, I did not consider that it provided a basis to rescind the existing supervision order and make a continuing detention order where I had concluded that Mr Possum discharged the onus under ss 22(2) and 22(7), particularly where there is no certainty as to how long a continuing detention order would remain in place.
46. [46]
    The material did not disclose when suitable supported accommodation might become available for Mr Possum to move into. The email correspondence referred to at [39] above, referred to QCS being in the process of assessing the suitability of supported accommodation at four addresses which had been provided by Mr Possum’s NDIS provider. I was informed from the bar table that the assessment process should conclude within a period of two weeks, although that could not be guaranteed. More importantly, there was no guarantee that, at the end of that process, QCS would approve any of the proposed addresses.
47. [47]
    In my view, to have acceded to the course proposed by the Attorney-General would conflict with the principle referred to at [20] above: that the making of a supervision order ought be preferred to the making of a continuing detention order if a supervision order will ensure the adequate protection of the community from the commission of a serious sexual offence. In this case, where Mr Possum satisfied me that the adequate protection of the community against him committing a serious sexual offence can, despite the contravention of the existing supervision order, be ensured by that order, his release subject to that existing supervision order should be preferred to its rescission and the making of a continuing detention order.
48. [48]
    The parties agreed that the evidence of the psychiatrists supported an amendment of the existing supervision order to include an additional requirement preventing Mr Possum from taking tetrahydrocannabinol in any form. In circumstances where there was evidence that Mr Possum had expressed a desire to obtain a prescription for medical marijuana, I was satisfied that it was appropriate to make that amendment.
49. [49]
    I was also satisfied that it was appropriate to direct that the Attorney-General provide copies of reports prepared by Dr Arthur and Dr McVie to Queensland Health, the National Disability Insurance Agency, Mr Possum’s treating psychiatrist and his treating psychologist.