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Attorney-General v Plummer-Dean[2024] QSC 294

Attorney-General v Plummer-Dean[2024] QSC 294

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Jahdell Plummer-Dean [2024] QSC 294

PARTIES:

Attorney General for the State of Queensland

(Applicant)

v

Jadhell Plummer-Dean

(Respondent)

FILE NO/S:

2566/21

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

2 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2024

JUDGE:

Ryan J

ORDER:

That:

  1. Pursuant to s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the Court rescinds the supervision order made by the Supreme Court of Queensland on 7 July 2021, as amended on 28 November 2022; and
  2. The respondent be detained in custody, for an indefinite term, for control, care, or treatment.

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was sentenced to six and a half years’ imprisonment for the rape and sexual assault of a 17-year-old woman, after breaking into her house whilst armed with knives – where the respondent was released from custody on 7 July 2021 subject to a five-year supervision order made under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) “on conditions to be agreed by the parties” – where the supervision order contained 40 conditions – where the respondent was arrested for contraventions of the supervision order and brought before the Supreme Court, to be dealt with according to law, on two prior occasions – where the respondent is an untreated sex offender and has not completed any programs to address his sexual offending – where the respondents risk of serious sexual offending is moderate to high – where the respondent’s future risk of serious sexual reoffending is difficult to predict – whether adequate protection of the community can be ensured by the respondent’s release on supervision – whether the supervision order should be rescinded.

Attorney-General for the State of Queensland v Plummer-Dean [2021] QSC 165

Attorney General v Robinson [2017] QSC 332

New South Wales v Kable (2013) 252 CLR 118

Re Macks; Ex parte Saint (2000) 204 CLR 158

Van De Wetering v Attorney-General (Qld) [2024] QCA 222

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 13(5)(b) and 22(2)(a)

COUNSEL:

J Tate for the applicant

B Mumford for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

Overview

  1. [1]
    On 7 July 2021, the respondent was released from prison, subject to a five-year supervision order made by Freeburn J under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) “on conditions to be agreed upon by the parties”.  My concerns about the original order are discussed in the footnote to this paragraph.[1]
  2. [2]
    The respondent’s “index offending” included his punching, sexually assaulting and raping a 17-year-old woman, after breaking into her house whilst armed with a knife or knives.  He forced her to masturbate him to ejaculation after he orally raped her.  He took her phone and threw it away as he left her house.  He was then 17 years old. 
  3. [3]
    On his own account, he was using “heaps of ice” and was “really angry” at the time because he had been kicked out of school.  He had not been sleeping for days.  Before the offence, he had been mixing drugs and alcohol at a party.  He remembered drinking, then having a “big shot of ice”; “getting a big rush”; “spacing out for a while” and then he “went blank”.  He had no recollection of the offending. 
  4. [4]
    He was sentenced to six and a half years imprisonment.  He was 18 years old at sentence.  He will turn 28 on 2 December 2024.
  5. [5]
    Whilst in custody, in May 2016, March 2017, March 2020, May 2020, November 2020, and March 2021, the respondent was offered opportunities to participate in programs designed to address his sexual offending.  He either declined to engage in, or failed to complete, those programs. 
  6. [6]
    Freeburn J accepted that a supervision order could provide a measure of control of the respondent and some measure of protection of the community.  His Honour accepted that the respondent would be in a more favourable position if he had completed a sexual offenders’ treatment program whilst in custody, but it was contemplated that he would receive appropriate treatment in the community if he were released. 
  7. [7]
    I note Freeburn J’s misgivings about the assessment of the respondent’s risk on the basis of the actuarial risk assessments used in DPSOA matters – particularly given that the respondent is an Indigenous man who was, and is still, young (see paragraphs [53]ff of [2021] QSC 165).  His Honour was doubtful that the testing provided a solid basis for assessing the relevant risk – although he acknowledged that the tests were a conventional psychiatric tool. 
  8. [8]
    His Honour also noted the difficulties in the experts’ and the Court’s task in a case like the respondent’s where there is very little relevant evidence available.  His Honour said at [60]:

… it is necessary to acknowledge the inherent difficulty of the task for experts and the court, particularly in a case like this.  The value judgment that is being made requires an assessment of whether there is a risk of criminal offending in circumstances where there is very little evidence.  Mr Plummer-Dean was only 17 when he committed the index offences.  He has been in custody since he was 18.  To be fair to the experts, there may well be little more to go on than the index offences, Mr Plummer-Dean’s failure to complete a course for sexual offenders, and a comparison with actuarial evidence.  That is why Dr Sundin explained:

“Given the recent history, I’m going to cite the late American Defence secretary who talked about the concept of known unknowns.  That’s where we are with Mr Plummer-Dean, as we are with anyone who’s committed a sex offence who hasn’t participated in some form of treatment modality.  We just don’t know enough as yet …”

  1. [9]
    Whilst not the only reason for releasing the respondent on supervision, Freeburn J placed reliance on the fact that the supervision order could contain a condition that the respondent complete a sexual offenders treatment program in the community , or at least comply with a treating psychiatrist’s treatment plan.  There was also evidence before his Honour of the possibility that the respondent’s reluctance to participate in a sexual offenders’ treatment program in custody might evaporate once the program was offered in the community (see paragraphs [76] and [81(c)])
  2. [10]
    In accordance with the terms of the supervision order agreed upon by the parties, and reasonable directions of Corrective Services Officers, upon his release, the respondent was required to reside at the Wacol precinct and was subject to a very restrictive (“Stage 1”) curfew.  Additionally (but not only) he was required to obey any direction given to him by a Corrective Services Officer about seeing a doctor, psychiatrist, psychologist, social worker, or other counsellor; and he was required to “develop a management plan” with his psychologist or psychiatrist “to address any risk of sexual re-offence”. 
  3. [11]
    The respondent has contravened his supervision order many times. 
  4. [12]
    On three occasions, a warrant has issued under section 20 of Part 2, Division 5 of the DPSOA, and he has been arrested and brought back before the Supreme Court to be dealt with according to law for a contravention or contraventions of the conditions of the order.[2] 
  5. [13]
    I heard an application under section 22 of the DPSOA, in relation to his “third contravention” (more accurately, the third occasion on which he has been brought back before the Court for select contraventions – rather than his third contravention in numerical terms). 
  6. [14]
    The respondent’s childhood was tragic.  His biological parents were drug users.  His mother used heroin during her pregnancy with him and he believed that he had been born with opiate withdrawal.  He was adopted as an infant.  He was sexually abused by a “child safety” worker when he was aged seven or eight.  The abuse included anal penetration and it occurred regularly for about 12 months.  His adoptive mother died in 2016.  His adoptive father wanted nothing to do with him after her death. 
  7. [15]
    He had a chaotic life as a teenager.  He was a little inconsistent in his reports about his substance use.  But it may have started when he was as young as 12 or 13.  He was using “heaps” of cannabis by 15.  He started smoking cigarettes and drinking alcohol at 16.  He had a history of binge drinking and had experienced alcoholic blackouts on at least two occasions.  He abused prescribed dexamphetamine from 16.  (It had been prescribed for him at 14 for his attention deficit hyperactivity disorder (ADHD).)  He used “ice” intravenously but did not like the fact that he had to pay for it.  He said ice made him paranoid, which was why he carried a knife.  He used suboxone (a combination of naloxone, an opiate antagonist, and buprenorphine, an opiate partial agonist) intravenously in prison.  He had not previously abused opioids.  He was caught once chroming in his cell.  When he was released, he was on prescribed monthly injections of suboxone.
  8. [16]
    Dr Luke Hatzipetrou, the respondent’s treating psychologist in the community, was concerned about his general cognitive and memory functions in light of his history of severe substance abuse, ADHD, incomplete schooling and marked impulsivity.  Formal assessment of his cognitive function revealed an IQ of 75, but he was thought to have made a poor effort during testing.  Dr Ness McVie, psychiatrist, (who has assessed the respondent several times for DPSOA purposes) did not consider him to present as a person with intellectual disability, although his intellectual functioning was possibly borderline or low average. 
  9. [17]
    The respondent’s psychiatric diagnostic picture is complicated, but it includes antisocial personality disorder and substance or polysubstance use disorder.  In Dr McVie’s opinion, persons with antisocial behaviours and anti-authoritarian attitudes, such as the respondent, are less able to comply with conditions such as those imposed by the supervision order. 
  10. [18]
    The operation of section 22 is well known.  Briefly, a released prisoner who has contravened a requirement of their supervision order, and who has been brought before the Supreme Court to be dealt with according to law under section 20, will be returned to custody under a continuing detention order unless he can satisfy the court, on the balance of probabilities, that the adequate protection of the community can be ensured by the existing supervision order, despite the contravention.
  11. [19]
    The respondent admitted the third contravention as particularised in the (amended) application.  He admitted to contravening the requirements of the supervision order relating to telephones, internet usage, accessing social media, his establishing and maintaining personal relationships, his not disclosing personal relationships, and his failing to comply with a Reasonable Direction regarding associations.[3]
  12. [20]
    At this section 22 hearing, the Attorney-General submitted that: the respondent could not meet the onus placed upon him by section 22; the supervision order ought to be rescinded; and a continuing detention order ought to be made instead.  The Attorney General submitted, in effect, that –
    1. The respondent was an untreated sexual offender.
    2. Very little was known about the triggers or risk factors for his offending.
    3. The adequate protection of the community therefore depended upon the respondent’s abiding by the constraints imposed by the supervision order. 
    4. He had repeatedly proven himself adept at side-stepping those constraints. 
    5. Thus, it could not be said that his release under supervision would ensure the adequate protection of the community. 
  13. [21]
    The respondent’s detention in custody would allow him to complete a sexual offenders’ treatment program which (depending on his engagement in it) might reduce the risk he posed of serious sexual offending in the future, and which might also provide information about his risk profile to ensure better tailored supervision in the community in the future.
  14. [22]
    The respondent submitted that, despite the contraventions, “the adequate protection of the community can be ensured by compliance with a supervision order which requires the respondent to partake in therapeutic treatment (whether that be in a group or individual setting or both) as well as a substance abuse prevention program”.
  15. [23]
    For the reasons which follow, I am not persuaded that adequate protection of the community can be ensured by the respondent’s release on supervision at the present time.  Accordingly, I rescind the supervision order made by Freeburn J on 7 July 2021, and impose a continuing detention order upon the respondent.

The third contravention

  1. [24]
    To understand the significance of the third contravention, it is necessary to put it in context.  The following chronology sets out some, but not all, of the concerning features of the respondent’s behaviour since his release from custody under supervision in 2021. 
  2. [25]
    The respondent committed his “first contravention” less than a month after his release on supervision on 11 August 2021.[4]  He contravened the order by methylamphetamine use.  He originally provided a cold urine sample.  His second sample was positive for methylamphetamine.  He was arrested and taken to the Brisbane watch house on 17 August 2021.  Whilst in the watch house, he was strip-searched and found in possession of a suboxone strip and fentanyl mix liquid in a syringe.  He was charged with relevant offences.  He was returned to custody, pursuant to a section 20 warrant, on 18 August 2021. 
  3. [26]
    The respondent had engaged in two psychology sessions with a psychologist in the community before his return to custody.
  4. [27]
    On 30 September 2021, he was convicted of possessing dangerous drugs (x 2) and failing to properly dispose of a needle and syringe; and fined.  On 6 October 2021, he was convicted of a contravention of his supervision order; and fined. 
  5. [28]
    At his first contravention hearing before the Supreme Court, on 11 April 2022, he was re-released under supervision by Jackson J, having spent about eight months in custody. 
  6. [29]
    In making the order for his re-release, his Honour referred to the reports of Dr McVie and Dr Sundin, which had been prepared for the purposes of the contravention hearing, and which contained their opinions that the respondent’s polysubstance use disorder, coupled with his antisocial personality disorder, informed the risk of further serious sexual offending.  Overall, his Honour found that “the consequence of the opinions … [was] that the respondent may be, although there [was] little positive expression of opinion to this effect, released again on the terms of his supervision order”.  While the respondent had been in custody, he had completed a further substance abuse course – that is, further to others he had participated in during his six-and-a-half-year sentence.  His Honour noted that the benefits and positive outcomes of that course warranted a “slightly more optimistic view by the reporting psychiatrists as to his prospects”.
  7. [30]
    After the respondent was released, he displayed disorganised behaviour; he was non-compliant with the conditions of his leave; he was vague about his activities (some of which involved women); and he received 18 Notices of Contravention.  As Dr McVie put it, the respondent was in the “habit” of losing or misplacing his possessions; “missing” public transport; and had “reverted to emotional dysregulation with descriptions of anxiety and outward expressions of excessive crying, likely as a defence mechanism, when challenged”.  There were suspicions that he had been using drugs or trading drugs.  He was thought to be topping up his buprenorphine with illicit buprenorphine. 
  8. [31]
    A little over a month after his release, on 13 May 2022, the respondent was seen to be pacing around the Valley without approval.
  9. [32]
    On 14 May 2022, the respondent brought an unknown and “likely vulnerable” woman into his house at the Wacol precinct.  (The material did not reveal how she was said to be vulnerable.)  He attempted to hide her in his bedroom.  In contravention of his order, he had not disclosed his association with her to the Corrective Services Officers supervising him as he was required to do. 
  10. [33]
    On 17 May 2022, the respondent was referred to DGM Psychology (Dr Luke Hatzipetrou).
  11. [34]
    On 19 May 2022, he said he was overwhelmed with the order and everything he had to do.  He said he felt lonely and disconnected.  He “cried significantly”. 
  12. [35]
    On 20 May 2022, he was displaying behaviours consistent with decreased executive functioning. 
  13. [36]
    On 24 May 2022, he presented as “substance affected”. 
  14. [37]
    On 27 May 2022, he said he had “accidently” used THC. 
  15. [38]
    He attended nine sessions with Dr Hatzipetrou between 17 May 2022 and 29 July 2022.  As the sessions progressed, Dr Hatzipetrou found that the respondent spoke candidly about his personal history, and he participated in discussions about antisocial attitudes, impulsivity, and substance abuse as risk factors.  However, he was often late for his sessions.  He was suspicious and paranoid about professionals.  He said he found it difficult to manage anxiety and stress and had urges to use illicit substances.  He demonstrated problems with his comprehension and working memory.  He falsified his accounts about his mental state and daily behaviours.  Dr Hatzipetrou observed stupor, which the respondent attributed to high doses of suboxone or Valium – but which Dr Hatzipetrou attributed to illicit drugs and alcohol.  Dr Hatzipetrou considered the respondent to have outstanding treatment needs in relation to sexual and general offending as well as in relation to his substance use.  His barriers to treatment included his (low) level of self-awareness and motivation.  Dr Hatzipetrou considered his involvement in a sexual offenders’ treatment program to be “imperative”, but he thought the respondent was likely to respond better to individual, rather than group, treatment.
  16. [39]
    On 7 July 2022, the respondent was referred to a hospital emergency department by his General Practitioner.  Instead of presenting to emergency upon his arrival at the hospital, he spent time in the hospital’s food service area in the company of an unknown woman.  The two of them then went to the toilet for a period of time.  Shortly thereafter, they were sitting outside the hospital before the woman appeared to deteriorate and required the attention of hospital staff.  The respondent did not disclose his association with this woman to those supervising him under the order, as he was required to do. 
  17. [40]
    On 19 July 2022, the respondent was convicted of two contraventions of his supervision order (relating to the woman in his house and cannabis use) and fined.
  18. [41]
    Sometime before 2 August 2022, Queensland Corrective Services received information that the respondent may have been in possession of an internet capable device, which he had not disclosed as required under the supervision order.  Police searched the respondent’s residence on 2 August 2022 and found the respondent in possession of an unauthorised smart phone and a micro-sim.  A review of the phone revealed that the respondent had been in contact with an unknown adult woman (S); accessing social media; accessing pornography; and “accessing … undisclosed email addresses”.  He admitted to having contact with S over a period of three weeks.
  19. [42]
    On 18 August 2022, the respondent was returned to custody in relation to his “second contravention” which related to his having the unknown woman in his house on 14 May 2022; interacting with an unknown woman at the hospital on 7 July 2022; being in possession of an unauthorised phone on 2 August 2022; and having contact with S without disclosing it. 
  20. [43]
    On 29 September 2022, he was convicted of three contraventions of his supervision order; and was sentenced to imprisonment for two months, suspended for an operational period of 12 months.
  21. [44]
    On 28 November 2022, the defendant was released from custody, subject to the supervision order, by Kelly J after a section 22 hearing.  His Honour extended the duration of the order until 19 August 2026.  In releasing the respondent to supervision, his Honour set out his reasoning as follows:
    1. Dr Sundin’s opinion is that the respondent’s risk of sexual violence is moderate and that the supervision order has the capacity to reduce the risk to moderate to low.  She considered that the risk of sexual violence was linked to substance use disorder and personality pathology.  The risk would escalate in the setting of methamphetamine abuse or in a period of emotional destabilisation;
    2. The respondent may be subjected to drug testing pursuant to the supervision order.  In circumstances where Dr Sundin expressed the opinion that drug use is a factor contributing to the respondent’s risk, drug testing can, in my assessment, in combination with the various other restrictions contained in the supervision order, reduce the risk of the respondent committing a serious sexual offence;
    3. I am also cognisant of the fact that the respondent’s sexual offending has occurred, effectively, on one occasion eight years ago and that there has been no further sexual offending.  There is no pattern of offending behaviour in this regard;
    4. There is no evidence that the respondent has engaged in inappropriate sexual behaviour, with the exception of his original serious sexual offending;
    5. The respondent’s risk appears, on the basis of the psychiatric evidence, to be associated with substance use disorder and what might be described as an anti-authoritarian attitude, as distinct from any underlying sexual deviancy.  In this respect, neither psychiatrist expressed the opinion  that the respondent suffered from any deviancy or any paraphilia;
    6. Dr McVie had expressed the view that the supervision order was obsolete in managing the risk of sexual recidivism.  In expressing that view, she relevantly said:

“Despite being given the opportunity to comply with conditions, and not presenting with any previously recognised cognitive disability which would preclude him from understanding conditions, he has continued to avoid monitoring and engaged in deceptive behaviours such that QCS are unable to monitor him effectively on the supervision order.”

As I have indicated, Dr Sundin expressed the view that the non-compliance with the orders was more likely, in her opinion, to have resulted from cognitive difficulties rather than from deceptive behaviours.  I accept Dr Sundin’s evidence in this regard.  I also note that whilst Dr McVie has said that the respondent presented without any previously recognised cognitive disability which would preclude him from understanding conditions, it appears to be implicit in other parts of her report, such as were she recommends cognitive testing, that it is more than a matter of mere suspicion that the respondent does suffer from some cognitive problems that may explain the reasons for his non-compliance with the orders.

  1. [45]
    After his re-release on supervision, in January 2023, the respondent was issued with notices of concern about failing to charge his monitoring device; breaching precinct rules; and attending another residence without permission.
  2. [46]
    On 22 February 2023, he was admitted to hospital for stomach and bowel issues.  During his admission, his “fiancée” (S) was found in his hospital bed, even though they were not approved for person-to-person contact.  He left the hospital without prior approval. 
  3. [47]
    On 24 April 2023, he was convicted of three contraventions of his supervision order (between December 2022 and February 2023); and sentenced to three months imprisonment, wholly suspended for two years.  He was dealt with for breaching the suspended sentence imposed in September 2022.  Its operational period was extended for a year. 
  4. [48]
    In May 2023, he was issued with contravention notices for beaching precinct rules by entering two other houses without permission; failing to charge his monitoring device; and being in possession of two mobile phones.  He had been in contact with two women via SMS.  He’d accessed Snap Chat, TikTok, G to G, Instagram and Only Fans.  He’d accessed pornography on the internet.  
  5. [49]
    In July 2023, he was found to have contravened his order by having an undisclosed phone, accessing social media, accessing pornography; and having undisclosed contact with a woman (J) between 28 June 2023 to 6 July 2023.  He admitted to the contraventions.  He was charged with three contraventions of his supervision order, but there was no application for a section 20 warrant because he had otherwise been compliant and was apparently actively engaged in case management and treatment.   
  6. [50]
    However, thereafter, he demonstrated increasing non-compliance, and suspicious and “problematic” behaviours.  His problematic behaviours included his deviating and dawdling on community outings and breaching his curfew.  He refused to receive monthly injections of buprenorphine which meant that he was required to leave the precinct daily to receive his dose from a pharmacy.  This was thought to be a deliberate strategy on his part, enabling him to meet up with women in the community – although this was not confirmed. 
  7. [51]
    In August 2023, he did not pay his rent – stating that he did not see the benefit of it and would prefer to live with his fiancée.
  8. [52]
    On 17 November 2023, it was suspected, but not confirmed, that the respondent was in the company of an unknown woman at the Wacol train station. 
  9. [53]
    On 30 November 2023, Queensland Corrective Services Officers asked the respondent whether he was in possession of an undisclosed device or in contact with women.  He said, vehemently, that he did not, and he was not.  However, on 19 December 2023, a smart phone was found by police in the common area of his residence.  Although he denied that the phone was his, its content revealed that he had been using it.  Via Snap Chat, he had been in contact with a 16-year-old girl, who was described as “vulnerable”.  He’d sent photographs of his penis to her, and she had sent sexual photographs of herself to him.  They had also photographed themselves together.
  10. [54]
    When spoken to by police, the 16-year-old said she’d met the respondent in Goodna in mid-September 2023.  He’d bought her a vape.  She told him she was 16.  He told her that he was 24 and sent her a photo of himself with a syringe in his arm.  She confirmed that they’d exchanged intimate photographs.  She said they’d met up on about 10 occasions between September and December 2023; and had sexual intercourse twice.  She said they had communicated via Facebook Messenger, as well as via Snap Chat.
  11. [55]
    On 12 December 2023, the respondent failed to comply with his electronic monitoring requirements. 
  12. [56]
    On 13 December 2023, the respondent failed to comply with his electronic monitoring requirements.
  13. [57]
    On 18 December 2023, the respondent failed to comply with his electronic monitoring requirements.
  14. [58]
    On 20 December 2023, the respondent failed to comply with his electronic monitoring requirements.
  15. [59]
    On 21 December 2023, the respondent was arrested and charged with contraventions of his supervision order relating to possession of a second phone; accessing the internet; accessing social media; failing to disclose personal relationships; and failing to comply with a reasonable direction about his associations.  On 21 December 2023, a section 20 warrant was issued, and he was remanded in custody.   
  16. [60]
    I note that the respondent attended 11 psychology sessions between 26 July and 13 December 2023.  His response to those sessions is discussed below.
  17. [61]
    In February 2024, he reported that his fiancée had suffered a miscarriage – although in person contact between them had not been approved.  His “Violation History” records that he made threats to a member of Corrective Services staff during telephone conversations with S.
  18. [62]
    On 16 May 2024, he was in possession of 3 tablets.  Two were of mirtazapine.  The third could not be identified.
  19. [63]
    On 23 September 2024, he pleaded guilty to eight contravention of a supervision order offences (under section 43AA of the DPSOA); 13 fraud offences (relating to a book of taxi vouchers stolen from QCS and used by released prisoners); and the breach of a previously imposed suspended sentence. 
  20. [64]
    He was sentenced to an effective period of 15 months imprisonment, with parole release on 23 September 2024 and 278 days of presentence custody declared.  He was not released on his parole release date because he was in custody pending this section 22 hearing.  His full-time release date is 19 June 2025. 
  21. [65]
    The respondent’s third contravention includes five of the eight section 43AA offences – namely those committed between 15 September 2023 and 12 December 2023. 

Evidence of the psychiatrists

  1. [66]
    The respondent was assessed by Dr Ness McVie and Dr Anna Lenardon for the purposes of this contravention hearing.  Dr McVie found the respondent to be a little more mature in 2024 than he had been during earlier assessments, although he continued to deflect responsibility for his actions.
  2. [67]
    In Dr McVie’s opinion, the respondent’s risk of serious sexual re-offending was at least moderate to high.  Similarly, Dr Lenardon considered his risk to be in the moderate to high range.  The risk was that he would commit a violent sexual offence upon a woman, such as a rape or a sexual assault.  Also, the respondent’s impulsivity and anti-sociality could lead him to commit physical harm (beyond that which was inherent in the rape or sexual assault), especially if he were intoxicated.  He might target vulnerable victims. 
  3. [68]
    I note that, as set out in the amended application, in 2021, Dr Michael Beech expressed the risk posed by the respondent and the way in which it might materialise as follows:

… the offending occurs in the context of anti-social personality disorder trajectory and poly substance abuse with intoxication.  Over the years, there has been continuing evidence of dissocial attitudes and behaviour and illicit substance use.  There has possibly been a recent change, but I think it is too recent to be reassuring.  His maturation is yet to be tested in the community … The alternative scenario is that he will struggle in the community because he had difficulties with stress and coping.  Despite his aspirations, he will be idle and become easily bored.  He will gravitate to like-minded peers and resume substance use.  His anti-social nature will come to the fore, and he will eschew that support of his family, faith and counsellors.  In an intoxicated state, driven particularly by stimulant abuse, his sexual drive will increase along with his sexual entitlement.  He will assault a woman.  Consistent with his earlier offending, the assault may involve weapons.  The woman is likely to suffer psychological and emotional trauma and possibly physical injury.   

  1. [69]
    In her written report dated 23 October 2024, Dr McVie made the following points –
    1. The respondent was an untreated sex offender.  He had not completed any programs to address his sexual offending.
    2. When she assessed the respondent in 2022, she recommended that if he were to contravene his supervision order (again), he ought to be returned to custody until he satisfactorily completed a sexual offenders treatment program and a substance abuse program.  Indeed, she had recommended that he remain in custody to complete a sexual offenders treatment program in 2020, 2021 and 2022. 
    3. He did not have a mental illness.  He did not appear to have a paraphilia, although his sexually offending behaviour required further explanation. 
    4. He did not require suboxone or opioid replacement treatment.  He abused suboxone in custody and would abuse it (or something similar) upon release.
    5. If he were to be released back to supervision, he remained highly likely to repeat his previous behaviours, including substance abuse; “manipulating” things to enable him to meet vulnerable women; and acquiring unapproved devices.
  2. [70]
    Given his at least moderate to high risk of re-offending, and his contraventions, in Dr McVie’s opinion (although this was not a matter for her) the respondent ought to be detained until he satisfactorily completed both a sexual offenders treatment program and a substance abuse program.  Additionally, she advised that the respondent be referred to a psychiatrist for further assessment of his sexual interests and drives, with consideration of the need for anti-libidinal treatment. 
  3. [71]
    In her written report, Dr Lenardon made the following points –
    1. The respondent’s index offending included concerning features, such as his threatening the complainant with a knife and the effort it took for him to access her and make her comply with his sexual demands. 
    2. The respondent’s actions were to be understood in the context of his prominent anti-social personality – which encompassed a disregard for social norms, a lack of empathy, irresponsibility, and impulsivity.  Intoxication may have acted as a destabiliser. 
    3. It was possible that his claimed amnesia for his offending was an attempt to avoid having to admit it and discuss it.  The complainant did not suggest that he was severely intoxicated at the time of the offending nor was there any independent evidence about his intoxication.  Even though he did not blame the complainant for his offending, his blaming the amnesia enabled him to avoid responsibility for his actions. 
    4. It was difficult to formulate and predict the respondent’s future risk of serious sexual offending because she had not been able to understand his offending or his psychosexual history.  This was because the respondent had not completed a relevant sexual offenders’ treatment program or engaged in therapy.  Because of his claimed amnesia and his failing to complete sexual offenders’ treatment, it was not possible to exclude the presence of attitudes which supported or condoned sexual violence; sexual deviance and violent ideation; problems with self-awareness; or problems with stress and coping as potential destabilisers and motivators. 
    5. He was unconcerned about his past failures to remain in the community and underestimated the risks associated with, for example, substance use and unemployment upon his release.
    6. His antisocial personality disorder was evidenced by his persistent failure to conform to social norms; unreliability; impulsivity; aggression; recklessness; irresponsibility; and lack of remorse. 
    7. There were limited protective factors present. 
    8. Even if the respondent were to engage in individual treatment to address his sexual offending, given his lack of memory for the offence (whether intentional or unintentional); his refusal to engage in a group program; and his denial of sexual deviance, his response to such treatment was likely to be limited.  Individual psychological therapy could assist more generally, having regard to his childhood sexual abuse and his limited internal resources to address his offending and his antisociality. 
    9. His progress in the community since 2021 has been suboptimal.  Regardless of the conditions, he engaged in an antisocial lifestyle.
    10. Although no substance abuse has been detected since 2022, its risk has not been sufficiently mitigated, and substance abuse was a clear, known risk factor for serious sexual offending.
    11. Although he had not sexually offended again, he had spent little time in the community after the conclusion of his sentence.  His conduct towards the 16-year-old was of concern.
    12. Given that he was engaged to S whilst he was seeing the 16-year-old, there was a suggestion of promiscuity on his part.
  4. [72]
    The oral testimony of the doctor’s reinforced the position they took in their reports.
  5. [73]
    Dr McVie observed that the complainant in the index offending was 17 years old and the respondent had been involved with a 16-year-old in 2023 – which suggested an interest in older adolescents.  Although his personality structure had settled over time, his behaviour whilst under supervision revealed his ability to manipulate its conditions.  He was supposed to be on a Stage 1 curfew – the most restrictive curfew – and yet he had travelled to, for example, the Valley and Southbank, and he had been able to form associations with women which he did not disclose.  Whatever the controls were meant to be – they were proving ineffective. 
  6. [74]
    His persistent non-compliance and the fact that his contraventions involved similar behaviours were concerns.  Another concern was that he had not progressed in treatment with his psychologist, Dr Hatzipetrou. 
  7. [75]
    Dr McVie encouraged the court to consider making a continuing detention order for the respondent before his release on supervision, to allow for an understanding of the risk factors which therapy needed to address.  In Dr McVie’s opinion, it was not possible to compose an effective supervision order without information from an appropriate sexual offenders’ treatment program informing an evaluation of the respondent’s long-term risk and how to manage it.
  8. [76]
    Cross-examination of Dr McVie confirmed that the index offending was the only sexual offending in the respondent’s history and that his contraventions did not involve sexual offences.  Dr McVie said she had no information about the vulnerability of the 16-year-old, but that if she had been younger, the respondent would have committed offences by engaging sexually with her – whether she consented or not.  Dr McVie agreed that the respondent had not been convicted of a drug offence since July 2022, nor had he returned positive tests for alcohol since July 2021. 
  9. [77]
    She was cross-examined about the very different scores she and Dr Lenardon gave the defendant for psychopathy on the PCL-R checklist.  She said that the variance of seven points between them did not affect the validity of her own (higher) score.  She said, in effect, that there will always be variance in scoring between experts, although efforts had been made to improve consistency/reliability.  She confirmed that she considered the respondent to have significant psychopathic traits, which was one of the factors which elevated his relevant risk to high; and which was one of the factors that could, in her opinion, be moderated were the respondent to engage in sexual offender treatment.
  10. [78]
    She was concerned that the respondent’s sexual drive was much stronger than he claimed it to be.  He claimed to have no sex drive and claimed that he was not masturbating, yet he engaged sexually with a 16-year-old, and he was frustrated about his lack of contact with his fiancée.
  11. [79]
    Dr McVie observed that the applicant had been subject to his five-year supervision order for three years – yet his relevant risk had not changed.  He had not attempted to engage in any meaningful therapy to address his sexual offending. 
  12. [80]
    Although the respondent had not tested positive to drugs in the past two years, or to alcohol since his release, Dr McVie was still concerned about the respondent’s substance use/abuse.  He refused buprenorphine injections and used instead suboxone strips, which could be abused.  None of the urine tests that she had seen reported quantitative amounts of the suboxone present, so it was possible that he was abusing the drug.  Another reason for her suspicion was his drowsy presentation to Dr Hatzipetrou in 2022 – referred to above. 
  13. [81]
    In her oral evidence, Dr Lenardon explained/confirmed that the respondent’s antisocial personality disorder and substance use were risk factors for his offending generally in the future and could increase the risk of his sexually re-offending – although one could not say without the respondent undertaking a sexual offenders treatment program which would reveal more about him. 
  14. [82]
    She acknowledged that, even though the respondent had not spent long in the community since his release in 2021, he had an opportunity to sexually re-offend but had not done so. 
  15. [83]
    He had no mental health disorder, which was a protective factor, although he had still been unstable.
  16. [84]
    There had been no change to his risk-profile over the duration of the order.  It remained moderate to high – even in the presence of the order.  In other words, there had been no “internal change”.  That was important because –[5]

… in all offending, but certainly sexual offending … the aim … of treatment and rehabilitation is to achieve actually an internal change; and internal change to their own motivation or views or schema about the world, about victims, if it’s female victims, about possible negative, uh, female victims (sic) … about ideas that are normalised, sexual violence, et cetera, et cetera.  And ... that paired with then supervision or external control often reach the best …rehabilitation.  But certainly, if there is no internal change you are going to rely constantly on external way or controlling, which I think in Mr Plummer-Dean he’s not been the most compliant either.

…

So it is really problematic that, even if we just rely for a period of time … we continued to seek supervision as he take treatment … with the hope that one day there will be more internal change.  At this point in time, it is very – although 10 years have passed, it is fairly, in terms of rehabilitation, I would the – I would say it’s still quite early days because there’s been no indicators of changes internally of how his condition is about offending, how we see his risk profile, et cetera, his ability to control himself.

  1. [85]
    A group sexual offenders’ treatment program would allow for an understanding of his risk profile and reduce his sexual offending risk overall (if he was responsive to it).  However, because so little was known about the respondent, his risks were unpredictable.  It was difficult to say when one might be optimistic about real change.[6]
  2. [86]
    Under cross-examination, she conceded that there was no evidence of sexual deviance or violent ideation but, based on the nature of the offending, it could be present.  She was asked whether, if the respondent did not have sexual deviance, his relevant risk would be in the low, or low to moderate range.  She said “Yeah.  It would definitely be lower [than moderate to high]”.
  3. [87]
    The respondent’s barrister suggested that a supervision order could include a condition requiring the respondent to accept buprenorphine by injection.  Given the outcome of this matter it is enough for me to say that a DPSOA supervision order cannot compel a released prisoner to submit, involuntarily, to treatment of that kind.

Other evidence

Reports about psychological assessment and treatment

  1. [88]
    Rebekah Arrell, Provisional Psychologist, conducted a neuropsychological test upon the respondent.  In her report of 4 September 2023, she stated that, as measured by her testing, the respondent’s full-scale IQ was in the borderline range.  She offered certain recommendations about the best way to engage with the respondent, which I do not need to detail in this judgment. 
  2. [89]
    Ms Arrell’s report noted the respondent’s poor impulse control, lack of consequential thinking and inflexible problem-solving approaches.  He gave a history of drug use from aged 14, with a preference for opiates and amphetamine. 
  3. [90]
    Ms Arnell also provided a treatment review report about the respondent for the High-Risk Offender Management Unit of Queensland Corrective Services dated 13 October 2024.  The report noted the following:
    1. The respondent presented with dynamic risk factors, such as substance dependency and antisocial personality. 
    2. He presented with cognitive distortions that minimised his culpability in his offending.  He had contacted young women with limited knowledge of their age.
    3. He complained that QCS were sabotaging his relationship with his fiancée because he was not permitted to meet her in the community and he was often focused on this issue, rather than the intended session topics.
    4. His antisocial personality disorder contributed to his suspiciousness and his cognitive distortions.  He had limited insight into the impact of his antisocial personality disorder on his forming healthy relationships with others.   
    5. The respondent’s engagement in the sessions (11, from 26 July until 13 December 2023) fluctuated from active participation to superficial and pleasantly evasive.
    6. His responses to questions were unsophisticated and avoidant – he denied the misuse of substances and contacting women.    
    7. He did not actively pursue strategies or recommendations concerning his substance use.
    8. His impairments in verbal memory and verbal reasoning had a likely impact upon his ability to acquire and utilise strategies to abstain from illicit drugs and upon his responsivity to treatment.
    9. He often complained of fatigue, exhaustion, or pain.  He often attempted to curtail his appointments.

Evidence from QCS

  1. [91]
    Ms Emma Wildermoth, the Acting Manager of the High-Risk Offender Management Unit, within Community Corrections, Queensland Corrective Services (QCS), offered the following opinion about the need for meaningful engagement by a respondent:[7]
  1. [9]
    QCS’s strategies for the administration of supervision for offenders under the Act are directed to ensuring, as far as practicable, that offenders avoid the circumstances that would place them at high risk of committing a serious sexual offence.  Those strategies are necessarily informed by the expert psychiatric reports that are considered by the Court in proceedings under the Act.  Those reports usually identify the nature of each offender’s risk, including the circumstances that might indicate when an offender poses a heightened risk.
  1. [10]
    Despite the intensive and supportive nature of the supervision order, stage 1 curfew, regular substance testing, escorted movements, access to cultural support and a treating psychologist, the respondent continued to demonstrate poor compliance with the supervision order as evidenced by the contravention behaviours.
  1. [11]
    While QCS can engage in a range of supervisory functions, for a supervision order to be effective, there is a requirement for the respondent to engage meaningfully in the case management process, including making disclosures to his Senior Case Manager, surveillance staff and treating psychologists.

Submissions

  1. [92]
    The Attorney General’s written submissions stated:

The clinical evidence provided by Dr McVie and Dr Lenardon, together with the Respondent’s recurrent pattern of contravening the requirements of the supervision order, supports the finding that the adequate protection of the community can only be ensured, at this point, by the Respondent’s remaining in custody under a Continuing Detention Order under section 22(2)(a) of the Act.

At this time, the clinical evidence indicates that the Respondent should undertake sex offender treatment in custody, before consideration is given to his return to the community under supervision.  He is currently a medium to high-risk untreated sex offender.

  1. [93]
    Orally, the Attorney General added that the worrying aspect of his contraventions was his not disclosing his associations with women.  His non-disclosure was more concerning than the age of the last such woman.  He was an untreated sex offender.  Dr McVie had been saying for years that not much was known about the respondent and that he needed to do treatment in custody before his release (to reduce his risk to an acceptable level).  Dr Lenardon said she was struggling to assist the court because she did not know enough about the respondent.
  2. [94]
    Although there had been maturity, there had been no internal change.  Any decrease in his moderate to high risk could only be achieved by way of the controls imposed by the supervision order, and there was significant doubt about the effectiveness of the controls as demonstrated by his pattern of contraventions.  Without effective controls, the risk became unacceptable.  
  3. [95]
    The respondent’s submissions (written and oral) included the following in support of his contention that he had met the onus for release again on supervision:
    1. There was no evidence that the 16-year-old woman, or indeed any of the women with whom the respondent was associated, were “vulnerable”.
    2. The respondent had not tested positive for alcohol consumption since July 2021; nor for illicit substances from November 2022.
    3. There was no basis for a suggestion that his risk of serious sexual offending was increasing – although he had repeatedly contravened the order. 

Consideration

  1. [96]
    I am not satisfied, on the balance of probabilities, that the adequate protection of the community can be ensured by the existing supervision order, despite this third contravention. 
  2. [97]
    In reaching this conclusion, I have borne in mind that the relevant issue is the risk of the respondent’s committing a serious sexual offence in the future – not simply his contrariness (cf Attorney General v Robinson [2017] QSC 332 at [62]).  I have taken into account relevant statements from the decision of Van De Wetering v Attorney-General (Qld) [2024] QCA 222, especially those in [51], [57], [58] and [62].  I appreciate that those statements were made in the context of a Division 3 application and the onus is different in a section 22 case.  However, I have borne in mind that adequate protection of the community is a relative concept [51]; depriving a person of their liberty is a serious matter [51]; and I ought not to be distracted from my task under section 22 by the focus of the psychiatrists on the need to better understand the respondent and his risk factors to better facilitate his treatment and supervision [58].  I have also taken into account that the supervision order is unlikely to have any deterrent effect upon the respondent into the future (cf [62]).
  3. [98]
    The history of the respondent’s performance under supervision reveals a pattern of repeated similar behaviours, in breach of the conditions of the order, which have led to convictions for past contraventions and section 22 hearings.  By the time of his third contravention, the respondent was well aware of the conduct which might see him returned to custody under a continuing detention order – yet he boldly repeated that conduct anyway.  His contraventions included his repeatedly associating with, or becoming intimate with, women (vulnerable or not) without disclosing his associations. 
  4. [99]
    At this hearing, no suggestion was made by the respondent that his contraventions were a consequence of his cognitive limitations (a possibility that had been accepted by Kelly J).  Indeed, no explanation for the respondent’s repeated contraventions was offered by him.  Nor was I invited to infer an explanation for them which would favour the respondent’s release again on a supervision order.
  5. [100]
    The respondent is an untreated sex offender.  When he was released by Freeburn J, the hope, if not the expectation, was that he would receive appropriate sexual offenders’ treatment in the community, including by way of developing a relevant management plan – and in that way, reduce his relevant risk.  That has not occurred, despite his engagement with psychologists.  The respondent still claims no memory of his index offending; has little self-awareness about it; and little motivation to address it.  Still not much is known about the triggers or risk factors for his offending – despite what was hoped upon his first release.  Dr Hatzipetrou said that sexual offenders’ treatment is “imperative” or the respondent – conveying, it seemed to me, that it was not something that could be achieved via the psychological interventions that he (Dr Hatzipetrou) was undertaking with him.  Nor did the respondent’s psychological treatment in the community encourage his compliance with the order. 
  6. [101]
    The respondent has shown little regard for the conditions of the supervision order despite his being returned to custody for contraventions.  Dr Beech’s prediction that the respondent’s anti-social nature might come to the fore in the community, and that he might return to substance abuse and eschew the supports offered to him, was prescient.
  7. [102]
    The respondent’s first contravention occurred within about a month of his release and involved methylamphetamine use.  At about the same time, the respondent was in possession of a suboxone and fentanyl mix (not charged as a contravention).  Intoxication is a likely risk factor for him.
  8. [103]
    After his second release by Jackson J on 11 April 2022, his conduct under the order was unsatisfactory.  Indeed, he was found contravening about a month after his second release.  Those contraventions concerned his associations with women which he either tried to hide or did not disclose as required.  There were also suspicions about his drug use – which is particularly relevant given the apparent role of substance abuse in his offending. 
  9. [104]
    Criminal punishment for his contraventions (outside of the DPSOA) has had no deterrent effect.  Within a short period of time after his court appearance for contraventions on 19 July 2022, the respondent was accessing pornography and contacting women on an undisclosed device. 
  10. [105]
    Within a month or two of his third release from custody, on 28 November 2022, the respondent was found in a hospital bed with his fiancée, S.  Within another couple of months, he was contacting two women on an undisclosed phone and accessing pornography on the internet.  Within another couple of months, he was doing the same thing again, which included contact with a woman, J, in July 2023.  By November 2023, he had formed a sexual relationship with a 16-year-old and had, it seems, impregnated his fiancée.  Whilst he has not committed a serious sexual offence in the community, he has demonstrated sexual drive – despite his claimed lack of it.
  11. [106]
    There has been no change in his risk profile over the duration of the order.  It remains as at least moderate to high.  The psychological support and treatment he has received has brought about no relevant internal change.  There are limited protective factors in place.
  12. [107]
    Obviously, the concern is around the respondent’s potential for sexually violent treatment of women (late adolescents or adults).  While so little is known about the respondent’s risk factors, if the respondent were to remain in the community subject to the supervision order, the adequate protection of the community from the “at least moderate to high” risk he poses of seriously sexually offending requires his compliance with the conditions of the order, especially those obviously intended to provide protection for women.  Yet he has repeatedly ignored the requirement that he must disclose his associations with women; and he has been able to travel throughout the city and meet up with women notwithstanding his stringent curfew.  Further, there are reasonable concerns about his drug use.
  13. [108]
    In theory, the community may be adequately protected from a moderate to high risk of serious sexual reoffending by a released prisoner by the prisoner’s release on supervision on appropriate terms, including those designed to help the released prisoner safely navigate his relationships with women.  But whether such an order will in fact provide the requisite protection depends upon a released prisoner’s compliance with it, or at least the ability to Corrective Services Officers to act in anticipation of, or in response to, a contravention in such a way as to effectively manage the risk. 
  14. [109]
    The respondent has been adept at side-stepping the conditions designed to keep women adequately protected from the risk he poses.  His being returned to custody more than once after contraventions has not curtailed his efforts to side-step the conditions.  The respondent has been untruthful to those supervising him, his treating psychologist, and to the reporting psychiatrists, about relevant matters, including his sexual drive.  There are concerns about his drug use, notwithstanding test results.  Given that so little is known about him, and bearing in mind his conduct on the order, his risk is, in my view, unpredictable. 
  15. [110]
    The fact that a released prisoner repeatedly contravenes a supervision order does not necessarily mean that the order is not efficacious in providing adequate protection of the community from the relevant risk posed.  “Catching” and dealing with contraventions may be the means by which adequate protection is achieved.  But in the present case, without notifying his supervisors about his associations with women, the respondent has formed several, including sexual associations.  While it is true that he has not sexually offended against those women, in the face of his dishonesty (which I find) about his sexual drive, his cognitive distortions, and the other barriers to treatment identified by Dr Hatzipetrou, and on the assumption that he will behave in the future in the way he has behaved in the past, the respondent has not persuaded me that the adequate protection of the community may be ensured by his release on supervision. 
  16. [111]
    Accordingly, I order that the supervision order be rescinded, and that the respondent be detained under a continuing detention order.

Footnotes

[1]I am concerned about the form in which Freeburn J’s order was made, although undoubtedly, it was made in that form with the concurrence of the parties.  The only “supervision order” contemplated by Division 3 of the DPSOA is an order under section 13(5)(b) that the prisoner “be released from custody subject to the requirements it [that is, the Supreme Court] considers appropriate that are stated in the order …”

In my view, in the DPSOA context, the Supreme Court may not lawfully make an order for a prisoner’s release on conditions to be agreed between the parties.  It is not for the parties to agree on the conditions.  Nor may the conditions of release be determined after a supervision order in the abstract is made.  Thus, it seems to me that the original supervision order did not meet the requirements of section 13(5)(b) of the DPSOA and in that sense was affected by jurisdictional error.  However, an order made by a superior court of record is valid unless and until it is set aside – even if it is an order which the court had no authority to make: see Re Macks; Ex parte Saint (2000) 204 CLR 158 at [49] and New South Wales v Kable (2013) 252 CLR 118 at [32], [37] and [56]–[59].  Such an order must be obeyed.  In the context of this case, the principle – that an order of a superior court of record is valid unless and until it is set aside – means that the respondent has been, and by this judgment will be, lawfully dealt with for contraventions of the supervision order made on 7 July 2021.

[2]That is, not after every contravention. 

[3]Requirements/conditions 6, 20, 22, 24, and 40.

[4]I have used the expressions “first contravention”; “second contravention” and “third contravention” in relation to the three occasions a warrant has issued.  As mentioned, the respondent has contravened the order many times, but was not brought before the Court after each contravention. 

[5]T 1-29.

[6]T 1-30.

[7]Affidavit filed 5 November 2024.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Jahdell Plummer-Dean

  • Shortened Case Name:

    Attorney-General v Plummer-Dean

  • MNC:

    [2024] QSC 294

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    02 Dec 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General v Jahdell Plummer-Dean [2021] QSC 165
2 citations
Jump To
Cite 1 - [2021] QSC 165
Cite 2 - [2021] QSC 165
Attorney-General v Robinson [2017] QSC 332
2 citations
Jump To
Cite 1 - [2017] QSC 332
Cite 2 - [2017] QSC 332
New South Wales v Kable (2013) 252 CLR 118
2 citations
Jump To
Cite 1 - (2013) 252 CLR 118
Cite 2 - (2013) 252 CLR 118
Re Macks; ex parte Saint (2000) 204 CLR 158
2 citations
Jump To
Cite 1 - (2000) 204 CLR 158
Cite 2 - (2000) 204 CLR 158
Van De Wetering v Attorney-General [2024] QCA 222
2 citations
Jump To
Cite 1 - [2024] QCA 222
Cite 2 - [2024] QCA 222

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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