Attorney-General v Giddy[2024] QSC 56

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application under division 5 of part 2 of Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”).  The respondent is currently detained subject to an interim detention order; the applicant seeks either the continuation of such an order or the respondent’s release pursuant to a supervision order.  The respondent is now 37 years of age and has a lengthy criminal history.  However, there is only one entry that relates to a sexual offence.  It is not necessary to particularise the details of that offence.  They are recorded in Attorney-General for the State of Queensland v Christopher Robert Giddy [2021] QSC 222 (my first judgment).
2. [2]
   In that judgment, I found that the respondent was a serious danger to the community and ordered that he be released subject to a supervision order.  This order contained 37 requirements and remains in force until 31 August 2026.  By the terms of that order, the respondent is required inter alia to refrain from committing further offences, to live at a specified location, abide by curfew directions and partake in counselling.  This application is made following a complaint that the respondent contravened those particular requirements of that order.  The statutory framework governing applications of this nature is now well understood.^[1] 

The contraventions

3. [3]
   The respondent has contravened the requirements of the order in various ways.  On 14 August 2023, he committed the offence of assault occasioning bodily harm.  He was committed in breach of his curfew.  He pleaded guilty in the Richlands Magistrates Court and received a sentence of seven months’ imprisonment, which was wholly suspended.  The circumstances were that the respondent was observed or was recorded on CCTV footage to have punched a Wacol precinct resident twice in the face through an open car window. 
4. [4]
   On 24 August 2023, the respondent was scheduled to attend an in person psychological treatment session but refused, instead attending by telephone without QCS approval.  On 31 August 2023, the respondent was scheduled to attend a further in person psychological treatment session, but again refused. 
5. [5]
   The respondent does not contest these allegations, and through his counsel, Mr Fenton, admits them.  He did, as I have already noted, plead guilty to the offence of assault occasioning bodily harm.  I am therefore satisfied for the purposes of s 22(1) of the Act that the respondent has contravened requirements of the supervision order made in 2021. 
6. [6]
   Attention turns to s 22(2) of the Act, which creates an onus that the respondent is required to discharge.  That is, he must satisfy the court that the adequate protection of the community can be ensured by the existing supervision order as amended pursuant to s 22(7) if he is released from custody. In the alternative, if the respondent fails to discharge the onus, this court can rescind the current supervision order and make a continuing detention order pursuant to s 22(2).  The parties are not in dispute that it would be appropriate for the court to release the respondent subject to an amended supervision order.

Medical evidence

7. [7]
   This consensus has been reached on the basis of psychiatric evidence from Dr Ness McVie.  I do not intend to rehearse in great detail the content of her report.  In essence, her conclusion is that if the respondent was released into the community on a supervision order, his risk of committing a further sexual offence is moderate to low.  As a result, Dr McVie’s recommendation – uncontradicted for current purposes – is for Mr Giddy to be returned to the supervision order.  Dr McVie offers advice as to the ongoing treatment and care of the respondent and recommends the following:

While he has struggled to work his case manager and had become increasingly – increasingly frustrated with conditions of the order after his planned intimate visit with his partner was cancelled in February 2023, he has not resumed substance use and has – he has not presented with any evidence as being preoccupied with sex or sexual fantasies or any evidence he has used sex as a coping mechanism.  Conditions of his order should include that he engage with his treating psychologist, Steve Morgan, and that he remain abstinent from drugs and alcohol.

He may also benefit from – by completing a further SOMP in the community.  He may benefit from a neuropsychology assessment in relation to his impaired literacy, a possible learning disability, which could inform further management.  He may benefit from referral to a psychiatrist to assess any underlying depression or anxiety or ADHD symptoms. 

I would also recommend that he be permitted to progress to stage 5 curfew.  Though his offence may have occurred at night, night-time was not a specific risk factor in his offending and similar offending could potentially occur at any time.  Being prevented from having leave at night will not reduce any risk of sexual violence to the community.

I would also recommend video calls to his partner be facilitated as they have been while under QCS supervision in prison.  I would also recommend Mr Giddy to be supported to obtain a full driver’s licence if he does not currently possess this.  He may have problems with written material due to his literacy problems or dyslexia with which he could be assisted.  I concur with his psychologist’s view that he would benefit more from independent accommodation in the community and that he should be offered opportunity for his relationship with his partner to develop.  He should be given a different case manager.

8. [8]
   Neither party identifies or even suggests that there is a basis on which I might deviate from the course directed by Dr McVie.  Included in argument was this, with respect, helpful submission made on behalf of the applicant by Mr Tate of counsel:

It is evident that the respondent has struggled to live within the terms of his supervision order.  It is equally evident the supervision order is proving effective in managing risk and ensuring the safety of the community.  The requirements operate as a set of “tripwires” to manage the respondent’s risk of reoffending.  It is evident that the respondent struggles to comply with the requirements of the supervision order.  The added convictions under the Queensland Criminal Code for assault and section 43AA of the Act represent a significant concern and an unacceptable risk of serious sexual reoffending.

9. [9]
   Noting the relevant concern and risk, the tripwire analogy remains useful.  The respondent has and may well again “trip,” but the evidence compels the conclusion that when this happens, the functional effect of the order is to lower the level of risk that he will pose to the community.  It is to be hoped that effect will be given to Dr McVie’s recommendations in order to ensure that this is the case.

Orders

10. [10]
    Being satisfied to the requisite standard that the respondent has contravened the requirement of the supervision order I made on 31 August 2021, I further order that:

1. The respondent, Christopher Robert Giddy, be released from custody on 11 March 2024 and continue to be the subject to the supervision order made by Callaghan J on 31 August 2021;
2. The parties be granted liberty to apply.