Attorney-General for the State of Queensland v Moxham [2024] QSC 57

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Kristopher Richard Joseph Moxham [2024] QSC 57 PARTIES: Attorney-General for the State of Queensland (applicant) v Kristopher Richard Joseph Moxham (respondent) FILE NO/S: BS7402/22 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 19 March 2024 DELIVERED AT: Brisbane HEARING DATE: 19 March 2024 JUDGE: Callaghan J ORDER: 1. The respondent, Kristopher Richard Joseph Moxham, be released from custody and continue to be subject to the supervision order made by Justice Cooper on 21 October 2022. 2. Pursuant to s 22(7)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 the supervision order made by Justice Cooper on 21 October 2022 be amended by omitting the words “29 October 2027” currently in the order and inserting the following underlined words to read: “THE COURT ORDERS THAT Kristopher Richard Joseph Moxham be released from prison and must follow the rules in this supervision order for 5 years, until 19 March 2029.” 3. The applicant is to arrange for copies of the reports prepared by Dr Michael Beech (dated 23 January 2024) and Dr Josephine Sundin (dated 24 February 2024) to be provided to the National Disability Insurance Agency, the respondent’s treating psychologist, and any other social worker, counsellor or mental health professional involved in his treatment. -- 1 of 4 -- 2 CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant seeks, under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), to detain the respondent in custody for an indefinite term, for care, control or treatment – where the applicant, in the alternative, seeks an amendment to the supervision order – where the respondent submits that he should be released from custody subject to an amended supervision order – where the respondent discharges the onus placed upon him by s 22(2) – where the expert evidence includes elements of the arbitrary – where there is nevertheless consensus between the experts – amended supervision order made COUNSEL: M Maloney for the applicant J Horne for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] The background to this application is recorded in Attorney-General for the State of Queensland v Kristopher Richard Joseph Moxham [2022] QSC 225. In that judgment, Cooper J summarised the applicant’s sexual offending and the efforts at rehabilitation he made during his sentence.1 [2] Based on the evidence he received from psychiatrists Dr Kenneth Arthur, Dr Michael Beech and Dr Josephine Sundin, his Honour concluded that the applicant would have been a serious danger to the community if released from custody without a Division 3 order being made. He found, however, that the adequate protection of the community could reasonably and practicably be managed by a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). [3] The order then made by his Honour had some 45 conditions including – and relevantly for current purposes – conditions that restricted the respondent’s use of telephones and access to the internet and, specifically, any social networking sites. There was particular resonance to these conditions, given the circumstances of the respondent’s offending as recorded at [15]-[21] of the judgment. It can be said, at least, that after his release on 28 October 2022, and whilst being supervised on the order made by Cooper J, the respondent has not engaged in that sort of offending. [4] He has, however, breached the conditions of the order. In contravention of its terms and/or of directions given under it, he has, amongst other things, obtained a mobile phone and used it to access social media. On 3 November 2023, he entered pleas of guilty to three charges that averred these contraventions to be breaches of the Act. 1 Attorney-General for the State of Queensland v Kristopher Richard Joseph Moxham [2022] QSC 225, [15], [41]. -- 2 of 4 -- 3 He was convicted of and fined for these offences. Pursuant to s 22 of the Act, the Attorney-General now makes application for a continuing detention order or, in the alternative, pursuant to s 22(7), an amendment to the supervision order. The applicable mechanisms are well understood.2 [5] In this application, the respondent points to evidence which, he says, discharges the onus placed upon him by section 22(2) of the Act. This evidence takes the form of opinions proffered, again, by Dr Beech and Dr Sundin and also a report from forensic psychologist Mr Bruce Hamilton. Dr Beech retains concerns about the respondent, and in particular identifies the possibility that he might obtain, illicitly, an internet- capable device. This might, as it did before, provide a pathway to further offending. The doctor was, however, prepared to allow that a supervision order would substantially reduce the risk of the respondent’s committing another serious sexual offence. Dr Sundin’s review of the respondent’s circumstances and behaviour concluded with the following observations: It is unlikely that (the respondent) will re-offend precipitously or quickly after release to the community, but his risk of re-offending will rise without appropriate maintenance of supports and a high level of oversight, structure and supervision. Overall, his risk assessment suggests that he is at above average risk for future sexual recidivism. In my opinion, the presence of a supervision order with the usual clauses has the capacity to lower his risk of sexual recidivism to below average or low. [6] Some encouragement for that opinion is to be found in Mr Hamilton’s report. He records that: …Mr Moxham presents in a manner seeking support and assistance. He is motivated and engaged in treatment, acknowledging his problematic past and current behaviours. [7] Mr Hamilton expressed his openness and willingness to work with Mr Moxham in the future. In the result, there is some consensus as between Ms Horne, who appears for the respondent, and Ms Maloney, who appears for the applicant. A continuing detention order is not necessary, but a supervision order is. The terms of any such order are agreed. [8] The contention that remained, at least at the outset of the hearing, related to the proposed duration of such order. Justice Cooper’s order expires on 29 October 2027. There was originally divergence of opinion as between Dr Beech and Dr Sundin as to whether this was an appropriate date on which the order should expire. It has been said that, in cases like this, setting a term for which the order should run involves “elements of the arbitrary”.3 On the basis of the evidence received by me this morning, it has to be said that they are the dominant elements and that the absence of any objective reckoners means that the exercise is really one in speculation, or, as put in sworn testimony, the making of an “educated guesstimate”. 2 See, generally, Attorney-General v Sands [2016] QSC 225. 3 Attorney-General for the State of Queensland v Van Dessel [2006] QCA 285 -- 3 of 4 -- 4 [9] It is encouraging to learn, as I have today, that there is some research being done in this area and that in the future there may be some more scientific way in which the prospective duration of an order might be calibrated. As it happens, there is not, as first presented, a need to reconcile competing conjecture, since Dr Sundin today revised an earlier opinion to the effect that there was no need for an extension to the term of the order. The doctor now accepts that the respondent has a paraphilia and his use, when breaching the order, of search terms such as “teen” when looking at pornography suggests a tenacity of sexual interests that points towards the need for a longer order. [10] Dr Beech was, in essence, always of this view. His approach was, with respect, thoughtful. He would not, so he said, normally recommend an extension of an order at this early a stage, when breaches are actually quite common. However, the respondent’s paraphilia and the nature of the contravention suggested to him that the relevant risks are likely to subsist in a way that meant, so he thought, that the order should remain in place for a longer period. [11] The uncontradicted and, in effect, unchallenged evidence before me, therefore, leads to the conclusion that the term of the order should be for five years from today. In those circumstances, I have made the order that is proposed by the applicant and, in effect, not opposed by the respondent. [12] The Court, being satisfied to the requisite standard that the respondent, Kristopher Richard Joseph Moxham, has contravened the requirements of the supervision order made by Justice Cooper on 21 October 2022, orders that: 1. The respondent, Kristopher Richard Joseph Moxham, be released from custody and continue to be subject to the supervision order made by Justice Cooper on 21 October 2022. 2. Pursuant to s 22(7)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 the supervision order made by Justice Cooper on 21 October 2022 be amended by omitting the words “29 October 2027” currently in the order and inserting the following underlined words to read: “THE COURT ORDERS THAT Kristopher Richard Joseph Moxham be released from prison and must follow the rules in this supervision order for 5 years, until 19 March 2029.” 3. The applicant is to arrange for copies of the reports prepared by Dr Michael Beech (dated 23 January 2024) and Dr Josephine Sundin (dated 24 February 2024) to be provided to the National Disability Insurance Agency, the respondent’s treating psychologist, and any other social worker, counsellor or mental health professional involved in his treatment. -- 4 of 4 --