Attorney-General for the State of Queensland v BYM [2022] QSC 305

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v BYM [2022] QSC 305 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v BYM (respondent) FILE NO/S: BS No 6692 of 2018 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 29 August 2022 DELIVERED AT: Brisbane HEARING DATE: 29 August 2022 JUDGE: Williams J ORDER: THE COURT DECLARES THAT: 1. The respondent was in custody serving a term of imprisonment for a period of 13 days between 23 March and 4 April 2022 for an offence other than an offence of a sexual nature. 2. By operation of section 24 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the period for which the supervision order made on 9 June 2021 has effect is extended by 13 days to 22 June 2031. Further, the Court being satisfied to the requisite standard that the respondent has contravened a requirement of the supervision order made on 9 June 2021, THE COURT ORDERS THAT: 3. The respondent be released from custody and continue to be subject to the supervision order made by me on 9 June 2021. 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 respondent was released to the community under a supervision order in June -- 1 of 11 -- 2 2021 – where the supervision order was for a period of 10 years – where the respondent was alleged to have contravened the supervision order – where the respondent accepts that the respondent has contravened the supervision order – where it was submitted that the adequate protection of the community can, despite the contravention, be adequately reduced by returning the respondent to the existing supervision order – where the applicant seeks orders under section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the existing supervision order can, despite the contravention, ensure the adequate protection of the community Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22, s 24, s 43AA Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 Attorney-General for the State of Queensland v DBJ [2017] QSC 302 COUNSEL: M Maloney for the applicant EJ Lewsey for the respondent SOLICITORS: Crown Law for the applicant KLM Solicitors for the respondent [1] This is an application pursuant to section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) by the Attorney-General seeking orders in respect of a contravention of a supervision order by the respondent. [2] An application pursuant to section 22 of the Act involves two separate steps. The first step is a determination of whether there has been a contravention of the supervision order. The second step is that in the event that a contravention is proved, the discretion arises to rescind or amend the supervision order as the Court considers appropriate. [3] At the first stage, the onus is on the Attorney-General to satisfy the Court on the balance of probabilities that the respondent has contravened the supervision order. If the Court is satisfied that the order has been contravened, then the onus shifts to the respondent to satisfy the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its current form or as amended. If the respondent does not discharge that onus, the Court must rescind the supervision order and make a continuing detention order. [4] The question at the second stage is whether the Court is satisfied that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its current form or as amended. -- 2 of 11 -- 3 [5] The allegation in respect of the contravention is not controversial between the parties. The respondent accepts that he has contravened condition 27 of his supervision order. Condition 27 of the supervision order states: “You are not allowed to take (for example swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs.” [6] The alleged contravention is that on 23 February 2022, the respondent underwent a urinalysis test in accordance with requirement 28 of the supervision order. The testing returned a presumptive positive test for the presence of marijuana, methylamphetamine, benzodiazepine and amphetamine. The test sample was sent for confirmation testing and on 25 February 2022, the test results indicated a presence of methylamphetamine at a level of 1841 micrograms per litre, amphetamine at a level of 641 micrograms per litre and cannabis at a level of 2784 micrograms per litre. [7] It is acknowledged that the respondent is prescribed cannabis. However, the presence of amphetamine and methylamphetamine indicates the use of methylamphetamine, which is an illegal drug. It is in those circumstances that it was alleged that the respondent contravened requirement 27 of the supervision order by consuming illegal drugs. The respondent was subsequently charged with one count of contravention of a relevant order under section 43AA of the Act. The charge was dealt with before the Richlands Magistrates Court on 4 April 2022 with the respondent pleading guilty and being sentenced to a period of six months imprisonment, wholly suspended for a period of 12 months. [8] The respondent was on remand for a period of 13 days from 23 March to 4 April 2022 and the verdict and judgment record is exhibit 1 in respect of this application. [9] In respect of the contravention, as indicated previously, the respondent accepts that he has contravened the provision in the supervision order. [10] In respect of the first step, in these circumstances, on the evidence I am satisfied on the balance of probabilities that the respondent has contravened the supervision order made under the Act. [11] Consequently, the second question arises. The Court must rescind the supervision order and make a continuing detention order unless the respondent can satisfy the Court on the balance of probabilities that the adequate protection of the community can be ensured by the existing supervision order with or without amendments under section 22(7) of the Act. [12] By way of background, the original order pursuant to Division 3 was made by his Honour Justice Applegarth in November 2018. On that occasion, the respondent was found to be a serious danger to the community and it was ordered that he remain in custody under a continuing detention order. The first annual review was heard by Justice Davis on 30 March 2020. On 9 April 2020, his Honour affirmed the declaration that the respondent represented a serious danger to the community and ordered that he remain in custody under a continuing detention order. -- 3 of 11 -- 4 [13] On 7 June 2021, I conducted the second annual review and subsequent to that, the respondent was released to the community under a supervision order with a duration of 10 years. [14] For the purposes of this hearing, further psychiatric evidence was obtained. Since the respondent was released to the supervision order, he has participated in 18 treatment sessions with Mind Wise Psychology Services between 11 June 2021 and 18 February 2022. [15] A progress report of Dr Ursula Oertel, clinical psychologist, dated 11 April 2022 is before the Court. Paragraphs 4, 5 and 6 from page 2 of Dr Oertel’s report state as follows: “CLINICAL OBSERVATIONS AND MENTAL STATUS EXAMINATION 4. [The respondent] was pleasant and cooperative during his treatment sessions. He attended all scheduled appointments and appeared motivated to address the criminogenic factors associated with his risk of sexual violence. [The respondent] exhibited transient instability with respect to his affective, behavioural and cognitive functioning. He described momentarily feeling distressed, anxious and irritable. There were times when he acted impulsively and irresponsibly resulting in non-compliance with his Supervision Order requirements. He demonstrated occasional problems with stress and coping resulting in the use of maladaptive coping strategies including illicit substance use. [The respondent] was able to establish an appropriate social network (e.g. family members, friends, partner, children) which provided him day-to-day interpersonal contact and appeared to facilitate his psychological and social adjustment. He further re-established a romantic relationship with the mother of one of his sons which he described as stable, rewarding and caring. He denied the existence of frequent arguments or conflicts within the romantic relationship. [The respondent] did not appear to demonstrate problems with sexual self-regulation such as sexual preoccupation or high sex drive, sex as coping and deviant sexual interests. He did not verbalise any attitudes or cognitions that support or condone sexual violence. There were no indications that [the respondent] presented with perceptual disturbances such as hallucinations. With respect to his thought content, he did not verbalise any delusions, overvalued ideas, obsessions, phobias, suicidal ideation or violent ideation. He did not exhibit symptoms indicative of a thought disorder. [The respondent] presented as alert and oriented to time, place and person. No significant sensorium, memory or cognitive disturbances were observed. He appeared to be of borderline to low average intellectual functioning. [The respondent] admitted to and accepted responsibility for the acts of sexual violence committed in January 1999. He continued to deny perpetrating the index sexual offence on 01 June 2013. He -- 4 of 11 -- 5 demonstrated a fair understanding or appreciation of the factors and processes that place him at risk for recidivism. Furthermore, he displayed fair abilities in judgement, planning and problem solving. SUMMARY OF INDIVIDUAL TREATMENT SESSIONS 5. Treatment sessions with [the respondent] adopted a cognitive and behavioural model approach targeting his dynamic risk factors and criminogenic needs in relation to his risk of sexual violence. In particular, treatment focused on enhancing his ability to cope with stressful living circumstances and life events, enhancing adaptive coping resources and skills to manage negative affectivity, forming and implementing prosocial plans, developing plans regarding professional services to facilitate positive adjustment to community life, managing antisocial behaviours and attitudes, managing substance use problems, establishing positive social support network, maintaining non-conflictual interpersonal relationships and enhancing compliance with his Supervision Order requirements. In general, [the respondent] demonstrated motivation and willingness to attend treatment, take prescribed medication and conform to the requirements of his Supervision Order. He engaged well in intervention and would seek information or assistance with generating solutions and plans to manage his difficulties. He was able to demonstrate periods of stable psychosocial adjustment. However, there were occurrences where [the respondent] acted in an impulsive and irresponsible manner without considering alternatives or the consequences of his actions, and where he failed to utilise appropriate problem-focused and emotion-focused strategies to manage stressors and negative emotions. It appears that these incidences of poor general self-regulation and emotional regulation contributed to his non-compliance with respect to his Supervision Order requirements. RECOMMENDATIONS 6. [The respondent] seems to benefit from treatment designed to address his deficits in psychosocial adjustment and manage his sexual violence risk. However, it is apparent that he continues to exhibit difficulties with respect to general self-regulation and emotional regulation. [The respondent] would benefit from ongoing participation in psychological treatment targeting his dynamic risk factors and criminogenic needs with respect to: • Problems with stress and coping (e.g. maladaptive coping mechanisms, stress vulnerability, emotional self- regulation) • Problems with substance use (e.g. maladjustment stemming from illicit substance use) -- 5 of 11 -- 6 • Problems with planning (e.g. ability to problem solve and regulate impulses) • Problems with supervision (e.g. ability to comply with the demands of his supervision order)” [16] Dr Michael Beech, psychiatrist, was also retained to prepare a risk assessment report following the alleged contravention. The report dated 15 June 2022 sets out Dr Beech’s current opinion. Dr Beech at page 8 of his report states as follows: “SUMMARY AND OPINION [The respondent] is a 49-year-old single man who was released on a supervision order in June 2021 to reside at the Wacol Precinct. He was arrested in February 2022 when he produced a urine sample that tested positive for methamphetamine. This contravened a condition of his supervision order that he abstain from illicit substance use. There is a significant history of general criminal offending that indicates the development of an anti-social personality disorder. [The respondent] has struggled with psychological and emotional difficulties that have arisen most likely from prejudicial childhood circumstances. They have affected his ability to form and maintain relationships, but he has been able to maintain at least one long-term relationship in the past. When he struggles emotionally, he is prone to substance use and he has developed substance use disorders. In 2000, he was convicted on one count of rape, one count of attempted rape, and one count of sexual assault while pretending/is armed. After his partner had left him and taken his children, [the respondent] had suffered an emotional collapse and turned to drugs. On one occasion, he entered a residence at night and raped a woman. On another occasion, he entered a residence and, with the threat of a knife, indecently assaulted the two women. There was a nine-day period between those two incidents during which he had presented several times to hospital in a distressed state. Ultimately, he completed the full custodial sentence. On release, he settled initially with the support of extended family members and found work. Matters deteriorated when he left that support and formed a relationship with another woman. [The respondent] was subsequently convicted in 2015 on a charge of the rape on [redacted]. He had gone to her room at night and digitally assaulted her, using a pretext that she had wet the bed. [The respondent] went to great lengths to remove incriminating evidence, which led to a conviction for attempting to pervert the course of justice. Drug use likely was involved in that offending too. In his last custodial episode, his refusal to admit culpability for the 2015 episode and one of the 2000 incidents, precluded him from high intensity sex offender program. This, and the assessed high risk of re- offending, meant he remained on a continuing detention order from 2018 to 2021. During that period, he underwent psychological intervention with an experienced forensic psychologist, Dr Oertel. -- 6 of 11 -- 7 Following his release in June 2021, he resided at the Precinct. There is limited IOMS material until February 2022. However, [the respondent] reports that he struggled at the Precinct to live with the residents. They offered him drugs and pestered and annoyed him. Substance use was rife. Insightfully, he offered that he does not get on well with others and there was conflict. He had the support of family members and counselling agencies, which included continued sessions with Dr Oertel. There was a call from the 2015 complainant and [the respondent] said he remained on the phone to her despite knowing this contravened the order. After that, his phone was confiscated which meant a severe restriction on his ability to communicate with his supports and undertake the general day to day logistics that included appointments. I think it is fair to say that he struggled on supervision and over time there are indications of emotional collapse notwithstanding the support he found from his former partner and others. [The respondent] indicated the methamphetamine use was a one-off impulsive act. As it was, he appears to have caused the severe headache that required treatment. For a few days, he avoided drug screening. These days, in addition to his general grievance about the living circumstances on his release, he articulates regret for his behaviours. He finds it difficult in prison and misses the brief period of freedom that he had experienced and the contact with his family and his ex- partner. In my opinion, [the respondent] has: • Substance use disorder (in enforced remission) • An anti-social personality disorder that is slowly maturing As before, it is difficult to explore the nature of the 2015 offending, so it is difficult to rule in or rule out a paedophilia interest. Nonetheless, he has certainly formed adult relationships and there is no indication that he identifies emotionally with children or, during his release, has sought out child-related materials. If he has paedophilia, it is dormant. I agree with previous assessors that the child offending was more related to substance use, anti-social attitudes, and opportunity. His risk measured on the Static-99R, an instrument that looks at static factors, has a score of 5 or 6 that places him in the above to much above risk group. On the Stable-2007, he has a score of 13/26, indicating high dynamic risk factors and high treatment needs. In my opinion, the lapse into substance use during his release indicated he was moving towards emotional collapse, which, unsupervised, would have placed him at heightened risk of sexual re-offending. However, the monitoring, testing and observations that occur under the supervision order acted to quickly detect his substance use before his state had deteriorated further. In this matter, the supervision order acted as it is supposed to do: to pre-emptively detect increasing risk of re-offending and put in place structures that reduce the risk. -- 7 of 11 -- 8 In my opinion, now, the acute risk has settled. [The respondent] remains at above average risk of re-offending but that could be managed with a supervision order, which would reduce the risk to below moderate at least. The difficulty is going to be his ability to find suitable accommodation and support. I suspect that if he returns to the Precinct, there will be a return to conflicts, exposure to substances, and restrictions on his access to support. I strongly recommend that his phone is returned to him to facilitate his communication generally with others, especially his supports. It would also reduce the conflict that must ensue when he borrows other people’s phones. It is preferrable that he is placed in suitable accommodation outside the Precinct. However, I imagine that this would require at the very least a nominated residence and an intensive home assessment process. Failing that, it is like[ly][sic] there are few options available, and he will need to return to the Precinct. He will need access to continuing emotional support from agencies that included his general practitioner, Drug Arm, and Dr Oertel. These should resume as quickly as possible. I do not think that he requires treatment in custody before his release, but he should have quick and timely access to outside agencies.” [17] Importantly, Dr Beech identifies that the supervision order in effect acted as it was supposed to by pre-emptively detecting increasing risk of re-offending and putting in place structures that reduce that risk. [18] Importantly for today’s considerations, Dr Beech also concludes that the acute risk has settled. In his opinion, the respondent remains an above average risk of re- offending that can be managed with a supervision order which reduces the risk to below moderate, at least. [19] Dr Beech also makes some other comments about the management of the respondent, including recommending that his mobile phone be returned to him to facilitate his communication generally and with others and he also makes some recommendations about suitable accommodation and the need to access continuing emotional support from agencies, including his general practitioner, Drug ARM and Dr Oertel. [20] I would encourage the authorities and those managing the respondent to consider these comments further. [21] Dr Scott Harden, psychiatrist, also provided a further risk assessment report for the purposes of the contravention proceedings. This report, dated 5 August 2022, outlines Dr Harden’s opinion. Dr Harden’s report at page 24 states as follows: “OPINION [The respondent] was a 49 year old man of indigenous heritage who had committed two groups of sexual offences. The first group of offences was against adult women in their own home at night by breaking into their homes and sexually assaulting them using threats and weapons. The second sexual offence was against an eight-year- -- 8 of 11 -- 9 old girl under circumstances where there was easy access to her as a victim. There is no other clear information to be certain of the presence of a paraphilia. The photographs of the eight-year-old female’s genitalia on his phone, are however possibly suggestive of a paedophilic interest. Initially he denies committing any of the offences. Over time he admits and accepts that he committed the first set of offences. He has now undertaken significant individual therapy in custody regarding this and seems to have developing insight into his sexual offending and the factors that contribute to this albeit that he maintains denial of the more recent offence against a child [redacted]. He previously appeared to have little or no concern for his previous victims and minimised and distorted any potential risk of future offending. This appears to have steadily improved since the 2018 assessment with his admissions that his substance abuse in particular poses a risk with regard to future offending and his consideration of factors associated with his early life exposure to sexual behaviour and his subsequent attitude towards women. He has a long and robust history of polysubstance abuse probably with a preference for amphetamines but also marked use of opiates. This has included lots of stealing and also dealing in drugs to maintain his substance use in the past. It has also resulted in relationship breakdown, loss of employment and estrangement from support structures. He reported initially coming from a reasonable family of origin and having a fair degree of stability in his early years. More recently he has become more aware of a series of very adverse events in his earlier life and family life that may have contributed to his later offending. In his adolescence he began to have more and more conflict with his peers and authority, started using substances with the assistance of his uncle and embarked on a chronic pattern of substance misuse and then criminal behaviour. He has a history of depressive symptoms in the context of relationship breakdown, polysubstance abuse and stressors associated with being charged with and convicted of sexual offences. He has a multitude of physical complaints including joint and back pain, gastrointestinal problems, atypical chest pain and other concerns. These previously resulted in him being placed on narcotic analgesia in custody. He has some strengths in that he can maintain interpersonal relationships with adult women and he does have a trade qualification that will make it easier for him to obtain productive employment in the community. He now also has developing insight into both his substance abuse problems and his sexual offending problems with -- 9 of 11 -- 10 positive reports from his treating psychologist albeit relatively early days with regard to this insight.” [22] Dr Harden’s current view is that a supervision order reduces the risk to below moderate by decreasing his use of substances, monitoring his activity and enforcing further treatment intervention. The ultimate recommendation is that he continue on the current supervision order regime. [23] In respect of the respondent’s position on the second stage, it is submitted that the psychological and psychiatric material supports the contention that the respondent’s risk of sexual recidivism can be managed by a supervision order. [24] It is in these circumstances that it is ultimately submitted that the respondent has discharged the onus placed upon him pursuant to section 22(2) and that the risk of him committing a serious sexual offence can be adequately reduced by his return to his supervision order so as to ensure the adequate protection of the community. [25] The assessment of risk and what terms of the supervision order will provide for the adequate protection of the community is not a matter for expert opinion alone. It is a matter for the Court. As recognised by McMurdo J in Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at 30, the exercise requires a value judgment as to what risks should be accepted against the serious alternative of the deprivation of a person’s liberty. [26] In this case, the views of the psychiatrists and the psychologist are of assistance in the task of evaluating the risk in respect of the respondent and I accept the opinions of the two psychiatrists and the psychologist. The question is whether the risk of serious sexual offences unacceptable in the context discussed by Justice Bowskill, as the Chief Justice then was, in Attorney-General for the State of Queensland v DBJ [2017] QSC 302. [27] In the circumstances, I am satisfied on the basis of the psychiatric evidence and the other evidence before the Court that the adequate protection of the community can, despite the contravention, be ensured by the respondent returning to the existing supervision order. [28] In the circumstances, it is appropriate to make the orders sought. It is also necessary and appropriate to make declarations in respect of the time that the respondent has spent in custody for the period of 13 days and to clarify the consequence of the operation of section 24 of the DPSO Act which would extend the period of the supervision order by 13 days. [29] In the circumstances, the Court declares that: 1. The respondent was in custody serving a term of imprisonment for a period of 13 days between 23 March and 4 April 2022 for an offence other than an offence of a sexual nature. 2. By operation of section 24 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the period for which the supervision order made on 9 June 2021 has effect is extended by 13 days to 22 June 2031. -- 10 of 11 -- 11 [30] Further, the Court being satisfied to the requisite standard that the respondent has contravened a requirement of the supervision order made on 9 June 2021, the Court orders that the respondent be released from custody and continue to be subject to the supervision order made by me on 9 June 2021. [31] I make that order as per the amended draft. -- 11 of 11 --