Attorney-General for the State of Queensland v GHS (No 2) [2022] QSC 103 [2022] 23 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v GHS (No 2) [2022] QSC 103 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v GHS (respondent) FILE NO/S: 10816 of 2021 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 30 May 2022 DELIVERED AT: Brisbane HEARING DATE: 26 May 2022 JUDGE: Applegarth J ORDER: The respondent be released from prison and must follow the rules of the supervision order for 10 years until 26 May 2032. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT SEXUAL OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent has progressed as anticipated in the court’s reasons for an interim detention order – whether a supervision order should therefore be made – the unsuitability of the contingency accommodation to which he will be taken to enhance his prospects of further rehabilitation and to improve community protection Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Attorney-General for the State of Queensland v GHS [2022] QSC 29 COUNSEL: J Tate, counsel for the applicant S Robb, counsel for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid Queensland for the respondent -- 1 of 9 -- 2 [1] When convicted sex offenders have served the full terms of lengthy prison sentences and are suitable for supervision under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), an issue arises about where they should be accommodated to progress their rehabilitation and best ensure community safety. [2] The issue is not about fairness to an offender who has “done his time”. It certainly is not about sympathy for such an individual. The issue is about ensuring adequate protection of the community and facilitating rehabilitation: the Act’s purposes. [3] The practical issue in this matter is whether the best the State can do in that regard is to accommodate the respondent on a trundle bed in the living room of a house that is already overcrowded with sex offenders. The State knows, because experts have told it, that the respondent does not always behave well when he is in close company with others. [4] That problem is the result of the personality disorder he developed after being sexually and physically abused as a child. With the professional help he has recently obtained, the respondent has developed strategies to better cope with the stress of being in close company with others. But his successful progress on a supervision order, and therefore community safety, is hardly enhanced by what the State proposes for his accommodation. [5] Would the State better advance community safety and the respondent’s rehabilitation if he lived on his own in a small shed or even in a tent at the Precinct, rather than on a trundle bed in a living room in a crowded house, as the State proposes? [6] That is a question for the executive government, not the judiciary, to answer. It is a question that taxpayers and citizens with an interest in community safety and the cost savings of successful rehabilitation might ask. [7] Citizens might wonder why the State, having the capacity to build ample accommodation at Wellcamp, did not a build a few basic sheds or even erect some tents at the Wacol Precinct to safely accommodate individuals like the respondent. Such rudimentary accommodation at the Precinct would enhance the chance of yesterday’s supervision order achieving its goals: rehabilitation of a troubled individual and community safety. Background [8] The respondent had what psychiatrists, lawyers and judges would describe as a “profoundly prejudicial” early life. For example, his mother, an alcoholic, reportedly threw him into a fireplace and fractured his skull when he was aged two-and-a-half. He was the victim of emotional, physical or sexual abuse by some members of his family. [9] Unsurprisingly, this abuse as a child led to a personality disorder, developmental and behavioural problems, and encounters as a youth with the criminal justice system. His lengthy criminal history consists mostly of property rather than violent offences. His mother and step-father suicided when he was a teenager, and he has a history of self-harm. -- 2 of 9 -- 3 [10] By 2007, the respondent was aged 30, was on parole, had work and was in a long- term relationship. He was living with his father (with whom he had a good relationship) and his step-mother. However, in late 2007 and early 2008 his life unravelled. The relationship with his girlfriend ended, he abused alcohol and drugs, accessed pornography and would masturbate while sitting alone in a car, looking at women who attracted his attention. [11] The serious sexual offences he committed in early 2008, including two digital rapes, occurred early in the morning when he was drunk or intoxicated by drugs. On 9 March 2010, he was sentenced to nine-and-a-half years for offences committed on 2 March and 8 June 2008. He subsequently confessed to sexual assaults he had committed on 7 February 2008, and received an additional nine months’ imprisonment. [12] He has spent the last 13 years in jail and is now aged 44. [13] The respondent has completed sex offender courses and benefited greatly from individualised therapy in recent years provided by Dr Andrews, a Clinical Psychologist and Neuropsychologist. [14] He was due to be released on 2 March 2022 after he had served his full sentence. However, an application was made under the Act. Transition from prison to the Precinct [15] For reasons given on 7 March 2022, I reached the conclusion that the respondent was suitable for release under supervision.1 However, I also concluded that there should be a staged progression to the supervision order over the following few months. I made an interim continuing detention order until 28 April 2022 to facilitate the respondent’s transition:2 “to a general unit in the weeks ahead, during which time he can demonstrate his ability to cope, as best he can given his difficult personality, with life in the general prison population.” [16] I reviewed the matter on 28 April 2022, by which time the respondent had moved to a less secure environment and was progressing well. Due to some miscommunication or misunderstanding, he had yet to transfer to a general unit. Therefore, and despite his being upset by having to stay in jail, I made another continuing detention order to last until 26 May 2022, in anticipation that he would be released on a supervision order that day. [17] For reasons that are detailed in my judgment of 7 March 2022, the respondent’s personality does not allow him to cope very well in a crowded environment. At different times of high stress, he has managed to cope by spending long periods in his cell each day and limiting interactions with others. [18] The evidence shows that he understands his vulnerabilities and had strategies to address them. He had hoped upon release at the end of his sentence to be able to live a solitary existence in some quiet and remote location, living in a caravan, having a 1 Attorney-General for the State of Queensland v GHS [2022] QSC 29. 2 At [151]. -- 3 of 9 -- 4 dog, pursuing pro-social interests and avoiding conflicts. Despite the appeal of such a scenario, I indicated that I proposed to make a supervision order. As with any supervision order under the Act, this subjects an individual to rigorous controls on where they can live and what they can do. [19] The authorities who administer the Act were concerned about how the respondent would cope with living in close quarters with other individuals in the contingency accommodation at the Precinct at Wacol. These were legitimate concerns. However, they did not justify the respondent being detained for an indefinite period in prison. I anticipated that with appropriate support and supervision, and having proven over a substantial period that he was able to cope in the crowded environment of a general unit in a prison, that he would be able to cope, with some difficulty, with being accommodated at the Wacol Precinct. [20] With the advantage of the therapy and advice of his treating psychologist, I expected that the respondent would arrange, in consultation with his case managers and others, a regime whereby he mainly stayed in his own room, limited his interactions with other residents at the Precinct and developed a plan to transition to the kind of accommodation that is best suited for him, and therefore most likely to ensure community safety. The respondent’s recent progress [21] The most recent report from Dr Andrews is dated 18 May 2022. It updates the respondent’s progress since a report dated 26 April 2022. Between those reports she had seen the respondent on three occasions. His mental state has remained stable. Despite being disappointed at not being released on a supervision order when he had expected at the end of his full term of imprisonment, he has managed his emotions well. [22] According to Dr Andrews, he did not present as clinically depressed or anxious and had been regulating any shifts in his mood appropriately. He demonstrated good insight into his situation and remained motivated to progress to community release on a supervision order. [23] The respondent had been assisted by Dr Andrews in transitioning to an open unit with strategies to manage “the increase in sensory stimuli, anxiety management, strategies to manage any potential problematic or challenging interactions with other prisoners on the unit”. [24] Dr Andrews reports that the respondent has adjusted well to the unit and been accessing all of his “out of cell time”, has socialised with other prisoners and has progressed to the highest stage (Stage 4) on his Individual Management Plan. He communicated appropriately with staff and other prisoners, and had not demonstrated any negative behaviours. He tolerated frustrations inherent in the unit. [25] Dr Andrews reports: “Despite [the respondent’s] perception that being maintained in custody was a set back, he has appropriately coped with this event and maintained a positive future focus. He has demonstrated an appropriate ability to manage frustration when an unexpected change -- 4 of 9 -- 5 occurred. He has taken on the self management plan developed with him in session and has applied strategies to assist his everyday functioning on a unit. This is a positive sign for future community reintegration.” [26] Her report concludes: “[The respondent’s] risk factors remain unchanged since my last report. There has been no escalation in any of risks factors and he appears to be engaging in strategies to self maniagne [sic] appropriately in custody. Should [the respondent] be released I would recommend initially, frequent reporting with his case manager for the first month (e.g. once- twice per week), and weekly psychology intervention sessions for at least the first 2 months and review following this. I would recommend [the respondent] be maintained on escorted moves for some time to allow HROMU to evaluate his responses in the community and allow [the respondent] to adjust to being in public with support.” Accommodation [27] When the matter came before me on 26 May 2022, I was informed through an affidavit that as a result of a recent release and further movements, a bedroom in a precinct house at the Wacol Contingency Precinct is currently unavailable. Instead, if released on a supervision order, the respondent would have to be accommodated on a trundle bed in the living room of a precinct house. [28] The evidence also is that due to an increased number of releases and lack of space at the Precinct, other residents are accommodated on trundle beds, waiting for room availability. [29] Bedrooms only become available when residents return to custody as the result of a contravention or other residents transition from the Precinct to their own accommodation within the community. [30] The evidence placed before me by the High Risk Offender Management Unit (“HROMU”) states that due to current housing issues in Queensland, there has been a reduction of Precinct residents being able to transition from the Precinct and, in some instances, those who were accommodated in the Precinct have been required to return due to loss of their accommodation in the community. [31] As at 24 May 2022 it was unknown how long the respondent would be required to be accommodated on a trundle bed. However, the HROMU was making ongoing efforts to facilitate a bedroom for residents at the Precinct. It was hoped that the respondent would be placed into a house with the most vacant space. [32] I was also informed that the respondent has about $240 in his custodial bank account and, if released, would receive a Centrelink crisis payment of about $300. [33] He needs to obtain food, clothing, medications and other necessities of life from this money. -- 5 of 9 -- 6 [34] To say that requiring the respondent to sleep on a trundle bed in the living room of an already overcrowded house, which is full of released sex offenders, including paedophiles, is sub-optimal for his rehabilitation and community protection is an understatement. [35] Is this the best that the executive government can do for the community’s safety? [36] This lamentable situation reduces, rather than enhances, the chances of the respondent implementing strategies that allow him to cope. In fact, requiring him to be accommodated in such a situation made me consider not making any order under the Act. This was because, on one view, the respondent’s rehabilitation and community safety would be better protected by his trying to cope for himself and by finding some quiet place to live in a remote location, even in a tent. That might be better than sleeping on a trundle bed in a crowded house that accommodates too many released sex offenders. [37] On reflection, however, I decided that the respondent’s rehabilitation and community safety were best served by a supervision order being made. If the respondent displays behavioural problems due to being accommodated on a trundle bed in an overcrowded house at the Precinct, some of the responsibility for that will be with the executive government which has not provided enough contingency accommodation for the number of people who are subject to the Act. The growing demand for “contingency accommodation” [38] The Act became law in 2003 and was expected to target a dozen or so of the worst sexual offenders, typically hardened, recidivist paedophiles. Over the last two decades the number of individuals who are subject to the Act has grown. [39] A perennial problem for the system during the 13 years that I have encountered such cases is the absence of suitable accommodation for individuals who, having served their full sentence, are subject to a supervision order. The conditions of orders and administrative decisions made under them make it difficult for individuals to find their own accommodation in the community. Rarely can they afford suitable accommodation and, even if they could, a landlord or real estate agent is unlikely to tenant a property to someone who has just come out of jail and is marked as being subject to the Act. [40] Queensland Corrective Services provides “contingency accommodation” in precincts at Wacol, Rockhampton and Townsville for offenders who have no suitable alternative accommodation at the time of release. If such accommodation is available at the Precinct, then it is provided for an initial three-month period. In the absence of approved accommodation, offenders may continue to be housed in that “contingency accommodation”. During that time the individuals are expected to continue to actively source suitable long-term accommodation in the community. [41] The accommodation shortage facing authorities that administer the Act and individuals who are subject to supervision orders under it is not a recent development. It has been a problem for more than a decade and each year the situation gets worse. -- 6 of 9 -- 7 [42] One might have expected some government planning and action to address the growing demands that are placed upon the HROMU to find space in “contingency accommodation”. [43] In recent times, and especially in recent months, the respondent has done all that might be expected of him to prepare for release to suitable contingency accommodation and then embark upon the difficult task of finding accommodation that will be approved by the authorities. The community has a major investment in ensuring that the respondent implements his plans to deal with stress and avoid conflict wherever he lives. The cost of returning him to prison would be significant in both financial and personal terms. [44] Courts do not decide how public resources are deployed. Executive governments do. [45] Instead, courts are asked by the Attorney-General to make supervision orders. Courts do so if the evidence and the law warrant such an order being made in the expectation that the executive government will provide the resources that are required to ensure community protection and rehabilitation under those orders. [46] A simple solution for cases like the respondent’s would have been for the government to erect some basic accommodation on government land in or close to the Precinct. The public interest in community safety and ensuring that individuals like the respondent are rehabilitated under supervision orders might have suggested such a solution. For example, the government might have engaged the contractors who built the quarantine facility at Wellcamp to prefabricate a couple of simple sheds and install them in the Precinct at Wacol. [47] To be clear, I am not suggesting that the respondent and others under the Act should be accommodated at a practically empty, thousand-bed facility at Wellcamp. No doubt that facility can be used to house others who need to be accommodated there. Some citizens might wonder, however, why the government did not build a few less places at Wellcamp and a few more at Wacol. [48] Individuals like the respondent who have “done their time”, have realistic relapse prevention plans and professional support from people like Dr Andrews do not deserve or expect luxury accommodation at the government’s expense. The respondent would be happy enough to live on his own in a shed or a tent. The government offers him neither option at or near the Precinct. [49] The best it seemingly can do at the moment is to offer him a trundle bed in a house that is overcrowded with sex offenders, many of whom will have their own personality problems. This hardly seems a suitable form of accommodation to enhance the respondent’s chances of making a successful transition to life under a supervision order. The matter of money [50] The respondent has $240 and may get another $300 from Centrelink to support his immediate needs. It is ridiculous to suppose that he will be able to find private accommodation at any time, let alone during the current period of a general accommodation crisis, with that kind of money. Being made homeless would not serve the community’s protection. -- 7 of 9 -- 8 [51] The only realistic accommodation for him is in “contingency accommodation” in a precinct like Wacol. But there simply are not enough rooms at that place unless the government quickly builds some more accommodation there. [52] If the government does not provide additional contingency accommodation spaces for persons released under the Act, then the probable result is predictable. People like the respondent living in overcrowded houses at the Precinct will come into conflict with each other. Their conduct may amount to a serious contravention of a supervision order and they will be subject to contravention proceedings. Those proceedings, including Court time and legal representation of the parties, come at great public expense. While those proceedings come on for hearing the individual is returned to custody, again at a considerable public expense each day. [53] One might expect someone within the Treasury to do the financial calculations. The financial consequences of inadequate and overcrowded accommodation at the precincts is enormous. It is avoidable. The cost of building some additional accommodation in or near the Wacol Precinct would be a fraction of the cost of doing nothing. [54] One is not talking about building a facility with 1,000 beds like the government’s quarantine facility at Wellcamp. The current accommodation crisis at the Wacol Precinct could be solved by erecting some very basic accommodation at that location or a similar location from which individuals, who earn the privilege, can access public transport to attend appointments, educational facilities and places where they can rehabilitate themselves under supervision. [55] Perhaps the idea of building some very basic accommodation at or close to the Wacol Precinct to accommodate the demand for contingency accommodation is too simple. However, I do not think that one has to be a highly-paid consultant to the government or a senior bureaucrat in the Treasury to conclude that this simple solution might be a good investment. A small investment in simple accommodation will avoid the enormous costs of individuals under the Act re-entering the court system and prisons. Such a simple initiative is likely to save money for taxpayers, enhance rehabilitation and thereby improve community safety. Conclusion [56] Unless and until the executive government takes urgent action to address a chronic problem, largely of its own making, the best that can be done for the respondent is a trundle bed in the living room in an overcrowded house full of sex offenders. [57] Many in the community may think that someone who committed the sex offences that the respondent did in 2008, even one who has “done his time” and done all he can to rehabilitate himself in jail, does not deserve even a trundle bed. However, a trundle bed in a tent of his own or a shed at the Precinct would be better than the present arrangements. It also would cost far less than the cost of returning him to prison in the event of an alleged contravention of his supervision order that results from intolerable overcrowding at the Precinct. [58] This proceeding has cost the State tens of thousands of dollars in commissioning psychiatric reports, preparing affidavits, engaging lawyers to appear and in Court time. The system that the Act creates is an expensive process. -- 8 of 9 -- 9 [59] If the authorities wish to save money and not increase the prospect of the respondent coming back to Court under contravention proceedings, then consideration might be given to accommodating him on his own in a small shed or a tent, rather than the accommodation to which he has transitioned under the supervision order. Such an inexpensive solution would aid his rehabilitation and enhance community safety. [60] Yesterday I came close to making no final order under the Act because of the overcrowding at the Precinct. It is for the executive government, not the courts, to decide if community protection under supervision orders is to be enhanced by the kind of simple, inexpensive and cost-saving solutions I have identified. [61] Those solutions do not require unoccupied accommodation at Wellcamp to be relocated to Wacol. The problems I have outlined do, however, require urgent action if the Act’s purpose of community protection is to be advanced. -- 9 of 9 --