Attorney-General for the State of Queensland v Cobbo [2022] QSC 31

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Cobbo [2022] QSC 31 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (respondent/applicant) v DAMIAN SCOTT COBBO (applicant/respondent) FILE NO/S: BS No 6968 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 10 March 2022 DELIVERED AT: Brisbane HEARING DATE: 4 March 2022 JUDGE: Martin J ORDER: 1. The supervision order made on 20 November 2017 be amended as follows: (a) Paragraph 10 – delete “prior to” and insert “within two days of” (b) Paragraph 11 – delete “at least two days prior to” and insert “within two days after the” (c) Paragraph 19 – delete “and discuss with” (d) Paragraphs 25, 26 and 30 – delete 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/respondent was released from custody on a supervision order made pursuant to Part 2, Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the applicant/respondent seeks to remove or amend some of the requirements of the supervision order – whether the order as amended is sufficient to ensure adequate protection of the community – whether it is reasonable to make the amendments in all the circumstances -- 1 of 6 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 19, s 19A Attorney-General for the State of Queensland v Cobbo [2017] QSC 273 COUNSEL: CR Smith for the applicant/respondent B Mumford for the respondent/applicant SOLICITORS: Legal Aid Queensland for the applicant/respondent GR Cooper, Crown Solicitor for the respondent/applicant [1] In November 2017, Applegarth J found that Mr Cobbo was a serious danger to the community in the absence of an order made pursuant to Part 2, Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). [2] Under s 13(5)(b) of the Act, his Honour ordered that the respondent be released from custody subject to a supervision order.1 The circumstances giving rise to the findings are set out in detail in the reasons of Applegarth J and I need not repeat them here. [3] The supervision order will, in the absence of any further order, expire on 2 December 2022. [4] In this application, Mr Cobbo seeks to remove or amend some of the requirements of the supervision order. He also seeks to remove the words “or monitoring condition” from requirement 5 of the supervision order. [5] The power to make an amendment of a supervision order is found in s 19 of the Act. The requirements of such an order may be amended if the court is satisfied that the requirements, as amended, are sufficient to ensure adequate protection of the community and it is reasonable to make the amendment in all the circumstances. Section 19A of the Act is a specific provision relating to a requirement of a supervision order concerning a curfew direction or a monitoring direction. Such a requirement may be removed if the person subject to the order satisfies the court on the balance of probabilities that the adequate protection of the community can be ensured without the requirement. 1 Attorney-General for the State of Queensland v Cobbo [2017] QSC 273. -- 2 of 6 -- 3 [6] The respondent seeks variation of eight requirements of the supervision order. Evidence was placed before the court concerning the ramifications of the amendments sought so far as s 19 and s 19A of the Act are concerned. [7] The parties are agreed that amendments may be made to certain of the requirements of the supervision order. That agreement does not, of course, mandate that an order be made in accordance with such agreement, but the grounds upon which the parties have relied in reaching that conclusion are based upon persuasive evidence which was before the court. [8] The applicant was examined by Dr McVie, a highly respected and experienced psychiatrist who practises in this field, and I found her evidence, both by way of report and through cross-examination, to be compelling. The changes which are made to the Supervision Order by this order are all consistent with the evidence and will maintain adequate protection of the community. Requirement 10 and 11 “The Respondent must: 10. seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; 11. notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two days prior to commencement or any change;” [9] I am satisfied, to the relevant standard, that it is appropriate to make amendments to requirements 10 and 11 of the supervision order which would allow Mr Cobbo to seek approval for engaging in employment or give notice of it after that employment was obtained. Requirement 25 and 26 “The Respondent must: 25. not visit premises licensed to supply or serve alcohol, without the prior written permission of a Corrective Services officer; -- 3 of 6 -- 4 26. not visit public parks without the prior written approval of a Corrective Services officer;” [10] I am similarly satisfied that it is appropriate to vary requirements 25 and 26 - which deal with visiting licensed premises and public parks - by removing a requirement that he obtain permission before entering such premises or places. Requirement 30 “The Respondent must: 30. not establish or maintain any supervised or any supervised contact including undertaking any care of children under 16 years of age except with prior written approval of a Corrective Services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children;” [11] I am further satisfied that it is appropriate to remove the condition in requirement 30 concerning contact with children under the age of 16 years. Mr Cobbo has entered into a settled domestic relationship with the mother of a child and has demonstrated, according to the reports, that this requirement is both unnecessary and contrary to the productive development of his behaviour. [12] There was disagreement about some of the proposed amendments. [13] Requirement 5 imposes a condition that the applicant comply with a curfew direction or monitoring direction. The applicant seeks to have the words “or monitoring direction” deleted. After this application was commenced, the monitoring device was removed from the applicant. Notwithstanding that, Ms Smith contended for the deletion of the words “or monitoring direction”. Although the device has been removed, it is consistent with the general force of the supervision order that the capacity to make a further monitoring direction should remain alive. -- 4 of 6 -- 5 [14] Requirement 19 of the order is that the applicant “submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed”. He seeks to have that condition deleted. Dr McVie gave evidence that there was value in the applicant putting a plan together outlining the things that he intended to do in the next week. But she could not see any value in the requirement that there be a discussion with a Corrective Services officer about that. Dr McVie agreed that it would adequately address the risk referred to in s 19 of the Act if the applicant was required to submit a schedule of his plan or proposed activities on a weekly basis without having to enter into a discussion. I accept that that is appropriate and that the removal of the words “and discuss with” will result in a requirement that is, with the rest of the order, sufficient to ensure adequate protection of the community. [15] The applicant seeks to have condition 34 removed. It provides that he is to “allow any other device including a telephone to be randomly examined. If applicable, account details and/or telephone bills are to be provided upon request of a Corrective Services officer”. The applicant contended that this was an unnecessary invasion of his privacy. Dr McVie was asked whether this was an appropriate condition given the evidence that the applicant had increased his use of pornography at various times. There were reasons which Dr McVie understood for that increased use and, as to the use of lawful pornography, she said: “I don’t have a concern with it. Increased use of pornography is one of the risk factors in general terms for increased sexual offending. It doesn’t seem to have been a risk factor for this man. But it’s interesting that it did occur last year. … I’m ambivalent about it. I couldn’t say one way or the other whether I think that condition should be removed. As I’ve said, I don’t think removal of the condition will increase risk, but I think it might give some assistance to ensuring that the pornography just didn’t escalate.” [16] The evidence relating to this condition is such that the applicant has not satisfied the onus on him. The fact that Dr McVie is “ambivalent” about the requirement with respect to searching the applicant’s telephone and other devices does not tip the evidence in the applicant’s favour. [17] The proposal for amendments was said by Dr McVie to be generally appropriate. She said that she was “of the opinion that it’s better for people to have reduction in their -- 5 of 6 -- 6 monitoring in the lead-up to the end of their orders, rather than having everything just stop at one date”. [18] On the basis of the evidence provided, I am satisfied that amendments should be made to the supervision order. Order [19] That the supervision order made on 20 November 2017 be amended as follows: (a) Paragraph 10 – delete “prior to” and insert “within two days of” (b) Paragraph 11 – delete “at least two days prior to” and insert “within two days after the” (c) Paragraph 19 – delete “and discuss with” (d) Paragraphs 25, 26 and 30 – delete. -- 6 of 6 --