Attorney-General for the State of Queensland v Donovan [2021] QSC 355

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Anthony James Donovan [2021] QSC 355 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ANTHONY JAMES DONOVAN (respondent) FILE NO/S: BS 1879/10 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 13 December 2021 DELIVERED AT: Brisbane HEARING DATE: 13 December 2021 JUDGE: Callaghan J ORDER: 1. Pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and continue to be subject to the supervision order made on 17 February 2020. 2. The applicant arrange for copies of the reports of Dr Josephine Sundin dated 21 July 2021 and 19 November 2021, and Dr Scott Harden dated 9 August 2021 and 6 December 2021 be provided to the respondent’s treating psychiatrist and to Queensland Health. 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 for the respondent to be released from custody subject to a supervision order – where respondent has been acquitted of potentially relevant offence – where the respondent submits that he should be released from custody subject to a supervision order – whether the respondent’s release from custody on a supervision order would provide -- 1 of 4 -- 2 adequate protection to the community against the commission of a serious sexual offence – where breach constituted by failure to adhere to medication regime, where medication able to be administered by injection COUNSEL: J Rolls for the applicant B Mumford for the respondent SOLICITORS: GR Cooper Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The respondent, now 59 years of age, has been incarcerated since 1983. He is, unsurprisingly, described as “highly institutionalised”. In 1995 he was sentenced to a lengthy term of imprisonment for sexual offences that reflected two separate episodes of offending. [2] His engagement with the Dangerous Prisoners regime began in 2010, when he was released from custody under a supervision order made pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). He was released on 24 September 2010, but made it only until 22 October before he was returned to custody and eventually brought under a continuing detention order. [3] After his release in January 2015, he lasted until May of 2015 before being returned to custody. There have been other proceedings in his case, and I do not for current purposes need to canvass those, but it took until 17 February 2020 for him to be released again pursuant to the supervision order which is the foundational document for these proceedings. He was returned to custody in April 2020, released in February 2021 and returned to custody in April 2021. [4] The reason for his return at that time was his breach of requirements contained in the supervision order. Those breaches occurred by reason of his failure to take prescribed medication. The respondent needs such medication. He has been recorded as suffering from a mixed personality disorder, psychopathy, a substance use disorder, sexual sadism, post-traumatic stress disorder and a mild intellectual impairment. He has been prescribed drugs including diazepam, olanzapine, carbamazepine, mirtazapine, atorvastatin, perindopril and propranolol. At least some of these drugs are calculated to stabilise him, both psychologically and psychiatrically. [5] When regard is had to all of the materials and the history of this case, it is not difficult to contemplate the sorts of risk that the respondent might present if he is not so stabilised. Properly these proceedings are therefore brought by the Attorney-General pursuant to division 5 of part 2 of the Act, and in them the Attorney alleges that the respondent has, by consuming illegal drugs, breached the terms of the order made on 17 February 2020. The contravention is established, and, indeed, on 31 May 2022 the respondent pleaded guilty to two breaches of s 43AA of the Act. -- 2 of 4 -- 3 [6] The contravention of the requirement of a supervision order established. In those circumstances, unless the respondent can satisfy the Court on the balance of probabilities that the adequate protection of the community can, despite that contravention, be ensured by release on the existing order or on the order as amended, the Court must rescind the existing order and make a continuing detention order. [7] This application has a chequered history, and I do not in the circumstances need to rehearse all of it. I have considered the entire history of the matter but, functionally, the focus of this application is on the respondent’s approach to his medication and the measures that can be adopted to deal with that. [8] One part of the pharmaceutical regime by which the respondent must abide is the ingestion of antipsychotic medication, and the context for the aforementioned breaches is one in which he was prescribed to take such medicine orally. This method was conducive to noncompliance and defied adequate supervision. Were it the only option, then a continuing detention order would have been well within the contemplation of the Court. However, there has been a development that enables the respondent to discharge the onus cast upon him by s 22(7) of the Act. [9] The respondent’s treating psychiatrist, in a report dated 3 December 2021, informs that the respondent is now maintained on psychotropic medications by way of Depo injections, which, as I understand it, are formulated for slow release. In that way, they are calculated to assist those who might resist or be incapable of abiding by or adhering to a medication regime. Self-evidently, such method of medication is one that is suited to being administered under supervision. Proof of failure to comply ought be a straightforward exercise. [10] The treating psychiatrist, Dr Tie reports also that the respondent has, since September at least, sustained the stability of his mental state and is exhibiting no psychotic symptoms. He points out that this new method of administering the prescribed antipsychotic medication is one that can be administered and managed within a community setting, just as it can be and is in custody. [11] In these circumstances, I do not propose to reproduce in these reasons the full history of the matter, which is easily enough discoverable from the previous judgments delivered and the materials tendered before me. It is, in effect, a quarter of a century ago that the respondent was last convicted of a sexual offence, but his many and complex issues do compel the need for him to be subject to some sort of supervision if he is to remain in the community without presenting an unacceptable risk within the meaning of the Act. [12] That much was already established, and I am not reviewing the necessity for the order. The only question is whether, in light of the breach, he can discharge the aforementioned onus. In circumstances where the evidence about his current status targets so specifically and effectively the cause, nature and effect of the contraventions, he is in a position to do so. [13] This is, of course, a question different from the issue as to whether or not the respondent might, nonetheless, breach the order. The history of his case and -- 3 of 4 -- 4 some of the evidence before me suggests that, for reasons that may be deliberate or may have their source somewhere in the respondent’s subconscious, there is a likelihood that he will do so. [14] This is not, however, as Mr Rolls for the Attorney-General fairly points out, a basis on which it can be found that the onus is not discharged. Especially is this so when the breach within contemplation – that is, a failure to medicate – should be easy to detect and act upon before the effects of failing to medicate morph into behaviour that might give rise to concern about a risk of sexual offending. Again, to appropriate a term volunteered by Mr Rolls, the supervision can provide the necessary architecture which can ensure the relevant treatment is administered and that the relevant risk is thereby contained. [15] For these reasons, the applicant allows that the respondent can be released to the supervision order made on 17 February 2020, a submission which is, of course, adopted, endorsed and has been explained separately by Mr Mumford on behalf of the respondent. [16] Both counsel are in agreement that there is no need for any alteration to the existing order. I therefore order that pursuant to s 22(2) of the Act, the respondent be released from custody and continue to be subject to the supervision order made on 17 February 2020. [17] I further order that the applicant arrange for copies of reports namely, the reports of Dr Josephine Sundin dated 21 July 2021 and 19 November 2021, and Dr Scott Harden dated 9 August 2021 and 6 December 2021 be provided to the respondent’s treating psychiatrist and to Queensland Health. -- 4 of 4 --