Attorney-General for the State of Queensland v Berndt [2021] QSC 289

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Berndt [2021] QSC 289 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DANIEL MARK BERNDT (respondent) FILE NO: BS 11642 of 2021 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 22 October 2021 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 22 October 2021 JUDGE: Bradley J ORDER: On the Originating Application filed 6 October 2021 (CFI 1): THE COURT being satisfied that there are reasonable grounds for believing that the respondent, Daniel Mark Berndt, is a serious danger to the community in the absence of an Order made under Division 3 of the Dangerous Prisoner (Sexual Offenders) Act 2003 (the Act), ORDERS THAT: 1. The application for a Division 3 Order be set for hearing on 29 November 2021. 2. Pursuant to s 8(2)(b)(ii) of the Act, the respondent be detained in custody until 4pm on 18 November 2021. 3. Pursuant to s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists named by this Honourable Court, being Dr Karen Brown and Dr Evelyn Timmins who are to prepare independent reports, which are to be prepared in accordance with s 11 of the Act. 4. Pursuant to s 39PB(3) of the Evidence Act 1977, the court directs that Dr Josephine Sundin, Dr Karen Brown and Dr Evelyn Timmins give oral evidence -- 1 of 7 -- 2 to the court other than by audio visual link or audio link. 5. The matter be reviewed by Justice Callaghan on 18 November 2021 6. Liberty to apply granted. On the Applicated filed 6 October 2021 (CFI 11): THE ORDER OF THE COURT IS THAT: 1. The question of the respondent’s capacity to respond to the DPSO Act proceedings pending in the Supreme Court in BS 11642 of 2021, personal, legal and financial matters, be referred to QCAT for determination. FURTHER THE COURT DIRECTS THAT: 2. The Registrar of the Supreme Court provide to the Registrar of QCAT a copy of the following material: (a) A copy of the transcript of today’s hearing. (b) A copy of the following documents from the Supreme Court file BS 11642 of 2021: (i) Affidavit of Josephine Sundin sworn 6 July 2021 (CFI- 2); and (ii) Affidavit of Andrew McCabe sworn 24 September 2021 (CFI- 12). 3. The Registrar of the Supreme Court to obtain an update from the Registrar of QCAT as to the progress of the referral by 4pm on Wednesday 17 November 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 applicant seeks an order that the respondent undergo examination by two psychiatrists for the purposes of a preliminary hearing pursuant to s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the respondent is a prisoner in custody for a serious sexual offence – where the respondent has an extensive criminal history of serious and impulsive sexual violence – where a consultant psychiatrist opines that the respondent represents an unacceptable and unmodified risk of future sexual recidivism – whether there are reasonable grounds for -- 2 of 7 -- 3 believing the respondent is a serious danger to the community in the absence of a division 3 order HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where the respondent’s intellectual impairment raises questions about his capacity to make decisions in respect of this proceeding and other personal, legal and financial matters – whether the question of the respondent’s capacity should be referred to the Queensland Civil and Administrative Tribunal for determination Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 8, s 11, s 13 Evidence Act 1977 (Qld), s 39PB Fardon v Attorney-General (Qld) (2004) 223 CLR 575, considered COUNSEL: J Tate for the applicant C R Smith for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] This is an application by the Attorney for orders under s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The practical effect of those orders is that the respondent, Mr Berndt, would remain in custody and be assessed by two psychiatrists under s 11 of the Act. The evidence before the court establishes that Mr Berndt is currently a prisoner for the purposes of the Act, and that he is a person in custody who has committed sexual offences. On a separate application, the Attorney seeks orders that the question of the respondent’s capacity be referred to the Queensland Civil and Administrative Tribunal for determination. Preliminary Hearing Application [2] Mr Berndt is presently about 55 years of age. He has a criminal history and, in more recent times, it includes convictions for indecent treatment of children under 16 with circumstances of aggravation, assault with intent to commit rape, rape, and attempted rape. Each of those offences was committed in May 2003 when he was aged about 37 years. He was convicted and received various sentences, the longest of which was four years imprisonment. He was next relevantly convicted of manslaughter, an offence committed on about 3 October 2008. He was then 42 years of age. He was convicted and sentenced to seven years imprisonment. [3] The next relevant offending, the offending for which he is currently in custody, is a series of offences committed on 4 December 2015, when he was aged 49. Those convictions are for entering a dwelling with intent by breaking at night, using and -- 3 of 7 -- 4 threatening violence, assault occasioning bodily harm, sexual assault, and entering a dwelling with intent to break at night. He received sentences for each of those offences and convictions were recorded. The longest of those sentences was six years imprisonment. [4] The question in this application is whether the court is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order. If the court is satisfied, then the court must set a date for the hearing of the application for a division 3 order. There are related powers which are relevant for today’s purposes, including the power to have a prisoner examined by psychiatrists. The preliminary hearing pursuant to s 8 is the beginning of the process under the Act, and it should be understood within the objects of the Act as a whole. These are set out in s 3. [5] The objects are, firstly, to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and, secondly, to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation. The first step in the processes under the Act is an application for orders authorised by s 8. But in making those orders, it is necessary for the court to have some appreciation of the nature of the orders that could ultimately be made. The division 3 order is either an order that a prisoner be detained in custody for an indefinite term for their control, care or treatment, or an order that the prisoner be released from custody subject to requirements considered appropriate and stated within the order. The first of these is usually called a continuing detention order, and the second a supervision order. [6] The matter, as to which the court needs to understand there are reasonable grounds, is whether the prisoner presents a serious danger to the community in the absence of any kind of a division 3 order. That is to be understood by reference to the explanation of that term found in s 13(2) of the Act. A prisoner is a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if the prisoner is released from custody, or if the prisoner is released from custody without a supervision order being made. Ultimately, in deciding that question, there are a number of matters to which the court must have regard. That, of course, is the decision to be made at a later stage of this process; but, nonetheless, the matters that the court is to consider at that time are of relevance for consideration now to the extent that evidence is available. [7] For the purposes of making this decision today, I have considered the report of Dr Sundin, a psychiatrist, and I have considered also the information available about the prisoner’s antecedents and criminal history. With the benefit of those two sources of information, I have considered whether a decision could be made about the propensity on the part of the prisoner to commit serious sexual offences in the future; whether there is any pattern of offending on his part; any evidence of the efforts that he has made to address the cause or causes of the offending; and whether he has participated in rehabilitation programs; and whether doing so has had any positive effect. [8] I have also considered, from the material available at this preliminary stage, the risk that the prisoner will commit another serious sexual offence if released into the community and the importance of protecting members of the community from such a risk. In doing so, I have kept in mind that before a final decision is made about -- 4 of 7 -- 5 whether a division 3 order should be imposed, the court will have to be satisfied of evidence to a particularly high standard that is set out in s 13(3) of the Act. In making even this preliminary decision, I have also borne in mind the fundamental importance which the common law attaches to personal liberty, and the quite exceptional nature of this Act as described by the High Court in its decision in the Fardon v Attorney- General (Qld) (2004) 223 CLR 575. [9] Dr Sundin administered a number of tests or measures to make the assessment contained in her report and considered the information available to her, which is also available to me for the purpose of today’s hearing. In Dr Sundin’s opinion, taking Mr Berndt’s history globally, she described him as “an individual who I consider represents an unacceptable, unmodified risk to the community for future sexual violence. His risk will be escalated in the presence of intoxicants. He is at risk for impulsive sexual violence.” [10] Dr Sundin also expressed her clinical opinion that she was “not confident that a supervision order would adequately contain the risk he poses, given the level of impulsiveness evident in his history.” [11] Dr Sundin makes a number of recommendations about the position of Mr Berndt and rehabilitation programs that might be available to him, and other assistance that might be provided, and the circumstances in which those programs might be undertaken. But her view of the present position with respect to Mr Berndt is that she would respectfully recommend that he should be detained in prison for treatment, specifically for participation in the Getting Started Preparatory Program and Inclusions Sexual Offenders Program, and the possibility of the Low Intensity Substance Intervention Program. [12] The circumstances described in the information about Mr Berndt’s history of offending indicates the very serious and severe nature of his conduct, his assaults and, in particular, his sexual assaults on various complainants. He has a relatively long and established history of such offending and that history, as Dr Sundin observed, provides a substantial basis for concluding that he is likely to be a serious danger to the community in the absence of a division 3 order. [13] In making that assessment, I have taken into account Dr Sundin’s report, the apparently impulsive nature of Mr Berndt’s past offending, the quite egregious nature of that offending, and the likely effect of any renewed such offending on members of the community. Dr Sundin’s conclusion as to risk is also instructive of her various risk assessment tools in the report. In particular, reflecting upon the risk for sexual violence protocol, which assesses the dynamic risk, Dr Sundin concluded that, overall, she considered that Mr Berndt is at a high unmodified risk for future sexual recidivism. [14] In the circumstances, I am satisfied that there are reasonable grounds for believing that Mr Berndt is a serious danger to the community in the absence of an order made under division 3 of the Act. It is appropriate to set a hearing date for an application for a division 3 order. It is also appropriate to order that Mr Berndt be detained in custody for a period to undergo examinations by two psychiatrists named by the court, who are to prepare independent reports in accordance with s 11 of the Act. -- 5 of 7 -- 6 [15] The Attorney also urges that the court make an order under s 39PB(3) of the Evidence Act 1977 (Qld) which would direct Dr Sundin and the other two nominated psychiatrists to give oral evidence at the court, and not to do so by audio visual link or audio link. I accept, for the reasons set out in the applicant’s outline of submissions, that such an order is appropriate. Impaired Capacity Application [16] In her report, Dr Sundin has identified a separate issue with respect to Mr Berndt. It is simplest to quote an extract from her report: Taken globally, my impression was that Mr Berndt was a man with a constitutional intellectual disability, who was poorly socialised and prone to emotional dysregulation, and acting out behaviour from childhood onwards. As a consequence, he has become estranged from a number of supports. His pre- existing intellectual impairment was likely aggravated by an acquired brain injury in 1998, which appears to have caused further frontal lobe damage and greater impairment of his capacity to inhibit impulses. His antisocial behaviour has been escalated by his prolonged and quite profound alcohol use disorder. He has a significant history of frequent intoxication. Intoxication appears to be the enduring feature of his serious offences. Mr Berndt has experienced multiple adverse consequences from his alcohol abuse over the years. Historically, he appears to have suffered physical abuse and exploitation from drinking associates. His angry outbursts and aggressive actions have been escalated when he has been intoxicated. His quite significant cognitive impairments have interfered with his capacity to accept and recognise that he does have difficulties with behavioural dysregulation and adverse consequences from alcohol consumption. He has not understood the necessity of participating in rehabilitation programs, perceiving that he had the capacity to do full time and be released without the need to participate in such programs. Various interviewers have commented on his general reduced comprehension and his difficulty retaining information. He has been repeatedly offered participation in sexual offenders treatment programs and drug and alcohol treatment programs. [17] Elsewhere in her report, Dr Sundin specifically recommends that a guardian be involved for legal, health and financial decision-making to assist Mr Berndt. [18] The question about capacity raised in Dr Sundin’s report has important implications for his participation and response to the process he is presently involved in in this court. It is evident that there is an issue about whether the degree of his current intellectual impairment affects his capacity to make the decisions required or appropriate for someone in his position in this proceeding. He has an established diagnosis of intellectual development disorder, which is assessed as moderate, and a probable co-morbid neurocognitive disorder, which is secondary to an acquired brain injury. These disorders are, clinically speaking, profound and they are not likely to alter over time. [19] Matters that are within the realm of consideration in proceedings under this Act include the treatment and rehabilitation steps that are appropriate, the regulation of -- 6 of 7 -- 7 living conditions, the regulation of social activities, and the restriction on the use of substances, as well as the monitoring and reporting of many levels of social interaction. These are all matters that could raise questions that might be tested in the proceeding and might affect the outcome. They have consequences for Mr Berndt. There is an interaction between many of these issues and other matters which plainly are within the realm of Mr Berndt’s personal affairs, including where he might live, what it might cost, and various other personal and financial matters. [20] Owing to a concern about Mr Berndt’s capacity, the Attorney has raised this issue with the court. It seems to me there is clear evidence that raises a question about Mr Berndt’s capacity to make decisions with respect to personal matters, legal matters and financial matters. There is a present and continuing need for decisions about those matters to be made by Mr Berndt or on his behalf. [21] The Queensland Civil and Administrative Tribunal (the Tribunal) has jurisdiction to consider the question of a person’s capacity to make decisions in relation to each of these categories of matters. It is the appropriate body to consider the position with respect to Mr Berndt and to decide upon it. In the circumstances, it is appropriate for the court to order that the question of Mr Berndt’s capacity with respect to personal matters, legal matters and financial matters be referred to the Tribunal for determination. Because these matters affect or relate to the present proceedings under the Act, which are pending, it would be to the benefit of Mr Berndt if a decision on his capacity could be made at the earliest possible time. [22] It may assist the Tribunal to have the benefit of Dr Sundin’s report, and it may also assist the Tribunal to have the benefit of an affidavit sworn by Mr McCabe on 24 September 2021 dealing with some related matters. Earlier in the hearing, Dr Sundin gave some brief oral evidence. For the same reason, I think it is appropriate for the Tribunal also to have the benefit of a transcript of today’s hearing. It would certainly assist the court if the Tribunal were able to apprise it of the progress of this referral at an early date. That would assist in programming this important application under the Act so that it could be heard and determined with expedition. [23] In my view, the interests of both the community, represented by the Attorney today, and also the interests of Mr Berndt, would be best served by an expeditious determination of the Attorney’s application. Undoubtedly, that would be assisted by an expeditious determination by the Tribunal of the question of Mr Berndt’s capacity. In the course of today’s hearing, I have had the benefit of some exchanges with counsel for the Attorney and with Ms Smith who appeared for Mr Berndt about various considerations that will apply as this proceeding progresses. In all the circumstances, within the enormous workload that I understand the Tribunal faces, to the extent that it could accommodate this question with some expedition, I am sure that the parties here, but also the court, would greatly appreciate that level of cooperation. -- 7 of 7 --