Attorney-General for the State of Queensland v Robinson [2021] QSC 260

SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: Attorney-General for the State of Queensland v Robinson [2021] QSC 260 ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v RICHARD LAURENCE ROBINSON (Respondent) BS 678 of 2021 Trial Division Civil Supreme Court DELIVERED ON: 15 October 2021 DELIVERED AT: Brisbane HEARING DATE: 11 October 2021 JUDGE: Freeburn J ORDER: 1. Pursuant to section 13(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) the court is satisfied that Mr Robinson is a serious danger to the community. 2. Pursuant to section 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Mr Robinson be released from custody (at his release date – 20 October 2021) but be subject to a continuing supervision order for a period of 10 years. CATCHWORDS: CRIMINAL LAW – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER –Where Mr Robinson is serving a 16- year term of imprisonment – Where Mr Robinson was convicted of 6 counts of rape and 1 court of deprivation of liberty – Whether Mr Robinson is a serious danger to the community – Whether Mr Robinson should remain in custody or be released on a supervision order – Whether the adequate protection of the community can be reasonably and practicably managed by a supervision order - Whether the conditions in the supervision order can be reasonably and practicably managed by corrective services officers -- 1 of 11 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 Attorney-General v Waghorn [2006] QSC 268, applied. COUNSEL: J Tate (Applicant) C Reid (Respondent) SOLICITORS: GR Cooper, Crown Solicitor for the applicant Background [1] Mr Robinson is 51 year old indigenous man. He has, unfortunately, spent most of his adult life in jail. [2] On 28 May 2007, when he was 36 years of age, Mr Robinson was convicted, after a trial before Shanahan DCJ and a jury, of six counts of rape and one count of deprivation of liberty. Those offences were committed in 2005 when Mr Robinson was 35. At the sentencing hearing Shanahan DCJ said this: On the 10th of May 2007 a jury convicted you of nine counts on an indictment before me. They were an offence of burglary, six counts of rape, an offence of unlawful deprivation of liberty and an offence of stealing. All the offences occurred in the early hours of the 28 th of February 2005 when you broke into the complainant’s home unit and raped her on a number of occasions. [3] Mr Robinson appealed against his conviction and sentence in 2007. In the course of his reasons for dismissing the appeal Keane JA said at: [26] In cases such as this, the sentence must be such as to afford real protection to the community from the offender's predatory sexual behaviour: there was no remorse and no evident prospect of rehabilitation. Moreover, in this case, there was no occasion to give the appellant the benefit of a discount for the utilitarian value of a plea of guilty. [27] The decision of this Court in R v Edwards provides support for the view that a mature adult offender, with a history of serious sexual violence which has resulted in lengthy terms of imprisonment, who is found guilty after a trial of multiple rapes must expect a sentence in the range between 15 and 20 years in order to protect the community from him. In this case, the appellant's sentence fell at the lower end of the range; that may be because the learned sentencing judge took the view that the level of actual violence used upon the complainant was less than in otherwise comparable cases and the appellant did not use a weapon to facilitate the commission of the crime. [28] On the appellant's behalf, it is said that his previous offence of rape was committed 18 years ago when the appellant was only 18 years of age. To the extent that the appellant has since spent most -- 2 of 11 -- 3 of his adult life in prison, his most recent re-offending serves to put beyond argument the failure of the earlier sentence in terms of personal deterrence and to confirm that a very lengthy sentence is necessary in the interests of protecting the community. [4] His appeal having failed, Mr Robinson is serving a 16-year term of imprisonment for those offences. [5] Mr Robinson’s full-time release date is 20 October 2021 – which is next week. The Attorney-General applies for an order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the ‘Act’). Because Mr Robinson’s full-time release date is next week, it is necessary that the court promptly decide the Attorney-General’s application. The 1989 Offences [6] I have explained the offences that were committed in 2005. There were prior offences which occurred in January 1989 and February 1989 when Mr Robinson was 17. The January 1989 offences involved Mr Robinson entering a complainant’s home without her consent, removing her clothes and assaulting the complainant. Her injuries included an 8 cm long laceration to her cheek. [7] Whilst on bail for the January 1989 offences, Mr Robinson committed the February 1989 offences. The February 1989 offences involved grabbing a woman, dragging her into grass, punching her in the head, hitting her on the back of the head with a piece of wood, threatening and then raping her, twice. [8] These cowardly and appalling offences resulted in a sentence of 12 years. Mr Robinson served the whole of that sentence. [9] Those 1989 and 2005 offences are the most serious offences in Mr Robinson’s criminal history. However, his criminal history is also littered with offences of violence. It is, as Keane JA described it, ‘a bad criminal history’. [10] In prison Mr Robinson has been offered various sexual offender programs. He has either declined or failed to complete the Getting Started Preparatory Program on five occasions. -- 3 of 11 -- 4 Reports of Clinical Psychologists [11] Dr Timothy Lowry, a clinical psychologist prepared a report dated 18 July 2019 for the purposes of a parole application by Mr Robinson. Dr Lowry reports: [5.1] While Mr Robinson’s explanations have provided no insights into his sexually violent behaviour, he demonstrates prominent cognitive distortions of minimisation, rationalisation, and denial of his behaviour, and a distinct lack of remorse or empathy for the victims of his behaviours. Indeed, he has taken no responsibility for his behaviour and has attributed blame towards the victims. In terms of the drivers of his sexual offending, it appears, at least for the index offence, to have been predatory and planned in nature, motivated by an interaction of power and control needs, hostility towards women, poor self-regulation, and disinhibition potentially secondary to substance use. This behaviour is likely also driven by a range of attitudinal distortions including misogynistic beliefs regarding women, and an entitled and distorted view of himself and his behaviours. The earlier (1989) offence, from the limited information available, may have been more opportunistic and impulsive in nature (or less planned in nature). Of note, and indicating a degree of callous disregard for victims, is that during the earlier sexual offence Mr Robinson engaged in an unprotected assault while aware he was Hepatitis C positive. This callousness may reflect that shown to him by the perpetrators of his sexual abuse, resulting in desensitisation to the distress of others. … [6] Recommendations [6.1] With respect to the Board’s request for a recommendation for the provision of parole, the current assessment has determined that Mr Robinson poses a high risk in the community for engaging in sexually violent offending, with this elevated risk extending to physical violence and other criminal offending. This risk would appear to be ongoing given his high static (historical) loading and the presence of multiple unaddressed dynamic risk factors. Based on the assessment, presence of multiple dynamic risk factors, and unmet treatment needs, there is little justification to warrant granting parole to Mr Robinson at this time given the unacceptable risk he poses to the community. [6.2] While noting the above, Mr Robinson appears to have taken some positive steps with completion of two drug treatment programs and ongoing engagement in employment within the prison. He has however refused to engage in sexual offender treatment. In line with Risk-Needs-Responsivity principles, Mr Robinson’s high- risk determination requires a comparable intervention response. Prior to any form of release into the community Mr Robinson should be required (or at least strongly encouraged) to complete a sex offender treatment program. Further, he would benefit from cognitive skills and general self-regulation -- 4 of 11 -- 5 programs, as well as further substance relapse prevention intervention. [emphasis added] [12] Mr Robinson has not completed any such programs. [13] In her report of 4 September 2020, Dr Ursula Oertel, another clinical psychologist notes that Mr Robinson has participated in 16 individual treatment sessions with her. She says: While Mr Robinson has completed 16 individual treatment sessions, it does not seem that he has benefited greatly or successfully responded. He presents with ongoing problems with treatment which decreases the likelihood that important risk factors will be appropriately managed or controlled in a community setting. Summary/Recommendations: Mr Robinson would benefit from ongoing individual psychological intervention focusing on enhancing his motivation to change as well as adopting a cognitive and behavioural model approach targeting his dynamic risk factors and criminogenic needs in relation to his sexual offending. He would also benefit from treatment addressing the outstanding treatment needs identified in Dr Lowry’s psychological risk assessment – cognitive skills, general self-regulation and substance relapse. Reports of the Expert Psychiatrists [14] There are reports from three expert psychiatrists reports. [15] Dr Ness McVie’s report is dated 28 February 2021: Richard Lawrence Robinson is a 49 year old indigenous man who has spent most of his adult life in custody including two lengthy sentences for rape of adult women. He has a complex history and while there are many inconsistencies in his self-report and previous material. Mr Robinson appears to present with severe personality pathology. He would meet DSM 5 criteria for antisocial personality disorder. He also presents with narcissistic and paranoid features as well as meeting criteria for a diagnosis of psychopathy. He also presents with ongoing issues with substance misuse. He has a history of a prejudicial childhood with possible abuse and neglect, leading to early contact with the Criminal Justice System. His custodial behaviour over many years suggests some periods of relative stability, then periods of extremely poor behaviour when he perceives his requests are not being met. He has multiple breaches for assaults, substance abuse, and verbal aggression to staff. He has a history of displaying negative attitudes to authority figures, particularly Correctional staff, and police. -- 5 of 11 -- 6 He has effectively denied his sexual offending and has not been able to maintain participation in programs to address sexual offending due to his personality structure and attitudes. He has limited skills to be able to maintain a productive life in the community without general re-offending and no clear plans for the future. [emphasis added] [16] Dr McVie’s assessment of risk is as follows: Mr Robinson is an untreated sexual offender. Assessment, actuarial and structured clinical indicates Mr Robinson presents a high risk of re-offending sexually if released from custody. This risk would not be moderated by a supervision order as he would be likely to be extremely difficult to manage on any order due to his antisocial attitudes, his inability to engage with any treatment, his severe personality disorder, and his ongoing substance use. If he were to re-offend sexually, this would most likely be the rape of an adult female. [emphasis added] [17] Thus, Dr McVie is quite pessimistic. [18] Dr Michael Beech has also prepared a report. On the issue of risk Dr Beech records this: In my opinion, despite the high Static score, the risk of Mr Robinson committing another sexual offence is in the moderate to moderate-high range; that is, between average and above average but not into the much above average risk group. If he were to offend, it most likely would be in the context of a return to general criminal offending. Intoxication might play some role but essentially it would be a sexual assault and rape of an adult female that he has come across, possibly only briefly. His entitled attitude, predilection to use violence to get his way, and his lack of insight and awareness would mean he had a limited understanding of consent, and proclivity to use physical coercion to meet his needs. The victim might suffer substantial physical injury and psychological injury. This risk could be reduced with treatment but I accept the opinion of Dr Oertel that group therapy might not be the suitable mode for Mr Robinson. Unfortunately, this is the best-validated form of treatment. I believe that a supervision order would substantially reduce the risk, to below moderate. I agree with Dr McVie though that Mr Robinson would be a very difficult supervisee. There is a particular concern that in the past he has escaped and so runs the risk that he might abscond from supervision and be at large for some time. During that period, he might commit another sex offence but I am not aware that he has offended in the past while at large. The risk is that he would simply not comply well with supervision restrictions, given his history on probation and his -- 6 of 11 -- 7 general attitude towards authority and corrective services officers. He would require intensive monitoring and surveillance because of his personality. There would need to be tight conditions around abstinence, residence, and his associations. I would recommend a prolonged period of night curfew and restrictions on his movements. Any indication of a return to general offending or drugs would be an indication of an acute increase in risk. The focus would be on finding suitable, stable accommodation and engagement in long-term counselling to assist him with dealing with the vicissitudes of supervision. Because of his psychopathic traits, anti-social personality, and lack of insight, if he is released to supervision, I would recommend a period of ten years. [emphasis added] [19] Dr Ken Arthur is the third consultant psychiatrist who has prepared a report. His report is dated 21 September 2021. His diagnosis is similar to the other medical professionals – psychopathy, mixed personality disorder (with prominent narcissistic antisocial and paranoid features) as well as substance abuse. [20] Dr Arthur notes that Mr Robinson has made little, if any, attempt to change. Dr Arthur’s risk assessment is as follows: The most relevant risk factors relate to the behavioural consequences of his extremely disturbed personality such as impulsivity, aggressivity, sexual entitlement/preoccupation, a lack of moral inhibitors against sexual violence, a high risk of returning to substance abuse and his use of sex as a way of maintaining a pathologically inflated sense of self. Despite the fact that he has spent most of his adult life in jail and has undergone numerous psychiatric and psychological assessments, little is known about the affective or cognitive precursors of his sexual offending. It is probable that that on release prisoner Robinson will seek to meet his intimacy and sexual needs within a relationship, which he will find difficult to manage given his pervasive mistrust of others, fears of being controlled and a narcissistically-driven need to see himself as a dominant and independent individual. This is likely to result in a failure of relationships or alternatively conflict and feelings of dissatisfaction. Given his impaired capacity for attachment and low motivation to accept support and help from others, he is likely to fall back on maladaptive coping strategies such as substance abuse and criminal activity, which is familiar to him and validates his preferred self-image as a powerful and uncontrolled individual. His interactions with vulnerable women involved substance use and the sex industry will serve to reinforce his negative attitudes towards women. In this context, he may opportunistically offend against women to fulfil his sexual and narcissistic needs, using physical violence and intimidation to ensure their compliance. -- 7 of 11 -- 8 His risk of sexual recidivism would be increased in the context of a return to substance abuse, involvement in criminal activities/association with criminal peers, adopting an itinerant lifestyle and perhaps feeling dominated and controlled by an intimate partner. RECOMMENDATIONS I believe that prisoner Robinson’s risk of sexual recidivism could be managed by the provision of a supervision order, although I acknowledge that he would present a significant management challenge based on his history of poor compliance with community supervision, antiauthoritarian attitudes and truculence. He would almost certainly push boundaries, respond angrily and aggressively to restrictions and attempt to manipulate staff through the use of intimidation. His misogynistic and hypermasculine attitudes make it likely that he will struggle with female supervisory staff/case managers, and he may attempt to sexualise these relationships. [emphasis added] The Scheme of the Act [21] The first question for the court to consider is whether the court is satisfied that Mr Robinson is a serious danger to the community in the absence of a Division 3 order. A prisoner is a serious danger to the community if there is 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. [22] In my view, the answer to that first question is ‘Yes’. Dr McVie and Dr Arthur assess the risk of sexual reoffending as “high”. Dr Beech assesses the risk as moderate to moderate to high. [23] There is sufficient cogent evidence, considering the matters listed in s 13(4) of the Act, to satisfy the court to a high degree of probability that there is an unacceptable risk of Mr Robinson committing a serious sexual offence. [24] Mr Robinson’s counsel, on his client’s behalf, conceded that, on the material, he was a serious danger to the community in the absence of a Division 3 order. However, Mr Robinson’s counsel argued that Mr Robinson should be released on a supervision order. The Two Options [25] The requirements of s 13(1) being satisfied, the court can order either that Mr Robinson be detained in custody for an indefinite term for control, care or -- 8 of 11 -- 9 treatment, or the court can order that Mr Robinson be released subject to an appropriate supervision order. [26] In deciding between those two options, s 13(6) requires (6) In deciding whether to make an order under subsection (5)(a) or (b) – (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether – (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officer. [27] There are several relevant principles at play here, the primary ones being: (a) In determining whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community. Ultimately, the purpose of the legislation is protective. (b) The Applicant bears the onus of demonstrating in a continuing case that a supervision order affords inadequate protection to the community or as McMurdo J expressed it in Attorney-General v Waghorn [2006] QSC 268 at [28]: But where the Attorney-General seeks a continuing detention order, the Attorney-General must prove that adequate protection of the community can be ensured only by such an order, or in other words, that a supervision order would not suffice. The Decisive Facts [28] The decisive facts are these. First, the risks to the community are grave risks. Mr Robinson’s history of sexual violence has been explained. The offending in 1989 and again in 2005 is very serious. Second, there is no evidence of any insight, or remorse, or that Mr Robinson’s risks have been decreased by any treatment, including one on one treatment. Third, there is a significant difference in the expert psychiatric opinion. -- 9 of 11 -- 10 [29] On the one hand, Dr McVie’s opinion is that the high risk of re-offending would not be moderated by a supervision order. That is because Mr Robinson would be likely to be extremely difficult to manage on any supervision order due to his antisocial attitudes, inability to engage with treatment, severe personality disorder and substance abuse. [30] On the other hand, Dr Beech and Dr Arthur favour release on a supervision order. Both Dr Beech and Dr Arthur acknowledge that there are significant risks with supervision including a prospect of escape or absconding, and his likely non- compliance with restrictions. Indeed, on the evidence there would need to be intensive monitoring and surveillance. However, the risk is that the tighter the controls, monitoring and surveillance, the higher the risk that Mr Robinson will not accept the restrictions. [31] In short, Dr Beech and Dr Arthur gave guarded support for the idea that the risk of re-offending could be practically managed by a supervision order. [32] Ultimately, if a continuing detention order is sought, the Attorney-General must establish that adequate protection of the community cannot be ensured by the adoption of a supervision order: Attorney-General v Lawrence [2009] QCA 136. Of course, any supervision order may well be breached. That is a relevant consideration. It is the consideration that concerned Dr McVie. But the most important consideration is whether the adequate protection of the community can only be ensured by a continuing detention order. Or to put the issue another way, will a supervision order suffice to reduce the risk of Mr Robinson committing sex offences (rather than the risk of breaches of the supervision order) to an acceptable level. [33] Mr Robinson is now 51 years of age. He has, most recently, served 16 years in prison. The risks to the community posed by Mr Robinson now are not the same as they were in 2005. Mr Robinson’s counsel submitted that Mr Robinson is capable of learning. I agree. Further, the evidence is that appropriate treatment of Mr Robinson is not likely to occur in custody. That is not directly relevant to the risk to the community but appropriate and continuing treatment, along with proper and close supervision, is likely to result in a decreased risk to the community. -- 10 of 11 -- 11 [34] A supervision order is not risk free. However, the proposed supervision order has strict conditions. The supervision order will identify risk factors of alcohol and drugs. In the short term, Mr Robinson will be subject to monitoring at a precinct. He will live at a place approved by a corrective services officer. He will be subject to curfews and monitoring. He will be banned from consuming alcohol or taking drugs. There will be testing to ensure that. He will be required to obey directions of corrective services about seeing medical professionals, including as to participation in a treatment or rehabilitation program. [35] The terms of an appropriate supervision order are agreed by counsel. I conclude that a supervision order in those terms will reduce the relevant risks to an acceptable level. Similarly, the psychiatric evidence is clear that the supervision order ought to be for 10 years. -- 11 of 11 --