Attorney-General for the State of Queensland v Cain [2021] QSC 171

SUPREME COURT OF QUEENSLAND CITATION: Attorney General for the State of Queensland v Cain [2021] QSC 171 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v RYAN THOMAS CAIN (respondent) FILE NO/S: No 13531 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 23 July 2021 DELIVERED AT: Brisbane HEARING DATE: 23 July 2021 JUDGE: Callaghan J ORDER: 1. The respondent, Ryan Thomas Cain, be released from custody on 26 July 2021 and continue to be subject to the supervision order made by Justice Bowskill on 28 May 2018. 2. That the reports of Dr Elizabeth Ness McVie dated 8 January 2021 and 12 May 2021 respectively, the report of Dr Scott Harden dated 5 March 2021, the reports of Dr Steve Morgan dated 7 December 2020 and 23 May 2021 respectively and the report of Dr Cassandra Griffin dated 7 July 2021 be released to any treating medical practitioner and practitioner providing psychological or psychiatric treatment to the respondent. 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 respondent was the subject of a supervision order made on 28 May 2018 under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) - where the respondent breached the -- 1 of 5 -- 2 supervision order by ingesting intoxicating substances - where the evidence showed that the release of the respondent on supervision would ensure the adequate protection of the community Dangerous Prisoners (Sexual Offenders) Act 2003 Attorney-General for the State of Queensland v Cain [2018] QSC 132 COUNSEL: J Tate for the applicant S Robb for the respondent SOLICITORS: Crown law for the applicant Legal Aid Queensland for the respondent [1] On 28 May 2018, after hearing an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) Bowskill J found that the respondent represented a serious danger to the community. Her Honour ordered that he be released under a Supervision Order (the Order) that contained 34 requirements. These included requirements that he abstain from alcohol and illicit drugs for the duration of the order. The duration of the order is 5 years, expiring on 7 June 2023. [2] Her Honour’s reasons included the following observations: In May 2008, the respondent Ryan Cain was convicted following a trial of the violent rape of a woman known to him. He had been released from prison the day before the rape. On his release, he was collected by a friend he had met as a young man and brought back to the friend’s home to stay with him. The victim of the rape was his friend’s wife. He was sentenced to 11 years’ imprisonment. He is due to be released, having served the whole of that sentence, on 7 June 2018… …the respondent has been diagnosed with schizophrenia (post the rape offence, currently in remission on treatment), antisocial personality disorder, with Dr Harden describing this as severe, and, in addition, past polysubstance abuse. As specifically recorded by Dr McVie but also consistent with the reports of Drs Harden and Grant, the respondent does not present as having any paraphilia. Although there have been some relapses, his schizophrenia has been in remission for the last five years with medication and treatment. He has been seeing his psychiatrist, Dr Tie, every six weeks and he is on anti-psychotic medication. The respondent told Dr Grant that he knows he needs his medication and that it would be foolish for him to stop it and that he is happy to take it as a voluntary patient… -- 2 of 5 -- The opinions expressed are … that he presents with a moderate to high (above average) risk of sexual violence offending in the future in the absence of a supervision order, but that the risk would be reduced to low with supervision. It is noted that his risk of returning to general offending, including violent offending, is much higher than the risk of returning to sexual offending, with Dr Harden, for example, saying the respondent is not predominantly a sexual offender….1 [3] Pursuant to the Order, the respondent was released from custody on 7 June 2018. He was returned, after consuming alcohol, in April 2019. He has been released and returned a further three times since then; ingestion of an illicit drug was the cause of the return on each occasion. [4] The most recent return is attributable to a contravention of the Order by the respondent’s use of cannabis, pregabalin and buprenorphine. There is no challenge to the affidavit evidence that establishes this contravention, and I find that it has occurred. [5] The Attorney-General for the State of Queensland now seeks orders under Part 2, Division 5 (section 22) of the Act. The functional question is whether the circumstances of the case require the court to: (a) rescind the Supervision Order and make a Continuing Detention Order; or (b) return the respondent to the community under the Supervision Order, amended if appropriate. [6] Since I am satisfied the respondent has contravened a requirement of the Supervision Order, it is for him to satisfy the Court that if he is returned to the community then the adequate protection of the community, despite the contravention, can be ensured by the second of those options, that is, by a Supervision Order. [7] The applicant is correct to submit that the pattern of contraventions represents a significant concern. However, the respondent submits he can discharge that onus by invoking the opinion of Dr McVie. Dr McVie is well acquainted with the issues involved in this application, having prepared reports for three previous contravention hearings. [8] In her most recent (12 May 2021) report, Dr McVie opines: 1 Attorney-General for the State of Queensland v Cain [2018] QSC 132. -- 3 of 5 -- “… (The respondent) does have a major mental illness, schizophrenia. There is no evidence of any specific sexual deviance. He has a history of alcohol, cannabis, and other substance abuse. He presents significant problems in the social adjustment category, lack of history of employment, non-sexual criminality, and probably problems in both nonintimate and intimate relationships. His history indicates problems with planning and supervision… (He) has a moderate loading of historical (static) risk factors for violence including early onset of antisocial behaviour, previous violent offending, schizophrenia, and substance abuse history. Clinically, he appears relatively stable at present though this could change in a different environment. He does have ongoing treatment needs and risks which need to be managed to reduce his risk of further offending…. Risk assessment indicates he remains at high risk for general criminal offending, and high risk for general violent offending. The actuarial tools would also rate him as high risk for sexual violence. His risk for sexual violence is increased due to his longstanding antisocial personality and behaviour, and his more recent diagnosis of schizophrenia. His risks are moderated by time spent in the community without sexual re- offending, interventions including programs he has previously completed in jail, and ongoing psychologist input. He does seem to remain vulnerable to the negative influence of those around him. Based on his history and ongoing abuse of substances, he would present at least a moderate risk of sexual reoffending if released from custody without a supervision order. The supervision order has effectively managed his risk and should continue to reduce this risk to low. I would consider Ryan Cain’s risk of reoffending sexually would be managed and reduced to low by re-instatement of his supervision order.”2 [9] The applicant (whilst in form maintaining an application for a Continuing Detention Order, but making this concession in the alternative) allows that “the Supervision Order is proving effective in managing risk and ensuring the safety of the community. The requirements operate as a set of ‘trip wires’ to manage the Respondent’s risk of re- offending.” [10] The effect of the evidence is summarised by the applicant in this way: In this case, the Risk Assessment Report and clinical review undertaken by Dr McVie indicate that risk can be reduced to an acceptable level, and adequate protection of the community can be ensured, by the release of the 2 My emphasis. -- 4 of 5 -- respondent to the continuation of his Supervision Order. There is no suggestion that further requirements should be considered.3 [11] The evidence in this case clearly indicates that the respondent suffers from a dual diagnosis of schizophrenia and a substance abuse disorder. The impact of these illnesses has been significant for him. It is clear that it is critical for the respondent to receive assertive and adequate psychiatric care when he is returned to the community. The reports of the expert psychiatrist Dr McVie and the respondent’s treating clinicians address these concerns and recommend treatment options. Those reports are to be released to any practitioner providing treatment to the respondent in the future. [12] In those circumstances, I am prepared to order that: (1) The respondent, Ryan Thomas Cain, be released from custody on 26 July 2021 and continue to be subject to the supervision order made by Justice Bowskill on 28 May 2018. I shall further order that: (2) The relevant reports be available to any practitioner providing medical (including psychiatric) or psychological treatment to respondent. 3 Applicant outline of submissions, filed 22.07.21 at [32], my emphasis. -- 5 of 5 --