Attorney-General for the State of Queensland v Bennett [2021] QSC 144 [2021] 25 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Bennett [2021] QSC 144 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v WILLIAM HENRY BENNETT (respondent) FILE NO/S: BS No 5182 of 2015 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: Orders made on 11 June 2021. Reasons delivered on 17 June 2021 DELIVERED AT: Brisbane HEARING DATE: 11 June 2021 JUDGE: Davis J ORDERS: THE COURT being satisfied to the requisite standard that the respondent, William Henry Bennett, has contravened the requirements of the supervision order made on 9 November 2015 and as amended on 29 August 2016, on 26 March 2018 and on 30 September 2019, ORDERS THAT: 1. The respondent, William Henry Bennett, be released from custody before 10 am on 21 June 2021 and continues to be subject to the supervision order made on 9 November 2015 and as amended on 29 August 2016, on 26 March 2018, and on 30 September 2019. 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 9 November 2015 under the Dangerous Prisoners (Sexual Offenders) Act 2003 - where the supervision order had been amended on three occasions - where the respondent breached the supervision order by consuming illicit substances - where this was the seventh contravention of the supervision order - where the respondent admitted the contravention - where the evidence of -- 1 of 11 -- 2 psychiatrists and a psychologist is that the respondent resorted to substance abuse as a reaction to stressors faced by him in the community - where the evidence of the psychiatrists is that the respondent’s risk can be adequately managed under the existing supervision order - where the respondent did not wish to be released unless appointments had been made for him with medical professionals to assist him in dealing with illicit drug use - whether the respondent should be released subject to the requirements of the existing supervision order Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 22, s 23, s 24, s 43AA Attorney-General for the State of Queensland v Bennett [2020] QSC 141, related Attorney-General for the State of Queensland v Bennett [2021] QSC 48, related Attorney-General (Qld) v Fardon [2018] QSC 193, followed Attorney-General v Fardon [2019] 2 Qd R 487, cited Attorney-General for the State of Queensland v Phineasa [2013] 1 Qd R 305, cited Attorney-General for the State of Queensland v Tiers [2021] QSC 115, cited COUNSEL: B Mumford for the applicant T Schafer for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] William Henry Bennett was the subject of a supervision order made by Dalton J on 9 November 2015 under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). The supervision order was amended by Boddice J on 29 August 2016, by Holmes CJ on 26 March 2018 and by Ryan J on 30 September 2019. [2] The Attorney-General alleged that Mr Bennett contravened the supervision order and sought further orders pursuant to s 22 of the DPSOA. On 11 June 2021, I made the following orders: “THE COURT being satisfied to the requisite standard that the respondent, William Henry Bennett, has contravened the requirements of the supervision order made on 9 November 2015 and as amended on 29 August 2016, on 26 March 2018 and on 30 September 2019, ORDERS THAT: 1. The respondent, William Henry Bennett, be released from custody before 10 am on 21 June 2021 and continues to be subject to the supervision order made 9 November 2015 and as amended on 29 August 2016, on 26 March 2018 and on 30 September 2019.” -- 2 of 11 -- 3 [3] These are my reasons for making the orders. History [4] Mr Bennett was born in February 1979. He is presently 42 years of age. [5] Mr Bennett has a significant criminal history dating back to when he was 17 years of age. Of particular significance, in April 2011, he was convicted of assaulting a woman unknown to him with the intention of raping her. He was sentenced to six years imprisonment.1 It was that conviction which brought him within the DPSOA.2 [6] On 9 November 2015, Mr Bennett was released on the supervision order. That order was to be in place until 17 November 2020. Mr Bennett though has been unable to comply with the supervision order. There have been six previous contravention proceedings in 2016, 2017, 2018, two in 2019 and in 2020. The longest period that Mr Bennett has remained in the community under the supervision order has been about six months. [7] As a result of various orders made by the court and by force of ss 23 and 24 of the DPSOA, the supervision order is now to expire on 17 November 2024. [8] Mr Bennett’s prior contraventions of the supervision order have mainly been for the consumption of illicit drugs. However, the 2017 contravention included the removal of an electronic monitoring device and the 2018 contravention included accessing websites which depicted violent non-consensual sexual activity.3 After the last contravention was proved, Mr Bennett was released on 5 March 2021.4 He was arrested again on a contravention which occurred on 24 March 2021, some 19 days after being released. [9] The particulars of the present contravention as they appear in the application filed by the Attorney-General seeking orders under s 22 of the DPSOA are as follows: “On 24 March 2021, the respondent was directed to submit to a urinalysis test in accordance with the requirements of his supervision order. The respondent initially refused to provide a urine sample, initially denied use of illicit substances and reported feeling suicidal and wanting to return to his bedroom to self-harm. He subsequently disclosed using Methylamphetamines and unprescribed Buprenorphine. Notably, the respondent had provided a clean urine sample one day prior, 23 March 2021. The respondent subsequently provided a urine sample which tested presumptively positive to Amphetamine, Methylamphetarnine and Buprenorphine. …” [10] Mr Bennett has admitted the contravention. 1 Attorney-General for the State of Queensland v Bennett [2020] QSC 141 at [8]. 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 43AA(1) and (2). 3 For an analysis of Mr Bennett’s criminal history and history of contravening the supervision order, see Attorney-General for the State of Queensland v Bennett [2020] QSC 141 at [6]-[8] and [13]-[18] and Attorney-General for the State of Queensland v Bennett [2021] QSC 48 at [6] and [7]. 4 Attorney-General for the State of Queensland v Bennett [2021] QSC 48. -- 3 of 11 -- 4 [11] Of particular significance, at the time of the present contravention Mr Bennett had scheduled appointments with Dr Apel, a psychiatrist specialising in substance abuse, and a general practitioner, Dr Andrews who he had been consulting. Mr Bennett had also been seeing a psychologist who has very significant experience in treating sex offenders, namely Mr Nick Smith. Mr Bennett had also made arrangements to commence attending Narcotics Anonymous meetings. [12] Perhaps unusually for respondents in these types of proceedings, Mr Bennett swore an affidavit which was read before me. There he swore: “2. On 9 March 2021, I was released from custody upon a supervision order following a hearing before his Honour Justice Davis on 5 March 2021. 3. I was inducted onto the order following my release and signed all relevant paperwork required of me. 4. I was given a key to room 1 in House G at the Wacol Precinct, 260 Wacol Station Road, Wacol. 5. I was issued a QCS mobile phone. This phone could not make outgoing calls. 6. Upon my release, I took possession of very limited personal property as my personal property was disposed of by Queensland Corrective Services whilst I was in custody. This included personal effects that belonged to my deceased mother and property I have accumulated for many years, which were important to me and made me feel happy. I have been unable to recover any of this property. I received written confirmation in prison that this was authorised by the Public Trustee of Queensland. 7. Because of the destruction of my property before my release, I did not have any additional clothing other than the clothes I was released with, no toiletries and my room was largely empty. The furniture that I retained, namely an entertainment unit, a bar fridge and a two-seater couch, had been kept off the precinct and was not disposed of. 8. On 9 March 2021, I was told by my Senior Case Manager Maired MacDougall that an appointment had been made for me to see my treating General Practitioner Dr Andrews at 10:15am on 17 March 2021. 9. On 10 March 2021, I was issued with two leave passes. The first pass permitted me to attend the Centrelink office, the Commonwealth Bank and to purchase groceries under supervision on 11 March 2021 between 1:00pm and 3:00pm. The second pass permitted me to attend the Mount Ommaney Shopping Centre to purchase clothes and to obtain an emergency medication script on 12 March 2021 between 9:00am and 11:30am. -- 4 of 11 -- 5 10. I did not have access to my own food or toiletries until 11 March 2021. I was given food by other men on the precinct over that two-day period. 11. I did not have access to any additional clothing until 12 March 2021. 12. I was very distressed upon my release because of the loss of my personal property and being unable to access basic daily necessities for 2-3 days. 13. On 12 March 2021, I purchased my own mobile phone in order to be able to communicate with my medical team, my legal representative and any other approved persons. 14. On 15 March 2021, I made a telephone call to my psychologist Nick Smith. I was offered an appointment on 17 March 2021. I declined this as I had a conflicting appointment with Dr Andrews that same day. I booked an appointment on 13 April 2021. This was the earliest possible date. 15. That same day, I telephoned my addictions specialist, Dr Apel, and booked an appointment for 19 April 2021. This was the earliest possible date. 16. Later that day, I told my Senior Case Manager, Maired MacDougall, that I had scheduled the appointments. I was told that it was not my responsibility to book appointments and that this was the role of QCS. I booked the appointments because no appointments had been booked for me by QCS at that stage. 17. On 17 March 2021, I attended my appointment with Dr Andrews at Mount Ommaney. I provided Dr Andrews with my psychiatric reports from the past contravention hearing. I told Dr Andrews that it was recommended that I be placed on the depot Suboxone program. A further appointment was booked with Dr Andrews on 25 March 2021 at 12:45pm. I understood that the Suboxone program was due to commence on Friday, 26 March 2021. 18. On 23 March 2021, I submitted to a urine test. This test was negative. 19. On the night of 23 March 2021, I had become very anxious and depressed. I felt this way because I had been unable to see my treating medical team, was feeling very down about my life on the precinct including living amongst certain people there, I had lost possessions which were important to me and helped me get through difficult days and I was unable to start the Suboxone program upon my release. I started to feel cravings for drugs because of how anxious and depressed I was feeling. I used buprenorphine and methylamphetamine that night in my room. -- 5 of 11 -- 6 20. At no time did I feel sexually pre-occupied before or after I took the substances. I was not acting violently at the time. I just wanted help and I felt like I was not getting any. … 25. If this Honourable Court were to release me again upon a supervision order, I am not prepared to be released unless appointments have been made with my treating medical team in advance of my release. This is because my treating medical team are responsible for approving and administering my Suboxone program. …” Psychiatric evidence [13] Risk assessment reports were prepared by both Dr Josephine Sundin and Dr Scott Harden, both experienced forensic psychiatrists. Both had prepared reports in relation to the previous contravention5 and so further interviews of Mr Bennett were unnecessary. Both doctors prepared their reports based on materials that had been provided to them together with their previous experience of Mr Bennett. [14] Dr Sundin diagnosed Mr Bennett as follows: “• Cluster B Personality Disorder, primarily borderline and anti- social traits, moderate to severe intensity • Substance Use Disorder (amphetamines and heroin); not in remission; • Sexual Sadism” [15] As to Dr Harden, his diagnoses are: “Personality disorder, severe, mixed type (predominantly borderline with antisocial, dependent and avoidant elements). Polysubstance abuse. Possible paraphilia associated with coercive sexual contact with female strangers.” [16] Dr Sundin assessed Mr Bennett’s risk of sexually offending if released in the community without supervision as moderate to high. She then made the following recommendations: “Mr Bennett is a 42-year-old man with a significant history of sexual and non-sexual offending leading to lengthy periods of incarceration as an adult. He has been out of gaol for less than 2 years as an adult. He is very institutionalised. He views prison as a safe haven. He has repeatedly breached community supervision. He decompensates rapidly in the community and resorts to drug seeking behaviours to alleviate emotional distress. He has minimal distress tolerance. He has relied on illicit substances to modulate his mood. 5 Attorney-General for the State of Queensland v Bennett [2021] QSC 48. -- 6 of 11 -- 7 He has been involved in opportunistic sexual offences, with intoxication at the time of offending a relevant risk factor. Amphetamines are a significant risk factor for this man. The index offence6 occurred after many hours of retaliatory fantasies when Mr Bennett acted out his anger at a vulnerable victim. Mr Bennett was in a heightened emotional state of anger and felt out of control when the index offence occurred. Over time, there was an escalation in the severity of his offences. As recently as 2018 he was engaging with violent pornography. He has been repeatedly deceptive about his use of illicit substances and accessing of prescribed medications via other prisoners. He has been deceptive in his disclosures to case managers. He has not been honest in his disclosures to his treating clinicians. He continues to struggle with emotional self-regulation, impatience and avoidant coping. He experiences feelings of personal inadequacy, genital inadequacy and sexuality fluidity/identity diffusion. Future victims are likely to be post-pubescent female strangers with the offence occurring either in an unplanned manner or as an act of retaliation at a time when Mr Bennett has regressed, and his behaviour is disinhibited by the consumption of licit or illicit substances, particularly alcohol or amphetamines. There is a risk that a future victim who was less capable of self-defence could be the subject of a completed rape and/or would be at risk for physical violence. The risk for future offending is heightened by relapse into abuse of mood-altering substances, emotional regression, fractured intimate relationships, feeling vulnerable and insecure and seeking a return to gaol as a safe place. Amphetamines remain a specific risk factor for sexual recidivism in this man. I consider that Mr Bennett represents an unmodified moderate to high risk for future sexual offending. I consider that a supervision order has reduced his risk, but I will not feel confident that there is any enduring reduction of his risk profile while he continues to abuse mood altering substances and is deceptive about his abuse and cravings. Dr Apel has assessed Mr Bennett suitable for the Suboxone programme including the depot suboxone programme. He has a treating General Practitioner, psychiatrist and psychologist. He is well supported by QCS staff in the community. 6 The offence which led to the conviction in April 2011. -- 7 of 11 -- 8 The principal short term problems are Mr Bennett’s high level of impulsivity, minimal distress tolerance and failure to seek appropriate assistance prior to committing breaches. If it is at all possible, it would be ideal if appointments with Dr Apel, Mr Smith and Dr Andrews are all booked within the first fortnight of Mr Bennett’s release into the community; with regular subsequent scheduled bookings also arranged. It may help reassure him and lessen his risk if he knows that these appointments are arranged. He should re-engage with Drug Arm. He should repeat the SOMP7 in the community. While I think the cycle of breaches is likely to continue for some time yet, the supervision order is containing the risk posed by Mr Bennett to the community. I therefore respectfully recommend that Mr Bennett can be released under a supervision order into the community.” (emphasis added) [17] Dr Harden’s opinion on risk is as follows: “His future risk of sexual reoffence is Well Above Average (High). If he were to reoffend it would be likely to be while intoxicated with substances (most likely amphetamines) and an assault on a stranger female in a semi-public environment. The use of physical violence is likely. The critical risk issues for this man are his substance abuse, severe personality disorder associated with emotional instability and probable deviant arousal to coerced sexual contact with a female stranger. Supervision and intervention consistent with a supervision order in my opinion will likely still reduce the risk to low to moderate due to the supervisory conditions of the order.” (emphasis added) [18] As to recommendations for the future supervision and treatment of Mr Bennett, Dr Harden said as follows: “If released into the community he should return to psychological therapy with Mr Smith. Mr Smith has correctly identified coping and emotion regulation deficits leading to substance misuse as a dysfunctional coping strategy and treatment should continue to progress towards these targets. He should continue in treatment with Dr Apel and the opinion of Dr Apel regarding prescribed buprenorphine or methadone seems a sensible strategy given Mr Bennett’s long history of substance abuse and difficulty in staying abstinent. I note that Prof Andrews in consultation with Dr Apel was going to start buprenorphine in the 7 Sex Offender Management Program. -- 8 of 11 -- 9 period just prior to his reincarceration in March 2021 for this alleged contravention.” Statutory context [19] Section 22 of the DPSOA governs the orders which may be made once a breach is proved. Section 22 is, relevantly here, in these terms: “22 Court may make further order (1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order). (2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must— (a) if the existing order is a supervision order, rescind it and make a continuing detention order; or (b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order. … (7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court— (a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and (b) may otherwise amend the existing order in a way the court considers appropriate— (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment. (8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).” -- 9 of 11 -- 10 [20] Critically here, s 22(7) throws the onus back upon Mr Bennett to establish “that the adequate protection of the community can, despite the contravention … be ensured by a supervision order …”. The adequate protection of the community, relevantly for s 22(7) is protection of the community against the commission of a “serious sexual offence” which is defined under the DPSOA, relevantly here as “an offence of a sexual nature … involving violence”.8 [21] This is Mr Bennett’s seventh contravention of the supervision order. By any standard, he is having great difficulty in complying with the order. However, persistent breaches of a supervision order are only relevant to the extent that they impact upon consideration of the statutorily defined question which is whether “adequate protection of the community” can be ensured by release on supervision.9 The position of the parties [22] The Attorney-General accepts that Mr Bennett has discharged the onus cast upon him under s 22(7) and concedes that Mr Bennett ought to be released back on the supervision order. [23] The position taken by Mr Bennett is, to say the least, unusual. He submits that he has discharged the onus under s 22(7). However, he does not wish to be released until arrangements have been made for him to access the various medical professionals who have been assisting in his care. [24] Arrangements have been made for Mr Bennett to consult with his general practitioner, Dr Andrews, at 10.15 am on 23 June 2021. [25] Mr Smith, the forensic psychologist, will see Mr Bennett on 24 June 2021. [26] Alcohol and other Drug Service (AODS) and Alcoholics Anonymous (AO) both operate in Brisbane and Ipswich. No appointment is necessary. All that is required is the identification of a meeting time and Mr Bennett can attend. Corrective Services can assist Mr Bennett in making those arrangements. [27] Unfortunately, Dr Apel is unable at the moment to continue treatment with Mr Bennett. However, Corrective Services will encourage Mr Bennett to re-engage with Dr Andrews so that she may refer Mr Bennett to an alternative psychiatrist. Consideration [28] Mr Bennett has admitted the contravention. I find that proved. [29] I accept the evidence of the psychiatrists, Drs Sundin and Harden. Given that evidence and the concession by the Attorney-General, a finding ought to be made that Mr Bennett has discharged the onus under s 22(7) and that adequate protection of the community can be ensured by his release back on the supervision order. No party 8 Section 2 and Schedule (Dictionary). As to the term “involving violence”, see Attorney-General for the State of Queensland v Phineasa [2013] 1 Qd R 305 at 312-16 [23]-[45]. 9 Attorney-General (Qld) v Fardon [2018] QSC 193 on appeal on another point Attorney-General v Fardon [2019] 2 Qd R 487 and see Attorney-General for the State of Queensland v Tiers [2021] QSC 115 at [25]-[28]. -- 10 of 11 -- 11 suggests any amendment to the order and there is no evidence which supports any amendment. [30] However, Mr Bennett’s attitude to a return to supervision is a relevant consideration. As previously observed, he does not wish to return to the community unless all appropriate arrangements are made for the ongoing medical care. I draw the conclusion that there must be a significant risk that he will breach the supervision order, at least by the ingestion of illicit substances if he is released without feeling secure that appropriate arrangements have been made. As the ingestion of substances is a risk factor to him sexually reoffending, the establishment of appropriate treatment measures is a necessary pre-condition to satisfaction that Mr Bennett has discharged the onus under s 22(7) of the DPSOA. [31] Mr Bennett has not sexually reoffended while on supervision. If he were released on 21 June, he will almost immediately have access to Dr Andrews (23 June) and Mr Smith (24 June). He has access to AO and AODS. He has the promised support of Corrective Services. While he has lost the opportunity for treatment from Dr Apel, Mr Bennett obviously has a substantial relationship with Dr Andrews who can refer him to an alternative psychiatrist. [32] In all the circumstances, I am satisfied that the release of Mr Bennett on supervision on 21 June 2021 on the terms of the current supervision order will ensure adequate protection of the community from the commission by Mr Bennett of a serious sexual offence. [33] For those reasons I made the orders which I did. -- 11 of 11 --