Attorney-General for the State of Queensland v Doolan [2021] QSC 143 [2021] 25 QLR; (2021) 8 QR 208; (2021) 290 A Crim R 155

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Doolan [2021] QSC 143 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v GEOFFREY DOOLAN (respondent) FILE NO/S: BS No 1454 of 2013 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: That the matter be mentioned at 9.15 am on 25 June 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 respondent was the subject of a supervision order made on 1 May 2015 under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) - where the respondent breached the supervision order by ingesting cannabis and alcohol - where the evidence showed that the release of the respondent on supervision would ensure the adequate protection of the community provided the respondent lived in Supported Independent Living Accommodation (SILA) with funding from the National Disability Insurance Agency (NIDA) - where the SILA had been identified and funding from NIDA arranged but where the SILA was not presently available to the respondent - where the parties sought an order releasing the respondent on supervision once arrangements had been made to the satisfaction of Queensland Corrective Services - whether the making of such an order was appropriate - whether release on supervision ought only be ordered once the SILA was available -- 1 of 12 -- 2 CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - CLASSIFICATION OF FUNCTIONS: JUDICIAL, LEGISLATIVE OR ADMINISTRATIVE - GENERALLY - where the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) confers judicial power upon the court and administrative power upon Queensland Corrective Services - where upon breach of a supervision order made under the DPSOA the court must consider whether the release of the respondent on the supervision order will ensure adequate protection of the community against the commission by the respondent of a serious sexual offence – where, under the DPSOA, Queensland Corrective Services may direct the respondent as to where he may reside - where the residence of the respondent in Supported Independent Living Accommodation (SILA) is relevant to risk - where a supervision order will not ensure the adequate protection of the community against the commission by the respondent of a serious sexual offence unless the respondent when on supervision is living in a SILA - whether it is an appropriate exercise of judicial power to order the release of the respondent subject to Queensland Corrective Services securing and approving a SILA - consideration of the grant of judicial and administrative power under the DPSOA Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 3, s 8, s 13, s 16, s 16A, s 16B, s 19E, s 20, s 21, s 22, s 27, s 30 Attorney-General for the State of Queensland v Doolan [2013] QSC 115, related Attorney-General for the State of Queensland v Doolan [2015] QSC 108, related Crump v New South Wales (2012) 247 CLR 1, cited COUNSEL: S Richards for the applicant L D Reece for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] Geoffrey Doolan has, since 2013, been subject to orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) when he was placed on a continuing detention order.1 He was then released on a supervision order on 1 May 2015.2 [2] However, Mr Doolan has been unable to comply with the supervision order and has been the subject of various contravention proceedings. In the current proceedings, the Attorney-General seeks orders consequent upon Mr Doolan’s latest contravention of the supervision order. 1 Attorney-General for the State of Queensland v Doolan [2013] QSC 115. 2 Attorney-General for the State of Queensland v Doolan [2015] QSC 108. -- 2 of 12 -- 3 [3] On 5 March 2021, whilst on supervision Mr Doolan tested presumptively positive to cannabis consumption. On 9 March 2021, Mr Doolan was breath tested and found to have a blood alcohol content of 0.232. The consumption of both cannabis and alcohol breached a condition of the supervision order. [4] Mr Doolan was arrested pursuant to a warrant issued under s 20 of the DPSOA and he has been in custody since. [5] On 11 June 2021, both the Attorney-General and Mr Doolan urged me to make various orders, including: “THE COURT, being satisfied to the requisite standard that the respondent has contravened requirement 21 of the supervision order ORDERS THAT: 1. The interim detention order made on 11 March 2021 shall remain in force until the respondent is received by and admitted to supported independent living accommodation in Queensland assessed as suitable by Queensland Corrective Services (‘the SIL accommodation’). 2. This order is lawful authority for Queensland Corrective Services to deliver the respondent to the SIL accommodation upon notification of the preparedness of the operator of the SIL accommodation to accept the respondent. 3. Pursuant to s 21(2)(b) of the Act, the respondent, upon his delivery to the SIL accommodation shall be released subject to the supervision order.” [6] I declined to make the orders sought and instead adjourned the application for mention on 25 June 2021. These are my reasons for making that order. Background [7] Mr Doolan has a lengthy criminal history. In 2011, he pleaded guilty to three counts of indecent treatment of children under 16 years. There were two victims, both young boys, who were assaulted by Mr Doolan in the toilets of a hotel. He was sentenced to three years imprisonment. That is the offence which brought Mr Doolan within the jurisdiction of the DPSOA. [8] Mr Doolan has been the subject of psychiatric examination over the years that he has been subject to proceedings under the DPSOA. He has been diagnosed as suffering from Anti-Social Personality Disorder, Alcohol Abuse Disorder and Paedophilia. He also suffers from cognitive limitations which have been diagnosed as either a Neurocognitive Disorder or Intellectual Impairment. [9] Dr Scott Harden, psychiatrist, examined Mr Doolan in respect of the current breach proceedings. He diagnosed Mr Doolan as follows: “In my opinion he still meets criteria for Antisocial Personality Disorder. -- 3 of 12 -- 4 In my opinion he would meet a diagnosis of Alcohol Abuse, in remission because of incarceration, it is not clear whether he has ever met criteria for alcohol dependence due to his poor historical information. The alcohol and abuse is significant because of the disinhibiting effect of intoxication which has been intimately involved in facilitating his committing offences. He describes sexual interests consistent with Paedophilia, Non- Exclusive predominantly oriented towards females around 13 years of age although clearly opportunistic. He now denies these thoughts and denies that he agreed in the past that these were ever present. He would also meet criteria for a Neurocognitive Disorder - Unspecified Cause or alternatively Intellectual Impairment, the timing of the onset of his cognitive difficulties is unclear as to whether they have been present since childhood and exacerbated by more recent factors or whether the difficulties have arisen in adulthood. On clinical examination over recent years this appears to be a stable deficit with no evidence of acute deterioration. Effectively he functions with an IQ of around 65 as per neuropsychological testing. The occupational therapy testing is consistent with this.” (emphasis added) [10] As to risk, Dr Harden opined: “The actuarial and structured professional judgement measures I administered would suggest that his future risk of sexual reoffence is high. My assessment of this risk is based on the combined clinical and actuarial assessment. This assessment takes into account all information made available to myself. He is an extremely high risk of perpetrating sexual assault if returned to the community with no modifying factors in place. The critical issues in this man are alcohol abuse, sexual entitlement, sexual preoccupation, lack of insight, neurocognitive difficulties, lack of prosocial supports and relationships, and deviant sexual attraction. The highest risk situation would be if he were to be intoxicated with alcohol and in a situation where he could access young people, particularly those in their early to mid teens. No reliance can be placed on any kind of internal control structures to prevent re-offence in this man and he requires intensive external modifiers such as those found in an intensive supervision order. He has on this occasion been in the community again for greater than one year and functioned in the scaffolded environment of the Wacol precinct with NDIS support to the extent that he is able. He has not reoffended, he has used alcohol and this contravention is therefore concerning but still less concerning than the previous ones associated with inappropriate contact with females. On a supervision order his risk of reoffending is reduced to the low - moderate range.” (emphasis added) -- 4 of 12 -- 5 [11] As to recommendation for future management, Dr Harden opined: “If he were to be released from detention he should continue to be monitored in the community by means of a supervision order. I would recommend that he continue to be required to be abstinent from alcohol and drug use. I would recommend that he continue to participate in an ongoing individual therapy program for sex offender and substance abuse treatment. Individual therapy in this man is more likely to be successful if it focuses on those things that are in his interests rather than appealing to empathy for other people and it makes allowance for his neurocognitive difficulties. Therapeutic assistance should be by someone familiar with working with cognitive impairment (such as his current therapist Dr Luke Hatzipetrou). He is likely to continue to have difficulty with the strictures of the supervision order. National Disability Insurance Scheme support will be essential if he is to progress further towards community accommodation (supported) outside the Wacol precinct.” (emphasis added) [12] Over recent months, Queensland Corrective Services (QCS) have been assessing the appropriate accommodation for Mr Doolan if he is released back onto supervision. [13] Joelene Monson is the manager of QCS’s High Risk Offender Management Unit (HROMU). In an affidavit where she swears to the efforts made by QCS to find accommodation for Mr Doolan, she concludes: “21. QCS continues to be of the view that the respondent is not suitable to be housed in QCS contingency accommodation, nor is it reasonable or practicable to manage him, in particular on a long term basis. This opinion is held primarily due to the concerns held around the respondent’s ability to self-manage in QCS contingency accommodation.” [14] Acting on the expert opinion evidence of Dr Harden and the views held by QCS, both parties have concluded that Mr Doolan’s release to the contingency accommodation known as the Precinct is not advisable and that, if released, it should be to Supported Independent Living Accommodation (SILA) supported by funding from the National Disability Insurance Agency (NDIA). That conclusion is, in my view, obviously correct. [15] A guardian has been appointed for Mr Doolan. Negotiations have been proceeding between QCS, NDIA, and the Office of the Public Guardian with a view to arranging an appropriate SILA with NDIA support. [16] Funding has been approved and appropriate accommodation has been identified. It is anticipated that all necessary documents to finalise the arrangements will be submitted to NDIA by 16 June 2021. A further meeting of stakeholders is planned for 18 June to progress the arrangements. -- 5 of 12 -- 6 [17] The order which the parties urged me to make was that Mr Doolan should be released once the SILA became available. In other words, the order of the court would operate when “supported independent living accommodation in Queensland assessed as suitable by the Queensland Corrective Services” becomes available. Until that point Mr Doolan would remain in custody. The issue is whether making such an order is a proper exercise of the court’s power. Statutory context [18] The DPSOA establishes a system of preventative detention and supervision of prisoners who have been convicted and imprisoned for the commission of a “serious sexual offence” as defined.3 Where a prisoner is found to be a “serious danger to the community in the absence of [an order under the DPSOA]”,4 the court may make either a continuing detention order or a supervision order.5 [19] A continuing detention order results in the imprisonment of the prisoner beyond the expiry of the sentence being served.6 If a supervision order is made, the prisoner is released but is subject to the requirements of the supervision order.7 [20] When the court is deciding whether to make a continuing detention order or a supervision order, s 13(6) provides: “13 Division 3 orders … (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 officers. …” [21] Here, Mr Doolan was released on supervision. Section 16, which is referred to in s 13(6) prescribes the conditions which must, or may be contained in a supervision order. It provides: 3 Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 3, Schedule 1, Dictionary, definition of “serious sexual offence”. 4 Section 13(1) and s 13(2). 5 Section 13(6). 6 Section 13(5)(a), s 27, s 30. 7 Section 13(5)(b), s 16. -- 6 of 12 -- 7 “16 Requirements for orders (1) If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner— (a) report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and (b) report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and (c) notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and (d) be under the supervision of a corrective services officer; and (da) comply with a curfew direction or monitoring direction; and (daa) comply with any reasonable direction under section 16B given to the prisoner; and (db) comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and (e) not leave or stay out of Queensland without the permission of a corrective services officer; and (f) not commit an offence of a sexual nature during the period of the order. (2) The order may contain any other requirement the court or a relevant appeal court considers appropriate— (a) to ensure adequate protection of the community; or (b) for the prisoner’s rehabilitation or care or treatment.”8 (emphasis added) [22] By s 16(1)(da), the supervision order made by the court must contain a requirement that the prisoner, when release on supervision, complies with “a curfew or monitoring direction”. Section 16A concerns such directions. It provides: 8 Legislative notes omitted. -- 7 of 12 -- 8 “16A Curfew and monitoring directions (1) The purpose of this section is to enable the movements of a released prisoner to be restricted and to enable the location of the released prisoner to be monitored. (2) A corrective services officer may give 1 or both of the following directions to the released prisoner— (a) a direction to remain at a stated place for stated periods (curfew direction); (b) a direction to do 1 or both of the following (monitoring direction)— (i) wear a stated device; (ii) permit the installation of any device or equipment at the place where the released prisoner resides. (3) A corrective services officer may give any reasonable directions to a released prisoner that are necessary for the proper administration of a curfew direction or monitoring direction. (4) A direction under this section must not be directly inconsistent with a requirement of the relevant order for the released prisoner.”9 [23] By s 16(1)(daa), the supervision order must contain a requirement that the prisoner comply with reasonable directions. Section 16B concerns “directions” which are directions given by a “corrective services officer”. That section provides: “16B Other directions (1) A corrective services officer may give a released prisoner a reasonable direction about— (a) the prisoner’s accommodation; or (b) the released prisoner’s rehabilitation or care or treatment; or (c) drug or alcohol use by the released prisoner. (2) A direction under subsection (1) may relate to a matter even though the relevant order imposes a requirement about the matter, either generally or specifically. (3) However, the direction must not be directly inconsistent with a requirement of the order.”10 [24] Where a police officer or a corrective services officer reasonably suspects that a prisoner on supervision has contravened or is contravening or is likely to contravene 9 Legislative notes omitted. 10 Legislative notes omitted. -- 8 of 12 -- 9 a requirement of a supervision order, a warrant for the arrest of the person may be sought and issued.11 [25] When the warrant is returned and the prisoner appears, the court must determine whether he is detained or released while the contravention proceedings are finalised. Section 21 of the DPSOA provides: “21 Interim order concerning custody generally (1) This section applies if a released prisoner is brought before the court under a warrant issued under section 20. (2) The court must— (a) order that the released prisoner be detained in custody until the final decision of the court under section 22; or (b) release the prisoner under subsection (4). (3) The released prisoner may, when the issue of his or her custody is raised under subsection (2), or at any time after the court makes an order under that subsection detaining the prisoner, apply to the court to be released pending the final decision. (4) The court may order the release of the released prisoner only if the prisoner satisfies the court, on the balance of probabilities, that his or her detention in custody pending the final decision is not justified because exceptional circumstances exist. (5) If the court adjourns an application under subsection (3), the court must order that the released prisoner remain in custody pending the decision on the application. (6) If the court orders the released prisoner’s release, the court must order that the prisoner be released subject to the existing supervision order or existing interim supervision order (each the existing order) as amended under subsection (7). (7) For subsection (6), 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 amend the existing order to include any other requirements the court considers appropriate to ensure adequate protection of the community.” [26] Upon the arrest of the prisoner and his appearance before the court, jurisdiction arises to make orders under s 22. It provides, relevantly here: 11 Section 20. -- 9 of 12 -- 10 “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).” Consideration [27] Prisoners incarcerated through the criminal justice system are generally subject to the exercise of both judicial and administrative power. In a parole setting, this was explained in Crump v New South Wales12 where this was said: 12 (2012) 247 CLR 1. -- 10 of 12 -- 11 “28 There is a clear distinction between the judicial function exercised by a judge in sentencing, and the administrative function exercised by a parole authority in determining whether a person eligible for release on parole, by reason of the judge’s sentencing order, should be released. As the plurality in Power v The Queen said of the Parole of Prisoners Act 1966 (NSW): ‘This separation of the functions of the trial judge and that of the parole board is a clearly expressed policy of the legislation.’ In fixing a minimum term before a prisoner can be considered for release on parole, the sentencing judge determines, as McInerney J determined in 1997, that ‘all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole’. The purpose of parole generally is ‘to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time’. Subject to the particular provisions of the applicable statute, once sentenced the responsibility for the future of a prisoner passes to the executive branch of the government of the State. Even within an unchanging statutory framework, the executive decision to release or not to release a prisoner on parole may reflect policies and practices which change from time to time. There nevertheless remains only one judicial sentence. As Mason J said in Lowe v The Queen ‘although the recommendation of the non-parole period may operate in some circumstances to reduce the period of time which the applicant would spend in prison, it leaves the sentence unaffected as a judicial assessment of the gravity of the offence which he committed’.”13 [28] Such distinctions can be seen in the DPSOA. Judicial power is exercised under various sections, including ss 13, 21 and 22.14 Administrative power is bestowed by various sections, including s 16A and s 16B.15 The scheme of the Act is that the court makes either a continuing detention order or supervision order against the prisoner and then control of the prisoner passes to the executive government, here represented by QCS. Once the supervision order is made or, relevantly here, once a prisoner is released back upon the supervision order under s 22(7), the executive through QCS, by force of s 16B, determines where the prisoner on supervision ought to live. [29] However, by s 22(7) it is for the court to decide whether, when there has been a breach of the supervision order by the prisoner, “the adequate protection of the community can, despite the contravention … of the [supervision] order be ensured [by release of the prisoner on the supervision order]”. [30] In this case, the psychiatric evidence, taken with the evidence of Ms Monson of HROMU, is such that the accommodation of Mr Doolan in SILA is necessary. He has not coped at the Precinct. His failure to cope has led him to resorting to alcohol use, and alcohol use is a risk factor to sexual offending. 13 Citations omitted. 14 See also ss 8, 30 and 19E. 15 See also s 16A. -- 11 of 12 -- 12 [31] Before the power vested in the court by s 22(7) can be exercised to release Mr Doolan, it is necessary that the appropriate accommodation be in place. Until that occurs, it is not possible to be satisfied that the release of Mr Doolan on supervision will ensure the adequate protection of the community against the commission by Mr Doolan of a serious sexual offence. It is wrong to exercise the power under s 22 leaving to the executive through QCS the later assessment by QCS that the accommodation which is ultimately obtained is appropriate in the sense of reducing risk. [32] In the event that SILA becomes available and an order is made releasing Mr Doolan, his management is then the responsibility of QCS pursuant to the supervision order and the terms of the DPSOA. It may be that at some point Mr Doolan may have to move to other accommodation. That other accommodation will have to be approved by QCS which will lead to consideration of the giving of a direction under s 16B. That is a totally different matter to the present where the issue is the exercise of judicial power under s 22 of the DPSOA where that power arises as a result of a contravention of the supervision order. That division of power between the court and the executive has been determined by the Legislature. [33] For those reasons, it was not appropriate to make an order in the terms sought. As the arrangements for appropriate accommodation are likely to be finalised in the very near future, it was appropriate to adjourn the application to enable that to occur. [34] Order: That the matter be mentioned at 9.15 am on 25 June 2021. -- 12 of 12 --