Attorney-General (Qld) v Hill [2021] QSC 150

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v Hill [2021] QSC 150 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v IAN MALCOLM CLAUDE HILL (respondent) FILE NO/S: BS 5977 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 14 June 2021 DELIVERED AT: Brisbane HEARING DATE: 14 June 2021 (ex tempore) JUDGE: Brown J ORDER: Order as per draft 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 is subject to a supervision order the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where applicant applied for orders that the supervision order was contravened – where the respondent admits the supervision order was contravened – whether the adequate protection of the community can be ensured by the existing supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 13, 22 Attorney-General for the State of Queensland v Fardon [2011] QCA 111 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396; [2006] QCA 324 Attorney-General (QLD) v Hill [2020] QSC 47 Attorney-General for the State of Queensland v Sands [2016] QSC 225 Kynuna v Attorney-General for the State of Queensland [2016] QCA 172 -- 1 of 8 -- 2 COUNSEL: M Maloney for the applicant S Robb for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] This is an application by the Attorney-General for the State of Queensland (the applicant) seeking orders pursuant to section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) that Ian Malcolm Claude Hill (the respondent) has contravened the supervision order made by this Court on 20 March 2020 (Supervision Order). The particulars of the contravention have been set out in the application filed 11 February 2021, and arise out of the failures of the respondent to comply with curfew directions under paragraph 14 of the Supervision Order. [2] The respondent admits the contraventions of the Supervision Order and accepts that the Court would be satisfied to the requisite standard that he has contravened requirement 14 of the Supervision Order that he was subject to, and, therefore, that the jurisdiction to make orders under section 22 of the Act is enlivened. I am satisfied on the balance of probabilities, on the basis of the evidence presented by the applicant and the admissions made, that the relevant contraventions have been made out. [3] If the Court finds that the respondent has contravened the Supervision Order, the Court must, pursuant to section 22(2) of the Act, rescind the Supervision Order and make a continuing detention order, unless the respondent can satisfy the Court on the balance of probabilities that the adequate protection of the community can be ensured by the existing supervision order, either with or without amendments, despite the contraventions.1 [4] The phrase “adequate protection of the community” is a reference to that term in section 13 of the Act. Namely, it is the adequate protection of the community from an unacceptable risk that the person in question will commit a serious sexual offence, as defined in the Act.2 While it is not contemplated by the Act that arrangements to prevent relevant risks under a supervision order must be watertight,3 it must be open on the evidence for the Court to conclude that a supervision order would be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences.4 The respondent is not, however, required to show that the supervision order would be complied with in the future [5] In Attorney-General (QLD) v Sutherland [2006] QSC 268, Justice McMurdo, as his Honour then was, stated that the assessment of the acceptability of the level of risk is a task for the Court in the following terms: “…the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”5 1 Attorney-General for the State of Queensland v Sands [2016] QSC 225 at 5. 2 Kynuna v The Attorney-General for the State of Queensland [2016] QCA 172. 3 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [39]. 4 Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at 29. 5 Attorney-General (QLD) v Sutherland [2006] QSC 268 at [30]. -- 2 of 8 -- 3 [6] In reaching its decision, the Court may have regard to evidence that was before the Court when the existing order was made.6 [7] The history of Mr Hill’s offending, which is relatively lengthy, has been set out in the judgment of Justice Williams,7 and I will not repeat the nature of the offending again. [8] The respondent has been diagnosed by his treating psychiatrist, Dr Duggan, who has treated him since 2017, with paranoid schizophrenia, mental and behavioural disorders due to the use of alcohol. Dr Duggan also states that he has a mild retardation, requiring attention or treatment. Dr Duggan deposes as to the respondent’s ongoing need for treatment. She states that for the respondent to be safely managed in the community, he needs a 24-hour support package. To date, attempts to increase this package have been unsuccessful. [9] Ms Jacks, a forensic psychologist, treated the respondent between March and November 2020. She noted that his concrete thinking and difficulties understanding abstract thoughts required different strategies to be adopted for his treatment. Ms Jacks outlines a detailed strategy for his therapy and treatment plan. She states that he requires ongoing therapy with a creative and invested psychologist. She recommends a holistic approach to treatment, with all stakeholders being involved. She stated that he requires a high level of support from National Disability Insurance Scheme (NDIS) workers, as he struggles with a number of functional activities. [10] Dr Beech and Dr Harden have both assessed the respondent, and provided reports. In addition to the diagnoses of Dr Duggan, Dr Beech states that the respondent has a paraphilia of exhibitionism and associated sexual fantasies. Dr Beech, in his oral evidence, noted that the respondent’s offending is almost inevitably linked to alcohol. Thus, it is a significant trigger in relation to his risk of reoffending. Dr Beech, in his first report, based on limited collateral information about the respondent’s time in the community, considered that he had struggled in the community and that it had led to a deterioration of his mental health. Dr Beech believes that the respondent has become psychotic under the stresses of his release. Dr Beech found him to present in a disorganised unsettled state, voicing obscure religious thoughts when interviewed by video link. In his original report of April 2021, Dr Beech opined that: “My opinion remains the same. Mr Hill is at a high risk of reoffending in a sexual behaviour in the community. A supervision order should reduce that risk to below moderate, but the material at hand shows that Mr Hill it not able to comply with a supervision order. I think that his inability to comply relates to his mental illness, which has been aggravated by his stressors in the context of his limited intellectual ability. Pending a review of outstanding material, I would offer that if Mr Hill is to be released on a supervision order, then his accommodation, support, mental health services oversight needs to be sorted out. From what I have read, Mr Hill requires high level of support that may not have been available to him. His mental health condition needs to remit prior to his release. Otherwise, he is at high risk of contravening the supervision order conditions. 6 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 22(2). 7 Attorney-General (QLD) v Hill [2020] QSC 47 at [17] and [55]-[64]. -- 3 of 8 -- 4 [11] Dr Beech was provided with further material, and provided a further report of 28 May 2021. In that respect, Dr Beech had reviewed further medical information from clinical and NDIS records, the report of Ms Jacks, and a letter from Dr Duggan. Dr Beech stated that the new information did not essentially change the opinion he had expressed in his earlier report. He stated that: “Mr Hill has struggled in the community on a supervision order despite NDIS- funded support while living in a lodge. I believe this struggle reflects unmet support needs because of his multiple disabilities that arise from intellectual impairment and schizophrenia. While the material indicates that there has been no significant or extended period of psychosis, there are references to tangential thought process, persecutory ideation and auditory hallucinations. His presentations to hospital and his admissions and contraventions, I believe, are indicative of emotional collapse. The dual diagnosis means that he has many requirements for support. Psychiatric intervention per se is only one small element. I agree, though it is unlikely, more psychiatric intervention or medication changes are indicated. For the most part, the psychosis is in remission. As well, his alcohol use disorder is in remission. [12] As to the respondent’s risk of sexual reoffending, Dr Beech further stated that: “In the community Mr Hill is at high risk of violent sexual reoffending. Under a supervision order that risk reduces to low. The issue is simply the ability of Mr Hill to live in the community with the supports that were provided to him on his last release. He is at great risk of decompensating, which, in turn, places him at risk of contravening the supervision order and being returned to custody. To obviate that risk requires more intensive support, which I believe would be beyond the scope of community mental health services and Queensland Corrective Services alone.” [13] In oral evidence, Dr Beech stated that he mostly agreed with Dr Duggan’s view that the respondent’s presentations to the hospital were mostly not psychotic, but rather connected with his intellectual disability and poor impulse control, although Dr Beech considered there were elements of psychosis, which had been addressed in his report. Dr Beech, in oral evidence, stated that notwithstanding the instability in the support for the respondent, he considered that if the respondent was to be released under a supervision order, his risk would still be low. [14] Dr Harden diagnoses the respondent with schizophrenia, intellectual impairment, alcohol abuse, possibly dependence, exhibitionism, and opines that it is not clear if paedophilia is present. Dr Harden considered that the respondent’s unmodified risk without a supervision order is high. He states that: “In my opinion, a supervision order and the associated restraints will still reduce the risk of sexual recidivism to low to moderate. This is regardless of the concerns raised regarding his capacity to self-manage, as the constraints of the supervision order and have been intervening to prevent easy access to alcohol intoxication and subsequent sexual reoffence. [15] Dr Harden noted the difficulties that the respondent has suffered in his accommodation when released. Dr Harden noted that although the respondent had absconded from supervision, he has not drunk alcohol. Dr Harden also noted that the -- 4 of 8 -- 5 respondent’s treating psychologist considers that his intellectual impairment and frustration tolerance drove most incidents in relation to the contraventions, rather than psychosis. Amongst his recommendations, Dr Harden recommends that “…there should be careful and consistent coordination in his care between corrective services, supervising staff, mental health services and support staff from his NDIS package. I would recommend that he be placed in the Rockhampton area for practical, relational and cultural reasons.” [16] Ms Monson has provided affidavit evidence. In her latest affidavit, she deposes to the fact that Queensland Corrective Services (QCS) shares the concern expressed by Ms Jacks and Dr Beech about the respondent’s ability to cope in the community with the level of support he was provided on his release last year. In particular, she notes that limitations upon QCS’ capacity to reliably and safely escort the respondent at all times in the community, in order to provide him with intensive reintegration support. Ms Monson identifies that QCS has concerns that the respondent’s needs are not met at QCS contingency accommodation. Ms Monson states that: “QCS are not presently aware of any community facilities in Queensland that may meet the needs and risk management concerns relating to the respondent, as identified by the risk assessing psychiatrist without allocated funding specific to accommodation. “ [17] The respondent does receive support from an NDIS funding on a plan. Ms Monson stated, however, that QCS are attempting to advance a supported independent living package application for the respondent. Supported independent living packages provide additional finding for supervising tasks of daily life in a supervised and shared living environment, either temporary or ongoing. The funding for such items varies in the NDIS payment scheme and are dependent on the level of support required. Despite the efforts of QCS, there has been difficulty convincing the National Disability Insurance Agency and NDIS of the respondent’s need to access support independent living funding. [18] Ms Monson believes that relevant information has not been considered by the National Disability Insurance Agency in assessing the respondent’s supported independent living package application. However, she states that the assistant director of the Rockhampton National Delivery Team has been made aware of this, and will provide a delegate decision as to whether such funding will be provided in one week. QCS has also taken further steps to escalate the issue, and Ms Monson states that QCS will continue to make ongoing attempts to source suitable accommodation options for the respondent. [19] QCS also approached a not-for-profit agency about undertaking a QCAT application for the appointment of a guardian or trustee in 2020, but that was to no avail. Ms Monson states that, if released, the respondent will be housed in the Wacol contingency accommodation, which is the preference due to the structure and support at that location, the close proximity to QCS staff, and emergency services to deploy staff. [20] She has stated that the applicant will be provided with psychiatric and psychological treatment upon his release. In that regard, I note that she has referred to the respondent receiving treatment from Dr Hatzipetrou, a forensic psychologist, in -- 5 of 8 -- 6 relation to his risk of sexual reoffending. Dr Harden commented that Dr Hatzipetrou is probably the best person in Queensland to deal with that issue in relation to the respondent, given Dr Hatzipetrou is also experienced in dealing with people with an intellectual impairment. [21] The support which QCS can provide is limited, as residents are expected to live independently and provide for themselves on a day to day basis. QCS also does not provide assistance with daily living tasks, dispensing medication or supervising the taking of medication. [22] It is submitted on behalf of the applicant that the Court should not be satisfied that the adequate protection of the community could be ensured by the supervision order, given that fulltime supports are not in place. In particular, the applicant notes that while the respondent’s schizophrenia can be well managed on medication, he can destabilise. The applicant further points to the respondent’s treating psychiatrist commenting that the respondent complains of increased psychotic symptoms in the context of feeling emotionally distressed and wishing for more support. [23] Counsel for the respondent, however, submits that the Court should be persuaded on the evidence, to the requisite standard, that the respondent should be released on a supervision order, notwithstanding the uncertainty in relation to whether he will receive supported independent living and the level of support that has been identified as needed. [24] It is submitted on behalf of the respondent that the issue is whether there is an unacceptable risk that the respondent will commit a serious sexual offence if released under a supervision order, and that the continuing detention cannot be based on a person requiring particular support or failing to demonstrate that they will comply with the order. Counsel for the applicant agrees that the relevant issue is whether there is an unacceptable risk that the respondent will commit a serious sexual offence if released under a supervision order, such that the adequate protection of the community cannot be ensured. It is submitted on the behalf of the respondent that based on the opinions of Dr Harden and Dr Beech, there is not an unacceptable risk, notwithstanding that, Dr Beech notes: “The risk of the respondent decompensating if released without further supports in place, which, in turn, places him at risk of contravening the supervision order and being returned to custody.” [25] In that regard, counsel for the respondent notes the risk identified by Dr Beech in relation to a contravention is not an immediate or increased risk that the respondent will commit a serious sexual offence. That is supported by the oral evidence, which has been received by the Court, from both Dr Harden and Dr Beech today. The critical issue the Court is determining is whether or not the respondent has discharged the onus upon him to persuade the Court that on the balance of probabilities, adequate protection of the community can be ensured by the supervision order, despite his contraventions. In that regard, the evidence supports the opinions of Dr Harden, Dr Duggan and Dr Beech that the respondent’s breach of his curfew requirements under the supervision order, when he absconded, and his defiant behaviour is generally linked to his intellectual impairment and frustration tolerance. -- 6 of 8 -- 7 [26] Although, as noted, Dr Beech also considers that there is an element of the respondent being under stress and decompensating when his emotional and psychological needs are not being met while he is settling into the community. Notwithstanding the contraventions, Dr Beech assesses the respondent’s risk of reoffending if released under the supervision order as low. Dr Beech identifies an indirect link between the lack of 24/7 support being provided to the respondent, as referred to by Dr Duggan and the occupational therapist, and the respondent’s risk of reoffending. However, he states notwithstanding that, the risk of relevant reoffending is low. In that regard, he stated that the monitoring provided under the Supervision Order has enabled a number of points of intervention to be put in place to enable any absconding by the respondent to be detected and contained, such that he is picked up when he absconds and returned, including the provision for a tracker. Dr Duggan considers that the risk of reoffending may arise if the respondent keeps breaching and that is not detected, and further, if the respondent determines to remove his tracker. The risk of reoffending is most likely to arise if the respondent absconds and gets access to alcohol. In that regard, Dr Beech stated that he could not attach any significance to the fact that the respondent was found outside a hotel on one of the occasions when he absconded. [27] In terms of the escalation of risk, Dr Beech considered the most likely scenario is if the respondent did get access to alcohol and became intoxicated, his paraphilia with respect to exhibitionism would be heightened. He considered the most likely scenario was that the respondent would offend in a similar way as he had done between 1996 and up to 2016, which was offending in the nature of exposing himself and pestering people, rather than the most serious offending which took place in 2016. He considered the latter would only occur if the respondent was intoxicated, with a woman, and felt entitled. [28] There was no suggestion that the risk of offending in relation to children would be a likely or even possible scenario. Dr Harden agreed with Dr Beech’s likely trajectory in relation to the pathway to reoffending. Dr Harden considered that the respondent’s risk of reoffending relevant to the act was low to moderate under the Supervision Order. He considered it significant that the respondent did not access alcohol in the 12 months he was under the Supervision Order. His opinion did not change, notwithstanding the lack of 24/7 care being presently available to Mr Hill if released under a supervision order. [29] Ms Monson has deposed to the fact that the respondent will have treatment from a psychologist, and also a psychiatrist, upon his release which, given his condition, is essential. In particular, I note that Dr Duggan has been his treating psychiatrist since 2017 and is well-versed in his treatment. Ms Monson has also identified the other ways in which the respondent can identify community support and receive the support from the NDIS support package, which I note. Although the community workers funded by the NDIS cannot go into the precinct, arrangements can be made for the respondent to be picked up from the precinct to be given that support. [30] It has to be said that the present state of affairs in relation to the respondent’s support with respect to accommodation is unsatisfactory, given his level of psychiatric affliction, in particular his schizophrenia and also his intellectual impairment, notwithstanding the unfair burden which it places on QCS. -- 7 of 8 -- 8 [31] I accept that, given the evidence of both Dr Harden and Dr Beech, the Supervision Order is sufficient to contain his risk of reoffending within the terms of the Act to low, and to low to moderate in the case of Dr Harden. The fact that the respondent did not engage in reverting to drinking alcohol during the time that he has been subject to the Supervision Order, and the fact that the Supervision Order has in fact contained his risks insofar as his absconding has been detected relatively quickly, and steps have been taken to return him to the precinct, demonstrates that the adequate protection of the community can be ensured if released under the present Supervision Order. [32] However, proper arrangements need to be in place for a smooth transition for the respondent being released into the community, and to ensure that his treatment needs are well in place and that QCS is able to put in place the arrangements that are needed. As such, I do not consider that the respondent should be released until 23 June 2021. Hopefully by that stage, greater clarity will be obtained from the NDIS in terms of the supported funding accommodation package. However, even if that is not the case, the question for this Court is an assessment of the risk of reoffending, relevantly under the Act, not whether he is going to be provided with the proper support needed. The question is the interrelationship between such a lack of support and his risk of reoffending, based on the psychiatric evidence that has been presented to me and the other factors to which I have referred, as well as the evidence from Dr Beech and Dr Harden that there is an indirect risk of the instability of his accommodation, linking to a risk of reoffending under the Act. The lack of support is not a factor which causes the Court to find that the risk of reoffending is such that the Supervision Order is not sufficient to contain the relevant risk,. This is particularly so when regards is had to the most likely nature of the risk of reoffending that has been identified by Dr Harden and by Dr Beech, being acts of indecency and exposure and pestering, rather than sexual offending with violence. [33] In the circumstances, I am satisfied that given the degree to which the Supervision Order has contained the respondent’s risk to date, and given the evidence that has been placed before me, that the existing Supervision Order ensures adequate protection of the community where the respondent is released subject to it, despite his contraventions, I will make the order in accordance with the draft that has been provided to me, subject to it providing for the respondent’s release to be on 23 June 2021. -- 8 of 8 --