Attorney-General for the State of Queensland v Fordham [2021] QSC 140

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Fordham [2021] QSC 140 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v REGINALD THOMAS FORDHAM (respondent) FILE NO/S: BS No 2452 of 2017 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 24 May 2021 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 24 May 2021 JUDGE: Bradley J ORDER: Pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and continue to be subject to the requirements of the supervision order made by Daubney J on 27 July 2017. 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 contravened a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the breaches related to contact between the respondent and a 15-year-old boy and his younger siblings on four separate occasions, and the subsequent failure to disclose those contacts when questioned by a corrective services officer – where the consultant psychiatrists opine that the respondent’s risk of sexual recidivism is reduced to moderate to low if released in the community on the existing supervision order – whether the adequate protection of the community can be ensured if the respondent is released on the existing supervision order -- 1 of 4 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 22, s 43AA COUNSEL: J Tate for the applicant S Robb for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] This is a decision on an application brought by the Attorney General for an order under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The matter comes before the Court with a short history. On 27 July 2017, Daubney J made a decision on the basis that he was satisfied that the respondent was a serious danger to the community, and that a supervision order may be appropriate. For the purpose of making that order, his Honour was persuaded that the community could be adequately protected by a supervision order. Adequate protection, of course, is a relative concept. It necessarily implies that there are some risks that are acceptable consistent with the adequate protection of the community. [2] His Honour was assisted by expert evidence from Dr Harden and Dr Aboud. However, as the Act requires, his Honour made the assessment of the level of risk that was unacceptable, and conditions necessary in order to ensure the adequate protection of the community. As a judicial determination, it was his Honour’s assessment that the paramount consideration of the need to ensure adequate protection of the community could be achieved by the appropriate supervision order. The supervision order made contained conditions addressing all of the issues identified by the expert witnesses before his Honour, as well as other conditions, which were appropriate for seeking to ensure the adequate protection of the community. The order was made for a term of 10 years. [3] On 12 January 2021, the respondent pleaded guilty and was convicted of one offence under s 43AA of the Act. That was for a contravention of the supervision order made by Daubney J. The respondent was fined $300 and given 28 days to pay. The factual basis of that offence can also be briefly stated. The conviction was based upon the following matters. On 10 November 2020, Queensland Police Service obtained a statement from a 15-year-old male child. The child stated that he and his younger siblings had contact with the respondent on four separate occasions, in October and November 2020. The contact was initiated by the respondent when he was collecting cans and bottles around the area in which he lived, which was also in close proximity to where the children were at the time. [4] The statement described the contacts in this way: On the second contact, the respondent asked the children if they wanted him to buy them cigarettes. On the third contact the elder male child helped the respondent to carry some bags of cans and bottles that he was collecting, and the respondent gave him $10 in return. On the fourth and final contact, the respondent obtained some information regarding the children’s living and schooling arrangements by asking questions of the children, and during this final interaction the eldest male child told the respondent that he was 15-years-old. One of the conditions in the supervision order was condition 29: that the respondent not establish any supervised -- 2 of 4 -- 3 or unsupervised contact with children under 16 years of age, except with the prior written approval of a corrective services officer. The contact with the children was a breach of that condition. [5] There were two other relevant conditions. Condition 16 required the respondent to respond truthfully to enquiries by a corrective services officer about his activities, whereabouts, and movements generally. During a scheduled weekly case management meeting on 19 October 2020, the respondent denied speaking with any children or forming any new association, when he was questioned by a corrective services officer. That was a breach of condition 16. Condition 18 required the respondent to disclose to a corrective services officer the name of each person with whom he associates, and respond truthfully to requests for information from a corrective services officer about the nature of the association, the address of the associate, if known, the activities undertaken, and whether the associate has knowledge of his prior offending behaviour. The failure to disclose such information in that discussion with the corrective services officer on 19 October 2020 was a breach of condition 18. [6] The respondent had attended for case management meetings on a regular weekly basis. In none of those discussion had he disclosed any contact with the children. It was clear that he was in breach of those three conditions, and indeed, as I mentioned, he pleaded guilty to that offence. In the circumstances, I am satisfied by the evidence that the respondent has contravened the requirements of the existing supervision order relating to honest disclosure, engagement, and establishing and disclosing contacts. The question is whether the Court should make another supervision order in respect of the respondent, make a continuing detention order, or make no order. None of the parties before the Court urged that no order should be made, and indeed both urged that the Court should make another supervision order. [7] The respondent’s current unmodified risk of future serious sexual offending has been assessed by Dr Sundin as high, and by Dr Aboud, as at the high range. In Dr Sundin’s opinion, if the respondent were to be released back into the community under the current supervision order today, then his risk for sexual recidivism would be reduced to moderate to low. Dr Aboud also assessed the risk to the community under the respondent’s existing supervision order, were he to be released upon it, would again be reduced to between moderate and low. [8] I mentioned in previous decisions under this legislation that the assessment of a relevant person as posing a moderate risk of sexual recidivism is not a basis upon which the Court should automatically conclude that the community can be adequately protected. However, having considered in some detail the written reports by Dr Sundin and Dr Aboud, I am satisfied that their assessment of the risk reduction likely to flow from the release of the respondent under the current supervision order, places that risk within the assessed range at a level where the risk of the respondent reoffending is acceptable, in the sense that those conditions would ensure the adequate protection of the community. I say this because, in the detail of their operation, the conditions of the existing supervision order provide well-considered terms to engage with the respondent on a regular basis, and to assist in the early identification of the development of any increased risk of reoffending. -- 3 of 4 -- 4 [9] As I mentioned, no order can guarantee or provide the complete elimination of the risk of a person such as the respondent reoffending if released under its supervision. But weighing the protections available under the existing supervision order against the serious alternative of depriving the respondent of his liberty, by making a continuing detention order, I am satisfied that the terms of the existing order are sufficient to ensure the adequate protection of the community. For that reason, I propose to make an order that under s 22 of the Act, the respondent be released from custody and continue to be subject to the requirements of the supervision order made by Daubney J on 27 July 2017. -- 4 of 4 --