Attorney-General for the State of Queensland v Thompson [2021] QSC 123 (2021) 292 A Crim R 20

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Paul Thompson [2021] QSC 123 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v PAUL THOMPSON (Respondent) FILE NO/S: 13108 of 2016 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED EX TEMPORE ON: 13 May 2021 DELIVERED AT: Brisbane HEARING DATE: 13 May 2021 JUDGE: Callaghan J ORDER: 1. The decision made by Burns J on 12 May 2017 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003; be affirmed and 2. The respondent, Paul Thompson, continue to be subject to the continuing detention order made on 12 May 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 applicant seeks continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), where the respondent seeks to be released from custody subject to a supervision order – where there is no dispute that unless a supervision order is made the respondent constitutes a serious danger to the community – where there is consensus in the evidence of psychiatrists that the respondent should be housed in accommodation that is supported and subject to a 24-hour regime of supervision – where no such accommodation is available – where the lack of suitable -- 1 of 6 -- 2 accommodation effectively compels the result of this application Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Attorney-General for the State of Queensland v CBR [2020] QSC 157 Attorney-General for the State of Queensland v Gibson [2021] QSC 61 Attorney-General for the State of Queensland v Gibson [2021] QSC 26 State of Queensland v Paul Thompson [2017] QSC 79 COUNSEL: B Mumford for the applicant C O’Meara for the respondent SOLICITORS: GR Cooper as Crown Solicitor for the applicant Hodgson Lawyers for the respondent [1] The respondent, who is now 72 years of age, has a history of committing offences with a sexual and/or indecent dimension that began in 1971. He has since been before the Court on at least 28 occasions in three states and one territory for similar offending. His conduct has persisted over the decades, save, perhaps, for one period when he absconded and made his way to Indonesia. [2] According to him, no offences were committed in that country. It seems that in that country, it was perfectly natural, for example, to swim naked in a river, and so there was no excitement to be gained from his wilful exposure. And he asserts that he has “never offended with a dark-skinned person” on the basis that he does not, as he puts it, find them attractive. [3] In any case, following his extradition and repatriation, his offending in Australia continued. It is true that none of the charges of which he has been convicted involved penetrative conduct. A lot of them were exhibitionist in that they involved wilful, indecent and/or obscene exposure. There have, however, been offences that involved indecent dealing or assault. His targets have, for the most part, been adolescent boys. His full criminal history is canvassed in Attorney- General for the State of Queensland v Paul Thompson [2017] QSC 79 per Burns J between paragraphs [14] and [23]. [4] In paragraph [22], his Honour recorded the details of offences which involved indecent touching of two different boys on successive days. Both boys were 11, and in both cases the offences were committed in public toilets. In March 2015, the respondent was sentenced for these offences (which were committed in 2013) and received a sentence of imprisonment, the full-time release date for which would have been in 2017. -- 2 of 6 -- 3 [5] He has, however, been in custody since he was sentenced. That is because acting under the Dangerous Prisoners (Sexual Offenders) Act 2003 (The Act) orders for his continued detention have been made by Justice Burns (12 May 2017), Justice Wilson (7 May 2019) and Justice Flanagan (6 April 2020). Their Honours’ reasons record more detail about the respondent’s extraordinary case and his reflections on his own behaviour. All of those judgments must be read in order to contextualise this, the third review required by section 27(1) of the Act. [6] There is no inconsistency between anything written by their Honours about the applicable law. It all accords with the summary of relevant provisions that appears in Attorney-General for the State of Queensland v CBR [2020] QSC 157 between paragraphs 9 and 17, and I am proceeding to apply the principles discussed therein. [7] On the basis of the materials before me, there is no dispute that, unless I make a supervision order under division 3 of the Act, the respondent constitutes a serious danger to the community. This is the consensus of opinion as between the psychiatrists who have examined the respondent. Doctor Ken Arthur, who spoke to the respondent on 15 January 2021, was of the view that the respondent’s future unmodified risk of sexual recidivism was high. The strict application of a supervision order with stringent conditions would, however, in the doctor’s view reduce this - although limitations to that proposition are discussed below. Doctor Josephine Sundin, who interviewed the respondent on 26 November 2020, was also of the view that the respondent’s unmodified risk of sexual offending remained high. [8] Having regard to the opinions of these experts and to all of the other matters to which section 13(4) of the Act makes reference, I am satisfied that the respondent is a serious danger to the community and that unless I make an order pursuant to section 13, there is an unacceptable risk that he will commit a serious sexual offence. [9] Attention, then, turns to section 13(6) and the decision as to whether the court should make an order for continuing detention or a supervision order. The determinative question is whether the adequate protection of the community can reasonably and practicably be managed by a supervision order. That involves considerations of the types of conditions that might attach to such an order, and an assessment as to the likelihood of compliance with it. [10] On the materials, it should be concluded that there is potential to draft an order that contains conditions which target the respondent’s behaviour in such a way as to reduce the risk of his offending to a level that might be acceptable in this context. In that regard, Dr Arthur was of the view that the respondent would best be managed in supported accommodation under supervision and, initially at least, subject to a 24-hour curfew. Indeed, he thought the only practical way of managing the respondent in the community was with a combination of care that included such support. -- 3 of 6 -- 4 [11] Dr Sundin expressed the view that only when Queensland Corrective Services could identify a suitable all male locked hostel would it be possible for the respondent to be released under a supervision order with further requirements to minimise potential contact with children. [12] It can be seen that the point that the doctors had in common was that the respondent should be housed in accommodation that was supported and subject to a 24-hour regime of supervision. On the evidence before me, no such accommodation is available. [13] The manager of the offender management unit within Queensland Corrective Services (the manager) provided evidence to the effect that QCS shared the concerns expressed by the doctors, and to that end had made inquiries of various providers of supported accommodation services, both in Southern Queensland and in Townsville. Further such inquiries have been made of Queensland Health. There is, however, currently no arrangement available that would be suitable for the respondent’s purposes. [14] Any order made pursuant to section 13(6)(b)(ii) of the Act would have to contain a specific condition referable to the respondent’s accommodation. Without that, it would be impossible to be satisfied that the requirements of the order could reasonably and practicably be managed by corrective services officers. [15] Further, my power in a hearing of this nature is contained in section 30(3) of the Act. It allows only that the existing detention order may be continued or that the respondent may be released from custody subject to a supervision order. Since it is not possible on the evidence before me to draft such an order, there is nothing pursuant to which the respondent can be released. It follows that this application must be allowed, and that an order must be made for the continued detention of the respondent. [16] That is not quite the end of the matter. The question arises as to what might happen should such accommodation become available well in advance of the next occasion upon which the respondent’s case is reviewed under the Act. In this way, the case has some resemblance to the situation which confronted me in Attorney-General for the State of Queensland v Gibson [2021] QSC 26. It too was a case in which the option of making a supervision order was precluded by the unavailability of suitable accommodation. [17] In that case I expressed (at [20]-[20], and in the course of argument) my concern about the fact that the liberty of an individual was, in the circumstances, something which rested entirely in the hands of an officer of the executive government. The bona fides of the reassurances that I received on that occasion were established - as explained in Attorney-General for the State of Queensland v Gibson [2021] QSC 61. The prospect of similar action being taken in this case is foreshadowed in the affidavit from the manager who also reports that QCS has engaged an external advocacy service (Aged and Disability Advocacy Australia) to assist the respondent in decision-making about the process of finding accommodation. -- 4 of 6 -- 5 [18] I have also been asked to note the possibility that the respondent might be transferred to The Park Centre for Mental Health as the result of a certain diagnosis. Neither party, however, suggested that this contingency should have any effect on my decision. It was, however, reassuring to note that the applicant was alert to this, and it is to be expected that should suitable accommodation become available, then prompt action will be taken to ensure that the case is, once again, brought before the Court. [19] When that does happen, the question as to whether a supervision order will afford adequate protection to the community is one that will involve an assessment as to the likelihood of compliance with such an order. The resolution of this application turns on the issue I have already identified, but the materials and submissions addressed the prospect of compliance in some detail, and it is likely, again, to become an issue. So I shall record some things that were said about it this morning. [20] Grave concern about the prospect of someone complying with an order must be caused by a stated unwillingness to do so. But that is what the respondent has professed in earlier proceedings. Separately, he has expressed concern that even if he was willing, he could not meet the numerous conditions on the supervision orders that had been proposed, both in this hearing and previously. [21] In the lead-up to this review, however, the situation was said to be different. To Dr Arthur, the respondent stated that he was willing to comply with the conditions of a supervision order, even if he did not believe that they were justified. That said, the doctor was concerned that there was little shift in the respondent’s insight since the review before Justice Flanagan. To Dr Sundin the respondent continued, actively, to reject many of the aspects of the proposed supervision order. But in the lead-up to this hearing, as put by his counsel, there had been an “expressed change of attitude”. It was submitted, based on that which was said to Dr Arthur and confirmed in written instructions, that the respondent had “expressed his willingness to comply with conditions of a supervision order”. This submission was qualified by the observation that Mr Thompson was still of the opinion that “only minimal orders are required”. [22] The respondent’s position was clarified to some extent during the hearing in which it was identified that he was concerned principally about proposed conditions insisting that he not consume alcohol, not use cannabis, have restricted access to computers and that he stay in Queensland unless he has permission to leave (he has no family here). The idea that a respondent to such an application might be selective about the conditions of a supervision order, is problematic. Such attitude, as has previously been expressed by the respondent to psychiatrists, gives rise to concern that a breach of the order might be inevitable. It raises a broader concern about the respondent’s respect for authority and lack of insight into the consequences of his actions. [23] Nevertheless, these defects in his understanding must be viewed within the context of the function that is being performed. Protection of the community is the dominant paradigm. The conditions about which the respondent complains, are not linked, obviously, with his offending, and it is theoretically possible, in -- 5 of 6 -- 6 any case, for someone to express defiance in circumstances where it can nonetheless be concluded that they will be compliant. There may even be something to be said for the submission that if Mr Thompson was released to an accommodation situation that provided a 24 hour lockdown facility, it is likely that if his attitude towards a supervision order was unsatisfactory, that fact would be exposed within the context of his living arrangements. [24] Breach action could be taken before he presented a relevant risk and, in particular, a risk to adolescent boys. However, a realistic assessment of that, or any other risk, can be made only once the nature of the accommodation to which the respondent might be released is known. As a matter of fairness, the respondent is entitled to know about that before he is called upon finally to make a statement about his willingness to reside there and abide by the conditions that attach to his residence. [25] On the strength of his past performance, the prospect of his doing so in a satisfactory way might be thought unpromising. Procedurally, however, he is as entitled as anyone to make an informed choice about the instructions he gives his lawyers on this point. [26] It is pleasing, in the circumstances, to note that the (to date) contrary nature of the respondent’s attitude towards compliance with a supervision order does not seem to have been held against him so as to inhibit the efforts made to find suitable accommodation for him. That is, of course, as it should be and it is the Court’s expectation that, once those efforts are successful, the respondent’s status will be revisited by the bringing of his matter back before the Court. He is approaching an age at which he might, if only by reason of declining function, present less of a risk to the community than he once did. If prisons are to be the institutions that they are intended to be and avoid becoming a refuse heap for people like the respondent, then efforts such as those which have already been demonstrated in cases like Gibson (supra), must be pursued with vigour. The respondent might, however, be made to understand that a contrary attitude towards compliance will, at the time of any further review, be relevant to the calibration of risk. [27] In any event, given that the lack of suitable accommodation effectively compels the result of this application, is neither necessary nor desirable to express a settled view about the effect that the respondent’s attitude to compliance may have on subsequent reviews. The orders of the Court are: (1) the decision made by Burns J on 12 May 2017 that the respondent is a serious danger to the community in the absence of an order pursuant to division 3 of the Act be affirmed; and (2) the respondent continue to be subject to the continuing detention order made on 12 May 2017. -- 6 of 6 --