Attorney-General for the State of Queensland v Cosh (No 2) [2021] QSC 34

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Cosh (No 2) [2021] QSC 34 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALLAN JAMES COSH (respondent) FILE NO/S: BS No 2684 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 26 February 2021 DELIVERED AT: Brisbane HEARING DATE: 26 February 2021 JUDGE: Davis J ORDER: THE COURT, being satisfied to the requisite standard that the respondent, Allan James Cosh, has contravened requirement 23 of the supervision order made on 24 July 2017 ORDERS THAT: 1. Pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody before 9.00 am on 1 March 2021 and continue to be subject to the supervision order made on 24 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 was the subject of a supervision order made on 24 July 2017 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) - where the respondent contravened a provision of the supervision order by consuming cannabis - where the respondent, while released on supervision, did not commit a “serious sexual offence” as defined by the DPSOA - where the psychiatric evidence was that, notwithstanding the contravention, the risk posed by the respondent to the community could be ensured by his release on supervision - where the Attorney-General conceded that the respondent had -- 1 of 11 -- 2 demonstrated that adequate protection of the community from the commission by him of a serious sexual offence could be ensured by him being released on the supervision order. Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 21, s 22 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited Attorney-General v Phineasa [2013] 1 Qd R 305, cited Attorney-General for the State of Queensland v Cosh [2017] QSC 155, related Attorney-General for the State of Queensland v Cosh [2021] QSC 13, related Kynuna v Attorney-General (Qld) [2016] QCA 172, followed R v Cosh [2007] QCA 156, related COUNSEL: J Rolls for the applicant C Reid for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] Allan James Cosh is the subject of a supervision order made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) on 24 July 2017 (the supervision order). He contravened the order and the Attorney-General sought orders against him as a result of the contravention. Background [2] When the contraventions of the supervision order were alleged against Mr Cosh, a warrant issued against him on 12 November 2020 pursuant to s 20 of the DPSOA. He was arrested and remanded in custody pursuant to s 21(2)(a). [3] On 5 February 2021, Mr Cosh made application pursuant to ss 21(3) and 21(4) of the DPSOA to be released pending determination of the contravention proceedings. That application was refused on 12 February 20211 (the earlier judgment). He remained in custody. [4] It is unnecessary to descend into a detailed examination of Mr Cosh’s history as that was done in the earlier judgment. In summary: 1. Mr Cosh was born on 9 September 1966 and is now 54 years of age; 1 Attorney-General for the State of Queensland v Cosh [2021] QSC 13. -- 2 of 11 -- 3 2. he has a lengthy criminal history dating back to 1983. The majority of the offences for which he has been convicted are property offences but there are some convictions for assault, breach of domestic violence orders and minor drug offences; 3. in April 2005, Mr Cosh committed his first sexual offences. These were committed during an extremely violent episode when Mr Cosh raped a woman. He was sentenced in August 2006 to 12 years’ imprisonment;2 4. an application was made in 2017 for orders against Mr Cosh under the DPSOA; 5. three psychiatrists prepared reports for that application; Dr Sundin, Dr Beech and Dr Grant; 6. the psychiatrists’ evidence at the time of the first application was that Mr Cosh suffered from an anti-social personality disorder and the consumption of intoxicating substances was a risk factor to his offending;3 7. Mullins J (as her Honour then was) concluded that Mr Cosh was a serious danger to the community in the absence of an order under the DPSOA but that adequate protection of the community could be ensured by Mr Cosh’s release on a supervision order.4 [5] Mr Cosh was in the community, subject to the supervision order, from 25 July 20175 until his arrest in November 2020. There are no allegations of the commission by Mr Cosh of a serious sexual offence over that time. However, he did form a relationship with a woman, Ms T, and he was violent to her in that relationship on two reported occasions. [6] The present contraventions allege the consumption of cannabis on several occasions. The contraventions alleged and particularised are: “Upon his release from custody on 25 July 2017, the respondent was inducted into the supervision order as made by Justice Mullins on 24 July 2017, pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003. During this induction, the respondent was issued with a 2 R v Cosh [2007] QCA 156; Attorney-General for the State of Queensland v Cosh [2021] QSC 13 at [4]. 3 Attorney-General for the State of Queensland v Cosh [2017] QSC 155. 4 Attorney-General for the State of Queensland v Cosh [2017] QSC 155. 5 He was released the day after the supervision order was made. -- 3 of 11 -- 4 reasonable direction pursuant to requirements (23) and (24) of his supervision order. Requirement (23) of the supervision order states that he must, ‘abstain from the consumption of alcohol and illicit drugs for the duration of the order’. Requirement (24) of the supervision order states that he must ‘submit to any form of drug and alcohol testing, including both random urinalysis and breath testing, as directed by a Corrective Services Officer’. The respondent acknowledged the receipt of the reasonable direction and by signing, acknowledged that he understood the reasonable direction, and agreed to comply. On 5 November 2020, the respondent was directed to submit to a urinalysis test in accordance with requirement (24) of his supervision order. The sample of urine provided by the respondent returned a presumptive positive reading for Cannabis. The sample was then sealed and sent to the Sullivan Nicolaides Laboratory for confirmatory testing. The respondent denied having consumed any alcohol or illicit substances (other than disclosed prescription medication) that might cause a positive result. On 9 November 2020, confirmatory results were received which indicated the sample had tested positive to Cannabis, with a level of 504ug/L. Since July 2020, the respondent has tested positive to Cannabis on a further seven occasions (specifically, 16 July, 30 July, 3 September, 13 September, 26 September, 11 October, 25 October and 5 November 2020). The respondent has been afforded the opportunity to address his Cannabis use by attending substance abuse counselling with Drug Arm and engaging with his forensic psychologist, Bruce Hamilton. Despite this, the respondent continues to use Cannabis and has maintained he has not used Cannabis on any occasion. On 1 October 2020, the respondent was placed in a ‘show cause position’ and asked to respond in writing as to how he intends to address the situation. In his response, the respondent failed to take responsibility for his Cannabis use and maintained his denial of any Cannabis use. Notably, since 1 October 2020, the respondent has provided three further positive samples to Cannabis. On 6 November 2020, QCS6 contacted the respondent’s treating psychologist Bruce Hamilton, who reported, ‘Despite being advised these readings are far from plausible from passive inhalation, he is steadfast in using that as his explanation. He also is currently reticent to acknowledge interest in the drug, both current and previous, despite his history of use documented in both assessing psychiatry reports and previously discussed with myself. With respect to risk, alcohol consumption in the context of relationship stressors or other conflict, and a negative peer influence, is more likely to be problematic for Mr Cosh given his history than cannabis. That said, 6 Queensland Corrective Services. -- 4 of 11 -- 5 the disinhibiting effects of cannabis cannot be discounted. Further from a risk perspective his reluctance to engage with intervention and supports surrounding this issue is arguably of greater concern than the use itself. This is because it is difficult to ascertain what is going on for him, and what strategies can be utilised to manage and support the same. Whilst teasing this out remains a focus of interventions, thus far it has yielded little’.” [7] Two psychiatrists, Dr Beech and Dr Sundin, were retained by the Attorney-General to examine Mr Cosh and prepare reports for the purposes of the contravention proceedings. [8] Dr Beech, in his report dated 28 January 2021: (a) confirmed his earlier diagnosis of anti-social personality disorder with elevated psychopathic traits; (b) considered Mr Cosh’s behaviour overall on supervision as “better than expected”; (c) observed “The material points to two incidents of alleged domestic violence that I believe are very concerning, but there is nothing that points to inappropriate sexual behaviour, sexual preoccupation, or the use of sex to meet emotional needs. Instead, he has had some support from family and friends, and remained in regular albeit restricted contact with T throughout”; (d) opined “I think Mr Cosh developed an Adjustment Disorder with depressed mood through 2020 in the context of supervision order conditions, difficulties with T, COVID, and the general settling into the community and the demands of independent living after being in prison for 12 years. It is credible that he resorted to cannabis use to deal with his lowered mood, idleness, and difficulties with supervision but he may also have simply returned to a long- term cannabis habit. I agree with Mr Hamilton7 that alcohol is likely to be a much more problematic substance use with regards to the risk of re-offending. In a general way, a return to cannabis use, repeated denial of drug use, frustration and lowered mood, and difficulties with supervision would indicate an increase in risk of reoffending. But, in this case, I think that risk increase 7 Mr Cosh’s treating psychologist. -- 5 of 11 -- 6 overall was relatively low and the trajectory was halted by his return to custody”; (e) concluded “Ultimately, it is my opinion that the risk of sexual violent re- offending has reduced to below moderate and a supervision order would reduce that risk even further. The main issues are around a return to alcohol abuse and intoxication, increasing difficulties in his personal relationship with a return to domestic violence, and a lack of supports to help him deal with the vicissitudes of living in the community, adjusting to independent living, and participating in pro-social activities”; (f) opined that an extension of the supervision order was not warranted. [9] At the time Mr Cosh’s application for release pending finalisation of the contravention proceedings was filed and heard, Dr Sundin’s report had not been received. That was held to be fatal to Mr Cosh’s application.8 [10] Dr Sundin’s report is now to hand. She diagnosed Mr Cosh as follows: “Using the DSM-V, my diagnosis of Mr Cosh remains the same. In my opinion, he shows evidence of an Anti-social Personality Disorder with elevated psychopathy scores. He has a Cannabis Use Disorder which is once again in remission whilst incarcerated, but which has flared at times of emotional disturbance. His Alcohol Use Disorder is now in sustained remission. There is recent evidence of a possible Adjustment Disorder with Depressed Mood or a mild Major Depressive Disorder which has responded well to the prescription of an antidepressant medication. There is no evidence that Mr Cosh suffers from a paraphilia.” [11] As to risk, Dr Sundin opined: “Mr Cosh is now age 54, well past the age when adult rapists are considered to be at a high risk of sexual re-offending. His risk of sexual re-offending is not imminent upon release. The present supervision order does flag rising risk and has intervened at times of heightened concern. He does have an elevated psychopathy score and has a history of interpersonal violence towards women and general misogynistic attitudes. He also has a history of emotional dysregulation and a 8 Attorney-General for the State of Queensland v Cosh [2021] QSC 13 at [23]-[34]. -- 6 of 11 -- 7 tendency to victim cognitions and maintaining grievances. These attitudes have lessened slightly with the passage of time, although his inclination to follow his own direction rather than the directions required of him, remains evident. His empathy deficits persist. He remains vulnerable to verbally aggressive outbursts but there has been an absence of both physical and sexual violence in the past three years. He has not committed a further sexual or violent offence in the last 3 years. He has abstained from alcohol and maintains that he intends to continue to abstain. He has maintained contact with his family and appears to be well supported by them. He clearly struggles with the supervision requirements and in particular with the GPS tracking, which has become problematic from his perspective and added to his sense of being victimised. He has benefitted from his sessions with Mr Hamilton. I do not have any information from the counselling that he and TR9 have undertaken with Dr Lopez, but by Mr Cosh’s account this appears to have been of benefit. The primary risk scenario for future sexual violence with Mr Cosh would arise in the setting of conflict within an intimate partner creating heightened stress and/or interpersonal difficulties. His risk would particularly be elevated by the presence of alcohol. In the first instance, if he were sufficiently angry or aggrieved his intimate partner would be at risk of being physically or sexually assaulted by him. If he became angry with a female partner and was disinhibited by alcohol, a female stranger or female acquaintance could also potentially be at risk. There remains a risk that any future victim would suffer significant physical violence together with emotional and psychological distress. I do not consider that Mr Cosh poses any risk to children or adolescents. In my opinion, the supervision order is serving its purpose in modifying the potential risk that Mr Cosh poses to the community. His past participation in the Pathways Programme has been beneficial. His continuing sessions with Mr Hamilton have been of benefit. He has gained some benefit from the domestic violence programme he did with the Salvation Army although he continues to struggle with self-awareness and continues to minimise the extent of the harm his violence has done in the past, particularly the violence he has committed against women. 9 Ms T as earlier referred. -- 7 of 11 -- 8 I would therefore respectfully recommend to the Court that Mr Cosh can be released to the community under the auspices of the existing supervision order. He should remain in treatment with Mr Hamilton.” [12] In both psychiatrists’ reports, there is reference to Mr Cosh’s treating psychologist. It is unnecessary to analyse Mr Hamilton’s evidence. It is sufficient to observe that Mr Hamilton reports improvement in Mr Cosh generally and specifically with his relationship with Ms T. [13] There was no challenge by either party to the psychiatric evidence or to Mr Hamilton’s evidence and no party sought to cross-examine Dr Beech, Dr Sundin or Mr Hamilton. Consideration [14] Section 22 of the DPSOA relevantly provides: “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 -- 8 of 11 -- 9 (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).” [15] As already observed, Mr Cosh accepts the contraventions. The supervision order must be rescinded and a continuing detention order made unless Mr Cosh convinces the court that “the adequate protection of the community can, despite the contravention … of the [supervision] order, be ensured by the [supervision] order”.10 [16] “Adequate protection of the community” has the same meaning in s 22 as it does in s 13.11 Section 13 is the pivotal section of the DPSOA. It concerns the determination of the initial application brought by the Attorney-General for orders under the DPSOA. It provides, relevantly: “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; 10 Dangerous Prisoners (Sexual Offenders) Act 2003, s 22(7). 11 Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]. -- 9 of 11 -- 10 that the evidence is of sufficient weight to justify the decision… (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (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. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [17] Section 22(7) obliges the court to consider whether release of Mr Cosh back onto the supervision order provides adequate protection of the community against the commission of a “serious sexual offence”. A “serious sexual offence” is, relevantly to Mr Cosh, “an offence of a sexual nature … involving violence”.12 [18] Where adequate protection of the community from the risk of the commission of a serious sexual offence can be “ensured” by a supervision order, then the making of a supervision order should be preferred to the making of a continuing detention order.13 [19] Mr Cosh has not committed a serious sexual offence since his release in 2017. The 2005 offending was his first and only, to date, sexual offending. 12 See generally Attorney-General v Phineasa [2013] 1 Qd R 305. 13 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396. -- 10 of 11 -- 11 [20] The current psychiatric evidence is to the effect that the consumption of cannabis has not increased risk. Both doctors opine that Mr Cosh can be managed on the supervision order in the community. I accept the evidence of the two experienced psychiatrists, supported as it is by Mr Hamilton’s evidence. [21] Properly, with respect, the Attorney-General, in light of the psychiatric evidence, concedes that Mr Cosh has discharged the onus cast upon him under s 22(7) of the DPSOA and should be released back onto the supervision order. [22] There is no evidence suggesting that the supervision order should be either extended or amended. Orders [23] I make the following orders: THE COURT, being satisfied to the requisite standard that the respondent, Allan James Cosh, has contravened requirement 23 of the supervision order made on 24 July 2017 ORDERS THAT: 1. Pursuant to s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody before 9.00 am on 1 March 2021 and continue to be subject to the supervision order made on 24 July 2017. -- 11 of 11 --