Attorney-General for the State of Queensland v CBR [2020] QSC 394

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v CBR [2020] QSC 394 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v CBR (respondent) FILE NO/S: BS No 13609 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED EX TEMPORE ON: 18 December 2020 DELIVERED AT: Brisbane HEARING DATE: 17 December 2020 JUDGE: Davis J ORDER: The respondent is released subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 for 10 years until 17 December 2030 in terms of the schedule to these reasons. 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 detained on a continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) on 4 June 2020 – where the Judge making the order expressed views that given rehabilitative efforts of the respondent, the annual review of the order ought to be made earlier than usual – where the application for review was filed six months after the making of the continuing detention order – where the respondent was subject to examination by a psychiatrist for the purposes of the review – where the parties agreed that the adequate protection of the community could be ensured by a supervision order under Division 3 of Part 2 of the DPSOA – where the respondent conceded the need for a supervision order under Division 3 of Part 2 – whether the respondent should continue to be subject to the continuing detention order -- 1 of 16 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 13, s 15, s 16, s 27, s 30 Attorney-General for the State of Queensland v CBR [2020] QSC 157, related Attorney-General for the State of Queensland v DXP [2019] QSC 77, followed Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329, followed Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, applied COUNSEL: J Tate for the applicant C Reid for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The respondent is subject to a continuing detention order (CDO) made under s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). Before me is the first annual review of that CDO.1 Background [2] The respondent was born on 22 May 1968. He is presently 52 years of age. He has a significant criminal history of sexual offending against children. This criminal history was extensively analysed by Callaghan J when making the CDO; see Attorney-General for the State of Queensland v CBR.2 It is therefore unnecessary to make other than short observations about the respondent’s criminal history. [3] Over a period of almost eight years between 1993 and October 2001, the respondent maintained a sexual relationship with a child who was his step-daughter. He was charged with maintaining a sexual relationship with her and convicted in 2003. He was also convicted of a number of other individual charges which were, in effect, particulars of the principal charge which was maintaining a sexual relationship with her. He was sentenced to an effective head sentence of nine years’ imprisonment. Those convictions were suffered in the Brisbane District Court on 9 May 2003. [4] On 18 March 2005, the respondent was convicted of two counts of indecent treatment of a child under 12. That offending occurred between 1 May 2003 and 9 May 2003 while the respondent was on bail for the earlier offences against his step-daughter. The complainant in the second episode of offending was 10 years old and the respondent was the boyfriend of the complainant’s mother. He had lived with the family for about 16 months and the child regarded him as a father figure. The conduct consisted of simulated intercourse while both the respondent and the child were undressed. He received a sentence of two years’ imprisonment to be served concurrently with the sentences imposed in 2003. 1 Sections 27 and 30. 2 [2020] QSC 157 at [20]-[23]. -- 2 of 16 -- 3 [5] On 26 May 2017 after a trial, the respondent was convicted of three counts of indecent treatment of a child under the age of 12. The child was 10 years of age who lived with her family in a caravan park. The respondent was also staying at the caravan park. The respondent befriended the child’s mother and then entered a room where the child and another girl were sleeping. He held the complainant’s hand against his exposed penis and placed his hand on her leg and tried to move it towards her vagina. He was sentenced to a period of imprisonment of three years. He still maintains his innocence in relation to that offending. [6] The 2017 convictions formed the basis upon which the Attorney-General made application under the DPSOA for orders against the respondent. The resulting CDO was made by Callaghan J on 4 June 2020. [7] By force of s 27(1A) of the DPSOA, the hearing of the first annual review of a CDO and all submissions for that hearing must be completed within two years after the day the CDO first has effect. The application for review here was made well under a year after the CDO was made. The filing of the application so early is unusual but is understandable here given findings made by Callaghan J when making the CDO. I will return to that shortly. Statutory framework [8] The DPSOA provides for the continued detention in custody or supervised release of prisoners who have been convicted of a “serious sexual offence” in order “to ensure adequate protection of the community”.3 Those objects are achieved through the making of continuing detention orders4 and supervision orders.5 It is well-established that where “adequate protection of the community” can be “ensured” by a supervision order rather than a CDO, a supervision order ought to be made.6 [9] The pivotal section in the DPSOA is s 13. It provides relevantly as follows: “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 Section 3. 4 Section 13(5)(a). 5 Sections 13(5)(b) and 16. 6 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39]. -- 3 of 16 -- 4 (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; 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).” [10] The threshold question before any order can be made under s 13 is whether the prisoner “is a serious danger to the community in the absence of [an order]”; see s 13(1). A prisoner is such a danger “if there is an unacceptable risk that the prisoner will commit a serious sexual offence [if no order is made]”.7 Understandably, by s 13(3), a high degree of satisfaction is required. [11] The term “serious sexual offence” is defined as: “serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland— (a) involving violence; or (b) against a child; or 7 Section s 13(2). -- 4 of 16 -- 5 (c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.” [12] Once a CDO is made, it must be reviewed as I have already mentioned, and the review hearing is governed by s 30, which provides: “30 Review hearing (1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order. (2) On the hearing of the review, the court may affirm the decision only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to affirm the decision. (3) If the court affirms the decision, the court may order that the prisoner— (a) continue to be subject to the continuing detention order; or (b) be released from custody subject to a supervision order. (4) In deciding whether to make an order under subsection (3)(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. (5) If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order. (6) In this section— -- 5 of 16 -- 6 required matters means all of the following— (a) the matters mentioned in section 13(4); (b) any report produced under section 28A.” [13] Section 30 in many ways mirrors s 13. A question on the review, like on the original application for orders under s 13, is whether “the prisoner is a serious danger to the community in the absence of [an order]”. Callaghan J was satisfied that was the case at the time his Honour made the CDO. If that decision is affirmed by me, then a discretion arises to order that the CDO be maintained or to order that the respondent be released subject to a supervision order.8 Like with the discretion to be exercised under s 13, the discretion under s 30 is informed by “the paramount consideration” which is “the need to ensure adequate protection of the community”; see s 30(4). [14] In both ss 13 and 30, “adequate protection of the community” means protection from the commission of a “serious sexual offence”, not the protection against general offending. Consideration of the present application [15] At the time of making the CDO, Callaghan J had the evidence of Doctors Timmins, Sundin and Beech, Psychiatrists. Dr Timmins thought the respondent most likely met the criteria for paedophilia, non-exclusive, sexually attracted to prepubescent females with evidence of a mixed personality disorder with anti-narcissistic and avoidant personality traits. Dr Sundin diagnosed the respondent with paedophilia, non- exclusive, sexually attracted to prepubescent females with indications of avoidant personality traits. Dr Beech made similar diagnoses. [16] As to risk, Dr Timmins thought the risk of sexual reoffending if released into the community without treatment was high and that the respondent required treatment, probably both the High Intensity Sexual Offenders Program which I’ll call “HISOP” and individual therapy. There is a difficulty with the respondent undertaking the HISOP given that he doesn’t admit the latest offending. [17] Dr Sundin also thought the respondent posed a high risk for future sexual recidivism if released unsupervised. She was concerned that the respondent required further treatment before being released on a supervision order. She recommended that he work “with an experienced forensic psychologist for a course of one-on-one individual counselling to address deviant sexual needs for a period of at least six months prior to any release on a supervision order”. [18] Dr Beech shared the views of Doctors Timmins and Sundin that the respondent was a high risk of reoffending if released into the community without supervision. Dr Beech also thought completing treatment before release was advisable. [19] During the hearing before him, Callaghan J was concerned that if a CDO was made and treatment was obtained, the risk may fall to an acceptable level well before the CDO would be reviewed in the ordinary course. His Honour expressed those views and received evidence that the Crown Solicitor intended to file an application for 8 Section 30(3). -- 6 of 16 -- 7 review by 3 August 2020. The application for review was, in fact, filed on 3 August 2020. [20] Since the making of the CDO, the respondent has been receiving treatment from Mr Nick Smith, a forensic psychologist. Doctors Beech and Timmins have noted that the respondent has engaged “in an appropriate and responsive manner”. [21] All three psychiatrists, Timmins, Sundin and Beech, still regard the respondent as a high risk of reoffending if released into the community without supervision. [22] Dr Timmins opined: “The potential he poses to the community can be reduced to an acceptable level by the presence of a supervision order with all the usual requirements of curfews, disclosure, GPS tracking, electronic review of telephone and internet material assessed and continued one to one treatment sessions with Mr Smith. I therefore respectively advise the court that he could be released under a supervision order.” [23] Both Doctors Beech and Timmins thought the risk fell to “below moderate” through the imposition of a supervision order. [24] I accept the evidence of the psychiatrists. [25] Turning then to the first question; whether the respondent is a serious danger to the community in the absence of a Division 3 order. The obvious answer to that is “yes”. The respondent has a serious and significant history of offending sexually against children. He is a diagnosed paedophile. He is not fully rehabilitated and his treatment is ongoing. A significant body of evidence from very experienced forensic psychiatrists is to the effect that the respondent is a high risk of sexually reoffending if released without supervision. [26] The second question is whether the respondent’s release on a supervision order provides adequate protection to the community. In my view, it does. The respondent has engaged well in treatment since the making of the CDO and the psychiatrists opine that risk has been lowered and that the conditions of the proposed supervision order are appropriate to manage the risk. [27] The third question is as to the duration of the supervision order. What has to be ascertained is the point in time in the future when the respondent will be an acceptable risk in the community without being under supervision.9 [28] The supervision order should be of a duration of 10 years. It is the opinion of the psychiatrists that a 10 year supervision order is warranted as the respondent is still undergoing treatment and given his diagnosis of paedophilia, his risk factors are significant and long-term. I accept that evidence. 9 Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329; Attorney-General for the State of Queensland v DXP [2019] QSC 77. -- 7 of 16 -- 8 [29] I have been provided with a draft supervision order and I am satisfied that the terms are appropriate. Conclusions [30] For the reasons I have given, I will make a supervision order in terms of the draft which has been provided and which I will have attached to these reasons as a schedule. -- 8 of 16 -- SCHEDULE SUPREME COURT OF QUEENSLAND REGISTRY: Brisbane NUMBER: 13609/19 Applicant ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND AND Respondent CBR SUPERVISION ORDER Before: Justice Davis Date: 18 December 2020 Initiating document: Amended Originating Application filed 20 December 2019 (CFI No. 18) THE COURT is satisfied that CBR, is a serious danger to the community. The rules in this order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003. THE COURT ORDERS THAT CBR be released from prison and must follow the rules in this supervision order for ten years, until 17 December 2030. TO CBR: 1. You are being released from prison but only if you obey the rules in this supervision order. 2. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison. -- 9 of 16 -- 2 3. You must obey these rules for the next ten years. Reporting 4. On the day you are released from prison, you must report before 4 pm to a corrective services officer at the Community Corrections office closest to where you will live. You must tell the corrective services officer your name and the address where you will live. 5. A corrective services office will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A corrective services officer might visit you at your home. You must let the corrective services officer come into your house. To “report” means to visit a corrective services officer and talk to them face to face. Supervision 6. A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a corrective services officer gives you about: a) Where you are allowed to live; and b) Rehabilitation, care or treatment programs; and c) Using drugs and alcohol; and d) Anything else, expect for instructions that mean you will break the rules in this supervision order. A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation. If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it. 7. You must answer and tell the truth if a corrective services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with. 8. If you change your name, where you live or any employment, you must tell a corrective services officer at least two business days before the change will happen. -- 10 of 16 -- 3 A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday. No sexual offences 9. You must not break the law by committing a sexual offence. Where you must live 10. You must live at a place approved by a corrective services officer. You must obey any rules that are made about people who live there. 11. You must not live at another place. If you want to live at another place, you must tell a corrective services officer the address of the place you want to live. The corrective services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a corrective services officer to live at another place. This also means you must get written permission from a corrective services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place. 12. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a corrective services officer. You are allowed to leave Queensland only after you get written permission from a corrective services officer. Curfew direction 13. A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction. Monitoring direction 14. A corrective services officer has power to tell you to: a) Wear a device that tracks your location; and b) Let them install a device or equipment at the place you live. This will monitor if you are there. This is called a monitoring direction. You must obey a monitoring direction. -- 11 of 16 -- 4 Employment or study 15. You must get written permission from a corrective services officer before you are allowed to start a job, start studying or start volunteer work. 16. When you ask for permission, you must tell the corrective services officer these things: a) What the job is; b) Who you will work for; c) What hours you will work each day; d) The place or places where you will work; and e) (if it is study) where you want to study and what you want to study. 17. If a corrective services officer tells you to stop working or studying you must obey what they tell you. Motor vehicles 18. You must tell a corrective services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the corrective services officer these details immediately (on the same day) you get the vehicle. A vehicle includes a car, motorbike, ute or truck. Mobile phone 19. You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a corrective services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone. 20. You must give a corrective services officer all passwords and passcodes for any mobile phones you own or have. You must let a corrective services officer look at the phone and everything on the phone. Computers and internet 21. You must get written permission from a corrective services officer before you are allowed to use a computer, phone or other device to access the internet. 22. You must give a corrective services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of -- 12 of 16 -- 5 when you start using the computer, phone or other device. You must let a corrective services officer look at the computer, phone or other device and everything on it. 23. You must give a corrective services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things. No contact within any victim 24. You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you. “Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way. Rules about alcohol and drugs 25. You are not allowed to take (for example, swallow, eat, inject, or sniff) any alcohol. You are also not allowed to have with you or be in control of any alcohol. 26. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs. 27. A corrective services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, spit (saliva), pee (urine) or blood when they tell you to do this. 28. You are not allowed to go to pubs, clubs, hotels or nightclubs which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to go. 29. You are not allowed to visit any business that is only licensed to supply alcohol. If you want to go to one of these places, you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to go. -- 13 of 16 -- 6 Rules about medicine 30. You must tell a corrective services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a corrective services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine. 31. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor. Rules about rehabilitation and counselling 32. You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor. 33. You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program. 34. You must let corrective services officers get information about you from any treatment or from any rehabilitation program. Speaking to corrective services about what you plan to do 35. You must talk to a corrective services officer about what you plan to do each week. A corrective services officer will tell you how and when to do this (for example, face to face or in writing). 36. You must also tell a corrective services officer the name of new persons you have met. This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly. 37. You may need to tell new contacts about your supervision order and offending history. The corrective services officer will instruct you to tell those persons and the corrective services officer may speak to them to make sure you have given them all the information. Contact with children 38. You are not allowed to have any contact with children under 16 years of age. If you want to have supervised or unsupervised contact with a child under 16 years of age -- 14 of 16 -- 7 you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to have contact with the child. “Contact” means any type of communication, including things like talking with them face to face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way. “Supervised” means having contact with the child while another person is with you and the child. “Unsupervised” means having contact with the child while there is no other person with you and the child. 39. If you have any repeated contact (that is, more than one time) with a parent, guardian or carer of a child under the age of 16, you must: a) tell the person(s) about this supervision order; and b) tell a corrective services officer the details of the person(s). You must do this immediately. This means you have to tell the person, and tell a corrective services officer, on the same day you have contact with the person. 40. Queensland Corrective Services has power to give information about you, and about this supervision order, to any parent, guardian or caregivers that you have contact with. 41. Queensland Corrective Services also has power to give information about you, and about this supervision order, to an external agency (such as the Department of Child Safety). 42. You must not: a) attend any school or childcare centre; b) be in a place where there is a children’s play area or child minding area; c) go to a public park; d) go to a shopping centre; e) join any club or organisation in which children are involved; f) participate in any club or organisation in which children are involved. -- 15 of 16 -- 8 If you want to do any of these things, you must first get written permission from a corrective services officer. If you do not get written permission, you cannot do any of these things. Other Specific Conditions 43. You must not collect photos/ videos/ magazines which have images of children in them without prior approval of a Corrective Services officer. If you have any you may be asked to get rid of them by a corrective services officer. 44. You are not to get child exploitation material or images of children on a computer or phone from the internet. 45. You cannot get pornographic images on a computer or phone from the internet or magazines without written approval from a corrective services officer. Your treating psychologist will provide advice regarding this approval. 46. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence. You must talk about this with a corrective services officer when asked. 47. You must advise your case manager of any personal relationships you have started. 48. You cannot go to a caravan park without prior written approval of a corrective services officer. -- 16 of 16 --