Attorney-General for the State of Queensland v Kitchener [2020] QSC 341

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Kitchener [2020] QSC 341 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v WILLIAM LUCAS KITCHENER (respondent) FILE NO: BS No 9573 of 2013 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: Orders made on 30 October 2020 and 6 November 2020 Reasons delivered on 16 November 2020 DELIVERED AT: Brisbane HEARING DATE: 30 October 2020 and 6 November 2020 JUDGE: Davis J ORDERS: Orders made on 30 October 2020: 1. Order 2 made by Davis J on 25 June 2020 is rescinded. 2. Pursuant to ss 21(4) and (6) of Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody subject to the supervision order made by Justice Byrne on 13 January 2014, and as later amended, until the final decision is made under s 22 of the Act. 3. The matter will be mentioned at 9:15am on 6 November 2020. Orders made on 6 November 2020: The court, being satisfied to the requisite standard that the respondent has contravened requirements of the supervision order made by Justice Byrne on 13 January 2014, and as later amended (“the supervision order”), orders that: 1. The respondent continue to be subject to the requirements of the supervision order. -- 1 of 11 -- 2 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 the supervision order made in 2014 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) – where the contraventions involved failing to comply with directions and consuming alcohol – where the contraventions did not involve any sexual act or offence – where the contraventions have not led the applicant to contend that a continuing detention order should be made – whether there were “exceptional circumstances” pursuant to s 21(4) of the DPSOA justifying release of the respondent pending final hearing of the application – whether the discretion should be exercised to release the respondent 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 the supervision order – where the contraventions involved failing to comply with directions and consuming alcohol – where the contraventions did not involve any sexual act or offence – whether the adequate protection of the community could, despite the contravention, be ensured by the existing supervision order without amendment Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 13, s 20, s 21, s 22, s 43AA, sch 1 Attorney-General v Fardon [2018] QSC 193, cited Attorney-General v Fardon [2019] 2 Qd R 487, cited COUNSEL: B Mumford for the applicant S Robb for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The respondent1 has been the subject of a supervision order made by Byrne JA under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) since 13 January 2014. [2] He was arrested on a warrant under s 20 of the DPSOA on 24 June 2020. The arrest warrant was returnable before me on 25 June 2020 and I ordered that he be detained until a final determination of the court under s 22 of the DPSOA.2 1 Also known as William Lucas Parry and this name appears on a number of documents. 2 Order (2) of 25 June 2020; pursuant to s 21(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003. -- 2 of 11 -- 3 [3] On 22 October 2020, the respondent filed an application for interim release pursuant to s 21(4) of the DPSOA. [4] On 30 October 2020, I made the following orders: “1. Order 2 made by Davis J on 25 June 2020 is rescinded. 2. Pursuant to ss 21(4) and (6) of Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody subject to the supervision order made by Justice Byrne on 13 January 2014, and as later amended, until the final decision is made under s 22 of the Act. 3. The matter will be mentioned at 9:15am on 6 November 2020.” [5] On 6 November 2020, the application under s 22 of the DPSOA came before me. I made the following orders: “The court, being satisfied to the requisite standard that the respondent has contravened requirements of the supervision order made by Justice Byrne on 13 January 2014, and as later amended (‘the supervision order’), orders that: 1. The respondent continue to be subject to the requirements of the supervision order.” [6] These are my reasons for making both the orders made on 30 October 2020 and the orders made on 6 November 2020. Background [7] The respondent is an Indigenous man originally from North Queensland. He was born on 16 April 1983 and is now 37 years of age. [8] In March 2001, when aged about 18, the respondent pleaded guilty to an offence of rape. The offence occurred in Victoria where the youth justice system applied to persons below the age of 18, as it now does in Queensland.3 On that occasion, he was voluntarily admitted into the victim’s home. She was known to him. He violently sexually assaulted and anally raped her. Of some significance, the offending occurred while the respondent was intoxicated. He was sentenced to detention and was released in December 2002. [9] In February 2003 in Queensland, the respondent and friends were out drinking. They met up with the victim who was not known to the respondent. He vaginally and anally raped and assaulted her over several hours. He was sentenced to 11 years imprisonment. [10] Parole was not granted to the respondent. An application was made by the Attorney- General for orders under the DPSOA and the supervision order was made on 13 January 2014. 3 For years adults were those over 17 years of age for the purposes of the Queensland criminal law. -- 3 of 11 -- 4 [11] There have been several contraventions of the supervision order since 2014.4 On each hearing of the contravention the respondent has been released back onto the supervision order.5 The respondent was last released onto the existing supervision order by Wilson J on 7 May 2019. [12] The respondent contravened the supervision order in 2015, by the consumption of alcohol and cannabis. Cannabis consumption led to his arrest in September 2016 and contravention proceedings were brought. Again, cannabis consumption was the reason for contravention proceedings in 2018 and February 2019. [13] Over the periods the respondent has been in the community on supervision, he has been difficult to manage, but there has been no suggestion that he has committed a sexual offence, let alone a serious sexual offence. [14] The respondent has now contravened the following requirements of the supervision order: “(5.) comply with a curfew direction or monitoring direction; (21.) abstain from the consumption of alcohol and illicit drugs for the duration of this order;” [15] The contraventions of the supervision order are particularised in the application as follows: “On 23 June 2020, the respondent failed to return to his approved residence at the commencement of his curfew. He failed to return multiple phone calls from the Electronic Monitoring and Surveillance Unit regarding his absence during curfew. The respondent was identified to be locating at public shopping areas near his residence and returned to his residence 1.5 hours after curfew, in contravention of condition (5.). He was subject to a breath test as per condition (22.)6 of the order. He provided a breath sample that tested positive to alcohol at a level of 0.213 BAC. The respondent initially denied alcohol use, however when further questioned on 24 June 2020 he admitted to consuming spirits with unknown persons whilst absent on curfew.”7 [16] On 11 September 2020, the respondent pleaded guilty to six charges of contravening the supervision order.8 He was sentenced to three months’ imprisonment on each offence with 52 days declared as time already served under the sentence. His parole release date was set at 20 October 2020. [17] The respondent made an application for interim release pending final determination of the contravention proceedings.9 That first came before me on 23 October 2020. At that stage, neither of the psychiatrists’ reports had been received. The only psychiatric evidence available was an email from Dr Sundin which summarised her 4 Returned to custody in November 2015, October 2016, May 2018 and February 2019. 5 One amendment to the supervision order was made by Daubney J on 20 March 2017. 6 Condition 22 required the respondent to submit to testing. 7 Schedule to application, CFI 97. 8 Pursuant to s 43AA of the Dangerous Prisoners (Sexual Offenders) Act 2003. 9 CFI 103. -- 4 of 11 -- 5 opinion. In her email, Dr Sundin advised that the supervision order was serving its purpose in reducing the risk of sexual recidivism to an acceptable level and recommended that the respondent be returned to the community under the existing supervision order.10 Due to the lack of psychiatric evidence available, I adjourned the application to 30 October 2020, by which time it was expected the reports would be received. [18] When the matter came back before me on 30 October 2020, both psychiatrist reports had been obtained and were tendered. That evidence is explained later in these reasons. [19] On 30 October 2020, the respondent renewed his application for release pursuant to s 21(4) and I made the orders set out at paragraph [4] of these reasons. [20] On 6 November 2020, the contravention proceeding was mentioned before me. The parties informed me that there was no factual contest and that the applicant accepted that the evidence favoured an exercise of discretion to release the respondent back on the supervision order. The parties urged me to hear the application which I did. [21] On 6 November 2020, I made the orders set out at paragraph [5] of these reasons. Statutory context [22] The supervision order was made consequent upon a finding under s 13(1) that the respondent was “a serious danger to the community in the absence of [an order under the DPSOA]”. A person is a “serious danger to the community” where there is an “unacceptable risk that the [person] will commit a serious sexual offence” if not subject to an order.11 A “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence”.12 [23] The supervision order13 was made against the respondent rather than a continuing detention order14 upon a finding that adequate protection of the community against the commission by the respondent of a serious sexual offence would be ensured by the making of a supervision order.15 [24] Section 21 of the DPSOA provides as follows: “21 Interim order concerning custody generally (1) This section applies if a released prisoner is brought before the court under a warrant issued under section 20. (2) The court must— (a) order that the released prisoner be detained in custody until the final decision of the court under section 22; or 10 Affidavit of K Donovan, CFI 104. 11 Dangerous Prisoners (Sexual Offenders) Act 2003. 12 Dangerous Prisoners (Sexual Offenders) Act 2003, s 2 and schedule 1. 13 Made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5)(b). 14 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5)(b). 15 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(6). -- 5 of 11 -- 6 (b) release the prisoner under subsection (4). (3) The released prisoner may, when the issue of his or her custody is raised under subsection (2), or at any time after the court makes an order under that subsection detaining the prisoner, apply to the court to be released pending the final decision. (4) The court may order the release of the released prisoner only if the prisoner satisfies the court, on the balance of probabilities, that his or her detention in custody pending the final decision is not justified because exceptional circumstances exist. (5) If the court adjourns an application under subsection (3), the court must order that the released prisoner remain in custody pending the decision on the application. (6) If the court orders the released prisoner’s release, the court must order that the prisoner be released subject to the existing supervision order or existing interim supervision order (each the existing order) as amended under subsection (7). (7) For subsection (6), 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 (b) may amend the existing order to include any other requirements the court considers appropriate to ensure adequate protection of the community.” (emphasis added) [25] The order made on 30 October 2020 was made pursuant to s 21(3) and 21(4) because I found that “exceptional circumstances” warranting the respondent’s release existed. [26] Section 22 of the DPSOA 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— -- 6 of 11 -- 7 (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. (3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following— (a) act on any evidence before it or that was before the court when the existing order was made; (b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order— (i) in the nature of a risk assessment order, subject to the restriction under section 8(2); or (ii) for the revision of a report about the released prisoner produced under section 8A; (c) consider any further report or revised report in the nature of a report of a type mentioned in section 8A. (4) To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a). (5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies. (6) For applying section 11 to the preparation of the report— (a) section 11(2) applies with the necessary changes; and (b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist. (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 -- 7 of 11 -- 8 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 (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).” (emphasis added) [27] The order made on 6 November 2020 was made pursuant to s 22(2) and 22(7) because I was satisfied that the adequate protection of the community could, despite the contravention, be ensured by releasing the respondent on the supervision order without amendment. Reasons for making the orders Psychiatric evidence [28] Dr Sundin and Dr Harden were engaged to provide risk assessments for the contravention proceedings. [29] Dr Sundin has assessed the respondent on a number of occasions. She diagnosed him with anti-social personality disorder and substance use disorder. As to her assessment of risk and her recommendations, Dr Sundin stated: “Section D: Risk Assessment In my report of 25 April 2019, I detailed various risk assessment instruments pertaining to Mr Kitchener. The static actuarial risk appraisals have not changed. The dynamic risk factors evident during this most recent period in the community include: • Reversion to substance abuse. • Relationship problems. • Employment problems. • Poor problem-solving skills. • Impulsivity. I consider that Mr Kitchener's unmodified risk for sexual recidivism is moderate to high. -- 8 of 11 -- 9 His risk is reduced to moderate by the presence of a supervision order. The principal concerning risk factors which would indicate rising risk for sexual recidivism include emotional dysregulation, disrupted intimate partner relationships, overt verbal hostility to women (including female case management staff) and reversion to use of intoxicants. Section C: Recommendations Mr Kitchener has continued to be a challenging individual for management under a supervision order. This is reflected in the remarkably high number of violations of his supervision order. Even though they were of a less serious nature, these violations reflect his continuing antiauthoritarian attitudes and limited compliance. They also reflect his reduced appreciation of the reasons and necessity for the supervision order. He remains an impulsive individual who becomes easily emotionally dysregulated and who has a limited number of appropriate coping strategies to institute when faced with difficulties. On the positive side, until the most recent serious breach, Mr Kitchener had tested positive for cannabis on only one occasion and had no preceding positive tests for alcohol. He appears to have navigated his way through an unstable, volatile relationship with an unsuitable female partner. He had enjoyed being employed. He had been pleased at achieving private accommodation. He had found his sessions with his psychologist helpful. There were no features to suggest any major mental health disturbance during this 13-month period which may have contributed to his breach. I would therefore respectfully recommend to the Court that Mr Kitchener can be returned to the community under the auspices of the existing supervision order. I postulate that his antiauthoritarian attitudes and resentment of the supervision order will continue to manifest themselves. I have no additional recommendations to those I have previously made with respect to his management within the community.”16 (emphasis added) [30] Dr Harden has also provided a number of reports about the respondent. He diagnosed the respondent with alcohol abuse and dependence as well as marijuana abuse.17 In his most recent report, Dr Harden opines that “…the supervision order reduces his risk of sexual recidivism to low – moderate (well below average to below average). While the breaches associated with substance misuse are of course concerning the order in my opinion continues to reduce his risk in the community”.18 16 Report of Dr Sundin, 28 October 2020, pages 13-14. 17 Report of Dr Harden, 30 October 2020, page 28. 18 Report of Dr Harden, 30 October 2020, page 28. -- 9 of 11 -- 10 [31] While there have been repeated contraventions of the supervision order since 2014, I find that the respondent was adjusting to living in the community and had obtained independent accommodation and employment. There is also evidence, which I accept, that the respondent has gained assistance from his individual therapy with his treating psychologist, Mr Nick Smith.19 [32] About one month before the contraventions occurred, Mr Smith, in his summary of his session with Mr Kitchener, stated that: “Mood appeared to be stable and while he expressed frustration with the time it’s taking for his finger to heal, it didn’t appear to be causing any increased feelings of hopelessness or anger. However, I do think that the sooner he’s able to engage in regular, meaningful and productive activity again, the better I will be as there’s less chance of boredom leading to frustration and drinking.”20 Section 21(4) application [33] When the matter came before me on 30 October 2020, the Attorney-General conceded that the evidence to be heard at the final hearing of the contravention proceeding did not justify the rescission of the supervision order and the imposition of a continuing detention order. [34] As I observed in Attorney-General for the State of Queensland v Holroyd: “‘Exceptional circumstances’ justifying interim release will usually be demonstrated where the court can be satisfied that the adequate protection of the community can be ensured by the release of the prisoner notwithstanding that the issues relevant to the contravention have not been fully ventilated at a final hearing.”21 [35] Here, I found that exceptional circumstances existed and exercised the discretion to release the respondent pending final hearing of the contravention proceedings. Those circumstances were: (a) The contraventions are admitted by the respondent and there was no contest as to the circumstances of the contraventions.22 (b) The contraventions do not involve the commission of a sexual offence and the respondent’s previous contraventions have not involved the commission of a sexual offence. (c) The matter had not yet been set down for final hearing. (d) Both of the psychiatrists’ reports to be relied on at the final hearing were available. (e) Both psychiatrists opine that the contraventions do not evidence an increase in his risk under a supervision order. 19 See, for example, report of Dr Harden, 30 October 2020, page 27. 20 Affidavit of K Donovan, CFI 104, exhibit KAD-2. 21 [2020] QSC 187 at [32]. 22 He pleaded guilty to offences under s 43AA of the Dangerous Prisoners (Sexual Offenders) Act 2003. -- 10 of 11 -- 11 (f) There was no suggestion of challenge to the psychiatrists’ evidence and no reason advanced as to why that evidence ought not be accepted upon the final hearing. (g) The applicant did not contend that at the final hearing of the application the supervision order should be rescinded and a continuing detention order made. (h) The respondent has been detained at Arthur Gorrie Correctional Centre (a remand centre) since 25 June 2020 and has been unable to access treatment and courses whilst detained there, including treatment with his psychologist Mr Smith. Section 22 application [36] The purpose of the DPSOA is primarily to ensure the protection of the public from the commission of serious sexual offences. It is not the purpose of the legislation to generally ensure that respondents act lawfully. [37] In Attorney-General v Fardon,23 Jackson J reviewed the authorities concerning the impact of a respondent’s persistent breaches of a supervision order upon the exercise of discretion under the DPSOA. His Honour concluded, rightly in my respectful view, that persistent breaches of a supervision order can only be relevant to the statutorily defined question, which is here the “adequate protection of the community”. [38] The consumption of intoxicants was a feature of the respondent’s sexual offending. However, that offending occurred over 17 years ago. He has been in the community on and off for over six years since 2014. No sexual offending has been committed and the supervision order has therefore served its purpose in providing “adequate protection of the community” against the commission of serious sexual offences. [39] I accepted the evidence of the psychiatrists that the supervision order reduces the respondent’s risk of serious sexual offending to moderate (in Dr Sundin’s view) and below average (in Dr Harden’s view) and the reduction of risk to these levels provides adequate protection of the community from the relevant risk. [40] The respondent discharged the onus upon him under s 22(7) of the DPSOA and it was appropriate to release him back into the community on supervision. [41] There was no evidence suggesting any need to vary the supervision order. [42] For these reasons I ordered that he be subject to the supervision order on the existing terms. 23 [2018] QSC 193; an appeal on another point Attorney-General v Fardon [2019] 2 Qd R 487. -- 11 of 11 --