Attorney-General for the State of Queensland v Cooney [2020] QSC 335

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Cooney [2020] QSC 335 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v PETER RAYMOND COONEY (respondent) FILE NO/S: BS No 6776 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: Delivered ex tempore on 17 March 2020 Reasons published on 9 November 2020 DELIVERED AT: Brisbane HEARING DATE: 17 March 2020 JUDGE: Bradley J ORDER: The Court, being satisfied pursuant to section 22(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) that Peter Raymond Cooney, the respondent, has contravened requirements 7, 16, 38 and 44 of the supervision order made on 27 November 2017, Orders that: 1. The supervision order made on 27 November 2017 as amended by Justice Davis on 13 November 2018 be rescinded. 2. The respondent be detained in custody for an indefinite term for control, care or treatment. 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 under s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent contravened the order – whether, despite that contravention, the adequate protection of the community can be ensured by the existing supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22 -- 1 of 6 -- 2 COUNSEL: J Tate for the applicant C O’Connor for the respondent SOLICITORS: Crown Law for the applicant Anderson Fredericks Turner for the respondent [1] This is an application by the Attorney-General under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). Such an application and the orders that the Court may make come into operation if the Court is satisfied on the balance of probabilities that a released prisoner has contravened a requirement of a supervision order, amongst other circumstances. There is no issue before the Court today that the respondent breached a supervision order. He has been convicted of a number of offences, including breaching that order, in the Richlands Magistrates Court. [2] In those circumstances, s 22(2) of the Act provides that unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community, despite the contravention of the existing order, can be ensured by the existing order, then the Court must make one of the orders set out in ss 22(2)(a) and (b). It follows that the respondent bears the onus of persuading the Court that despite the contravention, the adequate protection of the community is possible under the existing order. Psychiatric evidence [3] In the course of the application, evidence was adduced from two psychiatrists who have reported on the respondent and in the past have done so in other contexts under this Act. Each psychiatrist attended the Court and gave oral evidence. The reports and the oral evidence were reasonably wide ranging about the history, the diagnosis, the conduct and the likely future course of behaviour of the respondent, as well as possibilities for further therapy or other medical interventions. [4] As to the primary question of whether the adequate protection of the community can be ensured by the existing order, the most significant part of the expert evidence is that concerning risk. As to that, Dr Timmins concluded that the respondent was at high risk of reoffending in the form of a serious sexual offence, but that his risk may be modified by a community supervision order under the Act. The effect of that modification would be, in Dr Timmins’ words, that: “He would most likely fall into a moderate to high risk category.” [5] Dr Timmins continued: “If released back into the community, the supervision order is likely to continue with the reduction of his risk to moderate to high and will serve to limit his offending behaviour, but it is likely he will continue along the same pattern of behaviour and thus eventually breach his order again.” [6] In her oral evidence, Dr Timmins explained that the supervision order provided procedural restrictions on the respondent’s behaviour, but that it was not possible to rely in any way on the respondent’s ability to manage himself. If returned to the community, in Dr Timmins’ view, the respondent will repeat the present pattern, -- 2 of 6 -- 3 which she describes as a pathway to serious offending. Dr Timmins noted that the breaching conduct that brings the respondent to the Court today represented an escalation compared with his earlier breaching conduct when he was last released into the community under a supervision order. [7] Dr Arthur, the other psychiatrist, identified that the respondent’s risk may be modified by a community supervision order under the Act. He agreed with Dr Timmins that the respondent would most likely fall into a moderate to high risk category and that a supervision order may reduce his risk somewhat. However, as Dr Arthur explained, in his view, the supervision order limiting the respondent’s contact was not effective to prevent the respondent planning to commit offences. [8] He expressed the concern that the conduct that brings the respondent to the Court today had occurred whilst the respondent was subject to a 24-hour curfew and supervision, and that even a brief contact between the respondent and a child would present the opportunity for him to offend and the offence would be in the nature of a serious sexual offence. [9] In Dr Arthur’s view, the reasons that the risk was not further modified were that the respondent was not affected by the prospect of being returned to custody, as it represented no deterring factor; that the respondent had no regard for rules or orders and freely contravened them; and that the respondent had no internal controls on his behaviour. [10] In Dr Arthur’s view, the respondent does not have the capacity or the motivation to avoid reoffending and has a high propensity to reoffend. He gave as an example of this that during the period when the respondent was undertaking the Sexual Offenders Treatment Program, he engaged in conduct of grooming another inmate. Treatment programs to date have not proven, in Dr Arthur’s view, to have any impact upon the respondent’s behaviour. [11] Dr Arthur noted that when released from custody, the respondent does not cope well with the lack of containment – which otherwise provides some emotional stability – and that his lack of self-regulation becomes more apparent. Dr Arthur also noted that, in his opinion, the respondent lacks remorse, avoids dealing with things he does not like, and seeks to provide defensive explanations for his conduct. [12] Although the respondent has not committed any serious sexual offence during the two periods that he has been released to the community under the supervision order, in Dr Arthur’s opinion, his non-contact sexual offences in the nature of stalking and the making of threats are the type of conduct likely to progress to the commission of a contact offence. [13] Both Dr Arthur and Dr Timmins expressed a view that the factor that prevented the commission of a serious sexual offence by the respondent whilst under the supervision order was not the supervision order or its procedural controls but the fact that, upon sufficient breaches of the order being detected and considered, the respondent was taken back into custody. [14] In Dr Arthur’s opinion, any access to children would be very highly risky because the respondent reacts emotionally, without self-control, does not accept the wrongness of his actions, and has expressed inadequate or no remorse for his past offending. The combination of these, lacking internal systems, means that he presents, in Dr Arthur’s words, a “real risk” of committing a serious sexual offence. -- 3 of 6 -- 4 [15] For the respondent, it was submitted the fact that the respondent had not committed a serious sexual offence whilst in the community under the supervision order was a proper basis for the Court to conclude that the existing order adequately protects the community. While the respondent, it was said, struggled with compliance with the order, he did not commit a serious sexual offence. The procedural protection provided by the supervision order was said, in the submissions for the respondent, to be adequate to protect the community whilst the respondent undergoes a period of therapy and other medical intervention with a view to altering his general behaviour and, therefore, the risk that he might otherwise pose to the community. [16] The plan for therapeutic assistance to the respondent, as considered by the two psychiatric witnesses, is generally consistent with that set out in a report from a treating psychologist, Dr Hatzipetrou. There are two general elements to that. Firstly, antilibidinal medication would be used to reduce the respondent’s sexual preoccupation to a level at which he might better participate in therapeutic intervention. The therapy proposed is individual treatment of cognitive behaviour therapy for a minimum of 52 hours over a period of many months with weekly sessions of approximately 60 to 70 minutes. Dr Hatzipetrou also suggests that at the completion of that cognitive behaviour therapy, there would be a need for a similar period of maintenance therapy and identifies in his report a number of topics that could be the subject of the therapy. [17] Both of the psychiatric witnesses expressed the clear concern that the respondent’s compliance with antilibidinal medication in the past had been unsatisfactory and his failure to maintain the prescribed dosages had resulted in behaviours that indicated a resumption of his sexual preoccupation. This had interfered with his performance and participation in a program whilst in custody and appears also to have been associated with his breaches of the supervision order. Both psychiatrists expressed the clear concern that the ability to manage, maintain and monitor the respondent’s use of antilibidinal medication would be greatly reduced if he were in the community under a supervision order. This is in part a natural consequence of the respondent not being in custody, but it is also related to a practical management problem of ensuring that a person under a supervision order complies with medication prescribed. [18] The psychiatrists also expressed concerns that, because of the change in the respondent’s behaviour when released from custody, particularly the increase in his emotional instability in the absence of confinement, the benefit of individual therapy would also be reduced. Consideration [19] I am inclined to agree with the psychiatric witnesses that the prevention of the commission of a serious sexual offence is attributable to the fact that the respondent was taken back into custody for breaches of the supervision order and was not the result of the supervision order itself. Had that intervention not been taken by the law enforcement authorities but instead the respondent had remained in the community under the supervision order, the risk of the commission of a serious sexual offence would have remained. [20] This is perhaps best explained by Dr Timmins by using the example of part of the breaching behaviour. In Dr Timmins’ view, it was only fortuitous that the internet grooming conduct engaged in by the respondent turned out to be a conversation with a young adult and not a child. When the respondent discovered that he was not -- 4 of 6 -- 5 communicating with a child, he became very angry and made threats towards persons, including a very serious threat of serious sexual offending against a four year old child, associated with violent threats. [21] Dr Timmins explained that this is consistent with her view that the respondent tends to displace his anger with a particular person to another target who is vulnerable, and when a vulnerable target is available to him, then he is likely to act upon it. In other words, as Dr Timmins explained, when the respondent cannot make good on a threat that he makes to one person, he is at great risk of making good the threat against another vulnerable person who is available to him. [22] Dr Timmins explained that the respondent’s behaviour is typically opportunistic. As she said: “We will not be able to predict his offending. He will take an opportunity when it arises.” [23] Dr Timmins’ concerns about the risk posed by the respondent may be understood by an exchange she records on page 13 of her written report, where she noted that the respondent appeared unperturbed by his reincarceration, and continued: “He admitted to preoccupations (whilst in the community) about sexual thoughts towards boys and younger men during this time in the community. He thought the only reason why he did not act was because he was escorted in places where he would have access, for example, shopping centres. He lacked a clear relapse prevention strategy to manage himself in the community, relying instead on the corrective services staff around him to contain his behaviour.” [24] For the applicant, Mr Tate submitted that the respondent needs to have a relapse prevention plan and that, in accordance with the opinion expressed by the psychiatric witnesses, such a plan would flow from the treatment proposed – that is, both the pharmacological intervention to reduce the respondent’s sexual preoccupation and the individual psychological therapy. To be effective, a relapse prevention plan must be one of which the respondent feels he has some ownership, and in order to get to that point it appears it will be necessary to deal with a great number of other issues that arise from the complex position of the respondent. [25] As Mr Tate submitted, the respondent’s position is one that requires more than procedural security; it needs the important element of internal change in the sense of the development of an understanding by the respondent of his pathways to offending, the triggers that lead along that path and the steps he can take, in terms of his internal thinking, understanding and self-control, that might best assist him to avoid a relapse to behaviour that risks the commission of serious sexual offences. In order to best achieve that outcome for the respondent, the psychiatric evidence tends strongly in favour of such pharmacological and psychological treatment being provided to the respondent whilst in custody. [26] Of course, the most and only important question for the Court today is whether the Court is satisfied that the adequate protection of the community can be ensured by the existing order, despite the contravention of the existing order by the respondent. On the basis of the evidence of Dr Timmins and Dr Arthur, I am not satisfied on the balance of probabilities that the adequate protection of the community can be ensured by the existing supervision order. -- 5 of 6 -- 6 Disposition [27] In the circumstances, I propose to make an order under s 22(2)(a) to rescind the existing supervision order and then to make a continuing detention order under the Act. -- 6 of 6 --