Attorney-General for the State of Queensland v Haynes [2020] QSC 348

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Haynes [2020] QSC 348 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v LAWRENCE AARON HAYNES (respondent) FILE NO/S: SC No 6300 of 2020 DIVISION: Trial Division PROCEEDING: Application filed 12 June 2020 ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: Ex tempore on 2 November 2020 DELIVERED AT: Brisbane HEARING DATE: 2 November 2020 JUDGE: Jackson J ORDER: The Court, being satisfied that Lawrence Aaron Haynes is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003, orders that the respondent be released from custody and from that time be subject to the requirements of the supervision order initialled on 2 November 2020 for a period of five years until 17 November 2025. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant applies for an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the applicant submits, and the respondent agrees, that the adequate protection of the community can be ensured by the respondent’s release on a supervision order for a period of five years – where the evidence is that the respondent now suffers from significant physical disabilities due to medical conditions that reduce the risk of committing a serious sexual offence if released from custody without a supervision order – where the evidence of the reporting psychiatrists’ is that the respondent would be at moderate to high risk of reoffending -- 1 of 10 -- 2 if released into the community without a supervision order were it not for his physical medical comorbidities – whether the adequate protection of the community can be ensured by the release of the respondent on a supervision order Criminal Code (Qld), s 323, s 339, s 349, s 350, s 351, s 355 Criminal Code (WA), s 325, s 338B Dangerous Prisoners (Sexual Offenders) Act 2003, Part 2 Division 3 Human Rights Act 2019 (Qld), s 31 COUNSEL: J Tate for the applicant S Robb for the respondent SOLICITORS: G R Cooper Crown Solicitor for the applicant Legal Aid Queensland for the respondent HIS HONOUR: This is an application for an order under Part 2, Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003, which I will term “the Act”. The application is for a supervision order under sections 13(5)(b) and 16. The respondent is 50 years of age. He has been in prison in Western Australia and this state 5 for all but approximately one of the last 19 years. The index offence was rape under section 349 of the Criminal Code. The respondent was also convicted of the offences of assault occasioning bodily harm under section 339, wounding under section 323 and deprivation of liberty under section 355 from the same incident. For the 10 offence of rape, he was sentenced to imprisonment for 12 years, which constituted a serious violent offence, with the imprisonment directed to start from the end of the period of imprisonment he was serving for sentences imposed in 2002 in Western Australia for offences of sexual penetration without consent that were committed in 2001. 15 The index offence was committed on or about 14 January 2006 upon a 64-year-old victim known to the respondent. The respondent was then on parole in Queensland under a registered parole order for the sentences imposed in 2002 in Western Australia. The victim and the respondent met at a hotel, bought a carton of beer and returned to her residence to drink and eat a pizza. Over approximately two hours, they drank beer. The respondent said to the victim 20 that they were going to the bedroom. She refused. The respondent grabbed her, punched her in the face and dragged her to the bedroom. He threatened her with a kitchen knife and made threats to kill her if she was not quiet. He pinned her to the bed, covered her mouth, spread her legs and forcibly raped her. The victim poked 25 the respondent in the eye. He punched her in the face. He cut the left side of her mouth with the knife before putting it to her throat. He covered her face with a pillow and continued to rape her. The ordeal lasted from 30 to 45 minutes. The offending was brutal and involved a weapon, actual violence and threats to kill. 30 The respondent has other convictions previously for serious sexual offences. On 8 April 1993, he was convicted of offences of assault with intent to commit rape under section 351 of the Criminal Code, which occurred on 12 November 1992, and attempted rape, under section 350 -- 2 of 10 -- 3 of the Criminal Code, which occurred on 20 December 1992. He was ordered to be imprisoned for four years. The assault with intent to commit rape on 12 November 1992 occurred after the respondent and the 17-year-old victim were drinking at a campsite where the respondent was staying. After 5 a taxi they called failed to arrive, she went to sleep in the tent. The respondent was to sleep outside. After a short time, he went into the tent and put his hand up the victim’s shirt and the front of her skirt. He tried to kiss her and push her legs apart. She resisted. After about five minutes, he apologised. As she attempted to leave, he struck her on the chin. After a struggle, she managed to leave. 10 The attempted rape of 20 December 1992 occurred after the respondent and the 41-year-old victim were drinking at her place of residence. They agreed the respondent could stay and sleep on the couch for the night. After that, they went to the hotel and drank more. On the walk home, the respondent said he was going to have sex with her. The victim said “no”. The 15 respondent punched the victim to the ground and kicked her in the stomach. The respondent lifted up her dress and ripped off her underpants. He attempted to penetrate her with his penis. When she continued to resist and scream, he choked her. A passer-by intervened and told the respondent to get off. He complied. 20 In 2002, the respondent was convicted in Western Australia of offences of sexual penetration without consent under section 325 of the Western Australian Criminal Code and threats to kill under section 338B(a). He was sentenced to seven years imprisonment. The offences occurred in 2001. The respondent and the 37-year-old victim knew each other 25 from previous occasions when the respondent had stayed at her residence. On the day of the offences, they were drinking in the park and returned to the victim’s residence. Both were heavily intoxicated. After sleeping for a while, they resumed drinking together for the night. The respondent forcibly kissed the victim. When she pushed him away, he grabbed her and 30 they fell. The respondent told her to shut up or he would kill her. He pushed her legs open and simulated sexual intercourse while putting a pillow over her face. He wrapped a telephone cord around her neck and made threats to pull it tighter if she was not quiet. He forced her upstairs to a bedroom, where he again put a pillow over her face, undressed her and himself, and repeatedly raped her, despite her pleas for him not to. 35 In support of the application for a supervision order, the applicant tendered voluminous material. It consisted of: (a) an affidavit from an inspector of police exhibiting what was described as criminal 40 history information stored on the Queensland Police Service computer that constituted criminal histories from Queensland and other Australian jurisdictions, as well as documents described as a Western Australian Police statement of material facts and Queensland Police Service Court briefs; 45 (b) a report by Dr Josephine Sundin obtained for an application under section 5 of the Act; (c) an affidavit by the Acting Director of Public Prosecutions exhibiting documents extracted from three files of that office, constituting copies of various evidentiary -- 3 of 10 -- 4 materials for various cases relating to the respondent, not otherwise verified in 242 pages; (d) an affidavit of the Acting Director of Legal Services of the Parole Board of Queensland exhibiting documents extracted from the files of that body, not otherwise verified in 5 64 pages; (e) an affidavit by the Acting Manager of Queensland Corrective Services exhibiting documents extracted from that department’s records, including some from Western Australia, not otherwise verified but used to express a series of views as to the facts by 10 the deponent in 35 pages (f) an affidavit by a principal lawyer employed by the Crown Solicitor exhibiting copies of submissions and sentencing remarks in relation to proceedings for the offences described above, as well as documents by way of medical records relating to the 15 respondent, including two compact discs of information not otherwise verified, with the exhibits not including the records on the compact discs, comprising 284 pages; (g) an affidavit of the Chief Superintendent General Manager of the Wolston Correctional Centre exhibiting extracts from the files held by Queensland Corrective Services, not 20 otherwise verified in 2074 pages; (h) a supplementary report by Dr Sundin described as an update of the earlier report exhibited to her affidavit; 25 (i) a risk assessment report of Dr Michael Beech made under section 11 of the Act; (j) a risk assessment report of Dr Kenneth Arthur made under section 11 of the Act; (k) an affidavit of the Acting Chief Superintendent General Manager of Wolston 30 Correctional Centre updating the material obtained from the prison’s files, not otherwise verified in 33 pages; and (l) a second supplementary affidavit of the Acting Senior Principal Lawyer employed by the Crown Solicitor exhibiting medical or patient records from a prison health service 35 in 77 pages. As that list shows, the affidavit material relied on for the purpose of the application contains thousands of pages of physical documents. As well, the compact discs of the further records of the Prison Health Service contain 833 electronic pages, and the compact disc of the Princess 40 Alexandra Hospital’s records runs to another 11,238 pages. This is an application made for the first time in relation to the respondent for an order under Part 2, Division 3 of the Act. In accordance with the practice direction, written submissions have been filed by both the applicant and the respondent. The application has been set down 45 for hearing and the parties notified that the hearing was expected to take one hour. Neither of the parties requested that any of the deponents give oral evidence by way of cross-examination or otherwise. -- 4 of 10 -- 5 In my view, this method of proceeding on an application for an order under Part 2, Division 3 of the Act is far from ideal. Having regard to the time estimate, it cannot be envisaged that the Judge hearing the application will actually read virtually any of the documents exhibited to the affidavits. As regularly happens on these applications, many of the assumed facts on which the expert opinions in the risk assessment reports proceed are taken from the records provided 5 to the medical practitioners, but the actual documents relied upon by them are not identified in the hearing. Necessarily, the way in which the Court is asked to proceed involves only the briefest assessment, if any assessment is made at all, of an unmanageable mass of unverified, unsorted and disorganised material that itself has passed through an unstated assessment by the reporting medical practitioners. 10 The problem created by proceeding in that way is highlighted by a relevant circumstance of the present case. Although the respondent’s history of sexual offending is a strong indicator that he represents an unacceptable risk that he would commit a serious sexual offence if released from custody without a supervision order being made, it is also clear that he now 15 suffers significant physical disabilities due to medical conditions that reduce the risk. Inter alia, these conditions have resulted in the respondent suffering significant and chronic shortage of breath or shortness of breath, accompanied by a debilitating, chronic and severe asthmatic condition. He also suffers from bouts of loss of consciousness. He has been regularly treated in hospital for his pulmonary disease and asthma. He has also been investigated and/or treated 20 for a number of other conditions or illnesses, including his cardiac function in relation to repeated episodes or bouts of loss of consciousness, a tumour on his vocal cords and the condition known as Barrett’s oesophagus. In prison, he is mobilised in a wheelchair or walks short distances with the aid of a walking frame on wheels. He has had many hospital admissions from prison in the last few years, mostly due to his respiratory illness or conditions. 25 From the prison Incident Reports taken over 11 months from March 2019 to February 2020, they include the following 15 occasions: Date Cause Action 29.03.19 Pre-existing medical condition Prisoner needed to be transferred to Princess Alexandra Hospital (‘PAH’) for further treatment by ambulance. 11.04.19 Ongoing medical condition Ambulance called, prisoner taken to PAH for further treatment. 12.04.19 Pre-existing medical condition Prisoner assessed by medical staff and a decision made to send him to PAH for further treatment. 22.04.19 Ongoing medical condition Decision made by Q Health staff to transfer prisoner to PAH. 06.06.19 Medical condition Prisoner escorted to hospital via ambulance. 26.06.19 Prisoner having difficulties breathing Prisoner observed having difficulties breathing and then collapsing. Escorted to health centre and required further treatment at PAH. 06.07.19 Medical Emergency Medical staff triaged the prisoner and informed the Author that the prisoner needed to be transferred to PAH for further treatment. 02.09.19 Pre-existing medical condition Q Health staff advised the prisoner needs further treatment at PAH. -- 5 of 10 -- 6 02.10.19 Pre-existing medical condition Prisoner assessed by Q health staff and taken to PAH for further treatment. 23.10.19 Ongoing medical condition Prisoner escorted to medical centre CCO, prisoner was in and out and a CAT 1 ambulance called. 10.11.19 Pre-existing medical condition Prisoner required further medical attention at PAH. 13.11.19 Prisoner became non-responsive Rapid response team attended and then departed the PAHSU. 03.12.19 Medical condition Assessment by Q Health staff and an ambulance called. 14.02.20 Medical code blue Crash team brought into PAHSU hospital; Prisoner taken to PAH proper from the secure unit. 29.02.20 Pre-existing medical condition After medical assessment required to attend PAH for further treatment. As well as the extracts from the prisoner Incident Reports I have just summarised from the QCS Offender Case File, over less than three years between 1 July 2017 and 29 February 2020, there are no fewer than 24 entries noting that the respondent was transported to or treated in 5 the Princess Alexandra Hospital Secure Unit for breathing difficulties, as well as numerous other entries referring to complaints of a similar nature made to Corrective Services officers or to the prison health service. The respondent has been provided with a carer to assist him in prison, at least to some extent. 10 Each of the reporting psychiatrists’ reports, to some extent, acknowledges the potential impact that the respondent’s respiratory illnesses or diseases might have upon his risk of committing a serious sexual offence if released from custody without a supervision order being made, yet none of them has the qualifications or expertise to give a specialist opinion about that subject matter. Of course, each of them is qualified generally as a medical practitioner, but the limit 15 upon the ability of the reporting psychiatrists to opine on this question is illustrated by the fact that one of them appears to doubt whether the respondent may be exaggerating the extent of his symptoms or disabilities whilst the other two do not. In my view, there should be no real doubt upon a question of this kind, at least not one expressed by a medical practitioner who is not truly expert in the relevant field. 20 This deficiency is not met by the applicant tendering hundreds or even thousands of pages extracted from the files of the respondent’s medical records, from either the Prison Health Service or the hospital which he attended when admitted for various illnesses or conditions over the years. In my view, it is of no assistance to the Court faced with the determination of 25 the relevant issues under the Act for it to be drowned in a sea of mostly irrelevant records made and assembled either in chronologically kept files or, in some cases, disorganised files, without any regard to whether the entries are relevant, by whom they were made or what they say. To do that reduces the process of hearing an important Court application to something that approaches a pretence. It is not to be forgotten that the ordinary processes of the criminal law 30 promise a fair trial. Whilst an application under the Act is made in the civil jurisdiction, there is no less a requirement of a fair hearing for a respondent in the present context. That is provided for by section 31 of the Human Rights Act 2019 in these days. -- 6 of 10 -- 7 The respondent faces an order of continuing detention, which is, in substance, equivalent to a sentence of imprisonment, or a supervision order, which is, in substance, equivalent to, and in many cases more onerous than, serving a sentence in the community on parole or under a probation order. It is important that form does not prevail over substance in these circumstances. 5 Because of these concerns, I have spent considerable time reading what I can of the thousands of pages of material tendered in support of the application over two days. The low point was the entry in the Offender Case Management system made on 23 February 1994 analysing whether the respondent was a satisfactory employee in the prison laundry due to his need for 10 supervision. The matter is not accurately described as a one-hour hearing. In heaping unfiltered material on the Court in this way, and in not providing appropriate medical evidence as to the extent of the respondent’s disabilities, the applicant proceeds in a way that threatens basic notions of fairness 15 and that could reduce the role of the Court to an unwitting rubber stamp. Generally speaking, the psychiatrists’ opinions, including those in the assessment reports, are consistent. It is unnecessary to summarise all of them. As expressed by Dr Beech in his risk assessment report, apart from his serious sexual offences, the respondent has a significant 20 criminal history that begins in the Children’s Court and extends across most mainland states. His last conviction was on 7 March 2017 for an assault committed on 13 August 2016 whilst in prison. He meets the criteria for an antisocial personality disorder. Second, the respondent has a history of significant alcohol abuse, often drinking in a binge 25 pattern. Importantly, the offending of relevance to the application made under the Act has occurred during drinking bouts. He has an alcohol abuse disorder in remission within prison. Third, the respondent has suffered lifelong learning difficulties. He has cognitive limitations and concrete thinking. He meets the criteria for borderline intellectual functioning. 30 Fourth, these days, the respondent is severely physically disabled by a pulmonary condition that appears to be a form of eosinophilic asthma and chronic obstructive pulmonary disease. This significantly limits his ability to get around generally and to care for himself. 35 Dr Beech assessed the respondent on a number of instruments. On the Hare Psychopathy Checklist – Revised, Dr Beech gave him a score of 23. This is elevated in comparison with the general community but is not in the range for psychopathy. On the Static-99R, Dr Beech gave the respondent a score of 6. This places him in the group of sexual offenders who are at much above average risk of reoffending. 40 On the Risk of Sexual Violence Protocol, Dr Beech opined that the respondent has dynamic risk factors of chronicity of sexual violence, escalation of sexual violence, physical coercion of sexual violence, minimisation and denial of sexual violence, problems with self-awareness, problems with stress and coping, problems resulting from child abuse, mental illness, problems 45 with substance abuse, violent and suicidal ideation, problems with intimate relationships, problems with non-intimate relationships, non-sexual criminality, possible problems with sexual offender treatment and problems with supervision. -- 7 of 10 -- 8 In Dr Beech’s opinion, this is a heavy dynamic load. In Dr Beech’s opinion, the respondent does not have a sexual paraphilia despite the repeated acts of sexual violence. His victims have been known to him. The violence escalated over time, but there is no diversity in the nature of the violence, nor in the nature of the victims. 5 At more than 50 years of age, the statistical risk of reoffending of a non-psychopathic rape offender is reduced. However, notwithstanding the fact that the last sexual offence occurred in 2006 and the respondent is now 50 years old, Dr Beech would have estimated the respondent’s risk for further offending as above average or moderate to high, were it not for his physical medical comorbidities. That is because the respondent has a limited understanding 10 of the nature of the offending and, in Dr Beech’s view, has not benefited from rehabilitation programs. His alcohol abuse has been a lifelong adult disorder, although he says he will now abstain. He has few if any supports in the community, other than his sister. In Dr Beech’s opinion, the true barrier to the respondent’s reoffending is his physical condition. 15 From the medical records, it is a severe disabling disorder. There is some difficulty in assessing the extent to which his condition moderates the risk of reoffending. On the one hand, it is accepted that it is likely to limit his physical ability to attack, chase down, restrain or assault a victim as he has done in the past. On the other hand, it may be that he could overcome and assault an intoxicated older woman. 20 As that summary taken from Dr Beech’s report shows, the degree of the risk of the respondent committing a serious sexual offence if released from custody without a supervision order turns on his physical ability to do so. It must also not be forgotten that the question under the statute is not whether there is no risk but whether there is an unacceptable risk. Common sense may 25 lead a disinterested observer familiar with the medical materials in the present case to question the degree of risk that the respondent would or could either be in a situation to or manage the hypothesised overcoming of an intoxicated older woman. In that respect, the Court is not well- favoured with evidence by the applicant, such as an opinion from a thoracic physician who might be better qualified to give a useful opinion on the physical likelihood of the postulated 30 hypothesis. It cannot be expected that the respondent would have the means to obtain or provide a medical report of that kind. The chronic underfunding of both Legal Aid Queensland and the inability of that agency to provide adequate remuneration by way of fees to counsel, who are retained 35 to appear for the respondents in applications such as this, already borders on institutionalised unfairness. Of course it is the applicant who bears the onus of proof to satisfy the Court that the respondent is a danger to the community in the absence of a division 3 order, in circumstances where the Court may decide that is so, if it is satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify 40 the decision. In deciding that question, the Court must have regard to the range of factors listed in section 13(4) of the Act, and it is to be observed that section 13(4) engages a wide range of factors, including the need to protect the members of the community from the risk that the respondent 45 will commit another serious sexual offence. Despite my concerns about the quality of the evidence adduced by the applicant, having regard to the reports produced under section 11 of the Act and the other relevant information, the pattern of serious sexual offending by the respondent and his other antecedents and criminal 50 -- 8 of 10 -- 9 history, the sufficiency of his efforts to address the cause or causes of his offending behaviour and the limited effect of his participation in rehabilitation programs, three points in particular persuade me to make the finding that the Court is satisfied the respondent is a serious danger to the community in the absence of a Division 3 order. 5 First, the history of the respondent’s repeated attempted rape and rape offences with escalating violence over a 10-year period whilst heavily intoxicated on each occasion is a strong factor in support of the finding. Second, the respondent has been in prison since 2002 to the present time, with a break of only 10 about a year in 2005. Although in that time his prison breach history is not particularly bad, he has not made great progress either in reducing his general antisocial aggressive behaviours or tendencies, or in addressing any more specific sexual behaviours or views that have affected or contributed to his previous sexual offending. Whilst in prison he has been alcohol-free, but, on the evidence, that is not a condition that can be predicted for the future if he is released into 15 the community. Third, despite the extent of the current medical conditions which may preclude him from being able to commit a serious sexual offence and which do at least reduce that risk to a significant degree, the quality of the evidence about those conditions is not sufficient to repel the 20 conclusion I have reached otherwise, that there is an unacceptable risk that the respondent will commit such an offence if released from custody without a supervision order being made. The applicant submits and the respondent accepts that a finding that the respondent is a serious danger to the community in the absence of a division 3 order should be made on the evidence, 25 and I do so. The applicant submits further, and the respondent accepts, that the Court should order that the respondent be released from custody subject to the requirements that are stated in a draft supervision order. In my view, that conclusion should also be accepted, generally speaking. 30 There are unresolved questions about two matters relating to the conditions in which the respondent would live if released from custody subject to a supervision order. It is clear that the respondent requires disability support. He has an approved NDIS package, but the details are not in evidence. The package provides funds for a walker, wheelchair and hospital bed for the respondent to use, but it is not apparent whether or to what extent it includes allowance for 35 provision of assistance from a carer or carers. Second, the place where the respondent will live in the future is not entirely clear. The respondent proposes and wishes to live at his sister’s house, which has or will be modified to meet his disabilities. She agrees to that proposal and is anxious to assist him as much as she 40 can. The process of approval of that residence is one for the Corrective Services Officers and it is expected that it will be approved or it has been approved in the circumstances if he is released subject to a supervision order. However, those uncertainties do not alter the conclusions previously arrived at. In my view, 45 however – and I will discuss these with counsel – some changes should be made to the proposed draft supervision order… In my view, some changes should be made to the proposed draft supervision order. First, condition 10 would provide that the respondent must not break the law by committing an 50 -- 9 of 10 -- 10 indictable offence. That is not appropriate, in my view. It is not the focus of the protection which is envisaged under the Act. That protection is against the risk of a serious sexual offence. It must not be forgotten that any contravention of a condition of a supervision order is itself an offence punishable by two years’ imprisonment under section 43AA of the Act, as well as the basis for a warrant that will result in an order that the person subject to the supervision order 5 be detained in custody until a final decision on an application under section 22 of the Act. There is no justification for condition 10, in my view, in most cases. Second, condition 26 provides: 10 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. It is difficult enough to understand the intention that may be intended by specifying “swallow” or “eat” as methods by which someone may take alcohol. It is more difficult to understand 15 why it would be envisaged that someone would “inject” or “sniff” alcohol. In my view, condition 26 should simply provide, “You are not allowed to drink alcohol.” Last, condition 41 provides: 20 You must advise your case manager of any personal relationships you have started. This condition is not a standard condition under the pro forma draft order. It is already proposed in the draft order in this case that the respondent must tell a Corrective Services Officer of the name of any new person he meets, including any person he spends time with, 25 works with, makes friends with, sees or speaks to regularly. In that context, it is difficult to know what condition 41 is intended to add, but as expressed it would operate to require the respondent to advise of any personal relationship he makes with a male person. The evidence does not support any risk that the respondent will commit a serious sexual offence against a male person. Condition 41 is not required, in my view. 30 With those alterations, the Court is satisfied that the draft supervision order would provide conditions on which the adequate protection of the community can be reasonably and practicably managed. It is also satisfied that the requirements under section 16 of the Act are satisfied. The period of the supervision order should be five years. Is there anything else, Mr 35 Tate? MR TATE: No, your Honour… 40 -- 10 of 10 --