Attorney-General for the State of Queensland v O’Connor [2020] QSC 396

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v O’Connor [2020] QSC 396 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v PETER BRIAN O’CONNOR (respondent) FILE NO/S: BS 3554 of 2018 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED EX TEMPORE ON: Orders made and reasons delivered on 24 August 2020 DELIVERED AT: Brisbane HEARING DATE: 24 August 2020 JUDGE: Bradley J ORDER: THE ORDER OF THE COURT IS THAT: 1. Pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”), the decision made on 14 September 2018, that the respondent is a serious danger to the community in the absence of a division 3 order, is affirmed. 2. Pursuant to s 30(5) of the Act, the continuing detention order made on 14 September 2018 be rescinded upon release of the respondent from custody in accordance with paragraph 3 of this order. 3. Pursuant to s 30(3)(b) of the Act, the respondent be released from custody on or before 10 am on 25 August 2020 subject to a supervision order for a period of 5 years until 25 August 2025, with the requirements as set out in 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 -- 1 of 14 -- 2 OFFENDER – GENERALLY – where the applicant seeks a continuing detention order in respect of the respondent – where the respondent’s pattern of sexual offending is extensive and diverse – where both psychiatrists consider that the respondent presents a high risk of sexual reoffending – whether the court is satisfied that the respondent remains a serious danger to the community in the absence of an order – whether the court should make any other orders – where the paramount consideration is the need to ensure the adequate protection of the community – where the respondent has multiple convictions for breaches and non-compliance with previous supervision orders – where one of the consultant psychiatrists expressed the view that the respondent’s risk of sexual recidivism does not appear to be able to be modified or managed by a supervision order – where the court is satisfied that the respondent is a serious danger to the community in the absence of an order under division 3 of the Act – where the courts have interpreted the legislative scheme to give preference to a supervision order over a continuing detention order – where the attention given to the subject matter of each condition is such that the respondent’s risk of sexual reoffending is managed – where the court is satisfied that a supervision order would be efficacious in constraining the respondent from committing serious sexual offences. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(5)(a), s 27 Attorney-General v Francis [2006] QCA 324, followed COUNSEL: J Rolls for the applicant S Robb for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] This is an application by the Attorney-General pursuant to section 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) on a review of the continuing detention order made in respect of the respondent, Mr O’Connor. On 14 September 2018 Burns J found that Mr O’Connor was a serious danger to the community in the absence of a division 3 order under the Act and it was subsequently ordered that Mr O’Connor be detained in custody for an indefinite term for care, control and treatment pursuant to section 13(5)(a) of the Act. The Act requires that a -- 2 of 14 -- 3 continuing detention order be reviewed and the review is governed by the processes set out in the Act. Background [2] Mr O’Conner was born in 1979 and so is 41 years of age. He is single and has four children. He has been subject to the Act since the order of 14 September 2018. His index offending includes six counts of indecent treatment of a child under 16, five of which concerned a child under 12. His earlier New South Wales criminal history includes convictions for wilful and obscene exposure and in 2007 he was convicted of offences including persistent sexual abuse of a child and aggravated sexual intercourse with a person more than 14 years but less than 16 years of age. [3] As one of the psychiatrists who has provided evidence for today’s hearing identified, there has been a diversity in the pattern of Mr O’Connor’s offending in that he has offended against a young child, against a teenager and he has otherwise exposed himself to adult women and to children. Evidence before the Court [4] Two consultant psychiatrists have provided evidence to the Court. Dr McVie [5] The first of those is Dr Elizabeth McVie in a report dated 12 July 2020. Dr McVie considered that Mr O’Connor met the diagnosis for anti-social personality disorder. She noted that he participated in CBIT program, a custody-based intensive treatment program, which is a therapy program for men who have sexually abused adults or children. It is for moderate to high risk offenders and runs for more than 300 hours in the New South Wales Correctional Services System. [6] He did that program over eight months in 2010 and 2011. At the end of it, Mr O’Connor was considered suitable for a community based sexual offenders maintenance program and he appears to have attended this course on his release in 2012. Dr McVie’s current assessment of Mr O’Connor indicated a high risk of sexual recidivism for sexual violence and for general criminal offending. Dr Sundin -- 3 of 14 -- 4 [7] The other witness is consultant psychiatrist Dr Josephine Sundin who provided a report dated 28 July 2020. Dr Sundin considered that Mr O’Connor’s risk for future sexual offending was high and his risk of serious sexual offending would be escalated if he was using intoxicants. [8] There is a risk, according to Dr Sundin, that Mr O’Connor would engage in aggressive behaviour if he meets resistance. Dr Sundin noted that Mr O’Connor has reoffended in Queensland after completing the high intensity sexual offenders program in New South Wales with a satisfactory exit report. I have already referred to Dr Sundin’s observation about the diversity in the pattern of Mr O’Connor’s sexual offending. [9] Dr Sundin also noted that Mr O’Connor has some empathy deficits. In Dr Sundin’s view, his appreciation of the impact of his offending upon his victims was limited. He continued to project responsibility to others and he struggled to develop an internal centre of control. Mr O’Connor has recently completed a high intensity sexual offending program in the Queensland correction system. He undertook that program between mid-2019 and May of this year. He attended 107 sessions and received 316 hours of treatment. This indicates how accurate the label of the course is. It certainly is a high intensity program. [10] At the end of that program, Mr O’Connor was identified as having outstanding treatment needs including in relation to cooperating with supervision and deviant sexual preference. The program facilitators recommended that he seek professional support with a psychologist who specialises in sexual offending and that he undertake the Staying On Track sexual offending maintenance program in the community. [11] Mr O’Connor accepts that the evidence supports a finding that he is a serious danger to the community in the absence of a division 3 order. Both the psychiatrists identify that Mr O’Connor presents a high risk of sexual reoffending. The types of offences that he would commit, that are assessed for the purpose of this risk, could be offences against a child, although adult women are also, according to the consultant psychiatrists, at risk. Consideration of the evidence [12] When considering whether there is any propensity or pattern to a person’s offending, it is appropriate for the Court to have regard to that person’s criminal history. In the -- 4 of 14 -- 5 case of Mr O’Connor, that criminal history makes it difficult to identify a pattern. The applicant submits that there is an underlying pattern to Mr O’Connor’s offending, which might be regarded as propensity, so that it could be said that he has a propensity to offend against female children. [13] I am satisfied in the circumstances, on the evidence put before the Court, that Mr O’Connor remains a serious danger to the community in the absence of an order and therefore that the order made in that respect by Burns J on 14 September 2018 should be affirmed. The next question is what other order the Court should make on this occasion. Should a supervision order be made? [14] The paramount consideration in this hearing is the need to ensure adequate protection of the community. As the respondent’s counsel, Ms Robb, submitted, the Court must consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order and whether the requirements of the Act can be reasonably and practicably managed by those officers in the corrective services who will be charged with it. [15] Of course, a supervision order does not have to be risk free in order for it to be made. The Court of Appeal observed in Attorney-General v Francis [2006] QCA 324 at [39] that: “…an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.” [16] In that case, the Court had before it evidence that supervision of the prisoner was apt to ensure adequate protection. Dr McVie has addressed this question in her report observing that: A supervision order would reduce the risk of Mr O’Connor reoffending in the relevant respect to from high to low while he was complying with the order. -- 5 of 14 -- 6 [17] Dr McVie noted that Mr O’Connor’s multiple convictions for breaches and non- compliance with previous orders including apprehended violence orders, bail orders and requirements to appear. Compliance with any supervision order will be a challenge for him and for those managing him but, if he is compliant with it, it will have the effect that the Act seeks to achieve of reducing the risk of reoffending in the relevant way. [18] Dr McVie suggested that the conditions of the order should include attendance at a community based sexual offenders maintenance program, and attendance at a community based psychologist to address Mr O’Connor’s identified treatment needs. Dr McVie also observed that Mr O’Connor should be engaged in some structured education program or in employment. According to Dr McVie, Mr O’Connor needs to be abstinent from illicit substances and avoid contact with previous criminal peers. Dr McVie thinks that Mr O’Connor would also benefit from programs to address domestic violence, anger management and general violence reduction. [19] Dr Sundin noted that Mr O’Connor had progressed in the various treatment programs he had attended such that the risk of sexual recidivism does appear to be able to be modified or managed by a supervision order. According to Dr Sundin, if Mr O’Connor is released under a supervision order, then the requirements for disclosure, monitoring, curfews, exclusion zones, abstinence from illicit substances and compliance with treatment, will be necessary. [20] According to Dr Sundin, the psychiatric evidence identified some reduction in the risk that Mr O’Connor otherwise presents by a supervision order. It is fair to say that Dr Sundin is more circumspect in identifying that there would be a modification or a management of the risk and does not proffer a conclusion as to the level of the risk under a supervision order. [21] Dr Sundin expressed a view that the supervision order should operate for a period of five years. Of course, that is a matter for the Court to determine rather than for the expert witnesses. Neither of the psychiatrists gave evidence that if Mr O’Connor complied with a supervision order for a period of five years, he would no longer pose an unacceptable risk to the community. However, I take into account the fact that the scheme established under the Act provides for regular reviews of persons who are the subject of supervision orders so that there can be a process by which Mr O’Connor’s -- 6 of 14 -- 7 progress would be monitored and the court would then have an opportunity to reconsider Mr O’Connor’s progress as the period of any order made today draws to a close. Conclusions [22] On the basis of the evidence adduced in this hearing, I am satisfied that Mr O’Connor is a serious danger to the community in the absence of an order under division 3 of the Act. By that, I mean that there is an unacceptable risk that he would commit a serious sexual offence if he were released from custody without a supervision order being made. In reaching this conclusion I have given paramount consideration to the need to ensure adequate protection of the community. [23] I am satisfied that there is an unacceptable risk that he will commit a serious sexual offence if he were to be released without such an order. I am conscious that the Courts have interpreted this legislative scheme in a way that gives preference to a supervision order over a continuing detention order. I am comforted by the attention that each relevant expert witness has given to the subject matter of conditions to reach a conclusion that the risk may be managed by the imposition of conditions in a supervision order. [24] It is on this basis that I have reached the view that a supervision order would be efficacious in constraining Mr O’Connor’s behaviour by preventing the opportunity for him to commit sexual offences and providing for mechanisms that would detect any deterioration in his conduct. I have reached the positive conclusion that a supervision order will provide adequate protection in that respect. [25] For Mr O’Connor this will be a journey that may take five years or longer. This will require that he progress from his present circumstances, so that he is no longer a serious danger to the community in the absence of an order either detaining him or supervising him. He is a relatively young person. He should commit to a period of supervision, support, monitoring and treatment with a view to preparing and fitting himself to live the second half of his life in a dramatically different way to the first half. -- 7 of 14 -- 8 SCHEDULE To Peter Brian O’Connor: 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. 3. You must obey these rules for the next 5 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, except 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. -- 8 of 14 -- 9 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. A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday. No sexual offence 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. -- 9 of 14 -- 10 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. 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. -- 10 of 14 -- 11 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 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. -- 11 of 14 -- 12 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. 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. Each week, you must talk to a corrective services officer about what you plan to do that week. A corrective services officer will tell you how to do this (for example, face to face or in writing). 36. Each week, you must also tell a corrective services officer the name of any person you associate with. -- 12 of 14 -- 13 “Associate with” includes: spend time with, make friends with, see or speak to (including by using social media or the internet) regularly. Contact with children 37. 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 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. 38. 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. 39. 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. 40. 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). 41. 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; -- 13 of 14 -- 14 e) join any club or organisation in which children are involved; f) participate in any club or organisation in which children are involved. 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. Offence specific conditions 42. You must not have or keep photos, videos or 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. 43. You must not use any computer, phone or other device to access, receive, download or save images of children or child exploitation material on or from the internet. 44. You must not access pornographic images in magazines or on the internet using a computer, phone or other device without written approval from a corrective services officer. Your treating psychologist will provide advice regarding this approval. 45. You must cooperate with your psychologist or psychiatrist when they ask you to engage in the development of a management plan to address any risk of sexual re- offence. You must talk about this with a corrective services officer when asked. 46. You must advise your case manager of any romantic or sexual relationships you have started. -- 14 of 14 --