Attorney-General for the State of Queensland v Bottomley [2020] QSC 134

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Bottomley [2020] QSC 134 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v MARK DANIEL BOTTOMLEY (respondent) FILE NO: 12166 of 2017 DIVISION: Trial Division PROCEEDING: Application pursuant to s 22 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 26 May 2020 DELIVERED AT: Brisbane HEARING DATE: 26 May 2020 JUDGE: Applegarth J ORDER: The respondent be released subject to the conditions contained in the supervision order of Mullins J dated 12 March 2018. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the respondent was released to the community under a supervision order – where the respondent had complied with the demanding conditions for his release for a period of almost 21 months – where in December 2019 he returned a positive sample when tested for illicit substances – where his resort to drugs was precipitated by the untimely death of his brother and the expert evidence was that “there is no indication that he engaged in other maladaptive coping strategies” – where the parties agree that the respondent has discharged the onus under s 22 of the Act – whether the respondent should be released on a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22 Attorney-General (Qld) v Bottomley [2018] QSC 57, cited Attorney-General for the State of Queensland v Fardon [2011] QCA 155, cited -- 1 of 8 -- 2 Attorney-General for the State of Queensland v Fardon [2018] QSC 193, followed COUNSEL: J Tate for the applicant J Crawford for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] On 26 March 2018 the respondent was released to the community under a supervision order with 33 requirements.1 The order was for five years’ duration, expiring on 7 April 2023. [2] Until December 2019 the respondent had complied with the demanding conditions for his release for a period of almost 21 months. On 7 December 2019 he returned a positive sample when tested for illicit substances. [3] This contravention proceeding was initiated and the respondent’s risk of serious sexual reoffending has been assessed by two reporting psychiatrists. [4] The contravention is not disputed. It is proven. The onus is on the respondent to satisfy the Court that if released, the protection of the community can be ensured by the continuation of his supervision order. [5] The applicant accepts that the respondent has done so. [6] The applicant acknowledges that the evidence provided by Dr Arthur and Dr McVie supports the finding that the adequate protection of the community can be ensured by the respondent’s release from custody on a supervision order under s 22(7) of the Act. [7] I intend to make such a supervision order, the terms of which are not in contest. Background [8] The respondent is aged 26, is in a de facto relationship and has two daughters. [9] As a 19 year old he attempted to rape a woman when he was very intoxicated. [10] In 2018 Justice Mullins summarised the background to the attempted rape: “Mr Bottomley’s criminal history commenced as a child in 2005. There is an extensive record of property offending, burglary, drug offences and assaults, culminating in the index offence which was committed when he was 19 years old. It can be observed that the use of alcohol and illicit substances, particularly cannabis sativa, underpins the index offence and the other violent assaults that have relevance in his history. The index offence was against an 18 year old complainant when Mr Bottomley was very intoxicated and upset about what he believed was infidelity of his girlfriend. Mr Bottomley 1 Attorney-General (Qld) v Bottomley [2018] QSC 57. -- 2 of 8 -- 3 pleaded not guilty at trial and this was treated by the sentencing judge as a lack of remorse.”2 [11] Her Honour reported the respondent’s rehabilitation in prison, his signs of maturation and his engagement and completion of programs. “Relevantly, whilst in prison, Mr Bottomley has participated in the Getting Started Preparatory Program, which he completed in August 2015, which qualified him, then, to undertake a more intensive sex offender treatment program. In 2015 to 20 2016, he also completed the substance abuse program known as LISI. He then undertook the High Intensity Sex Offender Treatment Program, HISOP, between March 2016 and March 2017. It involved 129 sessions. Mr Bottomley completed that satisfactorily.”3 [12] The conditions of the supervision order were designed to achieve abstinence by the respondent from the consumption of alcohol and illicit drugs for the duration of the supervision order. Justice Mullins stated: “Once he shows himself able to restrain from using alcohol or other illicit substances, then there will be room for the case manager to exercise the discretion that is implicit in clause 25 of the order to give permission to go to premises licensed to supply or serve alcohol for purposes that are legitimate for Mr Bottomley’s enjoyment of his life in the community, provided it does not extend to using alcohol. I am, therefore, persuaded that clause 25 can stay in the order in the terms in which it currently stands. The evidence of the psychiatrists persuades me to the degree of satisfaction that I am required to have under the Act that Mr Bottomley’s risk of sexual reoffending, which is at least moderate, can be managed in the community under a supervision order.”4 [13] The prediction that the respondent could be managed in the community was not misplaced. It appears that he was randomly tested for alcohol and illicit drugs and returned negative results until tested in December 2019. [14] His resort to drugs apparently was precipitated by the untimely death of his brother. As Dr Arthur says, “there is no indication that he engaged in other maladaptive coping strategies and communicates his willingness to address this issue in psychological therapy.” Psychiatric reports [15] Reports have been obtained from Dr Ken Arthur and Dr Ness McVie. For ease reference, I reproduce summaries or parts of them which are contained in the applicant’s submissions. The highlighting is mine. 2 At p 3. 3 At p 4. 4 At pp 5-6 (emphasis added). -- 3 of 8 -- 4 Dr Ken Arthur’s report dated 15 April 2020 [16] Dr Arthur diagnoses the respondent as suffering from:5 • Cluster B Personality Disorder (antisocial and perhaps borderline traits): and • Substance Misuse Disorder (predominantly alcohol and cannabis and more recently amphetamine and opiates) currently in remission in a controlled environment. [17] Dr Arthur identified risk factors and stated: “If prisoner Bottomley were to reoffend, it would be most likely in the context of a return to substance use, particularly alcohol, paired with negative emotional states such as jealousy or perceived rejection leading to feelings of anger and reinforcing underlying negative attitudes towards women. Any further sexual violence would most likely be unplanned and opportunistic. Potential victims would be young women, most likely strangers. Prisoner Bottomley might seek casual sex as a way of defending against feelings of rejection or jealousy, reacting violently if his advances were not accepted. To his credit, there is no indication of a return to alcohol abuse or further acts of sexual violence in the community or indeed violence towards women. Overall, it appears that prisoner Bottomley’s level of interpersonal violence has reduced over time. Whilst he maintains a somewhat anti-authoritarian attitude, prisoner Bottomley has a number of positives in his life such as the birth of his new daughter, maintaining a relationship with his mother and partner, and appears to be highly motivated to find some employment. Whilst his return to substance abuse was most likely precipitated by the untimely death of his brother, there is no indication that he engaged in other maladaptive coping strategies and communicates his willingness to address this issue in psychological therapy. Overall, I would consider that if released into the community under the current supervision order his risk of further sexual violence would be moderate to low. This risk would be escalated by conflict within his relationship triggering feelings of insecurity or jealousy, a return to substance abuse (particularly alcohol) or an escalation in the use of interpersonal violence which may indicate a deterioration in his level of self-regulation.” (emphasis added) Dr Ness McVie’s report dated 25 April 2020 [18] Dr McVie diagnoses the respondent as suffering from:6 • Antisocial Personality Disorder; and • Substance Misuse Disorder (alcohol, cannabis and opiates). 5 Dr Arthur’s Report dated 15 April 2020, 29. 6 Dr McVie’s Report dated 25 April 2020, 12. -- 4 of 8 -- 5 [19] Dr McVie’s report helpfully summarises the circumstances leading to the contravention. “Mr Bottomley is a 27-year-old man who was returned to custody in December 2019 following a positive urine drug test for methamphetamine. He denies deliberate ingestion of this substance, attributing it to others at the precinct lacing food with the illicit drug. From his release in April 2018, he had managed living in the community, residing with his mother, after being permitted to move there following a serious assault by another resident at the precinct in August 2018. He had also re-established his relationship with partner, N, and fathered a second daughter in that period. Both his mother and partner had relocated to the Ipswich area to support him.” Mr Bottomley appears to have deteriorated following the sudden death of his brother in June 2019, most likely the result of a drug overdose. He describes experiencing grief and some acute stress symptoms. He commenced to self-medicate for these with his prescribed opioid medication, Kapanol. He failed to notify his case manager of his problems, instead seeking assistance at the local health service and being placed on an opioid replacement program. He was returned to the precinct following identification of this, and then resumed tenuous relationships with other residents, possibly leading to his positive urine test. He had also managed to gain prescription for other psychotropic medication during this period, including an antipsychotic and anxiolytic, quetiapine and an amphetamine type drug used to treat ADHD, lisdexamphetamine.” (emphasis added) Clinical recommendations [20] Each psychiatrists gives advice about the ongoing treatment and care of the respondent, parts of which I emphasise: Dr Arthur “If he has not yet engaged in the Sexual Offender Maintenance Program, I would recommend he do so to review his risk management plan. Given his use of opiates for what appears to be affect regulation, I would be very wary of recommending further involvement in the Suboxone program as prisoner Bottomley has a significant risk of abusing this drug. Should he consider a return to the program, I would recommend that he be supervised by a Psychiatrist, ideally a clinician with experience in the treatment of substance abuse and forensics. Further drug and alcohol counselling may be of some use in maintaining his focus on abstinence and the development of alternate coping strategies. -- 5 of 8 -- 6 Ongoing psychological therapy with Ms Oertel should continue. Whilst prisoner Bottomley may benefit from stimulants such as Vyvanse, given his history of substance use, this drug should be supervised and prescribed by a Psychiatrist rather than relying on a General Practitioner. Whilst Vyvanse has a lower abuse potential than other prescribed stimulants, it is still possible to misuse this drug and as such it should be monitored closely.” Dr McVie “Mr Bottomley should be returned to his supervision order. He may be better placed residing with his mother than at the precinct. He also may do better with a male case manager. He should be supported to obtain employment. He does need continued supports including regular psychology sessions and would benefit from participation in the Maintenance Program for Sexual Offenders as well as programs to address both his substance use and use of violence as problem solving techniques. I note the comment in the report of Dr Sundin of 5 February 2017, (page 61/171) “before prescription of any psychoactive medication is undertaken by a general practitioner that his mental state and overall progress be reviewed by a consultant psychiatrist.” I also strongly recommend he be referred to a psychiatrist for further assessment of his adjustment to the loss of his brother, and for review of his need for the currently prescribed medications.” Statutory Scheme [21] The breaching conduct is admitted. I find the contravention proven. As a result, under s 22(7) it is for the respondent to satisfy the Court that if he is returned to the community then the adequate protection of the community, despite the contravention, can be ensured by a supervision order. [22] I should note that the applicant’s submissions quote some observations that a supervision order has “the character of a compact between the prisoner and the community.”7 The respondent contests this description and notes that the Oxford English Dictionary8 defines a compact as: “Noun – A formal agreement or contract” The accompanying thesaurus9 lists the following synonyms: “Noun – treaty, pact, accord, agreement, contract, bargain, deal, settlement, covenant, concordat, pledge, promise, bond.” 7 Attorney-General for the State of Queensland v Fardon [2011] QCA 155, 10 [29]. 8 Compact Oxford English Dictionary of Current English, 3rd Ed (Rev), 2008, Oxford University Press, Oxford. 9 Compact Oxford Thesaurus, 3rd Ed (Rev), 2008, Oxford University Press, Oxford. -- 6 of 8 -- 7 [23] Counsel for the respondent submits that the regime is a statutorily imposed scheme that considers expert opinion as to future risk of serious sexual reoffending and future management of an offender who has, by the time the statutory scheme is applied, served all of the custodial sentence imposed for the index offence. As counsel submits: “The supervision regime is imposed upon a prisoner by court order. The prisoner is required to submit to it, he does not have a choice. Nor does he have any negotiating power in the process.” [24] I was directed to, and respectfully adopt, what was said by Jackson J in A-G v Fardon: “Although it was said in one of the cases involving the applicant that a supervision order has “the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control”, there is no undertaking or agreement by a prisoner that forms any part of a relevant “compact” provided for by the Act, unlike a bail undertaking or a probation order. A supervision order does impose a tight regime of control, but there is nothing consensual about it under the Act.” 10 Disposition [25] The applicant acknowledges that the evidence provided by Dr Arthur and Dr McVie supports the finding and that the adequate protection of the community can be ensured by the respondent’s release from custody on a supervision order under s 22 (7) of the Act. [26] The respondent submits: “Prior to this contravention Mr Bottomley had successfully negotiated the terms of his supervision order for almost 21 months. That is a significant period of time. Whilst it is accepted that any breach is concerning and that a relapse to substance misuse is particularly concerning, especially given the causal link between substance misuse and the index offending in this case, it is not reasonable to weigh the effect of this single breach so disproportionately to the success that Mr Bottomley has demonstrated in the 21 month time period.” [27] I accept that submission. [28] The evidence, particularly the expert evidence of the two reporting psychiatrists, supports a finding that the adequate protection of the community can be ensured by the conditions included in the current supervision order. I so find. [29] I order that the respondent be released subject to the conditions contained in the supervision order of Mullins J dated 12 March 2018. [30] Protection of the community will best be achieved: 10 [2018] QSC 193. An appeal against the decision was allowed on other grounds: Attorney-General v Fardon [2019] 2 Qd R 487; [2018] QCA 251. -- 7 of 8 -- 8 (a) by the authorities ensuring that the respondent is accommodated upon his release in a pro-social environment, ideally with his partner and their children, not in a precinct with sex offenders living in close company; and (b) if the clinical recommendations of Dr Arthur and of Dr McVie are acted upon, including that: (i) psychological therapy with Ms Oertel or some other qualified therapist continue; and (ii) the respondent be referred to a psychiatrist for further assessment of his adjustment to the loss of his brother, and for review of his need for the currently prescribed medications. -- 8 of 8 --