Attorney-General for the State of Queensland v Kynuna [2020] QSC 68

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Kynuna [2020] QSC 68 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DIRK GREGORY KYNUNA (respondent) FILE NO/S: BS No 3832 of 2010 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 9 April 2020 DELIVERED AT: Brisbane HEARING DATE: 25 March 2020 JUDGE: Davis J ORDER: The Court, being satisfied there are reasonable grounds for believing the respondent, Dirk Gregory Kynuna, is a serious danger to the community in the absence of a further supervision order made under Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), orders that: 1. The application for a Division 4A Order be set for final hearing on 15 June 2020. 2. Pursuant to s 19D(l) and s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists, being Dr M Beech and Dr E McVie, who are to prepare independent reports, which are to be prepared in accordance with s 19D(1)(f) and s 11 of the Act. 3. Pursuant to s 39PB(3) of the Evidence Act 1977, Dr S Harden, Dr M Beech and Dr E McVie give oral evidence to the court other than by audio visual link or audio link. 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 has applied for orders extending the supervision order – where a -- 1 of 13 -- 2 preliminary hearing must be undertaken which may lead to the setting of a date for a final hearing and the appointment of psychiatrists to examine the respondent – where the court must determine whether there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of an extension of the supervision order – where the applicant submits that the preliminary question should be answered in the affirmative and relies on the respondent’s history and also on the opinion of Dr Harden – where the respondent resists the application – whether there are reasonable grounds for believing the respondent is a serious danger to the community past 19 June 2020 in the absence of an extension of the supervision order Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 5, s 8, s 11, s 13, s 19B, s 19C, s 19D, s 19E, s 19F Evidence Act 1977, s 39PB Attorney-General for the State of Queensland v AYL [2019] QSC 140, cited Attorney-General for the State of Queensland v DGK [2011] QSC 73, cited Attorney-General (Qld) v Fardon [2019] 2 Qd R 487, followed Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329, cited Attorney-General for the State of Queensland v Kynuna [2013] QSC 119, cited Attorney-General for the State of Queensland v Kynuna [2018] QSC 90, cited COUNSEL: J Rolls for the applicant J Crawford for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The respondent is the subject of a supervision order made against him under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). That supervision order will expire on 19 June 2020. [2] The applicant has applied for orders extending the supervision order. By various provisions of the Act, a preliminary hearing must be undertaken which may lead to the setting of a date for a final hearing and the appointment of psychiatrists to examine the respondent. This is that preliminary hearing. Background [3] The respondent was born in 1981. He is now 38 years of age. He has a criminal history dating back to his childhood, having been convicted in the Childrens Court. -- 2 of 13 -- 3 It is unnecessary to analyse the respondent’s complete criminal history.1 Of importance were convictions recorded against the respondent in 2000 and 2002. [4] In March 2000, the respondent was convicted of two counts of indecent assault. There were two separate victims and two separate incidents, but each involved the respondent breaking into the victim’s bedroom and attempting to remove her clothing. The respondent was placed on an intensive corrections order with which he did not comply. This resulted in a sentence of nine months’ imprisonment in addition to three months of pre-sentence custody. [5] In October 2002, a sentence of eight years’ imprisonment was imposed on the respondent on a count of rape. That involved a violent attack upon a woman walking home in the early hours. Concurrent sentences were also imposed for sexual offences committed by the respondent against two other complainants. [6] On 6 April 2011, a supervision order was made against the respondent for a period of five years.2 [7] On numerous occasions, the respondent breached the supervision order, was returned to custody and then released back into the community on the supervision order.3 On two occasions, the period of the supervision order was extended so it now expires on 19 June 2020.4 [8] All of the contraventions involved the consumption of either alcohol or illicit drugs, apart from a breach dealt with by Applegarth J on 6 May 2013. That breach consisted of the respondent losing his temper and wilfully damaging property of Queensland Corrective Services.5 [9] While on supervision, the respondent has completed all sexual offender treatment programs that have been required of him. [10] Dr Scott Harden, psychiatrist, has examined the respondent on numerous occasions over the years and produced numerous reports. He examined the respondent and prepared a report for the current proceedings.6 Psychiatric evidence [11] Doctor Harden diagnosed the respondent as still suffering from an anti-social personality disorder with alcohol abuse and probable dependence, currently in remission. He also noted the respondent’s history of polysubstance abuse. Dr Harden opined: “At the time of this report Dirk KYNUNA was a 37 year old man who had previously sexually offended against five different women on 1 PD McMurdo J (as his Honour then was) did so in Attorney-General for the State of Queensland v DGK [2011] QSC 73 at [3]-[12]. 2 Attorney-General for the State of Queensland v DGK [2011] QSC 73. 3 The breaches up to May 2018 are summarised by Lyons SJA in Attorney-General for the State of Queensland v Kynuna [2018] QSC 90. There was a contravention in May 2019. 4 Orders 10 December 2015 and 1 May 2018: Attorney-General for the State of Queensland v Kynuna [2018] QSC 90. 5 Attorney-General for the State of Queensland v Kynuna [2013] QSC 119. 6 Dated 30 October 2019. -- 3 of 13 -- 4 separate occasions. Two of the offences consisted of his breaking into the house of the young woman or adolescent and then sexually assaulting them while they slept. Two other offences were committed against young adolescent females [redacted] to whom he had access while they were sleeping. These four offences resulted in him leaving when he was challenged. Three of the offences were against young adolescent (but postpubertal) girls and the fourth against a 19-year- old woman, The circumstances of his juvenile charge of aggravated assault against a female were unknown and he was unable to throw further light on these but one would suggest that it is quite likely that there was a sexual element to these charges. His other sexual offence conviction was quite different and was only discovered because of DNA matching. This offence involved abducting a female stranger off the street in the centre of a city and using physical force to restrain her and rape her. This offence occurred in between the other two sets of offences. He has ascribed his inability to describe the sexual content of his offences to alcohol induced blackouts. It is of interest that he has described to other informants recollection of the rape committed against the stranger and had alleged to those informants that the sexual activity was consensual. The sexual offences against the young adolescents do not constitute paedophilia because the victims are post-pubertal, however there was some suggestion that they might well represent some kind of sexual preference for the 13 to 14-year- old female age range and at the time of the offending he was close enough in age to the younger victims for this not to necessarily represent paraphilic behaviour. The passage of time has not provided any further evidence to suggest that he has a preoccupation with prepubertal females. He had a significant history of other criminal offences across a range of modalities including recurrent serious assaults, numerous break and enters, recurrent destruction of property and numerous breaches of community-based orders. His early environment was characterised by a high level of physical abuse followed by later sexual abuse at the hands of family members. His history was also marked by severe personal, educational, and employment instability. He has some social supports predominantly in the form of his family members on his mother’s side. He identifies strongly with the indigenous culture and also professes and seems to practice a significant Christian faith although he does not seek out support from a church in the community. He improved his education and training· while incarcerated and has demonstrated some early degree of maturation of some of his antisocial characteristics. He has successfully completed the preparatory and indigenous sexual offending programs previously albeit with some ongoing areas requiring therapeutic attention. Since being in the community he has -- 4 of 13 -- 5 engaged reasonably with psychologists for individual therapy although it has taken some time to build rapport. He has successfully completed the maintenance program in the community. He successfully completed a high intensity substance abuse program. There have been ongoing difficulties with his supervision in the community and these have almost always related to his difficulty in managing negative emotions so that when he becomes frustrated or angry he has poor problem-solving and acts in ways that are contrary to his best interests. At this time he also often becomes angry or agitated with his supervising staff and utilises illicit substances. On a couple of occasions now he has progressed to living independently in the community and on the report of his treating psychologist at the time and himself appeared to have coped better with a range of negative life events compared to his previous reactions. This represented a degree of significant and measurable progress. With regard to these more recent problems on supervision the death of his father in 2018 does seem to be a very significant element. This has resulted, in my opinion, in him returning to a pattern of misusing substances in order to cope with negative emotions. His sexual offending in the past has been strongly associated with alcohol intoxication. He has largely been able to remain abstinent from alcohol in the community on supervision apart from one significant contravention. In 2014 he consumed a significant amount of alcohol in the alleged contravention. This significant alcohol intoxication was then associated with irritable and inappropriate behaviour towards supervising staff. This was the most concerning of his many infractions of the supervision order given his previous sexual and nonsexual offending behaviour has strongly been linked to alcohol intoxication. He has undertaken ongoing treatment of various kinds for substance use as well as ongoing individual psychological therapy. While he has made some gains from this when he is highly emotionally distressed he does not appear to be able to apply these principles consistently and continues to breach his order by using substances and being detected.” [12] As to risk, Dr Harden said: “Overall taking all factors into account his future risk of sexual reoffence (in the absence of a supervision order) is now overall still most likely in the moderate (about average) range given some reduction in risk for his period of time in the community. The supervision order further reduces his risk to low to moderate in my opinion. If he were not on the supervision order the risk of sexual offence would be in the moderate range. This will also be the case at the expiry of the current supervision order on 19 June 2020.” -- 5 of 13 -- 6 [13] As to recommendations, Dr Harden reported: “He is making progress albeit extremely slowly. In my opinion a further supervision order should be imposed for a period of five years in the same terms. Attempts to reduce risk further should focus on abstinence from substance use, community integration, training and employment. I would recommend that he continue to be required to be abstinent from alcohol and drug use. I recommend he continue to have individual therapy with his treating psychologist Mr Smith.” Submissions of the parties [14] It was common ground that by force of s 19D, read with s 8 of the Act, the principal application will be heard provided the court is satisfied that “there are reasonable grounds for believing the prisoner is a serious danger to the community [without a further supervision order]” beyond 19 June 2020 (“the preliminary question”). [15] The applicant submits that the preliminary question should be answered in the affirmative and relies on the respondent’s history and also on the opinion of Dr Harden. [16] As to the respondent’s history, the applicant points to: “The respondent:  has been diagnosed with antisocial personality disorder;  has a strong history of polysubstance abuse;  has suffered from alcohol abuse and probable dependence which is currently in remission;  has demonstrated difficulties with supervision, as evidenced by his history of contraventions;  has a sexual offending history that has been associated with alcohol intoxication;  has, on supervision, largely remained abstinent from alcohol, except for the occasion in 2014 and any further supervision order would attempt to reduce risk by focussing on abstinence from drug use, community integration, training and employment.” [17] As to Dr Harden’s opinion, the applicant relies on: (a) the opinion that risk currently is moderate or about average and will be reduced to low to moderate with a further supervision order; (b) the express recommendation of Dr Harden that the order be extended for a period of five years. -- 6 of 13 -- 7 [18] The respondent resists the application. He submits that the preliminary question ought to be answered in the negative. Primarily, it is submitted that: (a) the respondent has not committed an offence of a sexual nature since 2002, some 18 years ago; (b) breaches of the supervision order have not involved any sexual misconduct, let alone a serious sexual offence;7 (c) the respondent has been subject to supervision for 10 years; (d) after being subject to supervision, the respondent’s risk has been reduced to moderate; (e) a moderate risk does not justify further supervision. Statutory context [19] The objects of the Act are stated in s 3. That provides: “3 Objects of this Act The objects of this Act are— (a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.” [20] Section 5 authorises the applicant to apply for orders. Upon filing of an application, a date for the “preliminary hearing” must be set. As a matter of practice, the application is usually supported by a risk assessment report prepared by a psychiatrist. [21] Section 8 governs the preliminary hearing. It is in these terms: “8 Preliminary hearing (1) If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order. (2) If the court is satisfied as required under subsection (1), it may make— (a) an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports; and 7 As defined in the Dangerous Prisoners (Sexual Offenders) Act 2003. -- 7 of 13 -- 8 (b) if the court is satisfied the application may not be finally decided until after the prisoner’s release day— (i) an order that the prisoner’s release from custody be supervised; or (ii) an order that the prisoner be detained in custody for the period stated in the order. Note— If the court makes an order under subsection (2)(b)(i), the order must contain the requirements for the prisoner stated in section 16(1).” [22] Section 8(1) poses for the court the preliminary question, namely whether it is satisfied that “there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order”. Division 3 orders are those identified in s 13. Section 13 provides as follows: “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner -- 8 of 13 -- 9 cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter. (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (6) In deciding whether to make an order under subsection (5)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and -- 9 of 13 -- 10 (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [23] Section 13 introduces the notion of a “serious sexual offence”. That is defined as “an offence of a sexual nature … (a) involving violence; or (b) against a child …”. [24] If an order is made under s 8 to set a date for a hearing for a Division 3 order, then as a matter of practice, the court usually appoints two psychiatrists under s 8(2) to prepare reports. The opinions expressed in those reports are then the primary evidence which is relied upon in the final hearing under s 13. [25] If the court is satisfied of the jurisdictional fact prescribed by s 13(1),8 then a discretion arises to make orders under s 13(5). In determining what order to make under s 13(5), s 13(6) prescribes that “the paramount consideration is to be the need to ensure adequate protection of the community”. In practical terms, a supervision order will only be made if adequate protection of the community can be ensured by supervision. If that is the case, then a supervision order must be preferred to a continuing detention order.9 [26] By s 13A, the court must fix the period of the supervision order. The term of the supervision order equates to risk. The supervision order ought not prevail past the date when the prisoner ceases to be an unacceptable risk of committing a serious sexual offence without a supervision order.10 [27] Division 4A of Part 2 deals with extending supervision orders. Sections 19B to 19F provide as follows: “19B Attorney-General may apply for further supervision order (1) This section applies to a released prisoner subject to a supervision order (the current order). (2) The Attorney-General may apply for a further supervision order for the released prisoner. (3) The application may be made only within the last 6 months of effect of the current order. (4) Despite subsection (2), the Attorney-General can not make the application if a further supervision order has been made for the released prisoner. (5) However, subsection (4) does not prevent the making of the application if— 8 That a respondent is “a serious danger to the community in the absence of a Division 3 order”. 9 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [39]. 10 Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329 at [68] and Attorney-General for the State of Queensland v AYL [2019] QSC 140 at p 9. -- 10 of 13 -- 11 (a) under section 13(5)(b) or 30(3)(b), a new supervision order is made for the released prisoner; and (b) no further supervision order has already been made for the new supervision order. 19C Requirements for application The application must— (a) state the period of supervised release sought; and (b) be accompanied by any affidavits to be relied on in support of the application. 19D Application of provisions for division 3 orders (1) Division 1 (other than section 5(1) and (2)), division 2, section 13, section 15 and divisions 3B and 3C apply for the application and the operation of any further supervision order for the released prisoner— (a) as if a reference in the provisions to a division 3 order were a reference to a further supervision order; and (b) as if a reference in the provisions to an application for a division 3 order were a reference to an application under this division; and (c) as if a reference in the provisions to the prisoner were a reference to the released prisoner; and (d) as if a reference in the provisions to a prisoner’s release day were a reference to the day that the current order expires; and (e) as if the reference in section 5(5) to 2 business days were a reference to 7 business days; and (f) as if the psychiatrist’s assessment under section 11(2)(a) were an assessment of the level of risk that the released prisoner will, after the expiry of the current order, commit another serious sexual offence if a further supervision order is not made; and (g) as if the references in section 13(5) to the making of an order were only a reference to the making of a further supervision order for the released prisoner; and (h) as if the reference in section 16 to the ordering of release from custody were a reference to the making of a further supervision order; and (i) with other necessary changes. -- 11 of 13 -- 12 (2) If the court is satisfied the application may not be finally decided until after the current order expires, it may make an interim supervision order for the released prisoner. (3) The power under subsection (2) applies for the application instead of the power to make the orders mentioned in section 8(2)(b) or 9A(2) as applied under subsection (1). 19E Fixing of period of further supervision order If the court makes a further supervision order, the order must state the period for which it is to have effect. 19F Effect of further supervision order If a further supervision order is made for the released prisoner, it has effect in accordance with its terms for the period stated in the order.” [28] The procedure for the making of an application to extend a supervision order is an adoption and an adaption of the procedure for the making of a Division 3 order. There is a preliminary hearing where the court must determine whether there are “reasonable grounds for believing the prisoner is a serious danger to the community in the absence of [an extension of the supervision order]” which I have identified as “the preliminary question”. If the answer to that question is in the affirmative, then the court may appoint psychiatrists to prepare risk assessment reports and set the application down for final hearing. Consideration [29] Sections 5 and 8 (adopted and adapted by 19B) set up a procedure with two aims: 1. To filter out unmeritorious applications; and 2. To provide a procedure for the examination of the prisoner leading to the creation of a body of expert evidence to be used on the final hearing. [30] A preliminary hearing is not the occasion to determine whether the respondent is a serious danger to the community in the absence of a Division 3 order, or a serious danger to the community in the absence of an extension of a supervision order, as the case may be. The only inquiry is to ascertain whether there are “reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order” or an extension of the supervision order as the case may be. No final determination is contemplated by s 8 or s 19D.11 At the time of the preliminary hearing, the evidence which is likely to be of most importance (the psychiatrists’ reports) has not even been commissioned let alone prepared.12 [31] It is true that the respondent has not committed any sexual offence for 18 years. However, he has either been in custody or under supervision during that time. He suffers a personality disorder and other traits which are known to contribute to risk of 11 Attorney-General (Qld) v Fardon [2019] 2 Qd R 487 at [17]. 12 Attorney-General (Qld) v Fardon [2019] 2 Qd R 487 at [18]. -- 12 of 13 -- 13 offending. He has struggled to comply with the terms of the supervision order and his resort to alcohol and illicit substances is identified as a risk factor. [32] Importantly, Dr Harden opines that the respondent is still a risk but that risk will decrease if he remains on supervision. Doctor Harden, giving evidence as an expert witness, with all the responsibilities that entails, recommends the continuation of the supervision order, specifically, for a further period of five years. [33] In all those circumstances, I am satisfied that there are reasonable grounds for believing the respondent is a serious danger to the community past 19 June 2020 in the absence of an extension of the supervision order. [34] The applicant proposed Doctors Beech and McVie be appointed to prepare reports in accordance with s 19D(1)(f) and s 11 of the Act. While the respondent opposed the preliminary hearing, he did not object to the appointment of Drs Beech and McVie in the event that his defence of the preliminary application was unsuccessful. It is appropriate to appoint those doctors to prepare reports. [35] The medical evidence is likely to be contentious and the doctors are likely to be subjected to cross-examination on complicated issues. It is appropriate to order pursuant to s 39PB(3) of the Evidence Act 1977 that all three doctors (Drs Harden, Beech and McVie) give oral evidence at the final hearing. In present times, made uncertain by the COVID-19 virus, that may at some point have to be revisited. [36] The parties have agreed that the date for the final hearing ought to be 15 June 2020 and that date is available for the court to hear the application. Orders [37] I make the following orders: The Court, being satisfied there are reasonable grounds for believing the respondent, Dirk Gregory Kynuna, is a serious danger to the community in the absence of a further supervision order made under Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), orders that: 1. The application for a Division 4A Order be set for final hearing on 15 June 2020. 2. Pursuant to s 19D(l) and s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists, being Dr M Beech and Dr E McVie, who are to prepare independent reports, which are to be prepared in accordance with s 19D(1)(f) and s 11 of the Act. 3. Pursuant to s 39PB(3) of the Evidence Act 1977, Dr S Harden, Dr M Beech and Dr E McVie give oral evidence to the court other than by audio visual link or audio link. -- 13 of 13 --