Attorney-General for the State of Queensland v Kynuna [2020] QSC 65

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Kynuna [2020] QSC 65 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v GREGORY DAVID KYNUNA (respondent) FILE NO/S: BS No 9492 of 2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: Orders made on 20 March 2020, reasons delivered on 9 April 2020 DELIVERED AT: Brisbane HEARING DATE: 20 March 2020 JUDGE: Davis J ORDER: The Court, being satisfied to the requisite standard the respondent, Gregory David Kynuna, has contravened requirements 5, 7, 25 and 26 of the supervision order made on 23 June 2016, orders that, pursuant to s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003: 1. The respondent be released from custody no later than 4.00 pm on 23 March 2020 and be subject to the supervision order made on 23 June 2016. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent contravened the supervision order to which he was subject – where the applicant sought orders consequent upon those contraventions under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) – where the respondent was detained in custody pending a decision being made under s 22 of the Act – where the respondent was terminally ill suffering from malignant lung cancer – where the respondent’s failing health lowers his risk of committing a serious sexual offence – whether the adequate protection of the community can, despite -- 1 of 7 -- 2 the contravention, be ensured by the release of the respondent on the current supervision order Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 13, s 20, s 22, schedule Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, followed Attorney-General for the State of Queensland v Kynuna (No 2) [2011] QSC 376, cited Attorney-General for the State of Queensland v Kynuna [2015] QSC 369, cited Attorney-General for the State of Queensland v Phineasa [2013] 1 Qd R 305, followed Kynuna v Attorney-General for the State of Queensland [2016] QCA 172, cited COUNSEL: J Rolls for the applicant T Ryan for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Cridland & Hua Lawyers for the respondent [1] The respondent has been subject to orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) since early 2010. In 2019, he allegedly contravened the supervision order to which he was subject and the applicant sought orders consequent upon those contraventions. [2] On 20 March 2020, I made the following order: “The Court, being satisfied to the requisite standard the respondent, Gregory David Kynuna, has contravened requirements 5, 7, 25 and 26 of the supervision order made on 23 June 2016, orders that, pursuant to s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003: 1. The respondent be released from custody no later than 4.00 pm on 23 March 2020 and be subject to the supervision order made on 23 June 2016.” Background [3] The respondent was born in November 1964 and is presently 55 years of age. He has a serious criminal history involving sexual offences dating back to 1987.1 In May 2004, the respondent was sentenced to six years’ imprisonment in relation to a series of offences committed against a six year old boy. In an appeal challenging orders made against the respondent under the Act, McMurdo P described that offending in these terms: “… The circumstances were that the complainant, who was unknown to the appellant, was playing in the street. The appellant asked him 1 Kynuna v Attorney-General for the State of Queensland [2016] QCA 172 at [9]. -- 2 of 7 -- 3 to go for a walk and then punched and kicked him and took him to a laneway where he ripped a hole in the child’s swimmers. He fondled and licked the child’s penis through the hole before putting the penis in his mouth. He made the boy lick his anus and then licked the child’s anus.”2 [4] It was the offences against the young boy which founded an application being made against the respondent under the Act. On 29 January 2010, the respondent was released from custody subject to a supervision order for a period of 15 years. [5] Unfortunately, management of the respondent on supervision has proved difficult. His history under the supervision order is littered with breaches. On 11 November 2011, the supervision order was rescinded3 and a continuing detention order made. That detention order was rescinded on review on 7 October 2014 and he was again released on supervision. He contravened the order again, this time by sexually assaulting a nurse. Boddice J rescinded the supervision order and made a continuing detention order4 but on appeal from that order the supervision order was restored.5 [6] Four conditions of the supervision order are relevant to the present application. Those provide that the respondent must: “5. comply with a curfew or monitoring direction. … 7. comply with any reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order. … 25. abstain from the consumption of alcohol for the duration of this order. 26. abstain from illicit drugs for the duration of this order.” [7] The current breaches occurred on 14 September 2019. In breach of a curfew, the respondent left his residence and attended the Inala Civic Centre where he was seen to be consuming alcohol. A urine test later revealed that he had also consumed cannabis. He disobeyed lawful directions by Corrective Services officers to return to his residence. [8] On 14 September 2019, a warrant was issued pursuant to s 20 of the Act. He came before this court on 17 September 2019 and was detained in custody pending a decision being made under s 22 of the Act.6 [9] Two psychiatrists, Dr Josephine Sundin and Dr Jane Phillips, examined the respondent and provided reports. 2 Kynuna v Attorney-General for the State of Queensland [2016] QCA 172 at [9]. 3 Attorney-General for the State of Queensland v Kynuna (No 2) [2011] QSC 376. 4 Attorney-General for the State of Queensland v Kynuna [2015] QSC 369. 5 Attorney-General for the State of Queensland v Kynuna [2016] QCA 172. 6 Order, Dalton J, 17 September 2019. -- 3 of 7 -- 4 [10] Both psychiatrists diagnosed the respondent with the following: (a) anti-social personality disorder; (b) schizophrenia; (c) substance abuse disorder; and (d) past traumatic brain injury. [11] Perhaps of more significance than the respondent’s psychiatric condition is his general health. He is terminally ill suffering from malignant lung cancer. He is presently at the stage of requiring palliative care. Dr Sundin considered the respondent as a low risk of further serious sexual offending as his severe medical conditions make offending physically difficult. Doctor Phillips opined that the respondent’s risk of reoffending sexually is moderate and will continue to be lowered as his general medical condition deteriorates. [12] Serious questions arise as to how Mr Kynuna’s terminal illness and the needs that brings can be managed while he is subject to orders under the Act. Consideration [13] The pivotal section in the Act is s 13. It is this section which empowers the court to make either a continuing detention order or a supervision order against a prisoner. Before the discretion arises to make an order, the court must be satisfied that the prisoner is a “serious danger to the community” in the absence of an order. Section 13(2) defines “serious danger to the community” in these terms: “13 Orders … (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.” [14] The term “serious sexual offence” is defined as “an offence of a sexual nature … involving violence” or “an offence of a sexual nature … against a child”.7 Once the discretion to make an order arises under s 13, “the paramount consideration is to be the need to ensure adequate protection of the community”.8 Reference to “adequate protection of the community” means protection of the community from the commission of “serious sexual offences”.9 In essence, if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order ought to be made. However, if a supervision order will ensure the adequate 7 Section 2 and the Schedule (Dictionary). 8 Section 13(6). 9 Attorney-General for the State of Queensland v Phineasa [2013] 1 Qd R 305 at [28], [29]. -- 4 of 7 -- 5 protection of the community, then the making of a supervision order should be preferred to the making of a continuing detention order.10 [15] Where, as here, it is alleged that a supervision order has been contravened, ss 20 and 22 come into play. They are, relevantly: “20 Warrant for released prisoner suspected of contravening a supervision order or interim supervision order (1) This section applies if a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the released prisoner’s supervision order or interim supervision order. (2) The officer may, by a complaint to a magistrate, apply for a warrant for the arrest of the released prisoner directed to all police officers and corrective services officers to arrest the released prisoner and bring the released prisoner before the Supreme Court to be dealt with according to law. … 22 Court may make further order (1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order). (2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must— (a) if the existing order is a supervision order, rescind it and make a continuing detention order; or (b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order. … (7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a 10 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [39]. -- 5 of 7 -- 6 supervision order or interim supervision order, the court— (a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and (b) may otherwise amend the existing order in a way the court considers appropriate— (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment. (8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).” [16] By s 22(2) and s 22(7), the court is vested with jurisdiction to: (a) rescind the supervision order; (b) make a continuing detention order; (c) amend the supervision order; or (d) release the prisoner on the supervision order. [17] That discretion arises once, relevantly here, it is found that the respondent contravened the supervision order. Here, the contraventions are admitted and the discretion arises. [18] Section 22(7) casts an obligation upon a prisoner to satisfy the court that notwithstanding the contravention “the adequate protection of the community can … be ensured by a supervision order”. It is well settled that the term “adequate protection of the community” as used in s 22(7) has the same meaning as it has where it appears in s 13. Where the adequate protection of the community can be ensured by release of the prisoner back on the supervision order, that should be preferred to a continuing detention order.11 [19] I find that the respondent is a low risk of committing a serious sexual offence if released on supervision. It is unnecessary to descend into detail as to his current physical condition. He is terminally ill, close to death and receiving palliative care. [20] The evidence before me12 is to the effect that there may be difficulties in providing full palliative care to the respondent if he is not in custody. His physical health may be better treated in custody. His various conditions result in severe respiratory restriction which makes him particularly vulnerable to the COVID-19 virus. 11 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [39]. 12 Report by Dr Thomas O’Gorman, Clinical Director, Prison Health Services, West Moreton Health, exhibit 2. -- 6 of 7 -- 7 [21] The question for me on an application for orders under s 22 is not as to the general health of the respondent, except to the extent that his general health impacts upon risk. Here, the respondent’s failing health lowers his risk of committing a serious sexual offence. The respondent is represented by very experienced counsel who no doubt has taken careful and detailed instructions. Mr Ryan of counsel told me that his client’s firm instructions were to press for an order for his release under s 22(7) of the Act. [22] I found that: (a) the respondent breached conditions 5, 7, 25 and 26 of the supervision order as alleged by the applicant; and (b) the adequate protection of the community can, despite the contravention, be ensured by the release of the respondent on the current supervision order. [23] Based on those findings, I made the orders set out at paragraph 2. -- 7 of 7 --