Attorney-General for the State of Queensland v JGD [2020] QSC 70

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v JGD [2020] QSC 70 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v JGD (respondent) FILE NO/S: BS No 1277 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 9 April 2020 DELIVERED AT: Brisbane HEARING DATE: 30 March 2020 JUDGE: Davis J ORDER: The respondent be released on 26 April 2020 subject to the requirements set out in the schedule to these reasons until 26 April 2030. 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 orders under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) – where the applicant did not actively press for any order other than a supervision order – where the respondent has undertaken significant treatment while in custody – where the evidence did not suggest that the continuing detention of the respondent was warranted – where the respondent submits that the proposed supervision order is suitable except in relation to two conditions – whether the treatment has reduced the risk of the respondent reoffending by committing a serious sexual offence – whether the adequate protection of the community can be reasonably and practicably managed by a supervision order Corrective Services Act 2006 Criminal Code, s 218A, s24, s 36 -- 1 of 29 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s5, s 8, s 11, s 12, s 13, s 13A, s 16, s 20, s 22, s 43AA, schedule Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, followed Attorney-General for the State of Queensland v Newman [2019] 2 Qd R 1, cited Brimblecombe v Duncan; ex parte Duncan [1958] Qd R 8, cited Crosthwaite v Loader (1995) 77 A Crim R 348, cited Dayman v Newsome; ex parte Dayman [1973] Qd R 399, cited Dodge v Attorney-General for the State of Queensland [2012] QCA 280, cited George v Rockett (1990) 170 CLR 104, cited He Kaw Teh v The Queen (1985) 157 CLR 523, cited Hussien v Chong Fook Kam [1970] AC 942, cited Loveday v Ayre and Ayre; Ex parte Ayre [1955] St R Qd 264, cited Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, cited Reg v Boyesen [1982] AC 768, cited R v Lafaele [2018] QCA 42, cited R v McGrath [2006] 2 Qd R 58, cited COUNSEL: J Tate for the applicant J Briggs for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The applicant applies for orders under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). Although the application sought a continuing detention order (CDO) or alternatively release upon supervision, the evidence did not suggest that the continuing detention of the respondent was warranted. [2] While formally maintaining that the making of a CDO was an open alternative, the applicant did not actively press for any order other than a supervision order.1 The applicant’s approach was, with respect, a sensible one in the circumstances. Background [3] The respondent was born in 1975. He is presently 44 years of age. He has been convicted of committing serious sexual offences on three occasions. Those convictions were in 2007, 2008 and 2014. [4] While the 2007 offences could be described as opportunistic, the 2008 and 2014 offences involved persistence and planning. 1 Applicant’s written submissions, paragraph 2; and T 1-3. -- 2 of 29 -- 3 [5] The 2007 offences were committed by the respondent against his half-sister. She was 16 years of age at the time. He was invited for dinner at the residence of the victim’s family and, upon invitation, he spent the night. She woke to the respondent touching her breasts. On a plea of guilty to charges of sexual assault the respondent was placed on 12 months’ probation. [6] In 2008, the respondent was engaged to be married. His fiancée suffered from Asperger Syndrome and mild intellectual disability. The respondent and his fiancée, over a period of about a week, groomed, using the internet, a person who they believed to be a 12 year old girl. The grooming included questioning the child about her genitalia and directing her to perform sexual acts of masturbation, sending images of himself to the child showing him masturbating, and offering the child money for sexual acts. He also asked the child not to inform her parents of his contact with her. [7] This all culminated in an agreement between the respondent and the child to meet. [8] In fact, the respondent and his fiancée had been caught in a police operation. The respondent was arrested at the place of the proposed rendezvous. [9] Police often undertake investigative operations by internet activity where they pretend to be a child.2 In this way they identify sexual predators operating on the internet. [10] Once the respondent was identified, police inquiries continued. He was found in possession of a significant quantity of child exploitation material which depicted, amongst other things, depraved acts being committed against very young children, including babies and toddlers. [11] Upon his pleas of guilty to a number of offences, the respondent was sentenced to an effective term of imprisonment of three years on 17 November 2008. [12] It is the 2014 offences, though, which formed the basis of the applicant’s application under the Act. That offending involved his fiancée, two children and the mother of the two children (who I will call “Mary”). The children were a boy aged nine and 10 over the period of offending and the girl aged seven and eight over the same time. [13] On sentence in the District Court, it was found by the learned sentencing judge that the respondent was the main force behind the offending. [14] Mary had separated from her husband. She struck up a friendship with the respondent and his fiancée. Between the three of them they proposed sexual activity with the two children. Over a period of about nine months, the following conduct occurred:  The respondent rubbed the vagina of the girl on the inside and outside of her clothing while his fiancée and Mary were present and watching;  The respondent’s fiancée rubbed the penis of the boy while the respondent was present and watching; 2 See R v McGrath [2006] 2 Qd R 58; Dodge v Attorney-General for the State of Queensland; Criminal Code, s 218A; Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, schedule (definition of “serious sexual offence”). -- 3 of 29 -- 4  On two occasions, the respondent, his fiancée, and Mary watched pornographic films with the boy and, on one of those occasions his fiancée rubbed the boy’s penis and performed oral sex on him in the presence of the others;  The respondent had a bath with the girl while she sat on the respondent’s lap, and both were naked;  The respondent and Mary had intercourse while his fiancée and the boy were present and watched;  The respondent and the boy simultaneously masturbated each other and, on one occasion, the respondent encouraged his fiancée to perform oral sex on the boy. The respondent then performed oral sex on the boy; and  The respondent, his fiancée and Mary had Facebook conversations procuring the boy to engage in sexual acts. It included comments by them to him that he need not be scared, he could trust them, and it would be fun. The respondent commented to Mary that he wanted to have sex with the boy. [15] When the offending came to the attention of police, the investigation which followed revealed that, like in 2008, the respondent was in possession of child exploitation material. [16] In sentencing the respondent to an effective sentence of seven and a half years’ imprisonment for a raft of sexual offences, the learned sentencing judge said: “You’ve not only damaged children, it seems to me, you’ve also been responsible, substantially, for damaging both Ms (redacted), your fiancee, and Ms (redacted). In particular, Ms (redacted) came into your life with no criminal history at all and you inveigled her, obviously, to access her children who were then aged seven and nine as a grooming exercise to provide you with child sexual victims. Both Ms (redacted) and Ms (redacted) cooperated extensively to the extent of providing interviews and statements. You did not. In your relapse prevention plan you seem to acknowledge a significant level of responsibility but that acknowledgement was also made way back in 2008 when Justice Dutney sentenced you for far less serious offences - grooming a child on the internet, who, of course, turned out to be a police officer. And presumably you gave Mr Briggs, the Legal Aid barrister who appeared for you then, the same assurances that you now give, that you had effectively developed insight and were making progress towards rehabilitation.” [17] By the time sentence was imposed on 1 September 2014, the respondent had spent 673 days in pre-sentence custody which was declared by the judge as time served on the sentences he had imposed. The respondent’s full time release date was then 26 April 2020. [18] While in prison, the respondent has attempted to address his offending behaviour by undertaking a number of courses:  Getting Started: Preparatory Program in 2010; -- 4 of 29 -- 5  Medium Intensity Sexual Offenders Program in 2010-11;  Getting Started: Preparatory Program in 2014;  Getting Started: Preparatory Program in 2017; and  High Intensity Sexual Offending Program in 2018-19. [19] What is shown by the respondent’s criminal history is a serious escalation of perverted predatory offending against children. Unsurprisingly then, despite the respondent’s rehabilitative attempts while in prison, the applicant investigated whether an application should be made under the Act. [20] Doctor Eve Timmins, a psychiatrist who is very experienced in the assessment of the risk posed by sexual offenders, was retained to examine the respondent and prepare a report. On the basis of Dr Timmins’ opinion, an application under the Act was filed. [21] On 5 December 2019, Burns J made orders, including appointing Doctors Aboud and Harden, who, like Dr Timmins, are very experienced psychiatrists in this field, to examine the respondent and report. The reports of Doctors Timmins, Aboud and Harden were all in evidence before me and each of the doctors gave evidence. Statutory context [22] Section 3 of the Act identifies the objects of the legislation as follows: “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.” [23] The objects of the Act are fulfilled by a scheme providing for the detention of prisoners beyond the expiry of their sentences, or alternatively their release upon supervision. [24] By s 5, the Attorney-General may apply for both an order under s 8 of the Act and also an order under Division 3 of Part 2.3 Division 3 of Part 2 provides for the making of final orders. Applications can only be brought under s 5 against a “prisoner”. [25] Section 5, which authorises the application for orders and which contains the definition of “prisoner”, is as follows: “5 Attorney-General may apply for orders (1) The Attorney-General may apply to the court for an order or orders under section 8 and a division 3 order in relation to a prisoner. 3 In which s 13 is located. -- 5 of 29 -- 6 (2) The application must— (a) state the orders sought; and (b) be accompanied by any affidavits to be relied on by the Attorney-General for the purpose of seeking an order or orders under section 8; and (c) be made during the last 6 months of the prisoner’s period of imprisonment. (3) On the filing of the application, the registrar must record a return date for the matter to come before the court for a hearing (preliminary hearing) to decide whether the court 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. (4) The return date for the preliminary hearing must be within 28 business days after the filing. (5) A copy of the application and any affidavit to be relied on by the Attorney-General must be given to the prisoner within 2 business days after the filing. (6) In this section— (1) prisoner means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or serving a period of imprisonment that includes a term of imprisonment for a serous sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section.” [26] The definition of “prisoner” in s 5(6) introduces the concept of “a serious sexual offence”. That term is defined as follows: “serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland— (a) involving violence; or (b) against a child; or (c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.” [27] Section 8 provides for a preliminary hearing. It is in 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 -- 6 of 29 -- 7 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 (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.” [28] The term “prisoner”, as used in s 8 is defined differently to the definition in s 5(6). In s 8, the term “prisoner” has the same meaning as that defined for the purposes of the Corrective Services Act 2006.4 The distinction is, though, not relevant here.5 The respondent was clearly a “prisoner” at all times relevant to the proceedings under the Act. [29] Section 8 introduces the notion of “serious danger to the community”. This term is defined in s 13 which is the pivotal section in Division 3 of Part 2. Section 13 is in these terms: “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 4 Dangerous Prisoners (Sexual Offenders) Act 2003, s 2 and the dictionary which is the Schedule to the Act. 5 See Attorney-General for the State of Queensland v Newman [2019] 2 Qd R 1. -- 7 of 29 -- 8 (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 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). -- 8 of 29 -- 9 (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 (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).” [30] Orders which can be made under s 8 include orders that a prisoner undergo psychiatric examination. The evidence so obtained is then relied upon by the Attorney-General on the application brought under s 13. Relevant to examinations ordered under s 8, are ss 11 and 12 which are in these terms: “11 Preparation of psychiatric report (1) Each psychiatrist examining the prisoner must prepare a report under this section. (2) The report must indicate— (a) the psychiatrist’s assessment of the level of risk that the prisoner will commit another serious sexual offence— (i) if released from custody; or (ii) if released from custody without a supervision order being made; and (b) the reasons for the psychiatrist’s assessment. (3) For the purposes of preparing the report, the chief executive must give each psychiatrist any medical, psychiatric, prison or other relevant report or information in relation to the prisoner in the chief executive’s possession or to which the chief executive has, or may be given, access. (4) A person in possession of a report or information mentioned in subsection (3) must give a copy of the report or the information to the chief executive if asked by the chief executive. (5) Subsection (4) authorises and requires the person to give the report or information despite any other law to the -- 9 of 29 -- 10 contrary or any duty of confidentiality attaching to the report. (6) If a person required to give a report or information under subsection (4) refuses to give the report or information, the chief executive may apply to the court for an order requiring the person to give the report or information to the chief executive. (7) A person giving a report or information under subsection (4) or (6) is not liable, civilly, criminally or under an administrative process, for giving the report or information. (8) Each psychiatrist must have regard to each report or the information given to the psychiatrists under subsection (3). (9) Each psychiatrist must prepare a report even if the prisoner does not cooperate; or does not cooperate fully, in the examination. 12 Psychiatric reports to be given to the Attorney-General and the prisoner (1) Each psychiatrist must give a copy of the psychiatrist’s report to the Attorney-General within 7 days after finalising the report. (2) The Attorney-General must give a copy of each report to the prisoner on the next business day after the Attorney- General receives the report.” [31] Section 16 deals with the contents of supervision orders: “16 Requirements for orders (1) If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner— (a) report to a Corrective Services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and (b) report to, and receive visits from, a Corrective Services officer as directed by the court or a relevant appeal court; and (c) notify a Corrective Services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and -- 10 of 29 -- 11 (d) be under the supervision of a Corrective Services officer; and (da) comply with a curfew direction or monitoring direction; and (daa) comply with any reasonable direction under section 16B given to the prisoner; and (db) comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order; and Examples of direct inconsistency— If the only requirement under subsection (2) contained in a particular order is that the released prisoner must live at least 1km from any school— 1 A proposed direction to the prisoner would be directly inconsistent if it requires the released prisoner to live at least 2km from any school. 2 A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner to live at least a stated distance from something else, including, for example, children’s playgrounds, public parks, education and care service premises or QEC service premises. 3 A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner not to live anywhere unless that place has been approved by a Corrective Services officer. (e) not leave or stay out of Queensland without the permission of a Corrective Services officer; and (f) not commit an offence of a sexual nature during the period of the order. (2) The order may contain any other requirement the court or a relevant appeal court considers appropriate— (a) to ensure adequate protection of the community; or Examples for paragraphs (a)— • a requirement that the prisoner must not knowingly reside with a convicted sexual offender • a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school -- 11 of 29 -- 12 • a requirement that the prisoner must wear a device for monitoring the prisoner’s location (b) for the prisoner’s rehabilitation or care or treatment.” [32] Section 13A deals with fixing the term of the supervision order. Section 13A provides: “13A Fixing of period of supervision order (1) If the court makes a supervision order, the order must state the period for which it is to have effect. (2) In fixing the period, the court must not have regard to whether or not the prisoner may become the subject of— (a) an application for a further supervision order; or (b) a further supervision order. (3) The period cannot end before 5 years after the making of the order or the end of the prisoner’s period of imprisonment, whichever is the later.” Position of the respective parties [33] As already observed, the applicant does not press for a CDO. A draft supervision order was produced and was the subject of submissions by the parties. [34] The respondent does not resist a finding under s 13(1) that he is a serious danger to the community in the absence of a Division 3 order. The respondent is represented by experienced counsel and has no doubt taken advice. On the material before me, the concession is a proper and sensible one. [35] The respondent submits though that, consistently with the applicant’s position, he ought to be released on supervision for a period of 10 years. He submits that the proposed supervision order is suitable except in relation to two conditions. [36] Condition 36 as proposed by the applicant is in these terms: “36. 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.” [37] The respondent proposes condition 36 in these terms: -- 12 of 29 -- 13 “36. If you have repeated contact (that is, more than one time) with a person whom you know or reasonably suspect is the parent, carer or guardian 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.” [38] The applicant proposes condition 40 in these terms: “40. You must not collect photos/videos/magazines which have images of children in them.” [39] The respondent proposes condition 40 in these terms: “40. You must not knowingly obtain photos/videos/magazines which have images of children in them.” Psychiatric evidence Diagnoses [40] It is perhaps unsurprising, given the respondent’s criminal history, that all three psychiatrists diagnosed paedophilia. [41] Doctor Timmins diagnosed the respondent as suffering from the following: “• Paedophilia (non-exclusive, sexually attracted to both pre- pubescent males and females); • Mixed Personality Disorder (with Antisocial, Narcissistic and Avoidant personality traits); and • Psychopathic Traits.” [42] While she did not confirm psychopathy, Dr Timmins identified psychopathic traits. In that respect, she said: “The interview was replete with attempts to distract off topics he was finding difficult such as his offending and sexual interests in addition to attempts at minimising his behaviour and intentions, externalising blame to both his victims and co-offenders and general manipulation of material. He appeared to be rehearsed and provide information that had been provided previously. He appeared adept at giving the appearance of superficially engaging which had been noted in previous programs and with other clinicians. He is just short of meeting the criteria for psychopathy, in particular the affective and emotional aspects. Lying in the form of omission was prominent as was manipulation and attempts at controlling the -- 13 of 29 -- 14 interview with a number of inconsistences and evasive answers regarding a number of issues around his offending.” [43] Doctor Aboud diagnosed the respondent as suffering from the following: “• Paedophilia (non-exclusive, sexually attracted to both pre- pubescent males and females); • Mixed Personality Disorder (with Borderline, Antisocial and Avoidant personality traits); and • Psychopathic Traits; and • Alcohol Abuse (currently in enforced abstinence).” [44] Doctor Harden diagnosed the respondent as follows: “• Paedophilia (non-exclusive); and • Mixed Personality Disorder.” Risk [45] Doctor Timmins categorised the respondent’s risk of release without a supervision order as high. In that respect, she said: “In summary, I am of the opinion that [the respondent’s] risk of sexual reoffending is HIGH if released into the community without a supervision order in place. He has made the appearance of engaging in treatment for his sexual offending, yet when questioned he has little understanding of his behaviour, continuing to minimise his role, behaviour and the severity of his offending in addition to externalising blame and avoiding responsibility. I think this is due to his personality structure and lack of insight into himself and his offending pathways. Despite opportunities given to him over the years he has failed to integrate any of the learnings and this is a serious issue. If he does re-offend, he is likely to engage a vulnerable woman in an intimate relationship. He will use her to approach children via the internet or in person. Alternatively, she will have children, or know other vulnerable women who have children. He will then use these women to access the children. He is highly manipulative and there is the potential for physical, and certainly psychological coercion to be involved in the offending. There is the potential of high degree of harm to the victim, including physical harm. In addition he may access the Internet to either engage victims in cyber-sex and/or take videos and photographs in addition to arranging to meet them in person to carry out a variety of sexual behaviours. He also has the potential to download pornography and child exploitation material for his own sexual gratification or even use in his offending. -- 14 of 29 -- 15 He may also simply choose a young victim, possibly a teenager and assault her. He does not need to be in an intimate relationship to carry out a sexual offence.” [46] Doctor Timmins thought that risk may still be moderate to high even on a supervision order. She said: “If the court is of a mind to release [the respondent] he will need significant support in order to mitigate his risk to the community. He would benefit from engagement with a forensic psychologist in order to address his sexual offending and paraphilia. He may require a referral to a psychiatrist for consideration of an anti-androgen given that the antidepressant has not impacted on his sex drive to any extent. He requires stable housing, GPS monitoring, work options and appropriate pro-social activities and relationships. He is likely to eventually wish for an intimate relationship which will significantly elevate his risk. He must be transparent regarding any potential partner given his history of exploitation of vulnerable females and his offending history. He should not have any contact with children and his internet activities need to be closely monitored. There needs to be a high degree of suspicion that [the respondent] will either not tell officers what he is doing, or will fabricate a convoluted mistruth about what he is doing. Any appearance of complying with the order should not be taken as actual compliance as he may well lead a ‘double life’. His risk may be modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003. He would most likely fall into a MODERATE to HIGH risk category. The duration of a community order would need to be at least 10 years, perhaps even longer for the adequate protection of the community. [The respondent] is still a relatively young man with a high sex drive, a long history of sexual offending, a difficult personality structure, poor insight into his sexual offending and has re-offended extensively despite previous offending and treatment for his offending. It is likely to take a considerable period of time for him to learn how to manage himself more appropriately such that his risk towards the community is lowered further.” [47] Doctor Timmins’ concerns were largely based on what might be described as the persistence of the respondent’s offending and the fact that he had not done well in the community. Giving evidence before me, she said: “If I could ask you, please, to go to page 44 of that opinion, I only have a few questions that I’d like to ask you. Firstly, it would appear that all three reporting psychiatrists consider that [the respondent’s] -- 15 of 29 -- 16 unmodified risk is high if he were to be released to the community without a division 3 order?---Yes. And certainly that is your opinion. Looking at a supervision order, the reduction would be from high through to, in your words, medium to high and, in the other reporting psychiatrist’s view, medium. The question, really, is this: can [the respondent] be adequately managed from the viewpoint of protecting the community on a supervision order?---Look, I think - I think he can. He’s at yet untested, and - - - Yes?--- - - - there are a number of concerns from my point of view with regards to his diagnosis of paedophilia, his personality structure, in particular, the psychopathic tendencies and also his previous history with regards to reoffending despite treatment, being able to deceive, you know, officers and his treating psychiatrist or psychologist, those sorts of things, that he’s doing okay. So I think there are some concerns given the picture, but I think when you look at it there hasn’t been - we haven’t actually seen how he does under a DPSOA supervision order in the community and whether he would respond to that much better, whether he would take things a bit more seriously than he did previously. He’s now done the High - you know, HISOP.6 HISOP?---And whether he’s - it remains to be seen whether he’s got anything out of that any more than, say, he did from the MISOP7 and the individual intervention. Would it be fair to say at this stage, without testing him in the community, it’s unknown whether there’s been internal change in relation to his sexual orientation of preference of paedophilia?---I don’t think there will be internal change of that basic drive, but what potentially can change is his capacity to manage himself and to make sure that he manages his sexual interests within legal bounds. And, certainly, he’s done all of the programs that are available in custody to learn those skills?---It looks like he has - well, he has done everything, so it looks like he has ticked all the boxes in order to be released into the community. The thing is, we don’t know how that might translate into his behaviour yet. HIS HONOUR: But do we ever know?---Not until he’s released, your Honour. No. But do we ever know about any - in relation to any prisoner?--- Any prisoner? Well, we can - - - I mean, there’s always got to be - there’s always got to be a doubt that a prisoner going from custody and therefore a controlled environment to the community even if under supervision will act in a way that’s not foreseen or foreseeable?---Yes. I agree. Yes. 6 High Intensity Sexual Offending Program. 7 Medium Intensity Sexual Offending Program. -- 16 of 29 -- 17 And so is the position - or are the variables here really any different for this man, or more severe for this man?---I think for this man, when you look at his personality structure and his insight and his history with regards to recidivism and his inability to integrate some of the learnings that he has done previously, I do think we do - like, he does - will present a somewhat more difficult person to manage under a supervision order, but that doesn’t mean that he can’t be.” [48] Doctor Aboud thought a supervision order reduced risk to moderate but still expressed concerns. He said: “Taking into consideration the various instruments used to assess risk, it is my view that [the respondent’s] overall unmodified risk of sexual offending would currently be regarded as high, while his risk of non- sexual violence and of general offending would be low. I take into account: his antisocial and borderline personality structure; his worrying psychopathic traits; his vulnerability to poor adaptive coping (whereby he uses alcohol, avoidance, isolation and sexual preoccupation); his sexual deviance; his intimacy deficits and emotional congruence with children; his deceptive and manipulative self-presentation, that has allowed him to win the confidence of others, including potentially professionals (such as facilitators of previous sex offender treatment programs). One is also aware that he has breached criminal justice orders in the past, and he sexually offended when subject to a criminal justice order. He has demonstrated significant minimisation and denial, lack self- awareness, and a rather manipulative and deceptive interpersonal style. His current future plans are only moderately considered, and his self-appraisal of risk is unrealistic. Should he be made subject to a supervision order, I recommend that it be in place for at least 10 years, given his combination of risk factors, vulnerability factors, poor previous record and his relatively young age.” [49] In evidence before me, Dr Aboud said: “That’s correct? You indicate, as do your colleagues, that [the respondent’s] risks are modified as high, and with the strictures of the supervision order risk reduces to moderate?---That’s correct. What is it about a supervision order that would give that reduction in risk?---It’s [the respondent’s] knowledge that he is being monitored and supervised and in part his desire not to - not to breach in order to face consequences of that breach, and also the supportive structure that will be afforded to him through - through community supervision, a degree of stability in his life that he has not been able to achieve prior.” [50] Doctor Harden explained risk in these terms: “[The respondent] is a 44 year-old man with a history of charges for sexual offending from the age of 20 years onwards. He has been a -- 17 of 29 -- 18 diverse and recurrent sexual offender with a history of both contact and Internet-based offences involving at least four victims. His most recent offences are notable for a number of reasons including the fact that he was either in group and individual treatment for sexual offending at the time of the offending or immediately prior to the offending and that the offending involved 2 adult female co- offenders. One of the co-offenders was the mother of the victims and the other was his partner of the time and together they engaged the young people in boundaryless inappropriate sexual activities. His sexual offences are generally associated with significant periods of grooming of both the young people and/or their caregivers. The actuarial and structured professional judgement measures I administered in combination with my clinical assessment would suggest that his unmodified future risk of sexual reoffence is High (well above average). If he were to reoffend it would most likely be in a situation where he had the opportunity to groom young people or caregivers. The offending is unlikely to be violent in nature and physical harm is unlikely. Psychological harm is very likely. Supervision and intervention consistent with a supervision order in my opinion will likely reduce the risk to moderate” The argument about the two proposed conditions Proposed condition 36 [51] The proposed amendment to condition 36 was intended to introduce a mental element to any breach of the condition. Mr Briggs of counsel for the respondent explained during argument that what was intended was to ensure that innocent breaches of the condition were not caught. [52] The proposed amendments would actually widen the scope of conduct caught by the condition. The condition as first proposed prohibits contact with a particular class of person, namely “a parent, guardian or carer of a child under the age of 16”. Therefore, in order to prove a breach of that condition the applicant would have to prove that the person fell within that class. In other words, that the person was in fact “a parent, guardian or carer of a child under the age of 16”. [53] The proposed condition 36 identifies two classes of person. The first are those who are “a parent, guardian or carer of a child under the age of 16” and the second are persons who the respondent “reasonably suspects[ed] is the parent, carer or guardian of a child under the age of 16”. If the respondent held such a “suspicion”, then it would not matter whether the person in fact was a “parent, carer or guardian of a child under the age of 16”.8 It would not be appropriate to extend the operation of condition 36 in the way proposed. [54] It is also unnecessary in my view to add the element of “knowledge”. A breach of condition can impact upon the respondent in two ways. Firstly, he could be 8 Hussien v Chong Fook Kam [1970] AC 942 at 948, Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, George v Rockett (1990) 170 CLR 104. -- 18 of 29 -- 19 prosecuted under s 43AA of the Act. Also, he could be the subject of proceedings for breach of the supervision order. [55] Section 43AA provides as follows: “43AA Contravention of relevant order (1) A released prisoner who contravenes the relevant order for the released prisoner without a reasonable excuse commits a misdemeanour. Maximum penalty—2 years imprisonment. (2) If a released prisoner commits an offence against subsection (1) by removing or tampering with a stated device for the purpose of preventing the location of the released prisoner to be monitored, the released prisoner commits a crime. Minimum penalty—1 year’s imprisonment served wholly in a corrective services facility. Maximum penalty—5 years imprisonment. (3) In this section— corrective services facility see the Corrective Services Act 2006, schedule 4. stated device means a device a released prisoner is required to wear under the relevant order or a monitoring direction made under the relevant order.” [56] Section 24 of the Criminal Code is legally available on a charge under s 43AA.9 If on a prosecution, there was some evidence which raised the issue of mistake, then the Crown would have to prove that the respondent was not honestly but reasonably mistaken in his belief that the person was not “a parent, guardian or carer or a child under the age of 16”.10 [57] Allegations of breach of a supervision order are dealt with pursuant to ss 20 and 22 of the Act. They are as follows: “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 9 Criminal Code, s 36. 10 Loveday v Ayre and Ayre; Ex parte Ayre [1955] St R Qd 264 and Brimblecombe v Duncan; ex parte Duncan [1958] Qd R 8, which were recently considered in R v Lafaele [2018] QCA 42 at [39]-[46]. -- 19 of 29 -- 20 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. (3) The magistrate must issue the warrant, in the approved form, if the magistrate is satisfied the grounds for issuing the warrant exist. (4) However, the warrant may be issued only if the complaint is under oath. (6) The warrant may state the suspected contravention in general terms. (7) If the magistrate issues a warrant under subsection (3), the commissioner of the police service or the chief executive must give a copy of the warrant to the Attorney- General within 24 hours after the warrant is issued. (8) The Police Powers and Responsibilities Act 2000, sections 800 to 802, apply to the application for the warrant— (a) as if the warrant were a prescribed authority, within the meaning of section 800 of that Act, that could be obtained under that Act; and (b) if the application is made by a corrective services officer, as if the corrective services officer were a police officer. Note— The Police Powers and Responsibilities Act 2000, sections 800 to 802 provide for obtaining prescribed authorities by phone, fax, radio, email or another similar facility. (9) To remove any doubt, it is declared that a failure by the commissioner of the police service or the chief executive to comply with subsection (7) does not affect the court’s ability to make a further order under section 22. … 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 -- 20 of 29 -- 21 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. (3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following— (a) act on any evidence before it or that was before the court when the existing order was made; (b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order— (i) in the nature of a risk assessment order, subject to the restriction under section 8(2); or (ii) for the revision of a report about the released prisoner produced under section 8A; (c) consider any further report or revised report in the nature of a report of a type mentioned in section 8A. (4) To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a). (5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies. (6) For applying section 11 to the preparation of the report— (a) section 11(2) applies with the necessary changes; and (b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist. (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 supervision order or interim supervision order, the court— -- 21 of 29 -- 22 (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).” [58] It is true that upon an allegation of a breach the respondent bears the onus under s 22(7) of proving that his release upon the supervision order provides “adequate protection of the community”. If the breach was an innocent one in that the respondent did not know that the person with whom he had contact was “a parent, guardian or carer of a child under the age of 16” then, assuming no other adverse factors, the respondent would have little difficulty, one would think, in discharging the onus under that subsection. In the circumstances of this case, it is appropriate to impose a condition which has the effect of casting the onus upon him in that way. Condition 36 ought to be included in the form as originally proposed. [59] Requirement 40 as proposed by the respondent, again, seems more onerous than that proposed by the applicant. [60] Again, Mr Briggs’s concern is to introduce some mental element into any breach. [61] However, to “knowingly obtain” something is to knowingly come into possession of it. It is not necessary to know the quality of the thing.11 [62] Requirement 40 as originally proposed strikes at the notion of “collect[ion]”. In order to “collect” something, one must firstly obtain it and secondly, retain it so as to make a collection.12 [63] In the past, the respondent has collected child exploitation material. That is what should be prohibited under requirement 40 and so I will include requirement 40 in the supervision order in the terms as originally proposed. Orders and findings [64] I accept the evidence of the psychiatrists which I find to be cogent. 11 Reg v Boyesen [1982] AC 768 at 773-774, followed in He Kaw Teh v The Queen (1985) 157 CLR 523 at 537-538; Dayman v Newsome; ex parte Dayman [1973] Qd R 399; Crosthwaite v Loader (1995) 77 A Crim R 348. 12 Macquarie Dictionary definition “collect”, item 1, 2, 8, 16. -- 22 of 29 -- 23 [65] I accept the opinions of the psychiatrists on the topic of risk. I am satisfied to a high degree of probability that the respondent is a serious danger to the community in the absence of a Division 3 order. [66] While the respondent has a serious history of sexually offending against children, he has undertaken significant treatment while in custody. I accept the evidence of the psychiatrists that the treatment has reduced the risk of the respondent reoffending by committing a serious sexual offence. I accept their evidence that, although the respondent is a difficult personality, he can be managed in the community on supervision. In those circumstances release on supervision should be preferred to the making of a continuing detention order.13 [67] I am satisfied that adequate protection of the community can be reasonably and practicably managed by a supervision order. [68] I make a supervision order in terms of the schedule. 13 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [39]. -- 23 of 29 -- SCHEDULE SUPREME COURT OF QUEENSLAND REGISTRY: Brisbane NUMBER: BS 12770/19 Applicant ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND AND Respondent JGD SUPERVISION ORDER Before: Davis J Date: 9 April 2020 Initiating document: Originating Application filed 18 November 2019 THE COURT is satisfied that the respondent, is a serious danger to the community. The rules in this order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003. THE COURT ORDERS THAT the respondent be released from prison on 26 April 2020 and must follow the rules in this supervision order for ten years, until 26 April 2030. TO the respondent: 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 ten 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. -- 24 of 29 -- 2 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; d) who you may not have contact with; and e) 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. 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] offences 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. -- 25 of 29 -- 3 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. 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 down 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. 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. -- 26 of 29 -- 4 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 drink alcohol without the prior written approval of a corrective services officer. 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. Rules about medicine 28. 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. 29. 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 30. You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor. 31. You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program. -- 27 of 29 -- 5 32. 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 33. 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). 34. Each week, you must also tell a corrective services officer the name of any person you associate with. “Associate with” includes: spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly. Contact with children 35. 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. 36. 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. 37. 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. 38. 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). 39. 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 large shopping centre; e) join any club or organisation in which children are involved; or f) participate in any club or organisation in which children are involved. -- 28 of 29 -- 6 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 40. You must not collect photos/videos/magazines which have images of children in them. 41. If you have any you will be asked to get rid of them by a corrective services officer. 42. You are not to get child exploitation material or images of children on a computer or phone from the internet. 43. You cannot get pornographic images on a computer or phone from the internet or magazines without written approval from a corrective services officer. Your treating psychologist will provide advice regarding this approval. 44. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence. You must talk about this with a corrective services officer when asked. 45. You must advise your case manager of any personal relationships you have started. -- 29 of 29 --