Attorney-General for the State of Queensland v Miskin [2019] QSC 330

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Miskin [2019] QSC 330 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALLAN PETER FRANK MISKIN (respondent) FILE NO/S: BS No 8027 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: Delivered ex tempore on 2 December 2019 Reasons published on 9 November 2020 DELIVERED AT: Brisbane HEARING DATE: 2 December 2019 JUDGE: Bradley J ORDER: The Court, being satisfied to the requisite standard that the respondent, Allan Peter Frank Miskin, is a serious danger to the community in the absence of a Division 3 Order, Orders that: 1. Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent, Allan Peter Frank Miskin, be detained in custody for an indefinite term for control, care or treatment. 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 is serving a sentence of imprisonment for a serious sexual offence involving violence – where the evidence is that the respondent must be treated for substance abuse and sexual offending – where the evidence is that the respondent poses a moderate to high risk of committing a serious sexual offence if he is released without undergoing such treatment – whether, to ensure the safety of the community, the respondent should be detained in custody for an indefinite term for control, care or treatment Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 -- 1 of 7 -- 2 COUNSEL: J Tate for the applicant C Smith for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] This is a decision on an application for an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The applicant is the Attorney-General. She bears the onus of proving that the respondent prisoner is a serious danger to the community in the absence of an order under division 3. [2] The respondent is 27 years of age. He has a history of serious sexual offending, including sexual assaults and an assault to commit rape. He pleaded guilty to the latter offence. He was sentenced on 29 November 2016 to four years imprisonment. A period of 346 days spent in custody before sentence was declared as time already served in respect of the conviction. Although a parole eligibility date of 18 December 2017 was fixed, the respondent has not been released on parole. His full-time release date for that conviction is 18 December 2019. [3] Having reviewed his Queensland criminal history, the verdict and judgment records and the sentencing remarks of Durward SC DCJ, I am satisfied that the respondent is a prisoner currently serving a period of imprisonment for a serious sexual offence involving violence. [4] The evidence before the court is that of three psychiatrists: Dr Sundin, Dr Arthur and Dr Moyle. Each of them is of the opinion that the respondent is a serious danger to the community and that he must undertake relevant sex offender and substance abuse treatment in custody before a release to the community under a supervision order could be considered. The identified unmodified risk of future serious sexual recidivism is assessed by these three as moderate, rising to high if the respondent were to resume the use of intoxicating substances. In the opinion of each of the doctors, there is not sufficient information to formulate a satisfactory release program that would ensure the adequate protection of the community in respect of that identified risk. The three psychiatrists’ reports also contain relevant information indicating there is a propensity on the part of the respondent to commit serious sexual offences in the future. The reports and evidence exhibited to an affidavit of Mr Hall and an affidavit of Ms Thies deal with the efforts by the respondent to address the cause or causes of his offending behaviour, including his participation in rehabilitation programs. [5] I have also had regard to the sentencing remarks of Durward SC DCJ, in which his Honour addressed the circumstances of the offending. [6] I am satisfied to a high degree of probability that this evidence, which I regard as acceptable cogent evidence, is of sufficient weight to justify a decision that there is an unacceptable risk the respondent will commit a serious sexual offence if he is released from custody or so released without a supervision order. [7] The nature of the application or, more correctly, the nature of the issues in the application has altered somewhat in the course of its progress. -- 2 of 7 -- 3 [8] When the application was originally made, the position was that the respondent, although he had been offered a number of opportunities to undertake rehabilitation programs while in custody, had refused or declined each of the offers. The psychiatrists who provided their opinions for the court were originally of the view that the respondent’s refusal to take part in such programs was an important indicator of the risk posed by the respondent of re-offending and was also relevant to the nature of the order the court should make in respect to the protection of the community. [9] During the course of the proceeding, however, the respondent has agreed to undertake an initial program while in custody and is in the course of completing that program even now as the application draws to its conclusion. Dr Sundin described this development as pleasing and as an indication of progress on the part of the respondent. She agreed that it showed acceptance of responsibility on the part of the respondent to be growing. Dr Moyle also described it as a positive development. The program the respondent is presently undertaking is the first of two proposed programs, the second of which would start in the New Year. Psychiatric evidence [10] Each of the psychiatrists gave oral evidence at today’s hearing and each was cross- examined by Ms Smith who appeared for the respondent. Each of them expressed the opinion that the respondent’s completion of these two programs and the assessments and recommendations likely to emerge in exit reports from those programs would inform a decision as to the appropriate course that the respondent should pursue in terms of further rehabilitation or treatment. [11] I should say something about the assessments of the three psychiatrists in order for this aspect of the case to be understood. [12] Dr Sundin reported that, in her opinion, the respondent needed to participate in the present course, known as Pathways Substance Use, and also the second program, known as Getting Started: Preparatory Program, while in custody, followed by a requirement that he then complete the Medium-Intensity Sexual Offenders Program. The latter program could be undertaken either in custody or in the community. [13] In Dr Sundin’s opinion: “To some extent, the decision regarding suitability for participation in a treatment programme for sexual offenders within prison or in the community will largely be influenced by the exit report from participation in the Pathways programme. I do not consider that he is a person who is suitable for release to parole under ordinary supervision conditions without having previously participated in a treatment programme that addresses at the very least his substance abuse behaviour and the links between this and his pattern of violence towards women. If he participates well in such a programme and shows some evidence of both maturation and acceptance of responsibility, then it is possible that he may satisfactorily complete a Medium Intensity Sexual Offenders Programme within the community.” -- 3 of 7 -- 4 [14] Dr Sundin assessed the respondent on a number of risk assessment tools, which are used within the psychiatric community and the correctional services sector to predict the risk of sexual recidivism. On the Static-99R measure, the respondent scored 7, which placed him in the high-risk category for future sexual recidivism. On the sexual violence risk scale, SVR20, Dr Sundin identified as present the following factors: substance use problems; relationship problems; employment problems; past non-sexual violent offences; physical harm to the victim in the sex offence; denial of sex offences; and negative attitude towards intervention. On that scale, Dr Sundin assessed the respondent as at a moderate risk for future sexual recidivism. [15] Dr Sundin also expressed the view: “Future victims are likely to be adult females, assaulted by Mr Miskin when he is intoxicated and sexually pre-occupied. Offences are likely to be impulsive rather than pre-planned. There is a potential for physical harm to victims if they resist.” [16] Dr Arthur, in his report, noted: “Given that he is still in denial in regard to the first sexual offence and has not fully accepted culpability for the index offence, it is important that he completes a Sexual Offender Treatment Program. Based on his Static-99R score, he may be recommended to a high intensity program such as the HISOP or SOPIM. It is my understanding that both of these programs are only offered in custody. An alternative would be that prisoner Miskin completes the GS:PP whilst in custody and, if appropriate, completes the MISOP, either in custody or in the community.” [17] Dr Arthur diagnosed the respondent as suffering from three conditions: substance misuse disorder; anti-social personality traits; and specific learning disorder related to literacy. On the Static-99R measure, Dr Arthur, like Dr Sundin, scored the respondent at 7, placing him in the high-risk category. On the risk for sexual offence protocol, or RSVP, Dr Arthur identified the following as relevant factors for future risk of sexual recidivism: physical coercion; problems with self-awareness; problems with stress coping; problems with substance abuse; problems with intimate relationships; problems with employment; problems with planning; and problems with treatment. Dr Arthur identified further possible risk factors which he set out in his report. [18] On the question of risk, Dr Arthur identified that the major modifiable risk factor for sexual recidivism was the respondent’s substance use, hence the importance of addressing that aspect. His reported noted: “Should prisoner Miskin reoffend, this would most likely be driven by sexual entitlement in the context of intoxication. Future victims are most likely to be young women (possibly islander or indigenous) who are strangers, although I cannot exclude the possibility that he may engage in similar behaviour within relationships. When sexually aroused and disinhibited by substances, he may sexually pursue women regardless of their response. … Based on the totality of the information, I consider prisoner Miskin’s unmodified risk of sexual recidivism to be moderate, rising to high in the context of a return to substance abuse. -- 4 of 7 -- 5 … It would be desirable for him to complete some form of drug and alcohol related program prior to release to assist in focussing his awareness on substance abuse issues and gauging his motivation to remain abstinent. Further drug and alcohol treatment in the community would be desirable.” [19] The third psychiatrist, Dr Moyle, reported that: “[The respondent] is at moderate risk with moderate needs for engagement, a prosocial network, a direction in life that could be prosocial, a clear management plan, a full understanding of his vulnerabilities psychological and drug and alcohol related to sexual reoffending, management of his drug and alcohol problems and therefore in my opinion needs to complete these programs in jail before an adequate plan for a Supervision order can be provided. However, once he has done these programs and we have a clear view on his needs being met then I would see no difficulty for a Supervision order over ten years given the longevity of his difficulties from mid-teens to late twenties, while he continues to have an active sexual drive.” [20] Dr Moyle’s report also noted: “On this I would rate him still at a moderate risk of sexual reoffending.” [21] This assessment is made on the basis of Dr Moyle’s conclusion that the respondent has not addressed his vulnerability to the commission of the rape-like offences and substance abuse, save for the extent that he says that he will not drink. Dr Moyle assessed the severity of injury likely to occur if the respondent were to rape another person as being moderately severe. Dr Moyle also noted: “It is positive to see him in jail saying he doesn’t want to return to such behaviours nor returning to live an unhealthy life. The desire to use substances is often powerful, in people who do not like themselves and want to feel powerful and excited. The risk of returning to use of stimulants such as methamphetamine and alcohol is high.” Consideration [22] As McMurdo J observed in Attorney-General v Sutherland,1 in deciding whether to make a supervision order or a continuing detention order, what must be proved by the Attorney-General is that the community cannot be adequately protected by a supervision order. The concept of adequate protection is akin to that of unacceptable risk, in that one involves an understanding that some level of protection is adequate and, the other, an understanding that some level of risk is acceptable. The assessment of adequate protection, like the assessment of acceptable risk, is a matter for judicial determination requiring the exercise of judgment as to what protection is adequate. This decision is, of course, weighed against the very serious matter of depriving a person of their liberty. 1 [2006] QSC 268 at [29]. -- 5 of 7 -- 6 [23] These matters are not the subject for determination by psychiatric or other expert opinion. They are matters for the court. In making this assessment, the paramount consideration for the court is the need to ensure adequate protection to the community. This is consistent with the first of the two objectives of the Act, namely, to ensure such adequate protection for the community. [24] In assessing the level of protection, like the level of risk, I have taken into account not only the risk of the respondent re-offending, but also, and very importantly, the severity of the offending conduct and its consequences for the community if the risk is realised. Taking into account the evidence of Dr Sundin, Dr Arthur and Dr Moyle and the material in the affidavits of Mr Hall and Ms Thies, all of which I accept as cogent and of weight in relation to my decision, I am satisfied that in order to ensure the adequate protection of the community, a continuing detention order should be made. [25] The other object of the Act, that is, to provide for continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation is also served by the order proposed. Some forms of treatment, in particular, those of high intensity, are presently only available to persons in custody. Until the respondent has completed his present course and the forthcoming Getting Started course and the exit reports from those courses are received and understood, it cannot be known with certainty whether, for the treatment and benefit of the respondent, as well as for the protection of the community, the respondent ought to undergo a high-intensity or a medium- intensity sexual offender rehabilitation course. [26] If it is the case that the recommendation is that the respondent undertake a high intensity course, it will be necessary, not only for the protection of the community, but also for the care and treatment of the respondent, that he remain in custody so that he has the opportunity of undertaking that program. On the other hand, if the recommendation is that the respondent would benefit from a medium-intensity course for the rehabilitation of sexual offenders, it is possible that that course could be undertaken by the respondent while released from custody under a supervision order. Disposition [27] The timing of this application means that a decision must be made in the absence of any final professional advice about those options or recommendations. I am content to make a continuing detention order for the reasons set out above, but also because, until such an assessment is made, it appears that the continued detention of the respondent is appropriate for the protection of the community. [28] Once an assessment is made, it may be possible for a supervision order to be made under which the respondent could take part in the appropriate medium-intensity sexual offender rehabilitation programs. In the circumstances, as is appropriate, Mr Tate, who appeared for the Attorney, has informed the court that the exit report for the respondent’s present program will likely be available early in the New Year and that the exit report from the next anticipated program will likely be available in June of next year. [29] The Act requires that the first review in respect of a respondent who is the subject of a continuing detention order must be made within two years of the date of the order. In this case, it would certainly be appropriate for that application to be made once the -- 6 of 7 -- 7 results of the exit reports are known and for the application then to be managed within the court system so that relevant reports from psychiatric experts could be provided as to the continued regime that might apply to the respondent in order to ensure the protection of the community and in order to deal with his needs for care or treatment. [30] As Mr Tate informed the court, depending upon a number of other matters, including the completion of the courses and the provision of exit reports, it is possible that the first review application could be filed in June or July 2020. Subject to anything else occurring which might affect that course, that would be a very appropriate manner in which the Attorney could proceed to bring the matter back before the court for review and, if necessary, different or further orders. -- 7 of 7 --