Attorney-General v Tiers (No 2) [2018] QSC 229 [2018] 42 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Tiers (No 2) [2018] QSC 229 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALGANA TIERS (respondent) FILE NO: BS No 7580 of 2010 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 3 October 2018, ex tempore DELIVERED AT: Brisbane HEARING DATE: 10 April, 29 May, 8 June, 31 July, 3 October 2018 JUDGE: Bowskill J ORDERS: 1. The supervision order made on 21 June 2017 be rescinded. 2. The respondent be detained in custody for an indefinite term for control, care or treatment. COUNSEL: J Rolls for the Applicant A Loode for the Respondent SOLICITORS: Crown Law for the Applicant Legal Aid Queensland for the Respondent [1] In November 2017 the Attorney-General applied for an order under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), rescinding the supervision order which had been in place in relation to Mr Tiers and seeking the making of a continuing detention order. [2] In reasons that were published on 4 June 2018 in the context of this application,1 the material relied upon, up until that time at least, was addressed in some detail. The reason for that was that the application had come on for hearing on two separate occasions, on 10 April 2018 and 29 May 2018, and on both occasions had been adjourned. I considered it appropriate in light of that further adjournment to publish detailed reasons explaining 1 Attorney-General v Tiers [2018] QSC 130. -- 1 of 5 -- 2 why that was so. Those reasons mean that it is not necessary to revisit all of those matters. They remain apt. [3] After those reasons were published, the matter came on again for hearing on 8 June 2018. On that occasion, there was before the court affidavit material outlining the significant efforts which had been made by the solicitor for Mr Tiers to try to find supported accommodation for him; sadly without success. [4] The circumstances of Mr Tiers’ case are such that he remains subject of the Dangerous Prisoners (Sexual Offenders) Act as a consequence of the very serious offence committed when he was aged 15. He is now a man approaching 32 years of age. He is still very young but faces considerable challenges, both as a consequence of his childhood, the circumstances of which are outlined in the psychiatrists’ reports before the court, and also the report of Dr Michelle Andrews, but then, in addition, as a consequence of the very long periods of time that he has spent in custody since the age of 15. The material supports the conclusion that Mr Tiers remains somebody who poses a relevant risk under the Dangerous Prisoners (Sexual Offenders) Act and that he is somebody who requires a combination of support within the community, together with the supervision that would be brought to bear by Corrective Services under this legislation, together with appropriate treatment; and it has been the absence of that type of supported accommodation in the community that has seen this application continue to be adjourned. [5] On 8 June 2018 there was a further adjournment of the application sought because attempts to find accommodation had not then been successful. The matter returned to court on 31 July 2018. On that occasion, there was further affidavit material from the respondent’s solicitor, again outlining the significant efforts which had been made to find supported accommodation for Mr Tiers. On this occasion, the material was slightly more hopeful, in particular in relation to the possibility of Mr Tiers participating in an Indigenous Mental Health Intervention Program which would then link him up with another organisation which is designed to assist and support, in particular, Indigenous prisoners, both for a period of time prior to their release and then for six months after their release. [6] The court was informed on that occasion that Mr Tiers had been referred to the Indigenous Mental Health Intervention Program as at late July 2018. However, more recent material indicates that there is a significant waiting list for people referred to that program to be considered and assessed, and then a further period to wait before engagement with the actual support group. [7] The matter was adjourned again on 31 July 2018 to see whether something could come of the referral to that program, and has come before the court again today, 3 October 2018. [8] Unfortunately, the material now filed before the court demonstrates that, it seems as a result of a lack of resources and a lack of funding, there is in fact just so much pressure on these scarce resources to support people who are in the position of Mr Tiers that he -- 2 of 5 -- 3 has not been able to be progressed through that first part of the process of the Indigenous Mental Health Intervention Program, and therefore has not been able to be even considered in terms of the second part of the process. [9] I will record that the attempts of all involved in this case, the legal representatives for Mr Tiers, the legal representatives for the Attorney-General, and the court, has been to try to provide sufficient time for investigations to be undertaken so that something appropriate to support Mr Tiers to be released into the community on a supervision order could be put in place. As it turns out, the matter has been adjourned on a number of occasions and that has not been able to come to fruition. It is most unfortunate; and it is a matter that as a community and as a society is something for which a solution needs to be found. But it is not a solution that this court can find on the basis of the current material before it. It is a solution that has to come, I would respectfully suggest, from government in terms of the provision of support and resources for people who find themselves in a situation such as Mr Tiers. [10] All parties have become concerned, as have I, at the ongoing delay; because if the ultimate outcome is, as it will be today, the making of a continuing detention order, that ought to be made as soon as possible so that the next part of the phase of Mr Tiers’ rehabilitation can start. [11] I do not criticise any of the parties for the steps that have been taken to date. They have been taken in the hope of the best attempts to find a different solution in this matter, and unfortunately have not been successful. [12] Today, in the circumstances where the material remains as it was summarised in my reasons published on 4 June 2018, and there is not available a supported accommodation option for Mr Tiers, Mr Tiers by his counsel has indicated that he concedes the making of a continuing detention order. [13] Under s 22 of the Dangerous Prisoners (Sexual Offenders) Act, the onus is on the respondent to satisfy the court on the balance of probabilities that the adequate protection of the community can, despite their contravention of a supervision order, be ensured by that order. If that is not satisfied under the legislation, the court must rescind the supervision order. [14] In the circumstances, taking into account the evidence as it is summarised and addressed in the reasons of the court published on 4 June 2018, the circumstances as they have evolved and the position of Mr Tiers as it has been communicated to the court today, that onus has not been discharged. I cannot be satisfied on the balance of probabilities that the adequate protection of the community can, despite the contravention of the supervision order, be ensured, and therefore, I must rescind the supervision order and make a continuing detention order. [15] There are two further matters that I wish to address in that regard. The first is that I accept that the court does not have power under the legislation to, effectively, backdate -- 3 of 5 -- 4 the making of that order. That is a matter I have raised with the parties in circumstances where this application was made in November last year; Mr Tiers has been in custody since November last year; it came on for hearing in April this year and has been adjourned a number of times since. Nonetheless, I accept that the order will commence from today. [16] The second matter is that the very nature of a continuing detention order is that it is an order that the prisoner be detained in custody for an indefinite term for control, care or treatment. The whole purpose and object of this Act is to facilitate the rehabilitation of prisoners who are regarded, by reference to their circumstances and the evidence, as not having reached an appropriate level of rehabilitation, at the end of their term of imprisonment for the offence they have committed that sees them come under the purview of this Act. But that necessarily means that while they are subject to a continuing detention order, they should be afforded every reasonable and available means of care and treatment to assist them to become rehabilitated, because that is the whole point of the order. I accept that as a result of the Court of Appeal’s decision in Attorney-General v Sambo [2012] QCA 171, as a matter of principle, I do not have the power to specifically direct that care or treatment of a particular kind or duration be provided to Mr Tiers. But it is both the court’s expectation and the court’s recommendation that concentrated and comprehensive efforts be put into the care and treatment of Mr Tiers to give him every possible opportunity, when this order comes on for review, to demonstrate that he has reached the ability to comply with a supervision regime and be released into the community in that context. [17] The last matter that I will address is that under s 27 of the Act, if the court makes a continuing detention order, it must review the order at the intervals provided for under that section. Section 27(1A) provides that the hearing for the first review and all submissions for the hearing must be completed within two years after the day the order first had effect. Section 27 effectively contemplates annual reviews of a continuing detention order. Plainly, that is an appropriate requirement under a legislative regime such as this where a person remains detained in custody in the somewhat extraordinary circumstances where it is on the basis of protection of the community from apprehended risk rather than as punishment for commission of an offence. [18] I again accept that it is not a matter for the court to make a direction for the Attorney- General to make an application under that provision at a specific time, and I also accept the practicalities that the circumstances of Mr Tiers’ treatment whilst in custody will to some degree dictate when that review is appropriate; but I would again urge and recommend that an application for review be made as soon as reasonably possible, within less than one year if that is reasonably possible, given the time that Mr Tiers has already been in custody since November last year. [19] In addition to the question of his care and treatment while in custody, I would also urge and recommend that the inquiries and engagement in relation to the Indigenous Mental Health Intervention Program continue, because although there is a significant waiting list in relation to that program and the related transitional care program, the material before -- 4 of 5 -- 5 the court strongly suggests that could have very positive outcomes for somebody in Mr Tiers’ position, and I would hope that those efforts continue. [20] Ultimately, being satisfied that, for the reasons outlined in the decision published on 4 June 2018, Mr Tiers has contravened the supervision order made by Boddice J on 21 June 2017, and further, not being satisfied that adequate protection of the community can, despite that contravention, be ensured, I make an order under s 22(2)(a) that the supervision order made on 21 June 2017 be rescinded and that the respondent be detained in custody for an indefinite term for control, care or treatment. -- 5 of 5 --