Attorney-General v Cooney [2017] QSC 291

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Cooney [2017] QSC 291 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v PETER RAYMOND COONEY (respondent) FILE NO: BS 6776 of 2017 DIVISION: Trial PROCEEDING: Application DELIVERED ON: 27 November 2017 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: JUDGE: 27 November 2017 Atkinson J ORDERS: Order as per the annexure to these reasons 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 term of imprisonment for sexual offences – where the applicant seeks an order pursuant to s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent be released from custody subject to a supervision order – where evidence was given by three psychiatrists – where two of the psychiatrists considered that the respondent should be released subject to a supervision order and one psychiatrist considered that the respondent should be detained in custody – whether the respondent should be detained in custody or released subject to a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5) COUNSEL: J Tate for the applicant K McGree for the respondent SOLICITORS: Crown Law for the applicant Anderson Fredericks Turner for the respondent -- 1 of 9 -- 2 [1] This is an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) with regard to Peter Raymond Cooney, who is currently in custody. There is no dispute that Mr Cooney falls within the provisions of the Act. And, indeed, there is no dispute that he satisfies section 13(3) and (4) of the Act; that is, that the evidence justifies a finding that he would be a serious danger to the community in the absence of an order made under that Act. [2] The real question to be determined in this case is under subsection 13(5) of the Act, that is, whether the court should make a continuing detention order under subparagraph (1) or a supervision order under subparagraph (b). The cases show, and it is consistent with common law presumptions in favour of the liberty of the individual, that if a supervision order is adequate to manage the risk, then a supervision order ought to be preferred to a continuing detention order. However, of course, all of that must take into account the safety of the community, which is a paramount concern of the Act. [3] Both the applicant Attorney-General and the respondent have submitted that a supervision order is adequate to manage the risk posed to the community. [4] I have had the advantage of a great deal of evidence, including written reports from three psychiatrists, Dr Timmins, Dr Arthur and Dr Harden, each of which has given oral evidence before me which has been useful in determining what decision should be made in this case. I have determined that a supervision order should be made, and I will briefly give my reasons for doing so. [5] The respondent was born in April 1978 and is now 39 years old. He is currently serving a term of imprisonment; the full-time release date of which is 1 December 2017. The circumstances of his current imprisonment are that he pleaded guilty in the District Court at Gladstone on 2 March 2015 on three counts of indecent treatment of a child under 16, one count of indecent treatment of a child under 16 who was under 12, one count of unlawful stalking with violence, and one count of bomb hoax. He is currently serving a term of two years and nine months’ imprisonment for those offences. [6] On 2 December 2015 he committed the offence of the use of a carriage service for a hoax threat. This offending occurred whilst the respondent was in prison. He was then sentenced on 27 February 2017 to nine months’ imprisonment on that charge, with release after nine months on his recognisance to be of good behaviour for a period of 12 months. That sentence has a slightly different aspect because it was a Commonwealth sentence. The hoax threat occurred within the operational period of a suspended term of imprisonment. The breach was remitted back to the Magistrates Court, and on 13 April 2017, a Magistrate invoked the suspended sentence in full, ordering the term to be served concurrently. He was given a parole eligibility date only a few days short of his full-time release date. [7] The respondent’s criminal history relevantly commenced in 2003 when he was dealt with for unlawful stalking involving a child. However, it was not until 2011 that he, again, committed any relevant offences. There appears to have been occasions of offences of unlawful stalking and breaches of various orders, including restraining orders. And then on 2 March 2015, he was dealt with, as I have said, for the current offences. -- 2 of 9 -- 3 [8] The offences are serious sexual offences because they involve children, but cannot be said to be at the most serious end of serious sexual offending. The respondent has a number of deficits which are relevant to his behaviour. He suffers from an intellectual disability, various personality disorders, and paedophilic tendencies. He also has suffered from time to time from polysubstance abuse. [9] His behaviour in prison has been appropriate, but he has been occasionally mistreated by other prisoners. Within prison he has done programs to endeavour to assist him to be able to be released with safety into the community. He has completed the Getting Started preparatory program, and, importantly, a program referred to as ISOP, which is an Inclusion Sexual Offending Program particularly for prisoners who suffer from a low intellectual function. [10] Dr Timmins was of the view that he would benefit from doing that course again whilst undertaking treatment from Androcur, which he has now, he says, started taking again. However, there is no recommendation by those who run that program for its repetition. Rather, the recommendation is that he complete a Staying on Track sexual offenders maintenance program. [11] It is also clear from the psychiatric reports, particularly the oral evidence, that he would benefit not only from a maintenance program but from individual psychotherapy. Dr Timmins was of the view that that should happen in prison, but I am satisfied, from the evidence given by Dr Arthur and Dr Harden, that any individual psychotherapy, which he clearly needs, would be best delivered in the community. The advantage, of course, of that treatment being conducted in the community is it can be tested then against his behaviour in the community under strict supervision. [12] The respondent needs careful and strict supervision. It is apparent that he will first be accommodated in the Wacol precinct, where treatment can be arranged for him. This will give him the support that he needs when he is first released from prison to try to ensure, as best as is possible, that he does not feel the need to reoffend. In all of the circumstances, it is my view that the risk can be adequately managed in the community, and so that is the order that should be made. [13] So far as the terms of the order are concerned, I am satisfied that, given his criminogenic needs, that should be for a period of 10 years from the date of his release. I am prepared to make clause 15 in the terms “not to knowingly have any direct or indirect contact with the victim of his sexual offences”. So far as the next term is concerned, there shall be a clause 16 that he “not engage in acts that are intended to intimidate any other person”. I am satisfied that that is necessary because of his history of stalking and his lack of understanding of the kinds of behaviour that will lead him to engage in that criminal behaviour, and, therefore, that is something that the supervising Corrective Services officers need to be aware of and to be able to step in to deal with earlier rather than later once the offence has been committed. [14] Paragraph 29, which will be renumbered, has been changed slightly, and I am content with that change. I am prepared to impose a condition that he not possess any child exploitation material, rather than the proposal that he not possess any material that contains images of children. I am not of the view that such a condition that he not have any material that contains images of children is unnecessary, but that it will be useful -- 3 of 9 -- 4 protection that he explicitly be required not to possess any child exploitation material. I will need a new order so that I can initial that order and make it the order of the Court. [15] Mr Cooney, please stand. I am prepared to let you out of prison on a supervision order once your sentence is finished, but you will have to be very careful. You will have to make sure that you comply very carefully with all the restrictions put upon you. They are for the benefit of the community, but they are also for your benefit, because if you comply with them, you can keep out of trouble and stay out of prison. Do you understand? [16] DEFENDANT: Yes, your Honour. -- 4 of 9 -- 5 ANNEXURE SUPERVISION ORDER Before: Atkinson J Date: 27 November 2017 Initiating document: Originating application filed 5 July 2017(CFI-1) THE COURT, being satisfied to the requisite standard that the respondent, Peter Raymond Cooney, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003, ORDERS THAT: 1. The respondent be subject to the following requirements for a period of 10 years from the date of his release. The respondent must: Statutory requirements 1. be under the supervision of a Corrective Services officer for the duration of the order; 2. report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of his release from custody and at that time advise the officer of his current name and address; 3. report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services; 4. notify a Corrective Services officer of every change of his name, place or residence or employment at least two (2) business days before the change happens; 5. comply with a curfew direction or monitoring direction; 6. comply with any reasonable direction under section 16B of the Act given to him; 7. comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order; 8. not leave or stay out of Queensland without the permission of a Corrective Services officer; 9. not commit an offence of a sexual nature during the period of the order; Employment 10. seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; -- 5 of 9 -- 6 11. notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two (2) days prior to commencement or any change; Residence 12. reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence; 13. if this accommodation is of a temporary or contingency nature, comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services; 14. not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer; General terms 15. not knowingly have any direct or indirect contact with a victim of his sexual offences; 16. not engage in acts that are intended to intimidate any other person; Disclosure of plans and associates 17. respond truthfully to enquiries by a Corrective Services officer about his activities, whereabouts and movements generally; 18. disclose to a Corrective Services officer the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour; 19. submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed; 20. if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred; -- 6 of 9 -- 7 21. notify the supervising Corrective Services officer of all personal relationships entered into by him. Motor vehicles 22. notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use; Alcohol and other substances 23. abstain from the consumption of alcohol and illicit drugs for the duration of this order; 24. submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer; 25. disclose to a Corrective Services officer all prescription and over the counter medication that he obtains; 26. not visit premises licensed to supply or serve alcohol, without the prior written permission of a Corrective Services officer; Treatment 27. attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist; 28. permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order; 29. attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate; Child requirements 30. not establish or maintain any supervised or unsupervised contact with a child under 16 years of age, including undertaking any care of such a child, except with prior written approval of a -- 7 of 9 -- 8 Corrective Services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children; 31. to advise a Corrective Services officer of any repeated contact with a parent of a child under the age of 16. The respondent shall, if directed by a Corrective Services officer make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by an authorised corrective services officer who may contact such persons to verify that full disclosure has occurred; 32. not possess any child exploitation material; Attendance at places 33. not without reasonable excuse be within 100 meters of schools or child care centres without the prior written approval of a Corrective Services officer; 34. not to visit or attend on the premises of any establishment where there is a dedicated children’s play area or child minding area without the prior written approval of a Corrective Services officer; 35. not visit public parks without the prior written approval of a Corrective Services officer; 36. obtain prior approval from a Corrective Services officer before attending on the premises of any shopping centre, including the times in which he wishes to attend; 37. not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation without the prior written approval of a Corrective Services officer; Access to information technology 38. obtain the prior written approval of a Corrective Services officer before accessing a computer or the internet; 39. supply to a Corrective Services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device and allow any device where the internet is accessible to be randomly examined using a data exploitation tool to extract digital information or any other recognised forensic examination process; -- 8 of 9 -- 9 40. supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords; Phones and other devices 41. obtain the prior written approval of a Corrective Services officer before possessing any equipment that enables photographs to be taken or to record moving images. 42. allow any other device including a telephone to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer; 43. to advise a Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use and includes reporting any changes to mobile phone details; 44. except with prior written approval from a Corrective Services officer, not own, possess or regularly utilise more than one mobile phone. -- 9 of 9 --