Attorney-General v Respondent [2017] QSC 288

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v Respondent [2017] QSC 288 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v THE RESPONDENT (respondent) FILE NO: BS No 2478 of 2007 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 2 November 2017 DELIVERED AT: Brisbane HEARING DATE: 2 November 2017 JUDGE: Burns J ORDERS: The court, being satisfied to the requisite standard that the respondent has contravened a requirement of the supervision order made on 6 August 2007 and amended on 25 November 2015, orders, pursuant to s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that: 1. The supervision order made on 6 August 2007 and amended on 25 November 2015 be rescinded. 2. The respondent be detained in custody for an indefinite term for control, care and 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 a supervision order was made with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where it was alleged that the respondent contravened a requirement of the supervision order – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the applicant sought orders with respect to the respondent under s 22 of the Act – where the contravention was admitted by the respondent -- 1 of 6 -- 2 – whether the adequate protection of the community could, despite the contravention, be ensured by the existing supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(5)(b), s 20, s 22, s 22(2)(a), s 22(7), s 24, s 43AA Attorney-General for the State of Queensland v Guy [2017] QSC 105, cited Attorney-General for the State of Queensland v LSS [2007] QSC 202, cited Attorney-General for the State of Queensland v Marama [2015] QSC 83, cited Attorney-General for the State of Queensland v Pearce (No 2) [2005] QSC 314, cited Attorney-General for the State of Queensland v Winston [2015] QSC 297, cited COUNSEL: J Rolls for the applicant S Robb for the respondent SOLICITORS: G R Cooper Crown Solicitor for the applicant Legal Aid Queensland for the respondent HIS HONOUR: The respondent is 80 years of age, having been born in 1936. A little over 10 years ago, Philippides J ordered, pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), that he be subject to a supervision order under the Act until 23 August 2017: Attorney-General for the State of Queensland v LSS [2007] QSC 202. At the time that order was made, the respondent was serving a term of imprisonment for various sexual offences against children. He was due to be released from custody on 24 August 2007 and her Honour’s order was made on the sixth day of that month. The circumstances of his offending are set out in her Honour’s judgment at [5] to [13]. They are most serious. The respondent managed under the supervision order fairly well, it seems, for quite a number of years. However, in November 2015, he was dealt with by McMeekin J for contravention of two provisions of the order. Those contraventions related to his failure to comply with a direction given by a Corrective Services officer and to his being at a shopping centre without reasonable excuse. His Honour found the contraventions to be proved, but was satisfied that the adequate protection of the community could be ensured by his release on a supervision order, albeit with some amendments. The respondent was therefore released back into supervision on that day, with the addition of three conditions to the order originally made by Philippides J. Relevant to today’s proceeding was the addition of a condition requiring the respondent to comply with a curfew direction. -- 2 of 6 -- 3 Two days later, the respondent was issued with a direction pursuant to that new condition that he remain at his place of residence unless granted permission by Corrective Services. About two weeks later, that is, on 11 December 2015, the respondent was granted approval to leave his residence between 9.00 am and 1.00 pm to attend at QML Pathology. As it happens, the respondent attended at QML Pathology early, arriving there at 7.32 am. That was outside the terms on which he had been granted leave, and that constitutes the first contravention relied on by the Attorney-General in this proceeding. Five days later, the respondent was granted permission to leave his residence between 3.30 pm and 5.30 pm to attend an appointment in the city. Again, he was early for that appointment, arriving at 3.05 pm, and that was outside the terms on which permission to leave had been granted. That is relied on by the Attorney-General to found the second contravention for the purposes of this proceeding. Lastly, on 22 December 2015, those monitoring the movements of the respondent received an alert indicating that he had left his home. He did not have permission to leave his residence at that time. Monitoring of his GPS device indicated that it was transmitting movement data and, in particular, that he was travelling from his residence in Rockhampton to Gracemere. The tracking data then indicated that the respondent had turned around and was travelling back towards his residence. After he arrived, he was seen by a Corrective Services officer and spoken to. He told the officer that he had left his residence to drop a friend home. That conduct is relied on by the Attorney-General to found the third contravention for the purpose of this proceeding. Two days after the respondent had driven to Gracemere and back, he was brought before this court pursuant to a warrant issued under s 20 of the Act, and he has been detained in custody ever since. The Attorney-General submits that his conduct on 11, 16 and 22 December constitutes contraventions of the curfew condition added by McMeekin J. The respondent, through his counsel, accepts that the third instance, that is, travelling to and from Gracemere on 22 December, constitutes a contravention of the curfew condition, and I find as a fact that is so. I also find, on the material before me, that the respondent contravened the same condition by the conduct I have recounted that occurred on 11 and 16 December 2015. I therefore formally find the respondent contravened a requirement of the supervision order made on 6 August 2007 and amended on 25 November 2015. Given that finding, unless the -- 3 of 6 -- 4 respondent satisfies the court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the existing order as amended, the court must rescind the order and make a continuing detention order. I interpolate that, following the contraventions I have found occurred, the respondent was charged with offences against s 43AA of the Act. Those charges were, until some time ago, pending in the Magistrates Court at Rockhampton, but were then referred to the Mental Health Court. An application for bail has not yet been made. The relevant consequence to this proceeding is that the respondent has been held in custody with respect to an offence other than an offence of a sexual nature for most, if not all, of the period since 22 December 2015. By s 24 of the Act, the supervision order made by Philippides J and amended by McMeekin J was therefore suspended during the period the respondent has been held in custody on remand. That means that, although the order, when made, was specified to expire on 23 August 2017, it will now expire at some time in 2019. There is, accordingly, an “existing order”, within the meaning of s 22(2)(a) of the Act: see Attorney-General for the State of Queensland v Marama [2015] QSC 83. That is the order I must rescind, unless the respondent satisfies me, on the balance of probabilities, that the adequate protection of the community can, despite the contraventions, be ensured by the existing order as amended. Expert psychiatric evidence is before the court. In particular, Drs Byrne, Sundin and Moyle have reported with respect to the respondent. Each has expressed the opinion that the respondent is now an elderly man afflicted by advancing dementia and various cognitive impairments. On the balance of the medical opinion before me, his overall condition is likely to progressively worsen over time. Each of the psychiatrists expresses the opinion that the adequate protection of the community can be reasonably and practically managed by a supervision order provided appropriate accommodation is made available to him. There is much discussion in the material as to what is meant by “appropriate accommodation”, but it is clear that accommodation in any of the Precincts or in the wider community in accordance with the conditions of his supervision order, as amended, will not be sufficient to ensure the adequate protection of the community. What is needed is nursing home accommodation, and at least one of the psychiatrists has expressed the opinion that secure nursing home accommodation is required. Unless the respondent is -- 4 of 6 -- 5 accommodated in that type of environment, his risk of reoffending against children will be, at least, moderate and, perhaps, high. It is now one year and ten months since the contraventions occurred. In the intervening period, a great deal of effort has been put into finding the respondent suitable accommodation. Recently, as many as nine separate inquiries of nursing homes have been made by those within Corrective Services responsible for overseeing the supervision and surveillance of offenders released on orders under the Act. The respondent is currently wait-listed for a place at a number of these homes but, to this point in time, he has not been accepted. The Attorney-General submits that there is no utility in further delaying the determination of this proceeding. Ms Robb, of counsel, who appears for the respondent, makes the same submission. The fact of the matter is that if secure nursing home accommodation was available to the respondent, then he could be released to that accommodation today, but no such accommodation is available. In these circumstances, the expert psychiatric opinion simply does not support his release on supervision. To the contrary, that opinion is very much against that course because of the risk the respondent represents to the community. As the respondent’s counsel has very candidly submitted, in the absence of appropriate supported accommodation, the respondent’s existing supervision order must, by force of the Act, be rescinded and a continuing detention order made in its stead. This is not the first time that the court has made a continuing detention order in the case of a prisoner who would otherwise have been released on supervision if appropriate accommodation was available. As long ago as 2005, Atkinson J was faced with the same dilemma in Attorney- General for the State of Queensland v Pearce (No 2) [2005] QSC 314. The offender in that case was also elderly. He was a diagnosed paedophile, and the type of accommodation identified as being appropriate to ensure the safety of the community was also a secure nursing home facility. No such accommodation was then available and because of that, her Honour ordered that he be detained in custody for an indefinite term for care and treatment. More recently, in Attorney-General for the State of Queensland v Winston [2015] QSC 297 and Attorney-General for the State of Queensland v Guy [2017] QSC 105, the court in each instance made continuing detention orders when suitable supported accommodation could not be found. In the second of those two cases, Guy, the Chief Justice made these remarks at [7]: -- 5 of 6 -- 6 It seems to me that a time will come when there are enough offenders in the respondent’s category of age and debility falling within the compass of the Dangerous Prisoners (Sexual Offenders) Act to require the setting up of supported accommodation for them. It is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option. I share her Honour’s concerns. I am however comforted by the assurances given to me by counsel who appears for the Attorney-General based on instructions provided to him that the search for appropriate accommodation for the respondent will be ongoing in the sense that, if appropriate accommodation becomes available for him, then he and his legal representatives will be notified. In that event, either the Attorney-General or the respondent’s legal representatives are at liberty to bring the matter back to the court for review, at which time a supervision order can be made. It should not, therefore, be thought that the making of a continuing detention order in this case or indeed in any of the other cases where such orders have been made due to the unavailability of appropriate accommodation, means that the respondent will be forced to wait until the statutorily required reviews take place before release on supervision can be reconsidered. Being, therefore, satisfied to the requisite standard that the respondent has contravened a requirement of the supervision order made on 6 August 2007 and amended on 25 November 2015, I order, pursuant to s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that the supervision order made on 6 August 2007 and amended on 25 November 2015 be rescinded and that the respondent be detained in custody for an indefinite term for control, care and treatment. -- 6 of 6 --