Attorney-General v Kennedy [2017] QSC 178

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v Kennedy [2017] QSC 178 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DAMIEN PAUL KENNEDY (respondent) FILE NO/S: BS No 9531 of 2016 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 21 August 2017 DELIVERED AT: Brisbane HEARING DATE: 21 August 2017 JUDGE: Burns J ORDER: The court, being satisfied to the requisite standard that the respondent, Damien Paul Kennedy, has contravened requirement 21 of the supervision order made on 5 December 2016, orders that: 1. The respondent, Damien Paul Kennedy, be released from custody and continue to be subject to the supervision order made on 5 December 2016; 2. The affidavit of the respondent, Damien Paul Kennedy, be placed in an envelope, sealed and not opened without an order of a Judge of this court. 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 had 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 -- 1 of 5 -- 2 Act – where the contravention was admitted by the respondent – whether the adequate protection of the community could, despite the contravention of the order, be ensured by the existing supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22(2) Attorney-General for the State of Queensland v Kennedy [2016] QSC 287, cited COUNSEL: J Rolls for the applicant J McInnes for the respondent SOLICITORS: G R Cooper Crown Solicitor for the applicant Legal Aid Queensland for the respondent HIS HONOUR: On 5 December 2016 I made an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) that the respondent, Damien Paul Kennedy, be released from custody on a supervision order. The order was for a period of five years: see Attorney-General (Qld) v Kennedy [2016] QSC 287. It was clear to me at the time I made that order that one of Mr Kennedy’s major problems was substance abuse. It would require close and careful management and the order was accordingly designed to contain conditions directed to that problem. At paragraph 49 of that judgment, I stated: “Each of the psychiatrists supported release on supervision, and a supervision order will significantly reduce his risk of sexually violent reoffending. In particular, it will provide for a structured regime of supervision and monitoring to ensure that Mr Kennedy abstains from the abuse of illicit substances. This is critically important. It will also serve to monitor his relationships with others to ensure that he is not the subject of adverse influences and, importantly, it will provide for his future treatment. Each of these measures will serve to reduce the risk that Mr Kennedy will in the future commit a serious sexual offence.” To say that the regime of supervision and monitoring would, “ensure that Mr Kennedy abstains from the abuse of illicit substances” perhaps overstates the matter. It was never my expectation that the order would work in such a way as to completely remove the risk of Mr Kennedy abusing substances; rather, the object of the conditions contained in the order was to reduce that risk to an acceptable level. Importantly, that risk, once reduced by the conditions, was accompanied by other conditions designed to detect the abuse of drugs before they operated on Mr Kennedy in such a way as to give rise to sexually violent reoffending. -- 2 of 5 -- 3 That explained, within about three months of the making of the order, Mr Kennedy contravened it. He received a telephone call from someone who is described as an “adverse influence” and this led to him using methylamphetamine. On 22 February 2017, he provided a urine sample for analysis. It was tested and returned a positive result for that drug, that is, methylamphetamine. Follow-up testing confirmed that result. On the basis of these test results, a warrant under the Act was issued on 27 February 2017. Mr Kennedy was arrested and brought before the court the next day and he has been detained in custody ever since – a period of about six months. It is not disputed by Mr Kennedy that he breached the condition in paragraph 21 of his order requiring him to abstain from the use of illicit substances such as methylamphetamine. He has sworn an affidavit today, which was filed by leave, where he admits as much. He has, in any event, previously made admissions to his assessing psychiatrists, Dr McVie and Dr Brown, to the same effect. I therefore find, as a fact, that Mr Kennedy contravened a requirement of his supervision order. As such, unless he satisfies the court, on the balance of probabilities, that adequate protection of the community can, despite that contravention, be ensured, the court must rescind the supervision order and make a continuing detention order: see s 22(2) of the Act. Both of the psychiatrists to whom I have referred support Mr Kennedy’s release on supervision. The effect of the opinions they have offered is that the supervision order has worked as it was designed to work. Mr Kennedy’s use of methylamphetamine was detected and it did not lead to any inappropriate conduct, let alone sexually violent conduct. Both psychiatrists accepted the reality, as I do, that Mr Kennedy presents as a person who is still vulnerable to lapses into drug use. In that sense, this contravention was expected and, as I have said, was quickly detected. Importantly, for present purposes, since the contravention occurred, Mr Kennedy has participated in and successfully completed the Substance Abuse Maintenance Intervention Program at the Wolston Correctional Centre. A copy of the exit report is exhibit SC1 to the affidavit of Ms Clatworthy. Mr Kennedy attended all 12 sessions of the program. He had a quiet start but became more engaged as the program continued. He demonstrated a level of motivation to address his problems and to accept support from relevant family members, including his mother, as well as support from community-based agencies. Based on the contents of that report and Mr Kennedy’s -- 3 of 5 -- 4 affidavit sworn today, it seems to me that he is developing a level of insight into his substance abuse problem and the link between it and sexually violent offending. One of the recommendations to come out of the program was that Mr Kennedy seek assistance from community-based agencies and it is pleasing to see that he has already done that. I refer, of course, to exhibits 1 and 2, being letters from the Inala Alcohol and Drug Services and the treatment services team of Quihn Limited. In addition, he will, on release, continue to receive significant professional help from persons such as Mr Morgan. Mr Kennedy will also have learned that this contravention has resulted in his return to custody for almost six months. In other words, he will have learned that there are serious consequences attaching to any future breach of any condition of his order. He is very much a work in progress and he is still at the early stages of that work. He has, however, demonstrated a willingness to work with others so that, to use his words, he might, “succeed at living in the community”: see paragraph 10 of his affidavit. In this same paragraph, Mr Kennedy deposed that he feels as though he is running out of chances, that he understands that this contravention is more serious than previous breaches of parole orders that he has made and acknowledges that he has, “failed to be frank on occasions.” He understands that he needs to take members of his family, friends and professionals into his confidence to a greater extent than he has in the past. It is planned that on Mr Kennedy’s release, that he will reside with his mother, who is present in court today together with other members of his family. In summary, as I have already said, Mr Kennedy is a work in progress. However, there are encouraging signs that he is now on the right track. I am satisfied on the whole of the evidence that Mr Kennedy has demonstrated, on the balance of probabilities, that the adequate protection of the community can, despite this contravention, be ensured if he is released again on supervision. The orders I make are these: the court, being satisfied to the requisite standard that the respondent, Damien Paul Kennedy, has contravened requirement 21 of the supervision order made by me on 5 December 2016, orders that: (1) the respondent, Damien Paul -- 4 of 5 -- 5 Kennedy, be released from custody and continue to be subject to the supervision order made on 5 December 2016; and (2) the affidavit of the respondent, Damien Paul Kennedy, be placed in an envelope, sealed and not opened without an order of a Judge of this court. Mr Kennedy, just stand up for a moment. You have the support of a lot of good people as well as your family and a number of professionals and you also have the benefit of having completed that program. Everyone knows that this is going to be difficult for you, but you are right about one thing – you are running out of chances. You need to make sure that you do not contravene this order again DEFENDANT: Yep. HIS HONOUR: Do you understand? DEFENDANT: Yep. -- 5 of 5 --