Attorney-General v Cosh [2017] QSC 155

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Cosh [2017] QSC 155 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALLAN JAMES COSH (respondent) FILE NO: BS2684 of 2017 DIVISION: Trial Division PROCEEDING: Application for a division 3 order DELIVERED ON: 24 July 2017 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 24 July 2017 JUDGE: Mullins J ORDER: As per the draft order initialled by Mullins J and placed with the file CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where respondent served sentence of imprisonment for three rapes – where applicant seeks orders pursuant to s 13 of Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where respondent diagnosed with antisocial personality disorder and as satisfying criteria for psychopathic personality and alcohol and drug abuse (in remission) – where respondent had not completed a sexual offender treatment program whilst in prison, but successfully completed a high intensity substance abuse program – whether there is an unacceptable risk to the community that the respondent will commit a serious sexual offence – where supervision order made Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 R v Cosh [2007] QCA 156, related COUNSEL: P Clohessy for the applicant H C Fong for the respondent SOLICITORS: G R Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent -- 1 of 6 -- 2 HER HONOUR: The applicant Attorney-General for the State of Queensland applies for orders pursuant to section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). The primary order sought was a detention order and, in the alternative, a supervision order was sought by the applicant. The respondent, Mr Cosh, is now 50 years old. He has completed serving a sentence of 12 years’ imprisonment that was imposed for each of three rapes and shorter concurrent sentences for related offences of deprivation of liberty and assault occasioning bodily harm. These subject offences were committed on or about 1 May 2005. Mr Cosh was 38 years old at the time of the offending. They represented his first conviction for sexual offences. He did have a prior criminal history that was extensive. The subject offences were committed whilst he was on probation for an assault occasioning bodily harm and common assault. In fact, Mr Cosh’s criminal history dates from his childhood when he committed numerous property offences and went, for some periods, to a youth detention centre. His criminal history from his late teenage years contains many convictions for property offences. He had both custodial and non-custodial sentences. In 1989 and 1992 he was convicted and sentenced to community-based orders for offences of assault occasioning bodily harm. He committed further break and entering and housebreaking offences for which he was convicted in 1995 and 1997. In 1998 he was convicted of wilful damage and assault occasioning bodily harm. In 2000 he was convicted of further break and enter offences. In 2003 he was convicted and sentenced to one month’s imprisonment for breach of a domestic violence order. He was also sentenced for common assault. He was sentenced for another count of common assault in June 2014. On 12 August 2004 he was sentenced to imprisonment of 104 days followed by 18 months’ probation for the assault occasioning bodily harm and common assault. It was that probation order that was breached by the commission of the subject offences. It is not necessary to set out in detail the facts relating to the subject offences as they are set out on pages 5 to 8 of Mr Cosh’s application for leave to appeal against sentence to the Court of Appeal: R v Cosh [2007] QCA 156. It should also be noted from Mr Cosh’s background that his education appears to have not progressed past year 8. He left school at the age of 14 years to commence employment. Despite having such an extensive criminal history which meant that there were frequent periods of imprisonment, he managed to maintain employment in unskilled labouring jobs when he was not in prison. Psychiatrist, Dr Sundin, assessed Mr Cosh for the purpose of a preliminary hearing under the Act. The assessment was done on 15 July 2016 over an interview lasting just over two hours. Dr Sundin noted that Mr Cosh did not see himself as having any particular problems. He externalised blame for his imprisonment, asserting his innocence and believing that he had been unfairly imprisoned for an excessive -- 2 of 6 -- 3 period. Dr Sundin noted that Mr Cosh demonstrated no empathy for the victim of the subject offences and no remorse for those offences. The history that Mr Cosh gave Dr Sundin was of responding to frustration with threats and verbal aggression. Dr Sundin was also informed by Mr Cosh that he would not do programs in prison, as to do programs would require him to admit guilt which he denied. Dr Sundin diagnosed Mr Cosh as meeting the criteria for anti-social personality disorder, also meeting criteria for psychopathy, and substance abuse disorder in respect of alcohol and cannabis, but was in sustained remission whilst in prison. There was no evidence that Mr Cosh suffers from a major mental illness. On the Static-99R, Dr Sundin gave Mr Cosh a score of five which placed him in the moderate to high risk category of sexual recidivism. On the Sexual Violence Risk Scale-20, Dr Sundin considers Mr Cosh’s risk for future recidivism is moderate to high. On the Hare Psychopathy Rating Scale, Dr Sundin gave Mr Cosh a score of 34 out of 40. That is higher than the minimum score required to attract the label of psychopath. Dr Sundin noted that there had been some improvement in Mr Cosh’s institutional behaviour since being in prison since 2005 with the last major incident in 2015 and described the good reports with regard to his engagement to work activities within the correctional centre and that Mr Cosh generally demonstrated reasonable institutional conduct. Dr Sundin was pessimistic about Mr Cosh’s capacity for future compliance with a supervision order, because of what she described as Mr Cosh’s “current self-entitled grandiose attitude”. Overall, Dr Sundin considered that Mr Cosh’s unmodified risk for future sexually violent recidivism is moderate to high, noting the subject offences represented a substantial escalation in his pattern of violence towards women. Future victims are likely to be women known to Mr Cosh and the risk of serious physical harm to them is substantial. Dr Sundin expressed the opinion that Mr Cosh’s risk of reoffending will be exacerbated by any use of intoxicating substances. Dr Sundin considered that Mr Cosh needs to participate in a sexual offender’s treatment program and that he would benefit from participating in the Moderate Intensity Sexual Offenders Program – MISOP – prior to his release into the community. Dr Sundin also recommended that he participate in a substance abuse treatment program so that he can develop a better understanding of the contribution of such disinhibiting substances to his aggression in the past. It appears that alcohol was a significant factor in the commission of the subject offences. Subsequent to Dr Sundin’s assessment, Mr Cosh has undertaken and completed successfully the Pathways High Intensity Substance Abuse Program. That involved 42 sessions between 24 January and 16 June 2017. The exit report has been provided to the court. The program facilitators were two women and they have spoken highly of Mr Cosh’s participation in the program, describing him as: ...polite, cooperative and respectful to other participants and facilitators and was observed to contribute to group discussions as the program progressed. -- 3 of 6 -- 4 He participated in all small group activities with some direction from facilitators where required. It is particularly relevant to this application that Mr Cosh not only participated in the Pathways program, but had no difficulty with the program being facilitated by , obtained some benefit from completion of the program as indicated in the exit report. Psychiatrist, Dr Beech interviewed Mr Cosh on 9 June 2017 for a total of about three hours. Mr Cosh was still denying that he was guilty of the subject offences maintaining the sexual intercourse was consensual and that the injuries occurred when the victim left his home, but before she returned two hours later. Mr Cosh also explained to Dr Beech that he would only do a sex offender’s treatment program within the mainstream prison, because he did not want to go to a protection prison where he would be branded by association with child sex offenders or those otherwise in protection. Dr Beech noted that there was: A significant theme of minimisation and denial around violence and domestic violence and an assertion of absolute innocence in relation to the index offences. Dr Beech also observed that Mr Cosh seemed to be of low average intelligence and had a habit of shifting responsibility to others in a number of areas. Dr Beech noted as concerning that there was evidence on Mr Cosh’s part of hostility towards women and what Dr Beech saw as an attitude that either condones violence or minimises it towards women. On the other hand, Dr Beech noted that there was evidence that with the passage of time within the constraints of custody there had been a settling of Mr Cosh’s demeanour and the general tone of the case file was of improvement, reliable work and even some support towards others. Dr Beech has diagnosed Mr Cosh with an anti-social personality disorder though possibly one that is settling with the passage of time and there may be a co-morbid alcohol abuse-related disorder. There is no evidence of a primary mental disorder. There is no diagnosis of any specific sexual paraphilia. On the application of the instruments used by psychiatrists for assessing offenders in respect of predicting sexual offending Dr Beech gave Mr Cosh a score of four on Static-99R and on the Hare Psychopathy Checklist-Revised gave Mr Cosh a score of 27 out of 40 which still reaches into the realm of psychopathy. On the Risk of Sexual Violence Protocol Dr Beech noted the factors he identified and concluded that the risk of further sexual violent reoffending is in the moderate range. Dr Beech posed three possible scenarios for what could happen on Mr Cosh’s release. One of those scenarios relates to the possibility of sexual reoffending in the context of Mr Cosh entering into a relationship that will become conflicted and he will resort to violence in response to interpersonal difficulties and, possibly facilitated by alcohol, will turn to sexual violence. If he were to offend in this -- 4 of 6 -- 5 scenario any victim is likely to suffer significant physical violence and psychological and emotional distress. When Dr Beech prepared his report it was without the benefit of seeing the exit report from the Pathways program. Prior to seeing that exit report Dr Beech was of the opinion that Mr Cosh should participate in a high intensity sexual offender treatment program before his release from custody because he thought it unlikely that significant change could be effected in the community through any community-based program. When Dr Beech gave oral evidence, however, he modified that opinion in the light of the Pathways program that had been successfully undertaken by Mr Cosh and considered that the MISOP, which is able to be delivered in the community, would be sufficient to address Mr Cosh’s moderate risk of sexual reoffending. Dr Grant interviewed Mr Cosh for four hours on 28 June 2017. Dr Grant noted: The index offence appears to have been an escalation in the severity of his interpersonal offending in that the violence was more extreme and it involved repeated sexual assault. It is unclear precisely why that serious sudden escalation occurred but it was in the context of interpersonal and social instability, a recent break-up of a relationship and recurring alcohol intoxication along with intermittent cannabis abuse. Dr Grant diagnoses Mr Cosh with anti-social personal disorder, satisfying the diagnostic criteria for psychopathic personality, and alcohol and drug abuse currently in remission in custody. On the Static-99R Dr Grant also scored Mr Cosh with a four. On the Hare Psychopathy Checklist Dr Grant scored Mr Cosh 34 out of 40 which means that he would be regarded as suffering from psychopathic personality disorder. On the Risk for Sexual Violence Protocol Dr Grant assessed the risk of sexual violence occurring in the future as moderate, although noted that there would be a high risk of non-sexual violence. Although in his written report Dr Grant expressed the opinion that Mr Cosh should preferably complete a sexual offender treatment program before he left prison, Dr Grant noted that Mr Cosh could conceivably complete a medium intensity program in the community under supervision. Dr Grant explained the benefits of MISOP for Mr Cosh would be to assist him in developing internal controls to avoid further sexual reoffending. A sexual offender treatment program also helps provide information to Corrective Services that assists in the supervision of an offender under the Act. MISOP could not be done until the Getting Started Preparatory Program was completed, but that could also be done in the community. Dr Grant noted that if Mr Cosh was released under a supervision order before he did the Getting Started Preparatory Program, then the opportunity would be lost for Mr Cosh to do the HISOP (High Intensity Sexual Offender Program), which is only delivered within a correctional institution. Dr Grant conceded, however, that irrespective of the participation by Mr Cosh in a sexual offender treatment program, the external controls of a supervision order would be adequate for addressing the moderate risk of sexual reoffending, particularly if Mr Cosh is compliant with a condition in the supervision order of complete abstinence from alcohol. -- 5 of 6 -- Dr Sundin considered that Mr Cosh would also benefit from undertaking a group violence intervention program. Although Dr Sundin appeared to prefer for any future programs to be undertaken by Mr Cosh before his release from prison, the issues under the Act are not about what is the preferred situation, but about what is necessary for the adequate protection of the community. To the extent that there was a difference in emphasis between Dr Sundin on the one hand and Drs Grant and Beech on the other about the utility of further programs for Mr Cosh in the community, I was persuaded by the evidence of Dr Grant and Dr Beech that, provided the conditions of a supervision order addresses the risks that are associated with sexual reoffending on Mr Cosh’s part, which are escalating violence and use and abuse of alcohol, the external controls of a supervision order will themselves be sufficient for the protection of the community. The evidence that is relied on by the Applicant for the purpose of this application, and particularly the psychiatric evidence from all three psychiatrists, satisfies me to the high degree of probability that is necessary pursuant to section 13 of the Act that if Mr Cosh were released without a division 3 order, he represents an unacceptable risk of committing a serious sexual offence as defined by the Act. Once that threshold issue is determined, the question that has to be decided is whether adequate protection of the community can be reasonably and practicably managed by a supervision order. The Applicant produced a draft form of supervision order that was the subject of evidence given by each of the psychiatrists. As a result of the opinions expressed, particularly by Drs Grant and Beech, about the likelihood of the proposed supervision order providing the external controls that will be necessary to ensure the adequate protection of the community from the moderate risk of Mr Cosh committing a further sexual offence, I am satisfied that a supervision order is the appropriate order to be made in the circumstances. All three psychiatrists were of the same opinion that it would be sufficient if the supervision order were for a period of five years. I therefore make an order in terms of the draft, initialled by me and placed with the file. -- 6 of 6 --