Attorney-General v Robinson [2017] QSC 107

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Nigel Patrick Robinson [2017] QSC 107 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v NIGEL PATRICK ROBINSON (Respondent) FILE NO/S: BS No 4096 of 2006 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 15 May 2017 DELIVERED AT: Brisbane HEARING DATE: 15 May 2017 JUDGE: Thomas J ORDER: THE COURT, being satisfied to the requisite standard that the respondent, Nigel Patrick Robinson, has contravened a requirement of the supervision order made by Bond J on 15 June 2015, ORDERS THAT: 1. Pursuant to Section 22(3) of the Act, the respondent undergo examinations by two psychiatrists being, Dr Harden and Dr Sundin, who are to prepare reports in accordance with Section11 of the Act. 2. Pursuant to Section 39PB(3) of the Evidence Act 1977, directs that Dr Harden and Dr Sundin may give evidence to the court other than by audio visual link or audio link. 3. The contravention hearing pursuant to Section 22 of the Act be adjourned to 26 June 2017 for final hearing. 4. The following affidavits filed by leave on 15 May 2017 be placed in a sealed envelope and marked, “Not to be opened without an order of the Court or a Supreme Court Judge”: a. Affidavit of A A Heptinstall sworn 5 May -- 1 of 6 -- 2 2017; b. Affidavit of L Aiolupotea sworn 5 May 2017; c. Affidavit of P Yodying affirmed 8 May 2017; and d. Affidavit of K Skillington sworn 10 May 2017. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT SEXUAL OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the respondent has been subject to a supervision order under the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) – where the respondent was alleged to have contravened supervision order – where the alleged contravention was failing to respond truthfully to enquiries about whereabouts and movements generally – where respondent has provided no evidence or submissions satisfying the court that the community will be protected by a continuing supervision order – where parties seek leave to obtain and file further psychiatric evidence relating to respondent – whether contravention of requirement of supervision order – whether protection of the community ensured by a continuing supervision order on balance of probabilities Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22 COUNSEL: B Mumford for the Applicant T Ryan for the Respondent SOLICITORS: Crown Law for the Applicant Cridland & Hua Lawyers for the Respondent [1] The respondent was born on 20 January 1979. [2] He served a 9 year term of imprisonment for 2 counts of depravation of liberty, 1 count of Rape and 1 count of indecent assault on a child under 12. [3] He pleaded guilty to these charges. [4] On 1 November 2006, he was detained in custody subject to a continuing detention order for an indefinite term for control, care or treatment. His appeal against this order was unsuccessful. [5] On 15 July 2009, following an annual review hearing, the respondent was released from custody subject to a supervision order for a period of 10 years. [6] The respondent has been dealt with on previous occasions for contraventions based upon contact with vulnerable adult females and viewing pornography, and for -- 2 of 6 -- 3 failing to respond truthfully as to the nature of his association with two females, failing to respond truthfully about his whereabouts and movements generally, and failing to disclose a personal relationship. These four contraventions resulted in amended supervision orders. The current alleged contravention [7] On 14 November 2016, the respondent contacted, by telephone, Ms Lina Aiolupotea, Senior Case Manager, High Risk Offender Management Unit. He advised her that on 12 November 2016, he deviated from his approved movements. [8] He reported to Ms Aiolupotea that on 12 November 2016: “he had ridden his pushbike through Darra and got attacked by a magpie so a lady called out to him to take shelter under her tree in her front yard. He stated that he waited there for a while until he could no longer see the magpie. He reported that he had to stop a few times on his way to Inala to rest”.1 [9] At the time, the respondent was fitted with an electronic monitoring device. [10] Following the conversation, Ms Aiolupotea conducted a GPS electronic monitoring of the respondent’s movements. [11] The GPS collateral check of his movements on 12 November 2016 identified the following: (a) The respondent travelled past the address at 74 Wau Road Darra on 12 November 2016 at 10:47 am; (b) The respondent entered the yard at this address between 1:40 pm and 1:48 pm. [12] Evidence was given by Ms Kelli Skillington, who is responsible for the management and oversight of the installation and removal of all electronic monitoring devices installed by Queensland Corrective Services in the management of offenders subject to Supervision Orders or Interim Supervision Orders as per the Dangerous Prisoners’ Legislation.2 [13] Ms Skillington deposes to the fact that the application of electronic monitoring by Queensland Corrective Services incorporates the use of Global Positioning Satellite (GPS) technology, in equipment designed for the purpose of tracking an offenders movements within the community.3 [14] In the case of the respondent, the electronic monitoring device was a 1TrackR device, which means he was fitted with a single GPS tracking unit on his ankle with serial number 34228488.4 [15] The unit was provided to the respondent on 30 August 2016 and removed on 30 November 2016. 1 Statement of Lina Aiolupotea, dated 12 December 2016, paragraph 7. 2 Statement of Ms Kelli Skillington, dated 20 January 2017. 3 Statement of Ms Kelli Skillington, dated 20 January 2017, paragraph 5. 4 Statement of Ms Kelli Skillington, dated 20 January 2017, paragraph 7. -- 3 of 6 -- 4 [16] The device cannot be removed from an offender’s person without generating an alert. This alert would be notified to corrective services staff working in the central monitoring station.5 [17] Ms Skillington gave evidence, from records, that the device fitted to the defendant did not generate an alert which would indicate that he had physically removed the electronic monitoring device on the relevant date.6 [18] Ms Skillington also initiated a review of the electronic monitoring system/device in relation to 12 November 2016. [19] A review of the electronic monitoring system/device indicates that:  The respondent travelled along Wau Road Darra, passing 74 Wau Road Darra at 10:47 am on the morning of 12 November 2016;  At 1:39 pm on the afternoon of 12 November 2016, the defendant entered Wau Road Darra and attended a private residence at 74 Wau Road Darra from 1:40 pm to 1:48 pm;  The respondent departed Wau Road Darra a 1:49 pm.7 [20] Ms Piromya Yodying lives at 74 Wau Road Darra with her bother and boyfriend.8 [21] On a Saturday in November, Ms Yodying had dropped her brother to work and returned home. Ms Yodying was standing at the front of her house near the road at 74 Wau Road Darra when a male individual rode past on a pushbike and said “hello beautiful”.9 [22] Ms Yodying had dropped her brother at work at 10:00 am and recalls that when she saw the man ride past on the bike, it would have been about 10:30 am because it was the time she would have arrived home after dropping her brother at work.10 [23] After the male said this, Ms Yodying went inside her house and locked the door.11 [24] When the male rode past on the pushbike, Ms Yodying did not respond to his comment. [25] Ms Yodying says that she has not at any time offered anyone shelter from a magpie attack. [26] Ms Yodying recalls that a few hours later, when she was inside the home, she heard a knock on the door. Ms Yodying recalls that this was about 1:00 pm on the same day. She recalls the time because she had her mobile phone with her and looked at the time before telephoning her boyfriend.12 5 Statement of Ms Kelli Skillington, dated 20 January 2017, paragraph 9. 6 Statement of Ms Kelli Skillington, dated 20 January 2017, paragraph 11. 7 Statement of Ms Kelli Skillington, dated 20 January 2017, paragraph 10. 8 Affidavit of Piromya Yodying, sworn 8 May 2017, paragraph 2(a). 9 Statement of Piromya Yodying, dated 16 December 2016, paragraph 6. 10 Affidavit of Piromya Yodying, sworn 8 May 2017, paragraph 3. 11 Statement of Piromya Yodying, dated 16 December 2016, paragraph 5. 12 Affidavit of Piromya Yodying, sworn 8 May 2017, paragraph 4; Statement of Piromya Yodying, dated 16 December 2016, paragraph 5. -- 4 of 6 -- 5 [27] Ms Yodying looked through the window of her house and could see the man at the door. She recognised the man as being the same man who had ridden past on the bike earlier in the day.13 [28] Conditions of the supervision order included: (13) comply with reasonable direction of a Corrective Services Officer that is not directly inconsistent with a requirements of this order; (14) respond truthfully to enquiries by Corrective Services Officers about his whereabouts and movements generally; (16) disclose to a Corrective Services Officer upon request, the name of each person with whom he associated and respond truthfully to requests for information from a Corrective Services Officer about the nature of his association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour. Disposition [29] Section 22 of the Act applies if the Court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening or has contravened a requirement of the Supervision Order or Interim Supervision Order.14 [30] From the evidence, the Court finds that: 1. The respondent passed 74 Wau Road Darra, at 10:47 am on 12 November 2016; 2. The respondent attended a private residence at 74 Wau Road Darra from 1:40 pm to 1:48 pm on 12 November 2016; 3. A man riding a bicycle passed the residence at 74 Wau Road Darra at about 10:30 am called out “hello beautiful” to Ms Yodying; 4. Later on 12 November 2016 at about 1:00 pm, Ms Yodying heard a knocking at her door and looked through the window and observed that the person knocking at the door was the same man who rode pass her property and called “hello beautiful” earlier in the day. [31] On the balance of probabilities, the Court concludes that the respondent was the person who was observed by Ms Yodying. [32] In those circumstances, the Court does not accept the account given by the respondent when speaking with the Corrective Services Officer Ms Lina Aiolupotea, when he said to her that he was invited by an unknown lady to take shelter under a tree in her yard to avoid a magpie attack, waiting for a while until he could no longer see the magpie. [33] On behalf of the respondent, it is argued that to establish a contravention of requirement 14, the applicant must prove on the balance of probabilities, that the assertion by the respondent concerning his whereabouts and movements made on 14 November 2016 was untrue. 13 Affidavit of Piromya Yodying, sworn 8 May 2017, paragraphs 5 & 6. 14 Dangerous Prisoner Sexual Offenders Act 2003 (Qld) s 22(1). -- 5 of 6 -- 6 [34] As the Court does not accept the account given by the respondent, the Court finds that the assertion made by the respondent concerning his whereabouts and movements made on 14 November 2016 was untrue. [35] In those circumstances, the Court finds that the respondent contravened requirement 14 of the Supervision Order made by Bond J on 15 June 2015, namely that he did not respond truthfully to enquiries by Corrective Services Officers about his whereabouts and movements generally. [36] Where the Court is satisfied on the balance of probabilities that the released prisoner has contravened a requirement of the Supervision Order, unless the released prisoner 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, the Court must rescind the order and make a continuing detention order. [37] The accused has made no submissions, and tendered no evidence, that the adequate protection of the community can, despite the contravention, be ensured by the existing order. [38] However, the parties have handed up a draft order for the future direction of this matter, which include provision for the filing of further evidence. [39] The draft order proposes that the respondent be ordered to undergo examinations by two psychiatrists, namely Scott Harden and Josephine Sundin. The psychiatrists will prepare reports in accordance with section 11 of the Act. Dr Harden and Dr Sundin will then give evidence in person. [40] The parties also seek an adjournment to 26 June to this court for a final hearing. [41] Finally, the draft order provides that the affidavit material presented today is to be placed in a sealed envelope and marked “Not to be opened without an order of the Court or a Supreme Court Judge”. [42] I make the order today, in terms of the draft handed up and agreed to by both parties. -- 6 of 6 --