Attorney-General v Kynuna [2017] QSC 93

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Kynuna [2017] QSC 93 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v DIRK GREGORY KYNUNA (Respondent) FILE NO/S: BS No 3832 of 2010 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 respondent be released subject to the supervision order made by the Court on 10 December 2015. 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 a failure to abstain from consumption of illicit drugs – where contravention part of a pattern of six contraventions commencing in 2011 – where respondent accepts contravention – whether respondent can demonstrate that adequate protection of the community can be ensured on balance of probabilities – whether respondent’s evidence discharges that onus Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 -- 1 of 6 -- 2 COUNSEL: J Tate for the Applicant K Bryson for the Respondent SOLICITORS: Crown Law for the Applicant Legal Aid Queensland for the Respondent [1] Mr Kynuna was released subject to a supervision order made on 6 April 2011. [2] The supervision order contains a number of conditions. [3] Condition 18(xvii) of the supervision order requires Mr Kynuna to “abstain from consumption of illicit drugs”. [4] On 25 November 2016, the respondent provided a urine sample. Testing was undertaken by Sullivan Nicolaides Pathology and this established the presence of 11-nor-delta-9-tetrahydocannibinol-9-carboxylic (18ug/L). This is consistent with the use of cannabis. The evidence of this was contained in an affidavit of David Kanowski sworn on 14 March 2017, exhibit DK-1 to his affidavit. [5] The contravention which occurred in November 2016 is part of a pattern of contraventions which commenced in 2011. [6] The first contravention occurred in July 2011 and related to the use of cannabis, attending licenced premises, failing to disclose those matters to his supervising corrective services officers and being untruthful about his movements. He admitted these contraventions. [7] On 20 March 2012, the Court was satisfied on the balance of probabilities that the adequate protection of the community could, despite the contravention, be assured by the existing supervision order and he was released from custody, subject to the requirements of the original supervision order. [8] The second contravention occurred in August 2012, when the respondent committed an indictable offence by damaging property belonging to the Queensland Corrective Services. He admitted to this damage and on 6 May 2013 the Court ordered that the respondent be released from custody and continued to be subject to the original contravention order. [9] The third alleged contravention, which was ultimately discontinued by the applicant, occurred in November 2013 when the respondent allegedly returned a positive result for cannabis from a urine test. He said that the ingestion of cannabis had been accidental. On that occasion on 20 November 2013, the Court was satisfied on the balance of probabilities that the detention in custody of the contravention proceeding was not justified because of exceptional circumstances, so he was released subject to the same requirements of the original supervision order. [10] Those proceedings were discontinued. [11] The fourth contravention which occurred in February 2014, occurred whilst on interim supervision. Breath samples indicated that the respondent had consumed alcohol and he later admitted this. On 23 July 2014, the Court adjourned the hearing of the matter to allow the respondent an opportunity to participant in a High -- 2 of 6 -- 3 Intensity Substance Abuse Program (Pathways). The respondent participated successfully in this program between 23 September 2014 and 26 February 2015. [12] Upon completion of the program, an exit report was prepared by course facilitators which was provided to Dr Sundin and Dr Harden, whose risk assessment indicated that following the respondent’s successful participation in the program, his risk of sexual recidivism was at a level that could be managed in the community on a supervision order. [13] On 20 April 2015, the Court ordered that the respondent be released from custody and continue to be subject to the supervision order made on 6 April 2011. [14] The fifth contravention involved the respondent being returned to custody in October 2015, and the contravention related to the consumption of illicit drugs. A urine assessment demonstrated a positive presence for cannabis. Updated risk assessment reports by Dr Sundin and Dr Harden were to the effect that despite the contravention, the respondent’s risk of sexual recidivism was still at a level which could be managed in the community under a supervision order. Both Doctors recommended that the order be extended by a period of two years. [15] On 10 December 2015, the respondent was released from custody to be subject to the original supervision order dated 11 April 2011, with an amendment that the respondent remain subject to the requirements until 6 April 2018. He was released from custody on 10 December 2015. Discussion [16] The respondent accepts that he breached the supervision order as alleged by the applicant. [17] It follows that the Court must rescind the supervision order and make a continuing detention order unless the respondent can demonstrate that adequate protection of the community can be ensured, despite the contravention, by his release back in to the community, subject to the existing supervision order or with amendments. [18] It is for the respondent to discharge this onus on the balance of probabilities. Medical evidence [19] The Court has the benefit of opinions from: (a) Kylie Lavers, psychologist; (b) Doctor Harden; (c) Doctor Sundin Kylie Lavers, psychologist [20] Ms Lavers treated the respondent between 15 December 2015 and 22 November 2016. [21] Ms Lavers noted that up to his recent incarceration, he had made sound progress with anxiety, aggression, communication, problem solving, self-esteem, employment readiness and cognitive processing. -- 3 of 6 -- 4 [22] She further concluded that Mr Kynuna is orientated to successfully complete the order, establishing himself in the community and finding employment. [23] Ms Lavers identifies Mr Kynuna’s current barriers to successful completion of the order as being substance abuse and gambling. She concludes that Mr Kynuna has good insight into his gambling issue however has very little insight into his substance abuse issues. Dr Harden [24] Dr Harden identifies that, the respondent’s substance abuse began at the age of 12 or 13 years with the sniffing of petrol. He started drinking alcohol at about the same age and has admitted that he was an alcoholic at the time. [25] He has constantly used alcohol. [26] Mr Kynuna reported he used marijuana quite regularly in the past. He has denied the use of amphetamines or other illicit drugs at any time. Dr Sundin [27] Dr Sundin refers to the fact that the respondent acknowledged chronic cravings for cannabis and has a view that the condition on the order that he not use cannabis is “completely unreasonable”. [28] Of concern is Dr Sundin’s observation that the respondent did not consider that cannabis played any part in his previous offending behaviour. Clinical recommendations [29] As to the clinical recommendations, Dr Sundin and Dr Hardin provide the following opinions. Dr Harden [30] If released, Dr Harden recommends that the respondent continue to be required to be abstinent from alcohol and drug use. [31] Dr Harden is much more concerned at the respondent becoming intoxicated with alcohol. [32] He observes that there is no further evidence of paedophilia or paraphilia, and also that the respondent’s sexual offending in the past was often associated with intoxication and generally opportunistic. [33] Dr Harden believes that the respondent should continue to have individual therapy with a treating psychologist. [34] Dr Harden concludes that Mr Kynuna seems to be making some progress in the community, the emphasis on community intervention should be as suggested by his treating psychologist to do with prosocial integration into the community, training and employment in the remaining period of his supervision order. Dr Sundin -- 4 of 6 -- 5 [35] As to clinical recommendations, Dr Sundin says the following: [36] There have been ongoing problems with regard to bad budgeting and Mr Kynuna’s continued gambling. [37] On the positive side, he has undertaken a vocational training course, has abstained from use of alcohol and has continued to engage in sessions with his psychologist. [38] Previously, Mr Kynuna had completed all treatment programmes including the Sexual Offender’s Programme for Indigenous Males, the Pathways Programme and the Low Intensity Substance Treatment Programme. [39] He has attended ATODS on a number of occasions but has “never really engaged with them.” [40] Dr Sundin characterises Mr Kynuna as pre-contemplative for abstaining from cannabis and thinks he will simply wait out his order before resuming cannabis usage on a regular basis. [41] Dr Sundin observes that it is now 15 years since Mr Kynuna sexually offended and that the supervision order has succeeded in moderating his risk of recidivism and the danger he poses to the community. [42] Dr Sundin opines that he remains immature with low insight with regard to his risk factors but nonetheless, the supervision order has been serving its purpose. [43] Dr Sundin therefore respectfully recommends to the Court that Mr Kynuna be released back into the community under the auspices of the existing supervision order and continue to be required to be compliant with the existing clauses of that order. Disposition [44] In Attorney-General v Francis,1 in relation to the question of whether the community is adequately protected, it was said: “if supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, than an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warrant by the statute which authorised such complaint.” [45] Given that the contravention is accepted by Mr Kynuna, the Court must rescind the supervision order and make a continuing detention order, unless the respondent can demonstrate that adequate protection of the community can be ensured, despite the contravention, by his release back into the community, subject to either the existing supervision order or with amendments. [46] The respondent must discharge this onus on the balance of probabilities. 1 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [39]. -- 5 of 6 -- 6 [47] According to the evidence, it is 15 years since the respondent has committed an offence of a sexual nature and Dr Sundin concludes, that the supervision order has been serving its purpose. [48] It is to Mr Kynuna’s credit that he has completed all treatment programs including Sexual Offender’s Programme for Indigenous Males, the Pathways Programme and the Low Intensity Substance Treatment Programme, all completed whilst he has been in the community. [49] He has also undertaken a vocational training course, again whilst in the community. [50] The recommendation of Dr Sundin, is that Mr Kynuna be released back into the community under the auspices of the existing supervision order. [51] In the circumstances, based on the medical evidence available to the Court, the Court is satisfied that the respondent has discharged the onus and satisfied the Court that the community can be adequately protected by his release on a supervision order in the same terms as amended by North J on 10 December 2015. [52] The Court so orders. -- 6 of 6 --