Attorney-General v Guy [2017] QSC 105

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Guy [2017] QSC 105 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v EDWIN ARTHUR GUY (respondent) FILE NO/S: SC No 11336 of 2016 DIVISION: Trial Division PROCEEDING: Application DELIVERED EX TEMPORE ON: 27 March 2017 DELIVERED AT: Brisbane HEARING DATE: 27 March 2017 JUDGES: Holmes CJ ORDER: Delivered ex tempore on 27 March 2017: Pursuant to Section 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be detained in custody for an indefinite term for control, care or 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 three psychiatrists reporting on the respondent are of the opinion that the respondent is at risk of offending – where respondent has expressed the view that he should remain in jail – whether the respondent is a serious danger to the community in the absence of a division 3 order – whether, if the respondent is released, adequate protection of the community can be ensured for the purposes of s 22(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). COUNSEL: J Rolls for the applicant K Prskalo for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid Queensland for the respondent -- 1 of 3 -- 2 [1] HOLMES CJ: The respondent is a 64 year old man. The applicant seeks an order for his detention in custody pursuant to section 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003. In 1998, he was sentenced to 10 years’ imprisonment for 34 sexual offences against children. One complainant was a young female relative with whom he maintained an unlawful sexual relationship over a six year period, beginning when the child was nine years old. The offences included 16 counts of rape. He was also charged with one count of rape and one count of indecent assault in the form of digital penetration, in respect of a 16 year old who lived in the same caravan park as him. He served most of that sentence before release on parole. Towards the end of the parole period, he committed incest with a young woman who was of extremely low intelligence. He was sentenced to nine years’ imprisonment, and at the same time, was sentenced for failing to comply with reporting conditions imposed under the Child Protection (Offender Reporting) Act 2014. [2] The respondent appears to be of low intelligence. He has not been able to work for much of his life. Presently, he has Parkinson’s Disease and has required the assistance of a carer in custody. While in custody, he completed a medium intensity sexual offenders program in 2006, but subsequently declined to take part in sexual offenders’ programs of the type devised for persons preparatory to their release. Three psychiatrists have reported on the respondent: Dr Beech in May last year, and Doctors Grant and Arthur more recently. All three psychiatrists noted the respondent’s tendency to assault vulnerable victims and the callousness of his treatment of them. He had little insight; indeed, Dr Beech considered that he had less insight when he saw him than when he was released on parole in 2007. [3] Given the respondent’s disabilities and his lack of supports or contacts outside prison, his placement presents a very considerable difficulty. He cannot live in any kind of independent accommodation. Dr Arthur and Dr Beech thought it likely that he would end up in accommodation such as a caravan park, where he would pose a risk to vulnerable victims, such as children or impaired adults. Dr Grant thought that he would need some sort of supervised accommodation, but placement in a nursing home would be problematic because of the risk of impulsive sexual offending against female residents. He considered also that there was a risk of the respondent’s re- offending in order to get back into custody. The respondent himself has expressed the view that he should remain in jail. [4] Dr Beech considered that Mr Guy posed a high risk of re-offending, Dr Grant that there was an above average risk of his offending and Dr Arthur that he posed a moderately high risk. Doctors Arthur and Beech thought that if the respondent could be placed in supervised accommodation with a high level of support, that risk of offending would be reduced. As I have said, Dr Grant expressed concern that in a nursing home, there was a risk of impulsive sexual offending against female residents. Dr Grant considered that the difficulties in supervising the respondent and finding him appropriate accommodation would make it difficult to reduce the risk of his release to an acceptable level. -- 2 of 3 -- 3 [5] The respondent’s representative has not been able to offer any suggestions for accommodation. The contingency accommodation which Corrective Services provides in Brisbane, Rockhampton and Townsville is not suitable for someone who requires the level of support which the respondent does. A recent affidavit from Ms Cowan shoes that inquiries have been made of a number – five in all – of forms of supported accommodation. Only one of them would consider accommodating an individual with the respondent’s criminal history, and there is no vacancy there. Essentially then, Queensland Corrective Services has nothing to offer at present. [6] In Attorney-General and Francis [2007] 1 Qd R 396, the Court of Appeal considered the obligations of the Department to provide the resources necessary to provide effective supervision. The possibility was recognised that the necessary resources might be so extensive that it would be unreasonable to expect them to be provided or that their effective provision would be impracticable (at [37]). I have concluded that this is such an instance. It is not feasible to expect the Department to devise supported accommodation designed around the respondent. It may be that in the future some private organisation will take him, but the chances are very limited, given the risk he poses. [7] 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. [8] For the present, however, I conclude, firstly, that the respondent is a serious danger to the community in the absence of a division 3 order, and secondly, that adequate protection of the community cannot be ensured by his release on supervision, so that a continuing detention order must be made. I should note that the respondent does not oppose the making of that order or offer any submission against it. Accordingly, I will make the order for detention in custody as per the draft with which I have been provided. -- 3 of 3 --