Attorney-General for the State of Queensland v Crosswell [2016] QSC 142

SUPREME COURT OF QUEENSLAND CITATION: A-G for the State of Qld v Crosswell [2016] QSC 142 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ADAM LEE MURRAY CROSSWELL (respondent) FILE NO/S: BS No 3293 of 2016 DIVISION: Trial Division PROCEEDING: Application for Division 3 order ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 20 June 2016 DELIVERED AT: Brisbane HEARING DATE: 20 June 2016 JUDGE: Ann Lyons J ORDER: 1. Pursuant to section 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), 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 the applicant seeks a Division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent be detained indefinitely for control, care or treatment, or alternatively, that the respondent be released subject to a supervision order - whether the respondent presents a serious danger to the community in the absence of a Division 3 order – whether the respondent should be subject to a Division 3 order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s13(5)(a), s 13(5)(b) COUNSEL: J Sharp for the applicant -- 1 of 8 -- 2 BHP Mumford for the respondent SOLICITORS: Crown Law for the Applicant Legal Aid Queensland for the Respondent This application [1] This is an application by the Attorney-General for a Division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The applicant seeks orders pursuant to s 13 of the Act that the respondent be detained in custody for an indefinite term for care, control or treatment, or an order that the respondent be released from custody subject to such conditions as the Court considers appropriate. [2] A Division 3 may only be made if the Court is satisfied by acceptable, cogent evidence to a high degree of probability that the respondent is a serious danger to the community in the absence of a Division 3 Order. The legislation “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; -- 2 of 8 -- 3 (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter. (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (6) In deciding whether to make an order under subsection (5)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1). Background [3] On 4 December 2012, the respondent was sentenced to a period of imprisonment for three years and six months for one count of using electronic communication to procure a child under 12 years and one count of possessing child exploitation material. He was 26 at the time those offences occurred. The sentencing judge considered that the respondent had behaved as a sexual predator in relation to the attempt to procure offence. His criminal -- 3 of 8 -- 4 history at the time included stalking offences with a sexual aspect, use of the Internet to expose an indecent matter to a child and possessing child exploitation material. He was subject to a suspended term of imprisonment and probation for the latter offences when he committed the index offences. [4] Those index offences involved the respondent befriending a young boy on Facebook and then instigating sexualised conversations with the boy. When the matter was reported to Police they posed as the boy and a meeting with the respondent was arranged. The respondent posed as two different people during the interactions with Police and requested sex in exchange for money. He was subsequently intercepted by Police who then found the child exploitation material at his home during a search. The reports of the psychiatrists [5] The respondent was interviewed by three psychiatrists all of whom have provided risk assessment reports. Dr Donald Grant interviewed the respondent on 11 September 2015 and prepared a report dated 17 September 2015. Dr Harden interviewed the respondent on 15 April 2016 and his report is dated 31 May 2016. Dr Beech interviewed the respondent on 23 May 2016 and his report is dated 1 June 2016. Dr Grant [6] Dr Grant considers that he has a chromosomal abnormality namely Klinefelters Syndrome 47,XXY which is associated with reduced intellectual functioning. He also noted that he had also exhibited a conduct disorder from an early age and was violent and uncontrollable. He was initially placed in foster care and then Boystown. [7] In Dr Grant’s view the respondent has a diagnosis of Homosexual Paedophilia, Non Exclusive Type. After administering a series of risk assessments he considers that he is at high risk of reoffending sexually given he achieved high scores on both the HARE Psychopathy checklist and the STATIC-2002R. [8] Dr Grant considers that the high risk arises from his antisocial/psychopathic personality structure combined with the high likelihood that he suffers from Paraphilia of paedophilia of homosexual non-exclusive type. Dr Grant goes on to say that other contributions to the respondent’s risk might include “post traumatic symptomatology and possibly subtle inferences from his chromosomal abnormality affecting his intellectual functions and communication skills.”1 [9] Significantly Dr Grant considers that the respondent is untreated. He stated: “Mr Crosswell is at this stage untreated in terms of his sexual paraphilia and risk. He has lacked motivation to undergo treatment programs until recently, but now expresses a willingness to do so. It is therefore not totally clear as to how motivated he is to complete such programs. There would also possibly be some questions over his accessibility to treatment and his ability to undergo treatment programs, because of his Klinefelters Syndrome and other issues outlined above.”2 1 Dr Grant’s report pg 26. 2 Dr Grant’s report pg 26. -- 4 of 8 -- 5 [10] I note that Dr Grant considers that a neuropsychological assessment would be valuable and that it would be important for Mr Crosswell to undergo the Getting Started Sexual Assessment Program. He considers that would be the baseline assessment to determine the nature of his needs in terms of further treatment. Dr Grant also referred to the fact that Mr Crosswell would benefit from undergoing a drug and alcohol treatment program as well as ongoing endocrine follow up in regard to his Klinefelters Syndrome. He also considered that it would be preferable if treatment programs were carried out prior to Mr Crosswell’s release into the community. Dr Grant considered that Mr Crosswell needs structure and supervision in his life and that a supervision order, a DPSOA, would be an appropriate structure if he came within the DPSOA regime. He considered that in the future the risk for sexual reoffending could be reduced from high down to moderate by the application of a supervision order. He noted that ultimately Mr Crosswell should have limited and monitored access to the internet on any release and should not be allowed access to pornography, particularly child pornography and should not have unsupervised access to children. Dr Grant noted that Mr Crosswell is a relatively young man and the risk is long term. Dr Harden [11] Dr Harden noted not only the current index offences but also that respondent had a history of antisocial and criminal behaviour dating back to his early childhood with aggressive and disruptive behaviour, which resulted in him being placed in multiple foster care situations followed by institutional care. It would appear he was sexually and violently abused in care. Dr Harden noted: “His criminal behaviour has been broad in nature and lifelong. It has generally encompassed such a wide range of crimes that the only things he has not been convicted of until the stalking and then the sexual offences appear to be interpersonal crimes. He has long-standing substance abuse difficulties predominantly with alcohol but also secondarily with amphetamines. He has personality features such that his interpersonal relationships with others are extremely difficult, he was frequently targeted by other inmates for violence, he suffers emotional collapse in the context of perceived damage to his self-image and has in the past harmed himself or threaten [sic] to harm himself on a number of occasions.”3 [12] Concerningly, Dr Harden notes that the respondent has no insight into his offending or his personality characteristics which drive his offending. [13] Dr Harden considers that the respondent suffers from paedophilia, predominantly oriented towards boys and non exclusive. He also considers he meets the criteria for a mixed personality disorder with borderline and antisocial personality features. He also noted a history of poly substance abuse and a medical diagnosis of Klinefelters Syndrome. [14] Dr Harden considered that the respondent’s ongoing unmodified risk of sexual reoffence in the community was high and the greatest risk factors were his severe personality 3 Dr Harden’s report p 15. -- 5 of 8 -- 6 dysfunction and his paraphilic sexual interest. He noted that there had been no treatment intervention and that substance intoxication was a significant factor. Dr Harden noted “If he were to be placed on a supervision order in the community without first undertaking a suitable sexual offending program, in my opinion the risk of sexual recidivism would be reduced to moderate to high only, that is even a high-level supervision might not be sufficient to significantly reduce the risk of further sexual offending. He himself says this at interview and effectively describes not being ready to return safely to the community at this point in time.”4 [15] Dr Harden therefore considered that the respondent could not be safely released into the community until he had undertaken a sexual offending program to improve his insight and compliance, as well as to assist with better targeted supervision in the community to effectively reduce risk. Dr Harden also noted that if he were to be released into the community he should have no contact with male children in person or online and should have supervision of his internet access and involvement in social media. Dr Beech [16] Dr Beech also noted the circumstances relating to the index offences and also noted that he has had a significant criminal history in the Childrens Court for arson and stealing and that there were then subsequently 15 sentencing dates in Queensland and Victoria. He noted that much of the offending had involved wilful damage, break and enter, burglary and fraud. He also noted that there has been repeated breaches of bail, probation and parole as well as suspended sentences. [17] Dr Beech considered that the respondent: “…has an Anti-social Personality Disorder that commenced with childhood behavioural disturbance, and progressed to conduct disorder and juvenile delinquency. He now has a significant adult criminal history. This occurs in the context of unstable accommodation, few if any community supports, and a predilection to resort to crime for drug use, personal finances and in response to stress. I think there is also evidence of a significant Borderline Personality Disorder with emotional disturbance, anxiety, poor anger and impulse control, and repeated self-harm. These personality disturbances arise probably from innate difficulties that include limited intellect and learning problems, a chromosomal abnormality and a Hyperactivity Disorder. They have been exacerbated by childhood neglect and abuse, unstable childhood accommodation, and institutional abuse.”5 [18] Dr Beech also noted that he had symptoms of a post traumatic stress disorder. Dr Beech also considered that the respondent fell into the realms of psychopathy and that he had paraphilia of paedophilia with an attraction to young male children. Dr Beech also considers that the nature of the index offences are very worrying in that the first commenced soon after his release into the community and that he reoffended whilst on probation and whilst serving a suspended sentence. He considers that there is a pattern of 4 Dr Harden’s report p 16. 5 Dr Beech’s report p 19. -- 6 of 8 -- 7 internet grooming of young males. He ultimately considered that the respondent was at risk of reoffending if he were to be released into the community. He stated: “The risk arises because of his Paraphilia and his Psychopathy and Antisocial Personality Disorder. He reoffended in a very short period of time of his earlier release. I cannot see that much headway has been in the way of formal rehabilitation. Many of the stressors and issues that were present in 2013 continue. At interview he indicates himself that his unprepared for community living, although he cites a lack of support from agencies as a primary difficulty for him. Despite his insistence that he requires treatment he has not undertaken formal treatment for his offending.”6 [19] Dr Beech also noted the respondent’s limited respect for rules and laws and his great propensity for criminal offending. [20] Having considered all of the material, Dr Beech ultimately considered: “At this point I do not think that a supervision order would be able to suitably contain the risk. Mr Crosswell has shown a marked ability to breach bail, parole, probation, and a suspended sentence. He has offended during the course of supervised community release. He has at one point absconded interstate. He appears to be relatively adept at the Internet use. I think that he is also a manipulative person and that he could manipulate his use of a computer, or the use of some other person’s computer, to engage in further offending.”7 [21] Dr Beech also noted that it was difficult to know what would significantly reduce the risk but that the first steps would be the respondent’s involvement in a High Intensity Sexual Offender Treatment Program to address his outstanding criminogenic needs. He then considered that there should be steps to assess his need for substance use programs, individual counselling, as well as community support and management. Should a Division 3 Order be made? [22] It is common ground that the respondent is a serious danger to the community in the absence of a Division 3 Order and that the evidence of the three psychiatrists who have assessed the respondent, as outlined above clearly supports such a conclusion. I am therefore satisfied by acceptable, cogent evidence to a high degree of probability that the respondent is a serious danger to the community in the absence of a Division 3 Order. [23] The applicant contends that if the respondent is released subject to a supervision order this would not adequately protect the community. That conclusion is also supported by the evidence of Drs Grant, Harden and Beech. [24] I also note that the respondent: (a) Does not contest a finding that he is a “serious danger to the community” in absence of a Division 3 order; 6 Dr Beech’s report p 21. 7 Dr Beech’s report p 21. -- 7 of 8 -- 8 (b) Does not contest a finding that release on a supervision order would not adequately ensure protection of the community, within the meaning of the Act; and (c) Accepts that this Court ought to make a continuing detention order. [25] Section 13(6) provides that in deciding whether to make an order under subsection (5)(a) or (5)(b) that the paramount consideration is to be the need to ensure adequate protection of the community. In this regard the Court must consider whether the adequate protection of the community can be reasonably and practicably managed by a supervision order. [26] I accept that the evidence clearly indicates that the respondent is currently an untreated sex offender and that he has limited insight into his offending and his personality characteristics. All the psychiatrists agree that the respondent’s unmodified risk of reoffending is high and that appropriate treatment is a necessary first step in containing that risk. The clear evidence is that the most appropriate treatment is a High Intensity Group Program (with individual support as necessary), and that would be confirmed by the respondent’s participation in the preparatory program. In addition, if the respondent’s intellectual difficulties prevent him from engaging in meaningful participation in the High Intensity Sexual Offenders Treatment Program, then the Inclusions Program might be appropriate. Both programs are only available in custody. [27] In the circumstances I am satisfied that a continuing detention order pursuant to s13(5)(a) of the Act is necessary to ensure the adequate protection of the community. -- 8 of 8 --