Attorney-General (Queensland) v Cobbo [2016] QSC 156

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Queensland) v Cobbo [2016] QSC 156 PARTIES: ATTORNEY-GENERAL (QUEENSLAND) (applicant) v ADAM JOHN COBBO (respondent) FILE NO/S: SC No 282 of 2014 DIVISION: Trial PROCEEDING: Applicant ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 13 June 2016 DELIVERED AT: Brisbane HEARING DATE: 13 June 2016 JUDGE: Burns J ORDER: 1. That the decision made on 11 July 2014 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) be affirmed; and 2. That the respondent continue to be subject to the continuing detention order made on 11 July 2014. 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 respondent is subject to a continuing detention order made pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where it was conceded that the respondent is a serious danger to the community in the absence of a Division 3 order – where it was not submitted that a supervision order would ensure the adequate protection of the community within the meaning of s 13(6) of the Dangerous Prisoners (Sexual Offenders) Act 2003 – whether the court should affirm the existing continuing detention order -- 1 of 6 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 16, s 29, s 30 Attorney-General for the State of Queensland v Cobbo [2014] QSC 150 COUNSEL: B Mumford for the applicant J Noud for the respondent SOLICITORS: Crown Law for the applicant Fisher Dore for the respondent [1] HIS HONOUR: This is an annual review of a continuing detention order made by Daubney J on 11 July 2014 in respect of the respondent, Adam John Cobbo: see Attorney-General for the State of Queensland v Cobbo [2014] QSC 150. In particular, the Attorney-General for the State of Queensland applies to the Court for an order affirming Daubney J’s decision that Mr Cobbo is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). If the Court affirms that decision, the Attorney-General then seeks an order pursuant to s 30(3) of the Act to the effect that Mr Cobbo remain subject to the continuing detention order. [2] For Mr Cobbo, it has been conceded by his counsel that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order. Such a concession was rightly made, there being ample evidence to satisfy the Court of that particular matter and, I might add, to the high degree of satisfaction required by s 30 of the Act. Furthermore, it was not suggested on Mr Cobbo’s behalf by his counsel that I could be satisfied that the adequate protection of the community can be reasonably and practically managed by a supervision order or that Mr Cobbo should not continue to be subject to the continuing detention order. The effect of his submissions was such as to not oppose the primary relief sought by the Attorney-General, that is, continuing detention. [3] I have been assisted by comprehensive submissions on behalf of the Attorney- General and also by submissions going to the heart of the issues from counsel for Mr Cobbo. The history of the matter, including the original psychiatric assessments, are set out in paragraphs 7 to 25 of the Attorney’s submissions. Mr -- 2 of 6 -- 3 Cobbo, through his counsel, accepts that those paragraphs accurately state the relevant history, the effect of the original psychiatric opinions and the reasons of Daubney J when his Honour made the original order. Also, Doctors Grant and Harden interviewed Mr Cobbo for the purpose of preparing reports pursuant to s 29 of the Act in March and April this year respectively. Again, a summary of the opinions contained in the reports that were subsequently provided by each doctor and which are in evidence before me, is set out in paragraphs 26 to 32 of the Attorney’s submissions. Mr Noud accepts, on behalf of Mr Cobbo, that the summary is both fair and accurate. [4] Without understating the significance of the parts of the reports of Doctors Grant and Harden which are summarised by counsel for the Attorney, I mention that in Dr Grant’s report dated 25 March 2016 he expressed the opinion that, if Mr Cobbo is released into the community prior to completing the Pathways course and appropriate sexual offender treatment then, in his opinion, the risk of future sexual reoffending will remain moderate to high. Further, Dr Grant said: “Given Mr Cobbo’s poor record in prison in terms of being able to contain his aggression and behaviour issues, I believe he will be very difficult to contain in the community under a Supervision Order. He would require strict monitoring and controls, and given his failure to comply with community treatments in the past, I believe that breaches of a Supervision Order would be very likely.” [5] In a similar vein are the opinions expressed by Dr Harden in his report dated 26 May 2016. Dr Harden stated that Mr Cobbo’s ongoing unmodified risk of sexual offence in the community is in the high range. He reported Mr Cobbo’s greatest risk factors are his general antisocial attitude and contempt for institutions and rules. His denial with regard to the further risk of sexual and other offending is also a significant barrier to intervention, in Dr Harden’s opinion. Dr Harden expressed this view: “If he were to be placed on a supervision order in the community without first undertaking a high-intensity 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 -- 3 of 6 -- 4 not be sufficient to significantly reduce the risk of further impulsive, intoxicated and antisocial sexual offending.” [6] Both psychiatrists have expressed the opinion, and I think in a firm way, that Mr Cobbo needs to take up the opportunities that are being offered to him in custody to receive treatment. In this regard, since Daubney J made the continuing detention order, Mr Cobbo has declined offers of placement in the Getting Started preparatory program on two occasions, that is, on 3 November 2014 and again on 6 May 2015. He commenced (but did not complete) the Pathways course – a course, I note, which is designed to specifically address substance abuse – on 14 October 2010, 16 July 2012 and 1 October 2013. He also commenced the Pathways course on 14 January 2016 but on 10 March 2016 he was excluded due to poor institutional behaviour which restricted his operational movements and activities outside his accommodation unit. The exit report, which is exhibit RP1 to the affidavit of Ms Preston filed by leave today, highlights the real challenge on the part of the prison authorities to engage Mr Cobbo in treatment for his own good. [7] It is not clear to me on the face of the material whether, since the date of his exclusion in March 2016, Mr Cobbo has again attempted to participate in a Pathways program. I have in mind, in particular, the submission made at paragraph 7 of Mr Noud’s outline. But whatever the position is, there is another Pathways program that will commence in July or August of this year at the Capricornia Correctional Centre. For Mr Cobbo to participate, he would need to transfer to that Correctional Centre, and he would also need to be considered to be ready, willing and able to undertake the program. I refer, in this respect, to the affidavit of Mr Crothers filed by leave today, where the content of the Pathways program is set out at paragraphs 6 to 9, and, at paragraphs 10 to 11, where the prospect of Mr Cobbo being admitted to this program in July or August of this year is discussed. [8] Mr Cobbo clearly has a long way to go in terms of his treatment needs, but as his counsel submitted, there are some encouraging signs. Although his participation in the Pathways programs he has attempted in the past have been -- 4 of 6 -- 5 unsuccessful, it may be that, as part of his maturing – he is now 29 years of age – he is finally starting to accept the importance of treatment and its significance to lowering his risk of sexually violent reoffending when he is released into the community. [9] In addition to his attempts to undertake the Pathways programs, Dr Harden, for example, made the observation that Mr Cobbo had displayed some insight into his substance abuse problem and had undertaken some steps to improve in this regard. That, as I say, is another encouraging sign, but only the future will tell whether he is prepared to embrace all that is offered to him in the form of treatment. [10] Suffice it to say, the psychiatrists who have assessed Mr Cobbo for the purposes of this application are both of the view that it is very important that Mr Cobbo complete the Pathways program and, in addition, complete a sexual offending program of some kind prior to his release into the community. Both express the view that, without those courses of treatment, his risk of reoffending in a sexually violent way will remain high, or at least moderate to high. [11] I am satisfied that if Mr Cobbo was released into the community now under a supervision order, and even a supervision order with the strictest of conditions, it would be setting him up to fail. More than that, from the point of view of the relevant test under the Act, such an order would, I think, be quite inadequate to protect the community, given the opinions expressed by the two psychiatrists. [12] Quite independently of the concessions made on behalf of Mr Cobbo by his counsel, I have had regard to the matters mentioned in s 13(4), of the Act, as well as the psychiatric opinions in evidence. Having done so, I am satisfied by acceptable cogent evidence and to the high degree of probability required by s 30 of the Act that the decision made by Daubney J on 11 July 2014 that Mr Cobbo is a serious danger to the community in the absence of a Division 3 order should be affirmed. -- 5 of 6 -- 6 [13] As to the next question – whether Mr Cobbo should continue to be subject to the continuing detention order or alternatively be released from custody subject to a supervision order – in deciding which of those two alternative orders should be made, the paramount consideration is the need to ensure adequate protection of the community. Additionally, the Court must consider whether adequate protection of the community can be reasonably and practically managed by a supervision order and whether the requirements under s 16 of the Act can be reasonably and practically managed by Corrective Services officers. [14] For the reasons I have expressed, I am not satisfied that the adequate protection of the community can be reasonably and practically managed by a supervision order. As such, Mr Cobbo should continue to be subject to the continuing detention order. [15] The orders I therefore make are these. (1) the decision made on 11 July 2014 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners Sexual Offenders Act 2003 be affirmed, and (2) that the respondent continue to be subject to the continuing detention order made on 11 July 2014. -- 6 of 6 --