Attorney General for the State of Queensland v Dunlop [2016] QSC 85

SUPREME COURT OF QUEENSLAND CITATION: Attorney General for the State of Queensland v Dunlop [2016] QSC 85 PARTIES: ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND (applicant) v JAN-MAREE DUNLOP (respondent) FILE NO/S: BS2154/16 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 12 April 2016 DELIVERED AT: Brisbane HEARING DATE: 11 April 2016 JUDGE: Jackson J ORDER: The order of the court is that: 1. the application to set a date for the hearing of an application for an order under division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) is dismissed. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – where the respondent was convicted of sexual offences, in concert with her husband, against two female children under the age of 12 – where the respondent had a dependent personality disorder, and the applicant submitted that the danger to the community arose from the risk of the respondent falling into another relationship where she will act to offend sexually in order to obviate the risk of abandonment by her partner – where the respondent had divorced her husband and had no ongoing contact with him – where the likelihood of the respondent reoffending in the next five years in the community would be in the 1-3% range – where the respondent had been undertaking courses while in prison and a psychiatrist opined this should continue when released into the community – whether the court was satisfied there were “reasonable -- 1 of 7 -- 2 grounds” for believing the respondent was a “serious danger to the community in the absence of a division 3 order” – whether that threshold was met because it was desirable to ensure that the respondent be subject to a supervision order and continue with the beneficial programs that protect against the risk of her forming another dysfunctional relationship Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 8, 13(5) Attorney-General for the State of Queensland v SBD [2010] QSC 104, applied Attorney-General for the State of Queensland v Solomon [2015] QSC 199, applied R v Farrenkothen & Farrenkothen; ex parte Attorney- General (Qld) [2003] QCA 313, cited COUNSEL: P Davis QC and M Maloney for the applicant J McIness for the respondent SOLICITORS: G R Cooper Crown Solicitor, Crown Law for the applicant Legal Aid Queensland for the respondent [1] Jackson J: These are the reasons for the order I made yesterday dismissing an application for an order under s 8(1) to set a date for the hearing of an application for a division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”). As well, the applicant sought an order that the respondent undergo examination by two psychiatrists. [2] Section 8 provides that the court must set a date for such a hearing “if the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order”. [3] There are two kinds of division 3 orders. As defined in s 13(5), one is an order that the prisoner be detained in custody for an indefinite term for control, care or treatment (“continuous detention order”).1 The other is that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (“supervision order”).2 [4] On 6 May 2003, the respondent was convicted of 12 counts on two indictments. On the first indictment she was convicted of taking a child for immoral purposes under the age of 12 years, sexual assault with circumstances of aggravation, indecent treatment of a child under 16 years who was under 12 years, three charges of attempted rape and three charges of rape. [5] On the second indictment, she was convicted of three charges of indecent treatment of a child under 16 years who was under 12 years with a circumstance of aggravation. 1 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(5)(a). 2 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(5)(b). -- 2 of 7 -- 3 [6] On 24 July 2003, the Court of Appeal sentenced the respondent to a period of 14 years of imprisonment in respect of the three counts of rape.3 There were lesser periods of imprisonment for the other charges. [7] The offences were committed when the respondent was 41 years old in concert with her then husband, whom she had married only months beforehand. [8] The offences charged on the first indictment were committed on 19 August 2002 against a ten year old girl. The respondent and her husband deprived the girl of her liberty over a period of several hours during which she was hand cuffed and the offences were committed. [9] The offences on the second indictment occurred on an unspecified date but earlier than 19 August 2002 and after February 2002. [10] On this occasion, the victim was a 4 to 5 year old girl. The respondent’s husband raped the young girl by digitally penetrating her and also penetrating her anus with his penis. The respondent played a significant role in this offending, which involved the use of a vibrator. [11] In support of the application under s 8(1), the applicant relied on a report by and affidavit and oral evidence of Dr Michael Beech, an experienced and respected consultant psychiatrist. The report is dated 31 May 2015. The facts in the report are accepted by the parties as accurate. [12] At the time of the offending in 2002 the respondent resided in Gladstone with her husband. They had met approximately six months before their marriage in February 2002. They were divorced in 2004 and she has no ongoing contact with him. [13] The respondent does not know where she was born and has little memory or information about her earlier years. She was raised in an orphanage until she was 14 years old. She then met her mother. She does not know who is her father. She has ten siblings or half-siblings. She remains close to one of them. [14] From the age of 14 years, the respondent moved to live with her mother and her mother’s partner. She was physically and sexually abused by her mother’s partner. She ran away from home at the age of 18 years. [15] At the age of 19 years she formed a relationship with a man that lasted 18 months. She had a daughter. Her partner did not want a child so the respondent left. Later, she had a son to another man. She raised the two children on her own until the age of 21 years. She then met her first husband and they later married. They were together for ten years. [16] There was some domestic violence. At the age of 31 years, she left her first husband and moved away with her children. She formed another relationship with an acquaintance from her teenage years. That lasted for five years. Again, there was domestic violence. Eventually she left and moved away again with her children. 3 R v Farrenkothen & Farrenkothen; ex parte Attorney-General (Qld) [2003] QCA 313. -- 3 of 7 -- 4 [17] From her mid-30s until the time of her arrest at the age of 42 years she lived in Gladstone. [18] When work was available and when she was not married she would seek employment. She said she was able to provide for her children, had never gone into debt or been bankrupt. [19] She worked until 1996 when she suffered a back injury. After that she lived on a pension. [20] Apart from the longer relationships, the respondent has had a number of quite brief relationships. [21] She was for many years an abuser of alcohol. She was diagnosed with cardiomyopathy secondary to her alcohol use. She decreased her alcohol use in the years before the offences occurred. [22] The respondent has some psychiatric history. At the age of 25 years she attempted suicide following an episode where she said she was raped while working at the Townsville Barracks by five men. [23] The respondent described a pre-existing chronic depression and at times her mood would deteriorate. She said she would seek alcohol or sexual partners to cope. She said there was no history or self-harm or further suicide attempts. There was no history of mood elevation. [24] In addition to these extracted facts, Dr Beech sets out the respondent’s antecedents and the circumstance of the offences in considerable detail in his report, together with his observations and the information provided by the respondent during their interview. [25] As at May 2015, the respondent had been in prison for about 13 years (now close to 14 years). She had not applied for parole. She said she did not feel ready. She explained that she had always been a victim and dependant. She wanted to become independent, both financially and emotionally. [26] She said that during her imprisonment she had always been employed in various areas. [27] The respondent said that she receives visits from her sister and a friend. She has some phone contact with her daughter. [28] During her period in prison the respondent has completed numerous courses. Academically they include secondary school education to a Grade 10 Certificate level and she enrolled in a Bachelor of Arts degree course, apparently majoring in ancient history. It is partially complete and she would like to continue with it. Otherwise, a number of the courses she has completed in prison have been directed to understanding the pathway to her offending. [29] Her aspiration is to obtain suitable accommodation and employment, with the assistance of her sister, She says that she would not return to alcohol use. She says she has no interest in contact with her ex-husband. -- 4 of 7 -- 5 [30] In the course of his report, Dr Beech expressed a number of opinions including: “In my opinion [the respondent] does not have an Anti-social Personality Disorder and her life trajectory does not indicate the female equivalent to male psychopathy. The nature of the offences indicate that she falls into one of the well-recognised typologies of female sex offenders. She has a minimal, pre-existing, criminal history of fraud. The offences occurred in conjunction with a male co-offender, and the offences were directed towards vulnerable children that they knew. She had a pre-morbid history of child abuse and trauma, and the effects of that had persisted into adult years and led to problems with relationships. She had taken on a victim persona, and she has sought to meet her personal and emotional needs by maintaining a relationship with a male, and she maintained that relationship by engaging in sexual offending with him… During the course of her incarceration she has been involved in a number of offender programs. I think that these, the passage of time, and general self-reflection have led to improvements in victim empathy. She has developed insight into the factors that led to the offending and she has sought to address these. She remains vulnerable, through her ongoing low self-esteem now aggravated by a sense of shame, but there is I believe evidence that she has shifted from the person she was at the time of the offending. There is limited research around the area of female sexual offenders generally, and specifically around the risk of reoffending. However, it is generally recognised that the risk of reoffending in female sex offenders is much lower that the risk in male offenders. Importantly, the risk factors for male offenders do not seem to apply to those of female offenders. Recent studies indicate that worldwide, in studies that involve Australian research, the base rate of re-offending is 1-3%... There is limited data about what factors would put a person in a group at higher or lower risk than the base rate. For [the respondent] I would see the risk factors for her are her personality disorder and her victim stance. Against that is the absence of other factors such as a history generally of abuse of children, a lack of any significant criminal offending, and a specific lack of violent offending. For these reasons, I am believe (sic) that [the respondent] probably falls within the general group of female sex offenders and that the likelihood of reoffending in the next five years in the community is in the 1-3% range. It is probably lowered by the changes she has made in prison. In the community it would be lessened by her involvement with -- 5 of 7 -- 6 community supports, ongoing counselling, and the knowledge that she has spent a long time in prison from her offending. I think that this, her age, and the progress she has made in self-esteem are likely to reduce the risk that she will now enter into another dysfunctional relationship where she will act to offend sexually in order to obviate the risk of abandonment by her partner.” [31] The applicant relied on four factors in submitting that the court should be satisfied there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of division 3 order. First, the applicant relied on the extremely serious nature of the offending. That must be accepted. Second, the applicant submitted that the respondent’s offending should be seen in the light of her participation with her sexual partner and husband and that she has attempted to minimise her role in the offending. That too must be accepted. Third, the applicant relied on Dr Beech’s assessment of the respondent as having a dependant personality disorder and victim stance as going to the danger to the community. As it was succinctly put in the applicant’s written submissions: “The danger to the community arises from the risk of her falling into another such relationship”. That may be so, but in my view it is reflected in the extent of the risk assessed by Dr Beech. [32] Fourth, the applicant relied on Dr Beech’s statement at page 20 of his report that “the task is now to prepare for the respondent’s release.” She has undergone a number of programs in the pre-release phase and they have been the appropriate ones. The programs have acted for the respondent to look at things such as substance use, victim empathy, relationships, self-esteem and problem-solving. In Dr Beech’s opinion they should be continued throughout her remaining time in custody. It is to be expected that will have occurred. Dr Beech also expressed the opinion that arrangements should be made for the respondent to continue with such programs in the community. [33] In substance, the applicant’s submission is based on the desirability of an outcome whereby the respondent would be subject to a supervision order that would condition her living in the community in a way that would continue the programs as she has undertaken, and protect against the risk that she might form another relationship of the kind that the applicant submits represents the danger to the community. [34] Attorney-General for the State of Queensland v SBD4 and Attorney-General for the State of Queensland v Solomon5 show that the threshold of reasonable grounds for belief under s 8(1) is lower than the threshold of the court being satisfied that a prisoner is a serious danger to the community in the absence of a division 3 order under s 13(1). As the text of s 8(1) provides, it is only necessary for the applicant to show that there are reasonable grounds for believing the prisoner is a serious danger to the community. But as P Lyons J said in SBD: “… In determining whether there are reasonable grounds for believing that a person is a serious danger to the community in the absence of a Division 3 order, it seems to me that one can bear in 4 [2010] QSC 104, [48]-[51]. 5 [2015] QSC 199, [15]-[16]. -- 6 of 7 -- 7 mind that the standard in s 13(3) will apply in the final determination of the question whether a person is a serious danger to the community in the absence of such an order.” [35] Whether or not the outcome sought by the applicant might be desirable, it does not change the statutory requirement under s 8(1) of the Act. The threshold that the applicant must cross is to satisfy the court that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a division 3 order. [36] In my view, having regard to Dr Beech’s affidavit, oral evidence and report, the applicant has not discharged the onus of showing that there are reasonable grounds for that belief. [37] I think it is important that the risk presented by the respondent is not of the same kind as the risk presented by many sexual predators who have or may have ongoing paraphilias. Second, I think it is important that the respondent has so clearly addressed her offending to the extent which is practicable in the form of the relevant courses she has completed. Third, I think it is important that while there may have been minimisation in the respondent’s attitude to her offending Dr Beech’s report shows that she has actively engaged with the nature of the offending behaviours, their causes and, on the face of it, has shown both shame and remorse. [38] Also importantly, it seems to me that Dr Beech’s report shows that the respondent openly and cooperatively engaged in the process of the interview for his assessment of the risk of reoffending that she presents. That added to the confidence that the court can have in the assessment contained in his report. [39] Lastly, notwithstanding the extremely serious nature of the offending and the understandable concern that has caused the applicant to bring this application, in my view, the analysis of the circumstances which led Dr Beech to reason that the respondent’s risk of reoffending is so low ultimately supports the conclusion that there are not reasonable grounds for believing that the respondent is a serious danger to the community in the absence of a division 3 order. -- 7 of 7 --