Attorney-General for the State of Queensland v Warry [2014] QSC 85

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Warry [2014] QSC 85 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v MICHAEL PATRICK WARRY (respondent) FILE NO/S: 8027 of 2013 DIVISION: Trial Division PROCEEDING: Application for Division 3 Order ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: Ex tempore decision delivered 28 April 2014 DELIVERED AT: Brisbane HEARING DATE: 28 April 2014 JUDGE: Ann Lyons J ORDER: 1. Application dismissed 2. Order in terms of draft, initialled and placed with file CATCHWORDS: DANGEROUS PRISONERS – SEXUAL OFFENDERS – whether the respondent presents as a serious danger to the community in the absence of a Division 3 order –where the respondent was convicted in 2006 of one count of maintaining an unlawful sexual relationship with a child and 10 counts of unlawful carnal knowledge Dangerous Prisoners (Sexual Offenders) Act 2003, s 13 COUNSEL: M Maloney for the applicant K T Bryson for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] On 28 August 2013 the applicant filed an application for an order pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) that the respondent be detained in custody for an indefinite term for care, control or treatment or that he be released from custody subject to a supervision order. -- 1 of 8 -- 2 Background [2] The respondent was born on 10 March 1957 and is currently 57 years of age. On 1 March 2006 he pleaded guilty to one count of maintaining an unlawful sexual relationship with a child and 10 counts of unlawful carnal knowledge. That is the only sexual offence for which the respondent has ever been convicted. The victim met the respondent when she was 11 years of age. The respondent was a friend with the victim’s father. The sexual offending was instigated by the respondent and commenced when the victim was 12 years of age and continued for three years. The respondent was aged between 37 and 40 at the time and it would seem clear that some members of the victim’s immediate family were aware that there was a sexual relationship between them. When the victim was 14 years of age she dropped out of school and lived with the respondent. Prior to her fifteenth birthday in 1996 they moved to a caravan park together. [3] In May 1996 the respondent was convicted of an offence of grievous bodily harm and during his incarceration the victim lived with her father. On the respondent’s release from custody, he continued the relationship with the victim up to and beyond her sixteenth birthday. When she turned 18 the victim and the respondent married. The victim maintains she married him because she was scared and intimidated by him and had nowhere to go. They separated in 2003 after three years of marriage. After receiving counselling the victim made a complaint to police. [4] On 9 March 2006 the respondent was sentenced to eight years imprisonment with a recommendation that he be eligible for parole after serving three and a half years. A total of nine days pre-sentence custody was able to be declared. The respondent’s full-time release date was 24 February 2014. The respondent has served the full period of his eight year sentence despite the fact that the sentencing judge had recommended that he be considered to be eligible for parole after serving three and a half years. Prior to his initial application for parole being considered by the Parole Board he participated in a Sexual Offender Program Assessment which commenced in October 2008. During that program however he refused to participate in the interview process and maintained his innocence for some of the sexual offending. The only aspect of an assessment which could be completed was the Static-99 and in that assessment he was considered to be in the medium to low category for future sexual re-offending. It was concluded, however, that he should participate in the Getting Started Preparatory Program. [5] He subsequently participated in that program in February and March 2009 but there were concerns that he did not demonstrate satisfactory levels of victim empathy. At the conclusion of the program the exit report recommended he participate in a Sexual Offender Program Assessment to identify his future needs and that he should also undertake the Medium Intensity Sexual Offender Treatment Program (MISOP). In March 2009 the respondent was interviewed about his willingness to participate in the MISOP. Whilst he initially indicated he would undertake the program, he subsequently declined to participate. [6] The respondent made a number of applications for parole all of which were declined given concerns regarding the respondent’s partial denial, minimisation of offending and his failure to undertake recommended programs to address his criminogenic needs and to develop strategies to reduce his risk of reoffending. That history clearly affected his eligibility for parole. -- 2 of 8 -- 3 [7] On 9 February 2012, Dr Sundin completed a psychiatric assessment for the purposes of the respondent’s third application for parole. Dr Sundin administered a number of the actuarial risk assessments and concluded that he was a moderate to high risk of future sexual re-offending. Dr Sundin however was particularly concerned that the respondent had demonstrated little insight into the nature of his offending behaviour and that he needed to complete the MISOP. She concluded that he was not a suitable candidate for release on parole. Dr Sundin stated that she considered the respondent posed a significant risk and that the Board should consider whether he should be referred for assessment under the DPSOA legislation. [8] The respondent’s third application for parole was subsequently refused and an application under the DPSOA legislation was filed on 28 August 2013. [9] At the preliminary hearing on 16 September 2013 the respondent indicated his willingness to participate in the MISOP and was transferred to the Wolston Correctional Centre for the purpose of his participation in the program. The respondent had not completed the program when the matter was initially listed for hearing on 17 February 2014. Accordingly the date was vacated and the matter was adjourned for a final hearing until 28 April 2014 to allow the respondent to complete the MISOP. The respondent has now been assessed by three psychiatrists, Dr Harden, Dr Moyle and Dr Nurcombe. Dr Harden [10] Dr Harden saw the respondent on 5 March 2013 but he refused to be interviewed and the report was therefore based on the material which was made available to Dr Harden. He used the actuarial risk assessment instruments and placed the respondent on the STATIC-99 instrument in the low-moderate risk category. On the STATIC-2002R he was once again placed on the low-moderate risk category. On the SORAG the respondent achieved a score of four, which placed him in Category 4, which means that men in that category had a 39 per cent rate of violent (including sexually violent) re-offending at seven years and a 59 per cent rate at 10 years. On the SVR-20 the respondent was assessed as falling within the low risk category on this measure of sexual violence risk. [11] Dr Harden noted in particular that the respondent “had sexually offended against one female victim beginning when the victim was approximately 12 years of age involving a prolonged relationship lasting into adulthood and resulting in marriage.”1 He stated that the respondent was a man whose offending history did not include other sexual offences or any offences with a clear sexual component other than the index offences. He also considered that the offences occurred in a background of emotional distress and alcohol abuse following the failure of his marriage and the loss of contact with his children. In his view the offences against the complainant constituted an index cluster and he was not convinced that he suffered from a sexual paraphilia. Dr Harden considered that the future unmodified risk of sexual offending in the community was low to moderate, and recommended he be required to abstain from alcohol and drugs. He also recommended he participate in individual or group therapy programs for sex offender treatment. 1 Dr Harden’s Addendum Report dated 23 April 2014 p 1. -- 3 of 8 -- 4 [12] In his addendum report dated 23 April 2014 Dr Harden stated that the respondent had successfully completed the MISOP during which; 2 “Treatment needs were identified in relation to poor problem solving, emotion recognition and management and use of alcohol and illicit substances. He was described as being able to identify the significant age difference between the victim and himself as a critical factor. He was also able to identify some of his previous thoughts that were distorted and supported the offending behaviour. My previous opinion was that his risk of further sexual offence was low to moderate in the community without further intervention. In my opinion he still falls in the low to moderate risk group, however the successful completion of the treatment would suggest to me that it is closer to the low than the moderate group.” [13] In his oral evidence to the court Dr Harden reiterated his views that the respondent was considered to be a low risk and in particular noted that the respondent had been in the community for a number of years after the commission of the offences until he was arrested, and there had been no further offending. He stated that that also significantly lowered the risk of reoffending and considered that the respondent’s risk of re-offending should be considered to be closer to low than moderate. Dr Harden also stated that while a supervision order might reduce his risk, he was not convinced such a supervision order was essential to the respondent’s management in the community. Dr Moyle [14] Dr Moyle interviewed the respondent on 15 November 2013. He also applied the formal risk assessments. He considered that using the Static-99 and the STATIC- 2002 the respondent was a low to moderate risk of re-offending on the STATIC- 2002 but moderately high on the STATIC-99. Under the VORAG he considered that the respondent was less than 50 per cent at risk of violent re-offending and that using the sex offender risk appraisal guide he was at risk of re-offending sexually on static factors would be up to 59 per cent over 10 years. Based on those scores Dr Moyle concluded that there were grounds for assessing the risk of future sexual offending as moderate. Dr Moyle concluded that, as the respondent was then 56 and abstinent from drugs and alcohol and planned to seek re-employment as well as recreational activities with people he knows and trusts. He considered that he “poses no measurable risk in addition to that predicted by actuarial instruments. He is at the low moderate to moderate risk of re-offending using such approaches modified favourable by my clinical judgment”.3 [15] Dr Moyle concluded that the respondent “does not present an extraordinary case” and that “His risk is not exceptional”.4 He also noted in his oral evidence that now that the respondent has completed the MISOP program that his satisfied him in relation to his insight and to his offending and to the risks in the future. Dr Moyle also considered the fact he had been in the community for some years without re-offending prior to his arrest was also a factor which added to the decrease in his 2 Dr Harden’s Addendum Report dated 23 April 2014 at p2. 3 Dr Moyle’s Report dated 28 January 2014 at p41. 4 Ibid. -- 4 of 8 -- 5 risk. He considered that the respondent “has the capacity to care for himself, does not need treatment as such and can choose to exercise control over his drinking behaviours and his sexual behaviours. He has no mental disorder that robs him of that capacity”. 5 Dr Nurcombe [16] Dr Nurcombe assessed the respondent on 21 November 2013 using the same actuarial instruments and concluded that he fell within the low to moderate risk group, the moderate range of risk for sexual recidivism and the low or low to moderate risk of sexual recidivism respectively. [17] Dr Nurcombe considered that his risk of re-offending sexually against an underage female is low, or at most low to moderate. He did not conclude that the respondent was a predatory sexual offender and saw no evidence of deviant sexual arousal, such as paraphilia, considered the respondent had a good relapse prevention plan and has had some support from his family and prospects of work in the future. He also noted that his institutional record was good and that he had now completed his MISOP. [18] In particular Dr Nurcombe noted that the index offences had occurred some 16 to 20 years ago and he particularly noted that the respondent was not a predatory sexual offender and there was no indication of any evidence of paraphilia such as paedophilia. He considered that the index offence occurred in an emotional context of depression, low self regard and abuse of alcohol and marijuana after separation from his first wife. Dr Nurcombe also noted that the respondent has not used alcohol or marijuana since 1996. He continued:6 “[83].....If he remains abstinent, physical violence is unlikely. He has a good relapse prevention plan, is supported by his family, has a good work record in the past, and has good prospects for work in the future. His institutional record is good and, by the time of discharge will have completed that Medium Intensity Sex Offending Program. After discharge, he would be advised to seek psychological counselling for depression and unresolved conflict concerning child sexual abuse. [84] I question whether the Dangerous Prisoners (Sexual Offenders) Act was designed for men like Michael Warry. He has paid a heavy price for his transgression. It is time he got on with his life.” [19] In his oral evidence to the Court at the hearing Dr Nurcombe considered that the concerns initially raised by Dr Sundin in relation to his demonstrated lack of insight had now been satisfied. Dr Nurcombe also questioned whether the legislation was really designed for offenders like the respondent, who had no history of predatory sexual offending or a pattern of sexual offending. The MISOP [20] As the psychiatrists have noted the respondent completed the MISOP over 32 sessions between 4 November 2013 and 25 March 2014. The exit report indicated 5 Dr Moyle’s Report dated 28 January 2014 at p42. 6 Dr Nurcombe’s Report dated 14 April 2014 at [83] and [84]. -- 5 of 8 -- 6 that he had developed an increasing level of insight and a desire to utilise the information he had learned throughout the course. It was considered that he was able to demonstrate an adequate level of empathy for the primary victim, as well as an understanding of the impact his behaviour had on others. The exit report also considered that the respondent had made positive shifts in his acceptance of responsibility and an understanding of the factors underpinning his offending behaviour. The report also noted that the respondent had made a conscious effort to improve his level of communication with others. The Law [21] Section 13 of the DPSOA provides: “Division 3 Final orders 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; (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; -- 6 of 8 -- 7 (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).” Conclusions [22] I accept that the present application was instituted prior to the respondent’s participating in the MISOP. It is also clear that the respondent completed that program on 25 March 2014 and has received a positive exit report. Whilst I note that Dr Sundin provided a negative assessment to the Parole Board, I now note that the three psychiatrists who have assessed the respondent more recently have all concluded that he is in the low to moderate risk of re-offending. In particular, psychiatrists have raised concerns as to whether the respondent is a person who should be supervised pursuant to the DPSOA regime. [23] Having considered all of the material I must have regard to and taking into account all of the matters I must have regard to pursuant to s 13(4) of the Act I am not satisfied that the evidence before me indicates that the respondent is a serious danger to the community in the absence of a Division 3 order. [24] There is no evidence before me that the respondent has a propensity to commit serious sexual offences in the future and there is no evidence which would suggest that the respondent has demonstrated a pattern of past offending which means he is an unacceptable risk of committing a serious sexual offence. [25] I am satisfied that, now that the respondent has completed the MISOP to a satisfactory standard, the preponderance of the evidence is that the statutory criteria -- 7 of 8 -- 8 has not been satisfied. The court must be satisfied there are reasonable grounds for believing a prisoner is a serious danger to the community in the absence of orders under the Act. A belief is something more than a suspicion and something less than proof on the balance of probabilities. I must be satisfied that the prisoner is a serious danger to the community in the absence of an order. A prisoner is a serious danger if there is an unacceptable risk he will commit a serious sexual offence if released from custody without a supervision order being made. In determining this question I am required to take into account all the matters set out in s 13(4). Those matters include the reports prepared by the psychiatrists, all other medical and psychological assessments, as well as information indicating whether or not there is a propensity on the part of the prisoner to commit a serious sexual offence in the future, the pattern of offending behaviour, efforts by the prisoner to address the causes of offending behaviour where the prisoner’s participation in rehabilitation programs has had a positive effect, and the prisoner’s antecedents and criminal history. [26] All psychiatrists have reached a similar level of assessment. [27] Having considered the material, I am not satisfied that the requirements of s 13(4) have been made out. I am satisfied therefore that the application by the Attorney-General for a Division 3 order should be dismissed. There will be an order in terms of the draft, initialled by me and placed with the file. -- 8 of 8 --