Attorney-General for the State of Queensland v Kynuna [2013] QSC 119

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Kynuna [2013] QSC 119 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DIRK GREGORY KYNUNA (respondent) FILE NO: BS 3832 of 2010 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 6 May 2013 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 6 May 2013 JUDGE: Applegarth J ORDER: That pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 the respondent be released from custody and continue to be subject to the supervision order made by P McMurdo J on 6 April 2011 CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where respondent subject to a supervision order – where respondent contravened the order – whether, on the balance of probabilities, respondent satisfied the Court that adequate protection of the community can be ensured despite the contravention of a supervision order – where applicant acknowledges that the respondent has done so Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld), s 22 Attorney-General Queensland v Kynuna [2011] QSC 73, cited Attorney-General for the State of Queensland v Sagiba [2010] QSC 401, cited COUNSEL: M Maloney for the applicant -- 1 of 7 -- C Morgan for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent HIS HONOUR: By an application under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) the applicant Attorney-General sought certain orders. The matter has been resolved on the basis that both the applicant and the respondent accept that there should be a further supervision order. There is no dispute in 5 relation to the contravention. Although, in those circumstances, it may seem something of a formality for me to make the order that is requested, it is appropriate that I record some matters in relation to this application. The background to the making of a supervision order by McMurdo J on 6 April 2011 appears in Attorney-General Queensland v Kynuna [2011] QSC 73. 10 This matter came before the Court because in August last year the respondent was accommodated in what is described as contingency accommodation operated by Queensland Corrective Services at a reserve in Townsville. I understand from previous matters that the reserve is close to the Townsville jail. It does not have 15 access to public transport. On 5 August 2012 Queensland Corrective Services officers attended at that complex for a house visit. They conducted a random breath test and served a reasonable direction notice. The respondent requested that he be transported to a shopping centre which the officers declined to do, saying it was not part of their scheduled requirements. 20 He complained about the lack of transport. He was told by the officers he should seek permission for transport arrangements. He said he could not do so because it was a Sunday. He then became angry and aggressive. He threw the direction notice on the ground, picked up something and threw it against the dwelling. Then he went 25 inside and noises were heard. That was him punching a wall and he also hit a flyscreen door which was detached from its hinges. The damage which he had done was detected and evidence was taken on 6 August 2012. On 7 August 2012 he was charged with an offence of wilful damage and also was charged with breaching his supervision order. These contravention proceedings were filed shortly after and, in 30 accordance with section 22, he was returned to custody. The material in the court file, not simply the material filed for the purpose of this application, makes abundantly clear that the respondent’s rehabilitation and therefore adequate protection of the community will be advanced by his re-establishing links 35 with his family support networks in Cairns. On 13 August 2012, about a week after the events that I have just described, the applicant applied for a transfer to the Lotus Glen Correctional Centre near Cairns. He wrote in his reasons for the transfer, “I’m from Cairns and I have no family support in Townsville. All my families are in Cairns and I haven’t seen my family in nine years. I want to go to Lotus Glen so I 40 can get family visits.” That seems to me to be an entirely reasonable request and if the authorities had looked into the matter, then, they would have appreciated how reasonable it was. For example, Dr McVie, in a report dated 8 December 2011, apart from making certain 45 other recommendations, referred to the respondent’s frustration in relation to being -- 2 of 7 -- dislodged from his Cairns/Yarrabah community and being placed in Townsville where he had limited supports. For reasons that are not disclosed, his request to be transferred to Lotus Glen was refused. On 3 September 2012, it was said that there was a refusal to transfer him “at this time”. As a result the respondent has been kept in custody in Townsville. 5 The respondent has been punished for his wilful damage. I imagine the punishment he has received has helped him learn the lesson that aggression does not pay and damaging property will only get him into trouble. He pleaded guilty and had indicated a preparedness to plead guilty at an early stage to the charges of wilful 10 damage to property and breach of the supervision order. He came before a Magistrate in Townsville on 19 October 2012. By then he had been in custody and 73 days of pre-sentence custody were available to him. The Magistrate sentenced him to six months imprisonment on the count of wilful damage, taking into account both aspects of his offending. Due to the applicant’s pre-sentence custody he was 15 granted immediate release on parole. However, that availability of parole proved illusory because under the Act the respondent was required to remain in custody pending the final determination of these proceedings, absent exceptional circumstances. 20 The respondent’s act of aggression on that Sunday was inexcusable. However, it was not entirely unpredictable. A Judge ordered on 10 August 2012, that the respondent undergo examinations by two psychiatrists who were to prepare independent reports, and that has been done in the form of reports from Dr Harden and Dr Sundin which are exhibits 1 and 2. They do not suggest that the supervision order should be 25 revoked. In short, they remain largely of the view that they had earlier expressed concerning the problems that the respondent confronts, the risks that he presents and his need for ongoing therapeutic attention. Dr Harden concluded his recommendations: “It may be worth considering whether he could be supervised in a location with greater access to family support if this was practicable to achieve.” 30 Dr Sundin concluded her recommendations: “The only additional advice I would make as regards Mr Kynuna’s rehabilitation within the community would be to try and establish a link to an indigenous male support service before he is released from the prison, so that this can continue once he is in the community. Mr Kynuna is 35 desperately in need of pro-social modelled behaviour and although the indigenous men of Townsville do not come from his country, they, certainly, are undoubtedly more than capable of providing some guidance and assistance to this man to assist in his maturation.” 40 That was in a report dated 29 January 2013, and there is no evidence that he has been put in touch with those individuals. From my reference to the affidavits he appears to have been working in the jail on laundry work and, then, working in some other form of work. 45 In the light of the evidence, including the psychiatric reports which I have mentioned, the applicant submits that I should be satisfied that, despite the contravention, adequate protection to the community could be ensured by the respondents return to a supervision order and submits that he should be returned to the existing supervision order. The respondent’s counsel does not contest any of the 50 -- 3 of 7 -- factual contentions in the applicant’s outline and, likewise, submits that in the light of the evidence, including the psychiatric reports, the respondent can be managed by his release subject to the supervision order. I consider that is appropriate and I am satisfied that despite the contravention, adequate protection to the community can be ensured by the respondent’s return to a supervision order and I intend to make such 5 an order. It is important that I record some highly unsatisfactory aspects of this matter. Unfortunately this is not an isolated case. The respondent had previously established a therapeutic relationship with Ms Tracy Richards in Townsville. I have had regard 10 to her risk assessment report dated 25 May 2012. That expressed positive opinions concerning the respondent’s participation in matters relating to his rehabilitation. She identified that he clearly articulated what his future goals were. Those included to remain abstinent from drugs and alcohol and to continue to have regular contact with his grandmother and to work towards being able to visit his family in Yarrabah. 15 There are some quite positive matters concerning the respondent’s plans to look after himself. There were inevitable frustrations about his accommodation in the precinct. He had to manage on a small budget, he reported that he spent too much time “helping the other guys in the house” and so on. However, that report spoke to the respondent’s progress in receiving treatment. 20 From my review of the material, the respondent has problems in dealing with the supervision order. It would be surprising if he did not and he might have a negative view sometimes about the conduct of people who are trying their best to help him; including people like Ms Richards and those who monitor and supervise his life and 25 give him directions. The respondent’s progress towards achieving his goals has been frustrated by his own impulsive stupidity in committing the offences that he did, but also by the way in which this Act is administered. In the past I have remarked on the bleak circumstances that prevail at the Townsville precinct. I did so on 4 October 2010, in a case called Attorney-General for the State of Queensland v Sagiba [2010] 30 QSC 401. Since that time there has been some improvement in terms of providing some transport facilities. However, that precinct seems quite unsuitable for many people who are subject to the Act. An isolated precinct close to a prison with no public transport might be appropriate 35 for some people who are subject to the Act. For example, people who are subject to strict curfews and restrictions on their movements might be prevented from breaching those curfews if they are so isolated. Such isolation might be appropriate as a means of isolating people from access to alcohol. However, it has to be recalled that people who are subject to this Act are prisoners in name only. They have served 40 their sentences and the restrictions upon their liberty under a supervision order should only be to such an extent as is necessary to provide adequate protection to the community and they should be apt to aid the individual’s rehabilitation. Being isolated in a precinct like that in Townsville, when such isolation is not necessary, is inimical to the proper rehabilitation of someone such as the respondent, and because 45 their rehabilitation is damaged, there is a reduction in the protection of the community. I am not for a second condoning the kind of contraventions that were committed by Mr Sagiba or by the respondent or anyone else who has suffered the frustrations of 50 -- 4 of 7 -- being isolated at that Townsville precinct. However, tens of thousands of dollars are expended under this Act obtaining psychiatric opinion about the problems that arise in cases such as these. It is almost inevitable that isolating individuals such as the respondent in a place like the Townsville precinct, away from their family supports, and away from places where they can gain support in the community, is likely to lead 5 to frustration, aggression and, in a case such as this, offending behaviour which then, at great public expense, involves the criminal justice system dealing with charges of the kind that were dealt with by the Magistrate on 19 October 2012 and being held in custody at great public expense between August last year and today, 6 May 2013. 10 The Townsville precinct comes with its difficulties in general and its proven difficulties for the respondent in particular. But at least the Townsville precinct was a place at which the respondent had established a therapeutic relationship with Ms Richards and had the opportunity to develop a connection of the kind that Dr Sundin thought was appropriate for him to be mentored. The authorities do not provide any 15 contingency accommodation in or near Cairns. The absence of suitable contingency and other suitable accommodation near Cairns, if I may say so, is a public disgrace and it can only exacerbate problems under the administration of this Act to have so many people who are subject to this Act, particularly indigenous offenders from the Cape and from near Cairns, isolated from possible family support and the possibility 20 of forming positive relations, gaining employment and, under close supervision, re- establishing connections with their community and doing all the things that people like the respondent set as their goals. In this case and in other cases I have been told of the problems that exist with 25 individuals subject to this Act finding suitable accommodation in Cairns. I was told last week that there was a place called ORSS House but there is no accommodation presently available there. I was told last week in another case that there had been a funding cutback to an organisation that provided accommodation to people who were subject to the Act. In the past I was told of a hostel in Cairns, where there was only 30 one bed for someone who was subject to this Act. The unfortunate situation exists that there is not even accommodation of a contingency kind left for the respondent in Townsville, as unsatisfactory as that precinct is. By an affidavit sworn by Ms Embrey on 1 May 2013 the Court was told 35 that due to operational circumstances Townsville accommodation is not an option at this time. I am not sure what the operational circumstances are and how long lasting they will be. It is not for me to make recommendations about government policy. But it may be of some assistance if those in charge of administering the Act might consider the complete inadequacy of current contingency and other accommodation 40 for respondents under this Act. If we are to have legislation which subjects more than 100 people – and I am not sure of the precise number – to this Act then there has to be sufficient contingency accommodation and other forms of accommodation for these individuals to be suitably accommodated. 45 The contingency accommodation at Wacol and at Townsville and at a recently opened contingency accommodation in Rockhampton is simply that. It is contingency accommodation which is there for the short term and people who are there are expected to continue to actively source suitable long term accommodation in the community. I have been told in other cases that Queensland Corrective 50 -- 5 of 7 -- Services does its best to try and find that accommodation in the community. However, people without the prejudiced background that the respondent has, with more income, and who are not subject to the Act have difficulty enough in finding low cost accommodation in the community, whether it be Brisbane, Rockhampton, Townsville or Cairns. So it must be extremely difficult for someone in the 5 respondent’s position to find suitable accommodation in the private rental market. I have been told that it is, of course, the responsibility of those who are subject to such orders to find their own accommodation. The government is not an accommodation provider. When this Act was passed in 2003, it was thought it 10 would probably apply to about a dozen people at the time. One might reflect on what a large and unwieldy system has developed under the Act. There are so many people subject to this Act and the number of spaces in the contingency accommodation and the other forms of suitable accommodation is so limited that there is – not to put too fine a point on it – an accommodation crisis. 15 Of course, it is the responsibility of the respondent to find suitable accommodation, and it is his responsibility to nominate suitable accommodation for approval. And he will be expected in the coming days and weeks and months to progress, as best he can, with the assistance of others, suitable accommodation options if he wishes to 20 live in or close to Cairns. But the respondent, given his resources and background, cannot be expected to find accommodation which simply does not exist. Adequate protection to the community against serious sexual offences, and the rehabilitation of people such as the respondent, may require resources to fund private organisations to provide suitable accommodation. I would imagine that it is cheaper to accommodate 25 someone in ORSS House each day and each week, than it is to accommodate someone like the respondent in the Townsville Correctional Centre, or Lotus Glen prison. Those who are only interested in counting dollars might think that it is a better use of public funds to fund such organisations. 30 Unless that is done, people like the respondent inevitably will be frustrated. And beyond being frustrated, will be so despondent that they will give up progressing towards their goals. That would not only be a shame for them. It would be completely counterproductive, and undermine the objectives of this Act. 35 As matters stand, the respondent will be accommodated, where he has been in recent days, at the Wacol contingency accommodation. Unlike the Townsville contingency accommodation, it has access to public transport. From my reading of the material, the respondent has no connection with south-east Queensland, and therefore probably will have difficulty navigating his way around to appointments and the like. Whilst 40 he is here, it is hoped that he will establish a therapeutic relationship with an individual with experience in cases of this kind, and seek out the kind of mentoring that he so badly needs. Although, as I say, the Wacol accommodation has some advantages over the 45 Townsville contingency accommodation, if no accommodation is available in Cairns, then the respondent hopes that when a vacancy becomes available in the contingency accommodation in Townsville, he will be transferred there. At least that will get him somewhat closer to his family, and back in more familiar circumstances, namely, -- 6 of 7 -- Townsville, where there is some access to groups that might provide him with mentoring and support. Finally, I should record that, although the respondent has not been in the community for lengthy periods of time under a supervision order, remarkably, he has remained 5 free of alcohol and drugs. He has been tested many times. Without dwelling on matters, the respondent came from a highly prejudiced background. Both of his parents were alcoholics. He was sexually abused at the age of 12. For him to abstain from alcohol, and to continue to abstain from alcohol, is 10 something of an achievement. But he needs all the support he can get to maintain and build upon that achievement. And it is to be expected that those who administer the Act, in the interests of the safety of the community through the respondent’s rehabilitation, will ensure that the respondent receives all that is recommended by Dr Sundin and Dr Harden, including that he will establish ongoing therapeutic 15 relationships. If he is in Townsville, he might be able to undergo individual therapy and management with Ms Richards, or someone similar. Wherever he is, he should be encouraged to take the steps that are necessary to maintain contact with his grandmother, and make concrete proposals for his future accommodation in the community. 20 For the reasons that I have given, I intend to make a further supervision order, and the order that I make is in terms of the draft, which I will initial and place with the papers. -- 7 of 7 --