Attorney-General (Qld) v Bewert [2013] QSC 98

1 SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v Bewert [2013] QSC 98 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v HENRY BEWERT (respondent) FILE NO/S: BS 13210 of 2010 DIVISION: Trial Division PROCEEDING: Application for review DELIVERED ON: 8 April 2013 DELIVERED AT: Brisbane HEARING DATE: 8 April 2013 JUDGE: Philip McMurdo J ORDER: 1. The decision made on 10 May 2011, that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, be affirmed; 2. The continuing detention order made on 10 May 2011 be rescinded; and 3. The respondent be released from custody to be subject to the following requirements until 8 April 2023: The respondent must: i report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of his current name and address; ii report to, and receive visits from, a Corrective Services officer as directed by the court or relevant appeal court; iii notify a Corrective Services officer of every change of his name, place of residence or employment at least two (2) business days before the change happens; iv be under the supervision of a Corrective Services officer for the duration of the order; -- 1 of 7 -- 2 ORDER 1 10 20 30 40 50 60 v comply with a curfew direction or monitoring direction; vi comply with any reasonable direction under section 16B of the Act given to him; vii comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order; viii not leave or stay out of Queensland without the permission of a Corrective Services officer; ix not commit an offence of a sexual nature during the period of the order; x seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; xi notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two (2) days prior to commencement or any change; xii reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence; xiii if this accommodation is of a temporary or contingency nature, must comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services; xiv not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer; xv respond truthfully to inquiries by a Corrective Services officer about his activities, whereabouts and movements generally; xvi not knowingly have any direct or indirect contact with a victim of his sexual offences; xvii disclose to a Corrective Services officer upon request the name of each person with whom he associates and respond truthfully -- 2 of 7 -- 3 ORDER 1 10 20 30 40 50 60 to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour; xviii notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use; xix submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed; xx if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred; xxi abstain from the consumption of alcohol and illicit drugs for the duration of this order; xxii submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer; xxiii not visit licensed bars, licensed clubs and licensed nightclubs, without the prior written permission of a Corrective Services officer; xxiv attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist; xxv permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re- offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order; xxvi attend any program, course, psychologist, -- 3 of 7 -- 4 ORDER 1 10 20 30 40 50 60 social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate; xxvii develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it as directed with a Corrective Services officer; xxviii notify a Corrective Services officer when attending a hospital/emergency department; xxix advise a Corrective Services officer of the make, model and telephone number of any mobile telephone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use and includes reporting any changes to mobile telephone details; xxx take prescribed drugs only as directed by a medical practitioner and disclose details of all prescribed medication and all over-the- counter medication that he obtains to a Corrective Services officer as requested . CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING – ORDERS – ORDERS AND DECLARATIONS RELATING – TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS – SEXUAL OFFENDER – GENERALLY – where evidence of psychologists initially adverse to making of supervision order – where evidence of psychologists was subsequently revised and now supportive of making supervision order – whether supervision order should be made Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 30, 48 COUNSEL: M Maloney for the applicant E MacGiollari for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent -- 4 of 7 -- 5 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application by way of a review under section 48 of the Dangerous Prisoners (Sexual Offenders) Act 2003. On 10 May 2011, this Court ordered that the respondent be retained in custody for an indefinite term for controlled care or treatment. The relevant history since that order was made might be seen as falling into two parts. The first is constituted by the psychiatric opinion which was obtained for the purpose of the court’s considering the matter under section 30. That psychiatric opinion came from Professor Lawrence and Dr Beech, each of whom had given evidence in the hearing from which the original detention order was made. The evidence of each of those psychiatrists, within her or his reports of September and October 2012, was that very little had changed insofar as the respondent's mental health and his other relevant circumstances were concerned. The effect of that evidence, without any further development, would have been, in my view, quite adverse to the court making a supervision order under section 30. However, the second part of the evidence consists of what has occurred since in respect of his treatment and proposed treatment and the assistance he would receive, if released, through the organisation Richmond Fellowship Queensland. That evidence is supportive of an order being made for his release, but moreover, each of Professor Lawrence and Dr Beech -- 5 of 7 -- 6 ORDER 1 10 20 30 40 50 60 have revised their opinions, such that it also would support an order for the prisoner's release. On the 4th of April, that is, last Thursday, Professor Lawrence wrote: "The management plans of Dr Eve Timmins would appear to provide him with ready access to mental health services and a case manager to assist and monitor him in such matters. Overall, I believe that the arrangements that have been established are very appropriate for Mr Bewert's needs, and if he complies with these and contributes his own energies to helping himself and complies with all that is required of him, it is my opinion that the risk that he presents to the community by his antisocial (including sexual) behaviours will be manageable by an appropriately-designed supervision order." Dr Beech wrote last week that having read the report of Dr Timmins of 7 March this year, which states that Mr Bewert's mental state has been stable and that there are currently no signs of mental illness within the supportive prison setting, he believes that he would support the prisoner's release on supervision if he were to be released to supported accommodation with case management provided by District Mental Health Services, as is proposed. This being the present position, the applicant's suitability for supervised release, as distinct from detention, has become quite different. Clearly, the position remains that absent a division 3 order, the prisoner would be a serious danger to the community. I am well satisfied of that matter by evidence -- 6 of 7 -- 7 ORDER 1 10 20 30 40 50 60 which satisfies the requirements of section 30 subsection (2), and in particular, by the evidence of Professor Lawrence and Dr Beech. However, I am persuaded that it is appropriate to rescind the continuing detention order and to make an order for supervised release, in particular, according to the draft order which was handed up by counsel for the Attorney-General. Having regard to the current evidence, the Attorney-General, through his counsel, has acknowledged that it would be appropriate for a supervision order in these terms to be made. Accordingly, there will be an order in terms of that draft, which has the agreement of the respondent through his counsel. That draft provides, amongst other things, that the decision made on 10 May 2011, that the respondent is a serious danger to the community in the absence of an order made under division 3, be affirmed, that the continuing detention order made on that day be rescinded, and that the respondent be released from custody subject to the conditions of that order, those conditions operating until late April 2023. ----- -- 7 of 7 --