Attorney-General for the State of Qld v Currie [2012] QSC 300

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Qld v Currie [2012] QSC 300 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ASHLEY JASON CURRIE (respondent) FILE NO/S: 12305/08 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 3 October 2012 DELIVERED AT: Brisbane HEARING DATE: 2 October 2012 JUDGE: Philippides J ORDER: The respondent continue to be subject to the supervision order made by Byrne SJA on 5 May 2009 as amended by Dick A/J on 14 October 2011. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER – SEXUAL OFFENDERS – where supervision order contravened - whether adequate protection of the community can be ensured despite the contravention for the purposes of s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 COUNSEL: B H Mumford for the applicant C Morgan for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent Philippides J: [1] This application was brought pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) on the basis that Mr Currie contravened condition (xxxviii) of the supervision order imposed by Byrne SJA on 5 May 2009 and amended by Dick AJ on 14 October 2011, namely that on 25 May 2012 Mr Currie failed to “comply with any reasonable direction given to him under section 16B”. -- 1 of 5 -- 2 The relevant direction was that, on 3 February 2012, the respondent was directed not to consume synthetic cannabis. [2] Section 22(2)(a) of the Act requires a court, once satisfied of the contravention on the balance of probabilities, to rescind the supervision order and instead make a continuing detention order, unless the prisoner can satisfy the court on the balance of probabilities that, despite the contravention, adequate protection of the community can be ensured by the continuation of the supervision order, amended or otherwise. Background [3] On 22 May 2009, the respondent was released on a supervision order expiring on 22 May 2019 imposed by Byrne SJA: Attorney-General for the State of Qld v Currie [2009] QSC 112. [4] In 1996, after breaking, entering and stealing from a dwelling house, Mr Currie raped a mentally retarded woman who lived two houses away from his own. Before committing the offences he had consumed a large amount of beer, some rum and he smoked some cannabis - the offences occurred on the way home from the hotel. The circumstances of that offending are set out in the judgment of Byrne SJA at [6]. Mr Currie was sentenced on his plea to 12 years’ imprisonment, and to a cumulative term of 12 months’ imprisonment for the breach of probation that had been imposed in respect of other offences, and for some motor vehicle offences. At the time he was aged 20. The respondent, who was born on 30 April 1976, had a prior criminal history of offences of dishonesty and other antisocial activities. And on 5 February 1993, he had committed an aggravated assault on a female when aged 13. [5] In imposing a supervision order rather than a detention order, Byrne SJA referred to the following in terms of the risk of re-offending: “[10] Professor Nurcombe considers that, if historical factors alone were taken into account, the risk of sexual violent re-offending is high. On the other hand, he thinks that, if the respondent can avoid alcohol and illicit drugs, eschew antisocial companions, gain employment and develop a satisfying intimate relationship, the risk would be moderate. He finds that there have been authentic changes in the respondent’s personality as a result of treatment and self-reflection but is concerned that the changes might not be durable in the face of the stresses of living outside the prison. [11] Professor Nurcombe was concerned at the suggestion the respondent made to him that he might drink in a controlled fashion with friends. There is little doubt that, if he reverts to heavy alcohol consumption or uses illicit drugs or inhalants, he is at high risk of re- offending. If he does re-offend, in Professor Nurcombe’s assessment, the most likely scenario is that he will once again abuse alcohol and substances and become involved in breaking and entering and other offences of dishonesty or motor vehicle offences. He might enter a house and rape a defenceless woman, although it is unlikely that the sexual violence would escalate to a life-threatening level. Warning signs that might signal that the risk is increasing -- 2 of 5 -- 3 would be reversion to drinking and drug use, especially if in the company of antisocial companions. … [14] Dr Sundin believes that, if the respondent were released into the community without a supervision order, his risk of re-offending would be very high. She considers that a supervision order, however, might be made, and that it should require him to abstain from alcohol, illicit substances and use of inhalants. Other conditions which she thinks appropriate include attending a psychiatrist and participating in treatment and electric monitoring, which would form part of a process of control while he is held in the precinct that includes a curfew. … [19] There are two major sources of risk. One is that the respondent not take the medication which has so far proved effective in controlling his mental state. The other is that he reverts to the use of alcohol or ingests illicit drugs or inhales inappropriate substances.” Previous contravention [6] On 7 November 2009 the respondent contravened conditions of the supervision order by being absent on curfew and having consumed alcohol (a reading of .17%). He was detained in custody pending a contravention hearing under s 22 of the Act, as amended. Contravention proceedings were brought. Professor Nurcombe and Dr Sundin were both of the opinion that Mr Currie should complete the Inclusion Sexual Offender Program (“ISOP”), a program available only in prison. The contravention proceedings were adjourned on 8 April 2010, to determine whether new medication would continue to have a stabilising effect, and on 22 November 2010 and 18 February 2011, to enable Mr Currie to enrol in the next ISOP, which was to commence in February 2011. Mr Currie successfully completed the ISOP, having attended all 45 sessions of the ISOP between 28 February 2011 and 29 August 2011. The respondent was released on 14 October 2011 by Dick AJ on an amended supervision order. The present contravention [7] As mentioned, on 3 February 2012, the respondent was directed not to possess or consume any synthetic cannabis products, or enter any business or establishment that sells or distributes any synthetic substance or similar substance. A contravention of that direction is not disputed. A urine sample taken on 25 May 2012 from the respondent and tested on 7 June 2012 revealed the presence of the compound JWH-018 5-pentanoic acid. That compound may be found in herbal mixtures commonly sold and labelled as Kronic, K2 or Spice. [8] On 12 June 2012, the respondent was arrested and brought before this Court on 14 June 2012 when orders were made that Dr Sundin and Professor Nurcombe be appointed to examine the respondent pursuant to s 22(5) of the Act. He has been detained in custody since that time. -- 3 of 5 -- 4 Psychiatrists’ reports Dr Sundin [9] Dr Sundin interviewed the respondent on 23 July 2012 at which time he admitted smoking synthetic cannabis. He told Dr Sundin that he did it because “it mellows you out and relaxes you” and that he “had been a bit lonely at home”. He described his use of the synthetic cannabis as “just a silly mistake”. [10] Using formal risk assessment instruments, Dr Sundin considered that the dynamic scales show some signs of improvement, with the consequent reduction in the respondent’s overall risk of recidivism. Using the SCR 20, the risk for future recidivism had reduced to moderate. On the HCR 20, Dr Sundin considered that the overall risk of recidivism had abated from high to moderate. [11] Dr Sundin diagnosed schizo-affective disorder, bipolar type. She opined that the combination of a major mental illness, a significant personality disorder and a long ingrained pattern of reversion to drug or alcohol abuse as a negative dysfunctional solution to problems would always present significant challenges within the community. However, Dr Sundin recommended that the respondent be released back into the community on a supervision order on the conditions previously imposed. [12] Dr Sundin opined that more active case management from community mental health staff was required. She considered that there ought to be a conference between Corrective Services staff, community mental health officers, his treating psychologist and perhaps his mother and sister to develop a more detailed case management plan, specifying the roles to be undertaken in linking the respondent to particular services. She had in mind that that occur prior to full release into the community. Counsel for the applicant indicated that that is being actively pursued and is in hand. Professor Nurcombe [13] Professor Nurcombe interviewed Mr Currie on 9 July 2012. Professor Nurcombe noted the following diagnosis concerning Mr Currie - Alcohol Abuse Disorder, Cannabis Abuse Disorder, Inhalant Abuse Disorder, Cannabinoid Use Disorder, Bipolar Disorder (in remission due to treatment), Verbal Learning Disorder, Antisocial Personality Disorder with Psychopathic Traits, not to the extent of Psychopathic Personality Disorder. [14] The respondent admitted smoking “Kronic” on one occasion. Professor Nurcombe noted that products such as “Kronic” are laced with synthetic cannabinoids, such as JWH-018. They have a chemical action similar to the active ingredient in cannabis, but with 10 times the potency. He notes that it is possible that such substances can trigger a chronic psychotic disorder among vulnerable individuals. [15] Using the STATIC-2002, Professor Nurcombe assessed Mr Currie’s risk of sexual re-offending as falling into the moderate to high range. Professor Nurcombe opined that if he was re-released into the community on the existing supervision order, the likelihood of the respondent re-offending could be reduced to moderate to low. He -- 4 of 5 -- 5 opined that the respondent should continue on the existing supervision order until its 10 year term was completed and noted that the following conditions were required: ● Continued regular correctional supervision. ● Continued psychiatric treatment and adherence to pharmacotherapy. ● Continued psychological counselling. ● Continued alcohol and drug counselling at ATODS. ● Abstinence from alcohol, petrol, and illicit drugs with regular breath and urine drug and alcohol screening. ● Adherence to his Relapse Prevention Plan. ● Numeracy and literacy training. [16] Those matters are covered by the breadth of the conditions previously imposed. Determination [17] It is accepted that the respondent contravened the supervision order in the manner particularised by the applicant. The issue then is whether the respondent has demonstrated on the material before the court that despite the contravention adequate protection of the community can be ensured by the continuation of the supervision order. [18] I accept the applicant’s submission that ingestion of synthetic cannabis represents a significant increase in the risk of re-offending, particularly when one has regard to the respondent’s mental health diagnoses (schizo-affective disorder, bipolar disorder, antisocial personality disorder, polysubstance abuse/dependence) and the possibility that use of synthetic cannabis could trigger a chronic psychotic disorder in a vulnerable individual. [19] Nevertheless, the expert opinion of both Professor Nurcombe and Dr Sundin is that the respondent can continue to be monitored in the community under the supervision order so as to endure adequate protection of the community. Neither psychiatrist supports the detention of the respondent, given the risk reducing features of a supervision order in this case. Both psychiatrists are of the view that monitoring the respondent under the supervision order has reduced the risk of re-offending. I note Dr Sundin’s opinion that there is a need for greater intervention and management and that those matters are being attended to. The respondent’s completion of programs can, as the applicant submitted, be managed through the existing requirements of the supervision order by appropriate directions being given. Furthermore, as is apparent from the history of this matter, any contravention of the order through use of alcohol or drugs can be readily detected by a suitable testing regime. [20] Given the evidence of the psychiatrists, I am satisfied that, despite the contraventions, adequate protection of the community can be ensured by the continuation of the supervision order. On that basis I ordered on 2 October 2012 that the respondent be released to the supervision order earlier made by Byrne SJA on 5 May 2009 as amended by Dick A/J on 14 October 2011. -- 5 of 5 --