Attorney-General v Francis [2012] QSC 275

SUPREME COURT OF QUEENSLAND CITATION: The Attorney-General for the State of Queensland v Francis [2012] QSC 275 PARTIES: THE ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND (Applicant) V DARREN ANTHONY FRANCIS (Respondent) FILE NO/S: BS 3069/2004 DIVISION: Trial PROCEEDING: BS3069/2004 ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 13 September 2012 DELIVERED AT: Brisbane HEARING DATE: 16 July 2012 JUDGE: Byrne SJA ORDER: 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 – whether s 22(7)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 empowers the court to amend existing supervision order - where removal sought of the requirements of supervision order pursuant to s 19A(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 COUNSEL: P J Davis SC and A Scott for the Attorney-General for the State of Queensland A Freeman for D A Francis SOLICITORS: G R Cooper, Crown Solicitor for the Attorney-General for the State of Queensland Legal Aid Queensland for D A Francis -- 1 of 13 -- 2 Supervision order contravened [1] Darren Francis’s supervision order, which will expire in about a fortnight, requires that he abstain from illicit drugs. In August last year, his urine tested positive for methylamphetamine. That he had, yet again, contravened that requirement is admitted. Two proceedings at one hearing [2] Two applications have been heard concurrently. [3] In one, the question is whether Mr Francis has shown, on the balance of probabilities, that the “adequate protection of the community can, despite that contravention…be ensured by the existing order as amended under subsection (7)…” of s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). If not, the court must rescind the supervision order and make a continuing detention order.1 [4] In the other, the issue is whether curfew and electronic monitoring requirements of his supervision should be removed. Contravention proceeding [5] Section 22(7) of the Act stipulates: “If the released prisoner satisfies the court…that the adequate protection of the community can, despite the contravention…of the existing order, be ensured by a supervision order…the court – (a) …; (b) may…amend the existing order in a way the court considers appropriate – (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment.” [6] Contending that Mr Francis has not discharged his s 22 burden, the Attorney- General proposes that continuing detention be ordered. If, however, Mr Francis has demonstrated that “adequate protection…can…be ensured by a supervision order”, the Attorney-General, who is not seeking further supervision under s 19B of the Act, contends that s 22(7)(b) empowers the court to “amend” the existing supervision order by extending its duration and seeks such an amendment. 1 s 22(2)(a). -- 2 of 13 -- 3 [7] At first, Ms Freeman was disposed to contend that a supervision order could only be extended by the exercise of the specific power conferred by s 19B.2 During the hearing, however, once it became apparent that Mr Francis would be unlikely to discharge the s 22(7) burden if his supervision were to end soon, he offered to submit to a two year extension by way of an amendment to his current supervision order, pursuant to s 22(7).3 Facts [8] The circumstances that resulted in the supervision order are revealed in earlier decisions4 and will not all be repeated here. But some express reference to the background is necessary. [9] Mr Francis was born in 1973. He has a long history of polysubstance abuse. [10] The violent sexual offending that led to his incarceration occurred in the context of ongoing heterosexual relationships in which the victims, both adults, were also abusers of illicit substances. [11] In August 2004, Mr Francis was detained for an indefinite term for care, control and treatment. [12] In late September 2006, he was released, subject to a supervision order. [13] On 2, 8 and 12 March 2007, Mr Francis tested positive for methylamphetamine. He was returned to custody later that month. [14] Mr Francis was released, subject to a supervision order, on 7 November 2007 despite two contraventions of requirements of his supervision order: to abstain from illicit drugs; and not to enter into an intimate relationship within 12 months. 2 cf Anthony Hordern & Sons Limited v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1, 7; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 586-589. 3 The concession that s 22(7)(b) confers a power to extend the duration of a supervision order looks to be correct. First, the statutory authority is to amend “the existing order”, not just its “requirements”: contrast s 19(1). Secondly, the Act posits two regimes, either of which can result in an extension. One is enlivened by contravention, or likely contravention, of a supervision order. Section 19B, on the other hand, may be invoked, and only by the Attorney-General, to seek a “further” – that is, a new – supervision order even where no contravention has happened or is likely. Thirdly, an interpretation of s 22(7)(b) that precludes an amendment to extend duration produces a consequence so odd that it is unlikely to have been intended: if the Attorney-General does not apply under s 19B for a new supervision order and s 22(7)(b) does not authorise an extension of an existing order, there will be cases – indeed, the present is an example – where the prisoner must be ordered to continuing detention where extended supervision, if it could be ordered, would suffice to ensure adequate protection against the risk of a “serious sexual offence”: see s 13(2). 4 In particular, R J Welford, A-G for the State of Queensland v Francis [2004] QSC 233; A-G (Qld) v Francis [2006] QCA 372; Attorney-General for Queensland v Francis [2007] QSC 328; Attorney- General for the State of Queensland v Francis [2009] QSC 312. -- 3 of 13 -- 4 [15] In mid-March 2008, Mr Francis tested positive for cannabis. He was released in mid-April 2008 pending contravention proceedings in respect of that drug use. [16] On 30 October 2008, Mr Francis tested positive for amphetamines and methamphetamines. Again, he returned to custody. [17] On 28 September 2009, A Lyons J, who found that Mr Francis had breached the requirement to abstain from illicit drug use, ordered that he be released, subject to the supervision order. [18] No illicit drug use was detected for about another eight months while Mr Francis remained in the community. [19] On 3 June 2010, Mr Francis returned positive tests for amphetamine, methamphetamine and cannabis and was detained pending contravention proceedings. [20] On 9 December 2010, Mullins J ordered Mr Francis’s return to the community, again subject to a supervision order. [21] On his release, Mr Francis lived with his mother. [22] In February 2011, Mr Francis and his partner, “M”, re-established an old friendship. She was residing in a caravan park. Mr Francis visited her there. After a time, M went to live with Mr Francis at his mother’s house. [23] Incidents involving M led a correctional officer to suspect domestic violence. M was prevented from living with Mr Francis until they received couples therapy from Dr Hogan. [24] Mr Francis saw Dr Hogan as his therapist but did not usefully engage with him. [25] Mr Francis’s mother was diagnosed with carcinoma of the oesophagus. Her condition deteriorated. At the end, for three days, she was on life support. It fell to Mr Francis to decide that her life support be terminated. She died in June 2011. [26] Mr Francis was distressed by his mother’s death. He attended a counsellor briefly but considered that he did not need support from someone he did not know. [27] Grieving for his mother, and missing M, he became so downcast that he took intravenous amphetamine on one occasion. -- 4 of 13 -- 5 [28] On 11 August 2011, Mr Francis submitted the urine sample that accounts for the present contravention proceeding. A week later, he was detained pending a final decision. [29] A urine sample he submitted in custody a week later was found to be positive for cannabis. Professor Nurcombe’s assessment [30] Mr Francis was examined by the psychiatrist, Professor Nurcombe, in October 2011. [31] In Professor Nurcombe’s assessment, Mr Francis has an anti-social personality disorder with psychopathic traits. He had previously been diagnosed as suffering from an amphetamine psychosis: “when in an intimate relationship and under the influence of amphetamine abuse, he became suspicious that his partner was being sexually unfaithful to him, and he behaved in a dangerously aggressive and sexually sadistic manner”. Such behaviour towards two different women had resulted in his incarcerations. [32] According to Professor Nurcombe, Mr Francis tends to become jealous in intimate relationships and “because of that jealousy, violent”. [33] In a report prepared after the October 2011 interview, Professor Nurcombe wrote that the risk of serious sexual offending arises “if Mr Francis is in an intimate relationship with a female partner and intoxicated or withdrawing from amphetamine abuse”. In such circumstances, the risk of relevant reoffending is high even though Mr Francis has lived in the community for 34 months since 2006 and there has been no recurrence of abnormal sexual behaviour. 5 [34] Between 20 January and 6 February 2012, Mr Francis made more than 500 telephone calls from prison to M. Professor Nurcombe reconsidered the case in the light of those conversations. In them, Mr Francis presented as pathologicially suspicious that noises or conversational pauses indicated that M had been sexually unfaithful, or was masturbating with a foreign object, or was using “speed”. On occasions, Mr Francis was highly abusive to M. He was also obsessed with her vagina. And he made threats to her – some of sexual violence. [35] When Professor Nurcombe re-interviewed Mr Francis on 10 April 2012, he had severed his relationship with M because she had another boyfriend. 5 The aggressive sexual misconduct has its roots, Professor Nurcombe thinks, in a turbulent and disturbed childhood. Mr Francis has refused to explore the origins of his abnormal behaviour in psychotherapy. So the cause remains conjectural. As Mr Francis is not interested in treatment for the basic cause of his problems, Professor Nurcombe sees no purpose in insisting that he continue with psychotherapy. -- 5 of 13 -- 6 [36] Professor Nurcombe’s diagnosis of Mr Francis’s condition remained unchanged. And the nature of the risk of sexual violence – to an adult female in an intimate relationship – was the same. But, in Professor Nurcombe’s assessment, the degree of that risk had altered. The telephone conversations revealed Mr Francis as desperate, needy and highly suspicious that M was sexually unfaithful. “Particularly worrying” was his obsession with M’s vagina, which appeared to reflect behaviour that had been apparent during the original offences. [37] Professor Nurcombe wrote: “My estimation of risk has changed. I continue to believe that, if Mr Francis is in an intimate relationship with a female partner and intoxicated or withdrawing from amphetamine use, the risk of sexual violence towards his partner is high. In the past, I thought that, in the absence of amphetamine use, the risk of future violence would be moderate to low. Now, I consider that the risk of future violent recidivism, should the Respondent be in an intimate relationship and not using amphetamine, is moderate to high. I should point out, however, that in the total of 34 months when he has been in the community on the Order (during most of which time he was not in an intimate relationship), there was no recurrence of sexually violent behaviour. On the other hand, there have been five separate breaches of the Order involving the use of cannabis or amphetamine. Mr Francis is resistant to psychotherapy. He has made no serious attempt to find work. He is content to live a parasitic existence until the term of his supervision finishes, as he thinks, in 2012. He has been essentially marking time until the period of supervision is over, when he anticipates resuming the life he lived prior to 1998. Given Mr Francis’ (sic) attitude towards treatment, I see no purpose in insisting that he recommence individual psychotherapy. If released, Mr Francis should continue on the existing Supervision Order. I see no purpose in imposing a curfew or electronic monitoring. I recommend that, unless Mr Francis changes his mind and enters psychotherapy, the Supervision Order be extended for a further one year beyond the termination of the present Order, pending psychiatric evaluation. Further incarceration at this point would serve no therapeutic purpose; indeed, no purpose other than keeping [him] out of circulation in the community.” [38] In testifying, Professor Nurcombe elaborated on his reasons for thinking that there is no need for an electronic monitoring device. The risk is of sexual violence in the home, within an intimate relationship. Mr Francis has no history of predatory behaviour and is not at risk of committing an indiscriminate attack or sexual violence in a casual relationship. -- 6 of 13 -- 7 [39] Moreover, having to wear such an obvious device inhibits Mr Francis’s rehabilitation. It discourages prospective employers from giving him work6; And it discourages others from associating with him socially because they suppose he is a paedophile. [40] Professor Nurcombe sees no value in a curfew for Mr Francis. The relevant risk will materialise, if at all, in the home; and, Professor Nurcombe believes, a curfew is unlikely to inhibit drug use because Mr Francis could access drugs during the day as easily as at night. [41] Professor Nurcombe considers that the risk Mr Francis poses can be managed by an extended supervision order that includes prohibitions on illicit drug use and on entering into a relationship for a year. Dr Grant’s assessment [42] On 11 November 2011, Dr Grant, another psychiatrist, assessed Mr Francis. [43] He, too, evaluated the risk of sexual violence before and after considering the transcripts of the M conversations. [44] When Dr Grant saw him, Mr Francis was very stressed by those requirements of his supervision that imposed restrictions on his life: in particular, on his relationship with M. [45] Dr Grant noted that relationship counselling had just begun when Mr Francis injected the methylamphetamine that was detected in the August 2011 urine sample. [46] Mr Francis regarded his repeated detentions and his supervision as an excessive response to offending for which his original sentence was six years, saying “I’m into the 14th year of a six year sentence”. He also resented the community impression generated by publicity given to his repeated incarcerations and his supervision requirements, especially the curfew and electronic monitoring conditions – the latter because the device indicated that he is a sex offender and possibly a paedophile. And Mr Francis saw no point in having therapy or relationship counselling. [47] Dr Grant elicited information from Mr Francis concerning his drug history. He started using drugs at age 13, smoking marijuana through bongs. From his early teens, he used “speed”. He tried cocaine and heroin intermittently. He had used LSD extensively. But amphetamines and marijuana were his drugs of choice. Because long-term drug abuse was part of Mr Francis’s lifestyle, he had found it 6 Mr Francis told Professor Nurcombe that he did not intend to work while subject to a supervision order. He did not want to explain to an employer that he was a sex offender, which he equated with being a child molester. And he did not like the thought of working with an electronic apparatus on his ankle. -- 7 of 13 -- 8 hard to stay away from drugs for an extended period. He did, however, express a determination not to use drugs in future. [48] Dr Grant identified “a possible risk scenario for future offending” as involving sexual offending motivated by rage, jealousy and possible paranoia. Physical harm could be potentially serious but was unlikely to progress to life-threatening violence. [49] Addressing the prospect of detection and prevention of serious sexual offending, Dr Grant wrote: “The imminence of offending would be unclear, depending upon problems arising in relationships and the presence of substance abuse. Such issues would be relevant warning signs…the best approach to case management will be monitoring drug and alcohol abuse and monitoring relationship issues.” [50] Dr Grant, who acknowledges that the sexual violence that resulted in Mr Francis’s imprisonment occurred in relatively short-term relationships, considers that the jealousy that might lead to sexual violence would be unlikely to occur until after Mr Francis had lived with a woman in an “apparently committed relationship”. [51] Major factors contributing to the risk of sexual violence were Mr Francis’s psychopathic personality, his anti-social and borderline personality traits, and substance abuse, particularly involving amphetamines. [52] Dr Grant wrote that: “In my opinion, the risk for future violence could be reduced by the continued application of a supervision order. The order which has been applied in its various forms since 2006 has in fact been effective to some extent in that it has identified substance abuse at an early stage and may well have prevented violent behaviour occurring.” [53] Dr Grant questioned the curfew and electronic monitoring requirements, writing: “He does not have a history of predatory sexual behaviour in the community. He has not offended outside his home environment in terms of sexual offending and it is difficult to see the relevance of electronic monitoring in terms of preventing sexual offending in his case…urinary drug screens done on a random and regular basis would…be a better way of monitoring substance abuse than either a -- 8 of 13 -- 9 curfew or electronic monitoring. The more restrictive a supervision order is then the more problematic it becomes in terms of genuine social rehabilitation. Restrictions such as wearing an electronic monitoring device can…be more damaging to rehabilitation than they are helpful.” [54] Dr Grant saw Mr Francis again on 2 April 2012, having reviewed the transcripts of the M conversations. They discussed Mr Francis’s plans. Mr Francis believed that working was made very difficult by the supervision order; but he would like to get work eventually. He wanted to avoid continually returning to jail. [55] Dr Grant regards the M telephone conversations as indicating Mr Francis’s potential for anger, jealousy, verbal aggression, paranoia and physical violence within a relationship. He also concluded that the risk of future sexual violence was high, particularly within a relationship “that is not going well”, and wrote: “Regular abuse of amphetamines would be a potent risk factor when combined with his underlying severe personality disorder and the presence of any interpersonal conflicts in a relationship. The indications are that Mr Francis will find it very difficult to form an appropriate healthy relationship with a female and it is in the context of future relationship difficulties that violence is most likely to occur… …the risk for…sexual violence…can be reduced by the application of a supervision order. An important role for the order is to mandate abstinence from substance abuse… This is…the area where breaches in the future are most likely to occur… [The] offending behaviour…has been in the home environment and I do not see an indication for electronic monitoring or curfews… I believe that the supervision order should therefore be extended for another five years to allow for necessary assistance and treatment to take place.” [56] Speaking of the effect of the supervision order to date, Dr Grant, while acknowledging that Mr Francis has been unable to refrain from drug use, testified that: supervision has been useful in detecting drug use, probably before it got out of hand; such drug use as there has been has not led to any sexual offending; -- 9 of 13 -- 10 “It may be…hard to say that the supervision order has, on its own, achieved that; but…he hasn’t sexually reoffended during the subsistence of the supervision order which suggests that it may be having a useful function.” [57] Dr Grant also considers that Mr Francis’s resentment at the constraints of his supervision may change with time: “Over the next decade, he may realise the damaging effect of his behaviour and try harder to address those issues.” Age [58] Professor Nurcombe and Dr Grant both commented upon the significance of Mr Francis’s age. [59] According to Professor Nurcombe, in general, the risk of sexual violence becomes “much less likely” with men in their 40s. Dr Grant’s view is much the same. This matters because Mr Francis turns 40 next year. Problems [60] To reduce the risk of serious sexual offending, any supervision order must require Mr Francis to abstain from illicit drug use. [61] However, his long-term drug use, especially of amphetamines, coupled with his repeated unwillingness to comply with that requirement means that it is well on the cards that, if released again subject to a supervision order, he would contravene that requirement sooner or later: if history is repeated, within about six months. And he will take that step despite knowing that abstention from drugs is required to protect a woman who enters into a relationship with him from sexual violence at his hands. [62] Mr Francis also realises that the psychiatrists consider that his chances of avoiding sexual violence would be enhanced were he to discuss the events that have contributed to the danger he presents. Even so, he cannot bring himself to engage with a therapist about the difficulties that underlie his propensity to profound jealousy that, in combination with his anti-social and psychopathic personality, contributes to the risk of sexual violence. Asking the correct question [63] The highly likely prospect of further drug use – a contravention of a requirement that is important to reducing the risk of serious sexual violence - is said for the Attorney-General to require continuing detention. -- 10 of 13 -- 11 [64] But where contravention of a supervision order is proved, the Act does not require continuing detention unless the prisoner can show that the supervision order would in future be complied with. Rather, continuing detention is the consequence unless “adequate protection of the community” can be ensured by “a” supervision order. [65] The inquiry focuses on whether a supervision order would be effacious in preventing the commission of a violent sexual offence.7 [66] If, therefore, the likely future drug use would not jeopardise the “adequate protection of the community…”, continuing detention is not mandated. [67] The slim chance of abstention from drugs during supervision is an important consideration in deciding whether Mr Francis has discharged the s 22(7) burden. But it does not matter for its own sake. It is important because that prospect bears on the risk of sexual violence. It is that potential which is critical: not illicit drug use as such. Has Mr Francis discharged the burden? [68] Mr Francis has established, to the requisite standard, that the adequate protection of the community can be ensured by a lengthy period of further supervision. [69] That Mr Francis has not committed a serious sexual offence in the almost three years that he has been at large since he last offended in a sexually violent way supports Ms Freeman’s submission that supervision has worked to date and can be expected to continue to be effective in preventing a violent sexual offence. [70] Secondly, drug use would be quickly detected, almost certainly leading to prompt return to custody. [71] Thirdly, the major risk factor – forming an intimate relationship – would be very likely to be discovered in time to ensure that the woman understands, and is acquainted with strategies8 to cope with, the danger that Mr Francis poses. [72] The length of any new supervision is material in deciding whether Mr Francis has discharged the burden. [73] Professor Nurcombe considers that a further year would suffice. [74] Compliance with the requirements of his supervision for a year would indicate that Mr Francis might thereafter remain drug-free. And if there were to be another 7 Attorney-General for the State of Queensland v Ellis [2012] QCA 182, [89]-[92]. 8 Queensland Corrective Services would see to it that the risk is explained to the woman, preferably by Mr Francis but, if not by him, then by a correctional officer. -- 11 of 13 -- 12 contravention, the supervision could be extended, if appropriate. So there is some force in a wait a year and see approach. [75] On balance, however, Dr Grant’s further five year supervision proposal seems preferable. [76] I am not persuaded that “adequate protection…” against the risk of sexual violence can be ensured by supervision for just another year. [77] For one thing, throughout that year, Mr Francis would be prohibited from maintaining an intimate relationship with adult females. More than a year is, therefore, needed to see how he behaves if, which seems likely, he forms an intimate relationship. His safe reintegration into the community requires longer supervision during which any relationship established after a year is monitored. [78] Moreover, a drug testing regime needs to be maintained for a substantial period. Even if Mr Francis can abstain from drugs for a year, his history suggests a very real risk of relapse afterwards. [79] Having regard to the pertinent considerations, including the multiple contraventions of the existing order, a further five years supervision is needed to ensure “adequate protection” against the relevant risk. Requirement removal [80] Mr Francis applies for removal of the curfew and electronic monitoring requirements. [81] By s 19A(2), such a requirement may be removed: “If the released prisoner satisfies the court on the balance of probabilities that the adequate protection of the community can be ensured without the requirement.” [82] In considering the application, the Court must have regard to non-compliance with the supervision order.9 And mention has already been made of the five breaches of the requirement to abstain from illicit substances – a duty that is central to effective management of the risk of sexual violence.10 9 s 19A(5). 10 Note also the other contravention referred to in para [14]. -- 12 of 13 -- 13 [83] The Attorney-General opposes the application to remove the curfew and electronic monitoring requirements. [84] Ms Lynas, Director of the High Risk Offender Management Unit within Queensland Corrective Services, is involved in overseeing supervision and surveillance of offenders released on supervision orders. [85] According to Ms Lynas, a curfew requirement enables Queensland Corrective Services to impose, amend and review curfews according to an assessment of increased risk without the need to attend court to request an amendment to the order. In Mr Francis’s case, were a positive drug test returned, a curfew direction could restrict his movement while the risk was elevated as a result of the positive test. [86] As to electronic monitoring, Ms Lynas says that the capacity to track movements of offenders such as Mr Francis outside their homes provides greater confidence in compliance. By monitoring such movements, Ms Lynas considers that it is more likely that association by Mr Francis with drug users would be detected. [87] During address, Ms Freeman was content to accept, and the concession is realistic, that a curfew requirement could diminish the relevant risk associated with illicit drug use. [88] In the circumstances, Mr Francis has not shown that the curfew requirement should be removed. [89] The remaining issue is whether Mr Francis has established that the adequate protection of the community can be ensured without the electronic monitoring requirement. [90] For the reasons Professor Nurcombe and Dr Grant have given,11 electronic monitoring is not needed to ensure adequate protection against the particular risk that Mr Francis poses. So that requirement should be removed. 11 See paras [37]–[40]; [53], [55]. -- 13 of 13 --