Attorney-General for the State of Queensland v Leisha [2012] QSC 215

1-1 SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Leisha [2012] QSC 215 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v WILLIAM JOHN LEISHA (respondent) FILE NO: BS2480 of 2012 DIVISION: Trial Division PROCEEDING: Originating application DELIVERED ON: 13 August 2012 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 13 August 2012 JUDGE: Mullins J ORDER: Order as per draft initialled by Mullins J and placed with the file CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where respondent serving four years’ imprisonment for one count of indecent dealing with a child under the age of 16 years – where applicant seeking orders pursuant to section 13 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant seeks either a detention order or a supervision order – whether a supervision order rather than a continuing detention order can ensure adequate protection of the community – where supervision order made for a period of 10 years Dangerous Prisoners (Sexual Offenders) Act 2003, s 13 COUNSEL: J B Rolls for the applicant T Ryan for the respondent SOLICITORS: G R Cooper, Crown Solicitor for the applicant Howden Saggers Lawyers for the respondent -- 1 of 6 -- 1-2 ORDER 1 10 20 30 40 50 60 HER HONOUR: The respondent is 54 years old. He is an Aboriginal person. His current term of imprisonment of four years for one count of indecent dealing with a child under the age of 16 years expires on 18 August 2012. The victim was a 15-year-old girl known to the respondent. The respondent has an extensive criminal history that includes other offences of a sexual nature. The first lot of such offences was committed in 1985, two charges of indecent assault on a female, where the victims were 14 and 10-year-old girls in houses that the respondent had broken into. The respondent was convicted of one count of indecent assault committed in 1993 against a 47-year-old female victim known to him. In 1997 the respondent committed one count of child stealing and one of indecent assault where the victim was a six-year-old girl who was taken by the respondent from her home to an area of bushland with a sexual purpose, but where the respondent refrained from committing a sexual offence. The respondent considers he has been an alcoholic from the age of 15 years and his use of alcohol has been strongly associated with his offending behaviour and anti-social lifestyle. Psychiatrist Dr Harden interviewed the respondent on 13 July 2011 for the purpose of the applicant’s considering whether to -- 2 of 6 -- 1-3 ORDER 1 10 20 30 40 50 60 make an application in relation to the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). Dr Harden diagnosed paedophilia, sexual attraction to females non-exclusive type, alcohol abuse and dependence and some anti-social personality traits, but not a full personality disorder. On the basis of the actuarial and structured professional judgment measures administered by Dr Harden, Dr Harden considered that the future risk of sexual reoffence was high in the absence of mitigating factors if the respondent were to be released into the community. Dr Harden suggested that if the respondent were to reoffend in the future, it would be most likely to occur in the context of alcohol intoxication, feelings of isolation and loneliness and against a prepubertal girl. Dr Harden was of the opinion that high level compulsory supervision and treatment in the community consistent with a supervision order being made would reduce the risk of sexual reoffence to moderate. The applicant, therefore, applies for orders pursuant to section 13 of the Act. Although the applicant seeks either a detention order or a supervision order in the application, the applicant acknowledges that the evidence supports release on a supervision order. -- 3 of 6 -- 1-4 ORDER 1 10 20 30 40 50 60 The respondent was examined by psychiatrists Dr Nurcombe and Dr Grant for the purpose of this application. Dr Nurcombe interviewed the respondent for three hours on 28 May 2012. Applying the risk analysis assessment tools (with the limitations inherent in them), Dr Nurbombe assessed the respondent in the group of prisoners whose risk of sexual reoffending is high. He also diagnosed a paraphilia, non- exclusive, with preference for under-age females. Dr Nurbombe also predicts that if sexual reoffending were to occur, it would follow reversion to alcohol intake and his likely victim would be an under-age female whom he would fondle. Dr Nurbombe considers that if on release the respondent remains abstinent from alcohol, the risk of his reoffending reduces to low or low to moderate. Dr Nurbombe suggests the supervision order should last 10 years. Dr Grant interviewed the respondent for three-and-a-quarter hours on 7 June 2012 and made the same diagnosis as Dr Nurbombe. Dr Grant's overall assessment of sexual reoffending by the respondent in the future was moderate on the basis that the respondent remained abstinent from alcohol. Dr Grant is of the opinion that that risk would be reduced to a low level in the community if the respondent is subject to a supervision order upon release from custody. -- 4 of 6 -- 1-5 ORDER 1 10 20 30 40 50 60 If the respondent were to resume consumption of alcohol, Dr Grant considers the risk of the respondent reoffending in a sexual way would be from moderate to high. Dr Grant suggests that the supervision order should be in place for 10 years. During this current period of imprisonment the respondent has participated in the Getting Started Preparatory Program for sexual offenders. He then participated in a positive way in the Inclusion Sexual Offending Program. He has also undertaken the moderate intensity Substance Abuse Program. The respondent does not challenge the making of a finding that he is a serious danger to the community in the absence of a Division 3 order pursuant to the Act, and that a supervision order should be imposed for 10 years. He has positive plans for his release that will be assisted by the significant family support provided by siblings. It is noteworthy that his family has funded one-on-one treatment with a psychologist who has attended on the respondent at the prison on at least four occasions over the past six to seven weeks, and the respondent has found the counselling sessions beneficial and wishes to continue with them on his release. It is also positive that the respondent has sworn an affidavit that has been filed in this proceeding and expressly recognises that a major risk factor for sexual offending on -- 5 of 6 -- 1-6 ORDER 1 10 20 30 40 50 60 his part in the past, and that will remain a risk factor for the future, is alcohol use. He has been attending Alcoholics Anonymous in custody and intends to continue attending Alcoholics Anonymous on his release. On the basis of the psychiatric evidence, which I accept, there is sufficient cogent evidence to satisfy me to the high degree of probability necessary that, if released without a Division 3 order under the Act, the respondent represents an unacceptable risk of committing a serious sexual offence. I am also satisfied that there is sufficient cogent evidence to satisfy me to the high degree of probability required that the respondent can be adequately controlled to ensure adequate protection to the community by means of his release on supervision on the terms of the draft order that has been provided to the Court by the applicant with the concurrence of the respondent's legal representatives. That supervision order is for a period of 10 years. I therefore make an order in terms of the draft, initialled by me and placed with the file. ----- -- 6 of 6 --