Attorney-General for the State of Queensland v Larry [2011] QSC 120

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Larry [2011] QSC 120 PARTIES: ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND (Applicant) and THOMAS ANDREW LARRY (Respondent) FILE NO/S: BS396 of 2011 DIVISION: Trial Division PROCEEDING: Originating application ORIGINATING COURT: Supreme Court DELIVERED ON: 19 May 2011 DELIVERED AT: Brisbane HEARING DATE: 3 May 2011 JUDGE: Boddice J ORDER: Pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 the respondent be released from custody subject to specified conditions until 22 May 2021 CATCHWORDS: CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - CONTINUING DETENTION OR SUPERVISION - FACTORS RELEVANT TO DECISION – Where the Attorney-General seeks orders under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act for an -- 1 of 12 -- 2 indefinite detention order or alternatively, for release from custody subject to conditions – Where the respondent represents a high risk of sexual re-offending – Whether adequate protection of the community can be reasonably and practically managed by a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 Attorney-General for the State of Queensland v Francis [2006] QCA 324 Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505 Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 COUNSEL: Scott, AD for the applicant Mumford, B for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] This is the final hearing of an application by the Attorney-General for orders under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). [2] The Attorney-General seeks orders pursuant to s 13(5)(a) of the Act: (a) the respondent be detained in custody for an indefinite term for care, control or treatment; (b) alternatively, the respondent be released from custody subject to conditions. Background [3] The respondent, a Torres Strait Islander, was born on 12 November 1976. He is currently serving a period of imprisonment for a number of offences. That sentence is due to expire on 22 May 2011. [4] Relevantly, this sentence includes a sentence of eight years for burglary and attempted rape committed on 8 March 2002. The respondent broke into the home of the complainant in the early hours of the morning. He placed a doona over a window of the complainant’s bedroom before waking her up and attempting to rape her. The complainant struggled and screamed. The offence of rape was not ultimately committed. During the incident, the respondent punched the complainant on three separate occasions causing significant injuries. -- 2 of 12 -- 3 [5] The respondent’s current period of imprisonment also includes a term of three months for an offence committed at the Lotus Glen Correctional Facility on 10 June 2008. The complainant was conducting a certificate course at the centre when the respondent, then a prisoner at the facility, unexpectedly stood up, pulled his pants down, exposed his genitals and gave the complainant a note containing a poem. The respondent explained his conduct as having had “a brain snap”. [6] During his current period of imprisonment, the respondent has completed a number of programs, including the Sexual Offending Maintenance Program. The last of these courses was completed in 2009. [7] On 30 May 2010, an incident was reported to have occurred at the Townsville Correctional Centre involving the respondent and a nurse at that Centre. It was reported that during a consultation, the respondent became sexually aroused and touched the nurse just below her right buttock. He then allegedly tried to pull the nurse towards him and asked that she examine his penis. The respondent was charged with sexual assault in relation to this incident. However, the charge was struck out after the prosecution offered no evidence in relation to it. [8] The respondent’s criminal history is as follows: Date Description of Offence Sentence Thursday Island Magistrates Court 16/08/1994 • Break and enter place with intent (on 28/5/94); • Burglary (on 5/3/93) No conviction recorded 12 mths probation Restitution $103.40 pursuant to s 91(A) Penalties and Sentences Act No conviction recorded 12 mths probation pursuant to s 91(A) Penalties and Sentences Act Thursday Island Magistrates Court 16/03/1995 • Break and enter dwelling house with intent (on/abt 19/12/94); • Stealing (on/abt 19/12/94 On all charges: convicted and fined $900 Costs $49.52 Compensation $180 Cairns Magistrates Court 22/01/1996 • Breach bail undertaking Convicted and fined $240 -- 3 of 12 -- 4 Date Description of Offence Sentence Cairns Magistrates Court 31/07/1996 • Application for fine option order (re: 22/01/96, breach Bail Act) Granted Fine option order 28 hours community service Cairns Magistrates Court 1/08/1996 • Breach Bail Act (contempt) (on 14/2/96) Convicted and sentenced imprisonment 2 mths Cairns Magistrates Court 2/08/1996 • Breach probation order imposed on 16/8/94 (re: break and enter place) Pursuant to s 125(2)(A) Penalties and Sentences Act $103.40 compensation In default 3 days imp 4 mths time to pay Cairns Magistrates Court 9/08/1996 • Aggravated assault on a female (on 14/07/96) Convicted and fined $525 Costs $49.25 in default imp 14 days time to pay 6 mths Cairns Magistrates Court 17/03/1997 • Breach fine option order imposed on 31/07/96 (re: 22/01/96, breach Bail Act) Order revoked Cairns Magistrates Court 28/10/1997 • Breach bail undertaking (on 11/9/96) Convicted and sentenced imp 2 mths Mareeba Magistrates Court 19/12/1997 • Obstruct police (2 chgs on 11/3 and 9/6/97; • Enter or in dwelling and commit indictable offence (btn 26/7 and 4/8/97; • Wilful damage (on 10/10/97); • Stealing (on 11/3/97) On each charge: convicted and sentenced 1 mth imp On each charge: convicted and sentenced 6 mths imp Cairns District Court • Robbery with actual violence (on 13/10/97) • Grievous Bodily Harm (on 13/10/97) On each charge: conviction recorded; 5 years imp; all terms of imp are to be served -- 4 of 12 -- 5 Date Description of Offence Sentence 12/06/1998 concurrently; all sentences to be effective from 7/6/98 Cairns District Court 12/06/1998 • Break and enter dwelling house with intent in the night-time (on 25/5/95); • Assault occasioning bodily harm (on 25/5/95) Conviction recorded; 2 yrs imp Conviction recorded; 6 mths imp All terms of imp to be served concurrently; all terms effective from 7/6/98 Cairns Magistrates Court 16/06/1998 • Breach Bail Act (contempt) (on 27/10/97); • Obstruct police officer in performance of duty (on 13/10/97) Cause shown; convicted; no penalty imposed Cairns Magistrates Court 25/06/2002 • Breach bail undertaking (on 30/5/02) Convicted and not further punished Cairns District Court 18/06/2003 • Assault occasioning bodily harm in company (on 19/04/03); • Assault occasioning bodily harm (on 22/04/03) Above refers to indictment no. 276/03 • Stealing (on/abt 8/03/02); • Wilful damage (on 8/03/02); • Escape by person in lawful custody (on 8/03/02); • Enter dwelling with intent with circumstances of aggravation (on 8/03/02); • Attempted rape (on 8/03/02); • Assault occasioning bodily harm (on 8/03/02) On each charge: conviction recorded 2 yrs imp On each charge: conviction recorded 12 mths imp On each charge: conviction recorded 8 yrs imp; declare deft to be a serious violent offender Conviction recorded 3 yrs imp All terms of imp to be served concurrently; declare time spent in pre- sentence custody be deemed as time already served under this sentence -- 5 of 12 -- 6 Date Description of Offence Sentence Above refers to indictment no. 266/02 (110 days btn 9/03/02 and 19/03/02 and btn 28/02/03 and 18/06/03) Cairns Magistrates Court 18/06/2003 • Stealing (on 28/02/03); • Possession of property suspected stolen or unlawfully obtained (on 28/02/03); • Obstruct police officer (2 chgs on 8/03/02); • Common assault (on 8/03/02); • Possess utensils or pipes etc (not to be used for needles and syringes) (on 4/09/02); • Enter dwelling without consent of owner/person in lawful occupation (on 24/06/02); • Obstruct police officer (3 chgs on 24/06/02, 28/02/03); • Contravene direction or requirement (2 chgs on 24/06/02 and 28/02/03) On each charge: convicted and sentenced 1 mth imp Convicted and sentenced 6 mths imp; concurrent On each charge: convicted and sentenced 7 days imp On each charge: convicted and fined $150 I/D imp 3 days no time to pay Mareeba Magistrates Court 28/07/2008 • Indecent act in any place with intent to insult or offend any person (on 10/06/08) Convicted and sentenced 3 mths imp; cumulative [9] This history includes two previous sexual offences. The first was committed in the early hours of 5 March 1993 at Coconut Island. The complainant woke to find the respondent standing naked in her bedroom. He left when told to do so by the complainant. The second offence occurred on the night of 25 May 1995 at Warraber Island. On that occasion, the complainant woke to find the respondent sitting on top of her. He smelt of alcohol. The complainant punched the respondent who punched her in the face before running away. [10] The respondent’s criminal history also includes offences of violence. On 9 August 1996, the respondent was convicted of aggravated assault of his ex-girlfriend. The assault involved punching her in the back of the head and punching her again in the jaw whilst following her. He subsequently pushed her in the side of the head before leaving the scene. On 12 June 1998, the respondent was convicted of having, in company, stolen a pair of tracksuit pants and unlawfully doing grievous bodily harm. The circumstances of that offence involved the random selection of an -- 6 of 12 -- 7 entirely innocent person and a brutal beating of that person. On 7 March 2002, the respondent threatened a drinking companion with a butter knife, forcing her into the bedroom. He stated he was going to stab her but was subdued when another person came into the bedroom. On 18 June 2003, the respondent was convicted of assault occasioning bodily harm. This offence was committed on 19 April 2003 whilst he was in custody at the Cairns watchhouse. Statutory framework [11] The objects of the Act are to provide for continued detention and supervision of a particular class of prisoner, and to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.1 The Attorney-General bears the onus of satisfying the Court, by acceptable and cogent evidence to a high degree of probability that the respondent is a serious danger to the community in the absence of a Division 3 order.2 The respondent will be such a serious danger if there is an unacceptable risk the respondent will commit a serious sexual offence if he is released from custody, or if he is released from custody without a supervision order being made. 3 There are a number of factors to be considered in determining what is an unacceptable risk. [12] In determining whether the respondent is a serious danger to the community, the Court must have regard to the following matters: (a) any report produced under s 8A of the Act; (b) reports prepared by psychiatrists under s 11 of the Act and the extent of the respondent’s co-operation during the examination; (c) other medical, psychiatric, psychological assessments relating to the respondent; (d) information indicating whether or not there is a propensity on the part of the respondent to commit serious sexual offences in the future; (e) the pattern of offending behaviour on the part of the respondent; (f) efforts by the respondent to address the cause or causes of the offending behaviour and his participation in rehabilitation programs; (g) whether or not the respondent’s participation in rehabilitation programs has had a positive effect on him; (h) the respondent’s antecedents and criminal history; (i) the risk of the respondent committing another serious sexual offence if released into the community; 1 Section 3 of the Act 2 Sections 13(1), (3) and (7) of the Act. 3 See Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at [60] and [225]. -- 7 of 12 -- 8 (j) the need to protect members of the community from that risk; (k) any other relevant matter. 4 [13] In the event the Court is satisfied the respondent is a serious danger to the community, the Court may make a Division 3 order in relation to the respondent. The Division 3 order may either be a continuing detention order or a supervision order. It is for the Court’s discretion whether such an order should be made in the circumstances.5 The Attorney-General bears the onus of satisfying the Court that a continuing detention order rather than a supervision order should be made.6 [14] In deciding whether to make such an order, the paramount consideration is the need to ensure the adequate protection of the community.7 The Court must consider whether adequate protection of the community can be reasonably and practically managed by a supervision order, and whether its requirements can be reasonably and practically managed by corrective services officers.8 If supervision is apt to ensure adequate protection of the community, a supervision order should in principle be preferred,9 although such an order is not to be made if the Attorney- General satisfies the Court a supervision order will not afford adequate protection to the public.10 Evidence [15] A large body of affidavit material was relied upon at the hearing. In addition, specialist reports were tendered from three psychiatrists, Dr Michael Beech, Dr Donald Grant and Dr Scott Harden. Each psychiatrist was called to give evidence. Whilst there were differences in their reports, each agreed that whilst the respondent presents a high risk of re-offending, both sexually and violently, if released into the community, that risk could, with appropriate supervision and monitoring together with conditions in respect of abstinence from alcohol and ongoing assistance as to places of accommodation, be reduced to a level such that his continued detention in custody was not justified in the circumstances.11 [16] The one area of difference between the psychiatrists related to the significance of the incident alleged to have occurred on 30 May 2010. Dr Harden, in a supplementary report, had opined that that incident was of such significance as to give rise to a concern that no amount of monitoring would render the risk associated with releasing the respondent into the community reasonable. In evidence, Dr Harden accepted the fact that the charge did not ultimately proceed meant the incident should be placed in a lesser category, although it was still relevant to be considered depending upon the basis for the decision to not continue further with that prosecution.12 In evidence, Dr Beech and Dr Grant both agreed that incident 4 See s 13(4) of the Act. 5 Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505 at [28]-[30]. 6 Lawrence at [31]. 7 Section 13(6)(a) of the Act. 8 Section 13(6)(b) of the Act. 9 Attorney-General for the State of Queensland v Francis [2006] QCA 324 at [39]. 10 Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505 at [33]. 11 T1-7, T1-9, T1-13, T1-15, T1-20, T1-24, T1-25, T1-26 12 T1-24 -- 8 of 12 -- 9 may be relevant depending upon the circumstances of the discontinuance of that prosecution.13 [17] Notwithstanding that proviso, each psychiatrist opined that the proposed conditions were generally reasonable (some were considered to be unnecessary),14 and would provide sufficient protection for the community in the event the respondent was released under a continuing supervision order. Conclusions [18] Having regard to the opinions expressed by the specialists psychiatrists, I am satisfied the respondent is a serious danger to the community in the absence of a Division 3 order. The respondent has a prolonged history of sexual and violent offences. He committed his 2008 exposure offence after the completion of relevant courses. His explanation for the motivation of that offence indicates that notwithstanding the completion of those programs, he continues to exhibit a tendency to externalise blame for his offending. Further, that offence occurred without the disinhibiting influence of alcohol or illicit substances, which demonstrates a capacity to re-offend sexually without those influences. Risk assessments made over a number of years place the respondent in the high risk category. Those assessments include the three expert psychiatric assessments made by Doctors Beech, Grant and Harden. I am satisfied a Division 3 order should be made in respect of the respondent. [19] Whilst a Division 3 order ought to be made, the opinions expressed by Drs Beech, Grant and Harden suggest there is no need for a continuing detention order. The risks of re-offending, albeit high, can be adequately met by the imposition of a supervision order. Each psychiatrist proffered the opinion that that order should be for a period of ten years, particularly having regard to the respondent’s age. I am satisfied it is appropriate the order be for that period. I am also satisfied the proposed conditions will adequately address the continuing risk associated with the imposition of a supervision order. This is particularly so having regard to the accommodation arrangements that have been reached for the respondent’s accommodation upon release. [20] I am satisfied to the requisite standard that the respondent, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003. [21] I order: 1. The respondent be released from custody subject to conditions. 2. The respondent must: (a) be under the supervision of an authorised Corrective Services officer for the duration of the order; (b) report to an authorised 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 13 T1-5, T1-12, T1-17 14 T1-20 -- 9 of 12 -- 10 custody and at that time advise the officer of the respondent’s current name and address; (c) report to, and receive visits from, an authorised Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services; (d) notify and obtain the approval of an authorised Corrective Services officer for every change of the respondent’s name at least two (2) business days before the change occurs; (e) comply with a curfew direction or monitoring direction; (f) comply with any reasonable direction under s 16B of the Act given to the prisoner; (g) comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order; (h) not leave or stay out of Queensland without the written permission of an authorised Corrective Services officer; (i) seek permission and obtain approval from an authorised Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; (j) notify the authorised 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 the commencement or any change; (k) reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment; (l) must seek permission and obtain the approval of an authorised Corrective Services officer prior to any change of residence; (m) demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services if accommodation is of a temporary or contingency nature; (n) not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised Corrective Services officer; (o) not commit an indictable offence during the period of the order; (p) not commit an offence of a sexual nature during the period of the order; -- 10 of 12 -- 11 (q) respond truthfully to enquiries by authorised Corrective Services officers about his activities, whereabouts and movements generally; (r) not to have any direct or indirect contact with a victim of his sexual offences; (s) disclose to an authorised Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to requests for information from an authorised Corrective Cervices officer about the nature of the association, address of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour; (t) notify an authorised 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; (u) submit to and discuss with an authorised Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed; (v) if directed by an authorised 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 an authorised Corrective Services officer, who may contact such persons to verify that full disclosure has occurred; (w) abstain from the consumption of alcohol for the duration of this order; (x) abstain from illicit drugs for the duration of this order; (y) submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by the authorised Corrective Services officer; (z) disclose to an authorised Corrective Services officer all over the counter medication that he obtains; (aa) not visit premises licensed to supply or serve alcohol, without the prior written permission of the authorised Corrective Services officer; (bb) 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 an authorised Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist; (cc) 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 -- 11 of 12 -- 12 Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order; (dd) attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by an authorised Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate; (ee) must develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it as directed with an authorised Corrective Services officer; (ff) notify an authorised Corrective Services officer of any computer or other device connected to the internet that he regularly uses or has used; (gg) supply to an authorised Corrective Services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device; (hh) allow any device where the internet is accessible to be randomly examined using a data exploitation tool to extract digital information or any other recognised forensic examination process; (ii) advise an authorised Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by the respondent within 24 hours of connection or commencement of use, including the reporting of any changes to mobile phone details; (jj) not access pornographic images on a computer or on the internet or purchase or obtain pornographic material in any other format without the prior written approval of an authorised corrective services officer in consultation with the treating psychiatrist or psychologist; and (kk) take prescribed drugs as directed by a medical practitioner and disclose details of all prescribed medication as requested to an authorised corrective services officer. -- 12 of 12 --