Attorney-General for the State of Queensland v Buckby [2011] QSC 157

1-1 SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Buckby [2011] QSC 157 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v DESMOND GEORGE BUCKBY (Respondent) FILE NO/S: No. 11102 of 2006 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 16 May 2011 DELIVERED AT: Brisbane HEARING DATE: 16 May 2011 JUDGE: Byrne SJA ORDER: 1. The decision made on 7 December 2007 that the respondent is a serious danger to the community in the absence of an order pursuant to division 3 part 2 of the act be affirmed; and 2. That the respondent continue to be subject to the continuing detention order made on 7 December 2007 CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where respondent’s criminal history commenced in 1984 – where respondent’s sexual offending commenced in 1981 – where respondent contravened a Supervision Order imposed in 2007 and was ordered to be detained in custody for an indefinite period under the Dangerous Prisoners (Sexual Offenders) Act 2003 – where Attorney-General for the State of Queensland seeks an annual review of the continuing detention order – whether the respondent should remain the subject of that continuing detention order or be released from custody subject to a supervision order - whether the respondent could be reasonably and practicably managed by a supervision order in -- 1 of 6 -- 1-2 ORDER 1 10 20 30 40 50 60 the community. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Attorney-General for the State of Queensland v Buckby [2010] QSC 174 considered. COUNSEL: M Maloney for the Applicant J Allen for the Respondent SOLICITORS: Crown Law for the Applicant Legal Aid Office (Queensland) for the Respondent -- 2 of 6 -- 1-3 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application pursuant to section 27 of the Dangerous Prisoners Sexual Offenders Act 2003 for the annual review of a continuing detention order. The surrounding circumstances are set out in the reasons of Justice Lyons delivered on the 21st of May last year and in the reports of the psychiatrists, Dr Harden and Dr Sundem. The respondent acknowledges, appropriately enough, that the standard imposed by section 30(2) of the Act of proof that he is a serious danger to the community in the absence of the division 3 order has been achieved. The concession is amply supported by the evidence. The question then is whether he should be continued to be subject to the continuing detention order or else released from custody subject to a supervision order. The material matters to be considered in that context are mentioned in subsection 30(4). A highly pertinent consideration of the circumstances in this case is the question whether the respondent could be reasonably and practicably managed by a supervision order in the community. It is tolerably clear that he cannot. His offending history eventually led to the making of an order under the Act. Initially it was one for supervision. He, however, breached the terms of the order which required relevantly that he not have contact with children, and that -- 3 of 6 -- 1-4 ORDER 1 10 20 30 40 50 60 breach was detected by Correctional Services staff. He had been found with children of a man who had not been acquainted by the respondent or for that matter by anyone else with the respondent's criminal history. The release from custody pursuant to the supervision order took place in May 2007. Within five months he had been returned to custody for having had unsupervised contact with children under the age 16. He had been found to have been involved with five young children of the next door neighbour and he was found with supervising officers in his flat with the five children alone watching a DVD. The respondent has completed a Getting Started Preparatory Program. He completed it in May 2008 but throughout the program he demonstrated high levels of denial regarding his offending, in particular, a denial of the sexual nature of his behaviour. The recommendation from that program was that he participate in a high intensity sexual offending program at the earliest convenience. The respondent, however, has persistently maintained that he will not participate in a sex offender program such as the high intensity sex offender program. He denies that he has committed sexual offences against children and has maintained that the program is not for him. The reports of Dr Harden and Dr Sundem attest to this continuing unwillingness to accept his paedophilic tendencies -- 4 of 6 -- 1-5 ORDER 1 10 20 30 40 50 60 and his offending. He remains, I am satisfied having regard to the reports of Dr Harden and Dr Sundem, a very high risk of offending sexually against children if allowed into the community. His prior non-compliance with the supervision order indicates that the mere inclusion in a supervision order of restrictions upon contact with children are of themselves unlikely to be sufficient to adequately protect the community against the risk he presents of serious sexual offending against children. It seems unlikely that any supervision order which was not so intensively supervised as to provide a real practical impediment could form a satisfactory basis for this man's release on supervision. No proposal was advanced on his behalf which might involve a supervision order that had fair prospects of providing adequate protection to the community which could also be reasonably and practically managed by Corrective Services officers (see section 30(4)(b)(2)). I accept the evidence concerning the nature of and the degree of the risk which is posed contained in the extensive reports of Dr Hardman and Dr Sundem. They reveal that, as the respondent will not, which he should, complete a high intensity sexual offender's program. There is no practicable supervision order which might be delivered that could afford adequate protection to the -- 5 of 6 -- 1-6 ORDER 1 10 20 30 40 50 60 community against the risk the respondent poses. The continuing detention must therefore be affirmed. HIS HONOUR: Do you have a draft order, Ms Maloney? MS MALONEY: I do have a draft order to hand up, your Honour. HIS HONOUR: Is there anything you wish to say about the formal draft, Mr Allen? MR ALLEN: No, thank you, your Honour. HIS HONOUR: There will be an order as per draft. ----- -- 6 of 6 --