Attorney-General for the State of Queensland v Bewert [2011] QSC 106

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Bewert [2011] QSC 106 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) and HENRY BEWERT (Respondent) FILE NO/S: BS 13210 of 2010 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 10 May 2011 DELIVERED AT: Brisbane HEARING DATE: 6 May 2011 JUDGE: Boddice J ORDER: The respondent be detained in custody for an indefinite term for control, care or treatment 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 pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act for an indefinite detention order – 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 (Qld) Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505 -- 1 of 10 -- 2 Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 COUNSEL: Ryan, TA for the applicant Benjamin, JP for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] The Attorney-General seeks orders pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) that the respondent be detained in custody indefinitely for care, control or treatment or; alternatively, that the respondent be released on a supervision order on conditions the Court considers appropriate. The respondent’s full time release date from custody is 11 May 2011. [2] The respondent was born on 10 June 1964. He has a long history of committing sexual offences against women. He has had the benefit of probation orders and release on parole. He breached such orders by committing further offences. Most recently, on 25 February 2008, he was sentenced to three years imprisonment to be served cumulatively upon the remainder of the sentence previously imposed in September 2003 for which he had been released on parole at the time of the commission of those offences. Criminal history [3] On 23 February 1988, when the respondent was aged 24, he was sentenced to two years probation for an offence of aggravated assault on a female committed on 8 January 1988. The respondent had attended a laundromat at Redbank Plains. Whilst there, he sat beside the complainant and touched her on her upper leg. When she resisted, he grabbed her upper body. -- 2 of 10 -- 3 [4] On 25 June 1996, the respondent was sentenced to three years probation for offences of indecent assault and assault occasioned bodily harm committed on 2 May 1995. The complainant was a doctor employed at the Barrett Centre Psychiatric Hospital. The respondent voluntarily admitted himself to that hospital. During the course of an examination in a locked room at the hospital, the respondent slapped the complainant on the face. He began to rip at her clothing, groping her breast and crotch underneath her clothes. He then placed the complainant on an examination table face down and tried to remove her pants. [5] On 3 April 1997, the respondent was sentenced to three years imprisonment for two offences of indecent assault committed on 14 August 1996, some six weeks after he had been placed on probation. The complainants were employed as nurses at the Ipswich Hospital. The respondent approached them and told them he was looking for a woman to have sex with. He assaulted the first nurse by grabbing her and at the same time trying to pull down the zipper of her pants. He grabbed the second nurse in a tight bear hug while fumbling with his trousers. [6] On 19 September 2003, the respondent was convicted of the offence of sexual assault committed on 29 March 2003. He was sentenced to five years imprisonment. The complainant was an unknown female patient waiting alone in the emergency department at the Ipswich Hospital. The respondent grabbed her, and kissed her on the neck. When she screamed for help and tried to escape, he dragged her by the waist down to the floor while rubbing her breasts. The respondent told police he intended to go to the hospital to sexually assault a female because he wanted to get caught and go to prison. -- 3 of 10 -- 4 [7] On 14 November 2006, the respondent was released on parole in relation to the offence committed on 29 March 2003. Prior to his release he had participated in the High Intensity Sexual Offender Treatment Program between June 2005 and March 2006. The respondent was subject to that parole order when he committed the four further offences of sexual assault the subject of his most recent sentence of imprisonment. Those offences were committed in early 2007. The first, committed on 24 January 2007, involved the respondent rubbing his hand over the breast and stomach of a woman who was walking across Victoria Bridge. The second, third and fourth offences, committed on 8 March 2007, involved the respondent attending a Coles Supermarket. Whilst there, he masturbated and ejaculated on a 17 year old student. He also approached two other female shoppers. He touched each on the bottom, and masturbated with his penis exposed. Psychiatric evidence [8] Evidence was given by three psychiatrists: Dr Beech, Dr Harden and Professor Lawrence. [9] Dr Harden interviewed the respondent on 23 March 2010 for the purposes of conducting a risk assessment on behalf of the Department of Corrective Services. He concluded the previous offences committed by the respondent tended to target women who were available and accessible to him, and were occasioned at times with degrees of violence, although there did not appear to be any desire to harm the women apart from obtaining sexual gratification. These offences were often associated with alcohol intoxication, and complicated by the respondent’s complex personality. The offending persisted despite the respondent having completed the -- 4 of 10 -- 5 Sexual Offender Intensity Program, and the completion of previous substance abuse intervention programs. In Dr Harden’s opinion, the respondent represented a high risk of sexual re-offending in the future. It is doubtful future measures would realistically reduce that risk as previous intervention had been unsuccessful. The respondent’s risk of sexual re-offending will be unacceptably high if he were released from custody without further monitoring or intervention. The respondent seemed to have no insight into his offending. [10] In evidence, Dr Harden elaborated on this assessment noting a lack of empathy on the part of the respondent for his victims. These factors, together with his persistent re-offending, suggested any effective supervision would need to be intensive, and constant, if it were to render the high risk of sexual re-offending acceptable. [11] Dr Beech prepared a report dated 12 April 2011, pursuant to s 11 of the Act. He concluded the respondent is of limited intellectual capacity and has a range of abnormal sexual fantasies and thoughts upon which he has acted and which come to the fore when he is intoxicated. As such, the respondent is at high risk of re- offending if released into the community, particularly having regard to his limited intellect and poor capacity to cope, even with supported accommodation. This risk is further aggravated by his sexual deviancies and his alcohol dependence, neither of which has been adequately addressed in the past. The respondent has a disturbing history of sexual offences, many of which occurred soon after release from incarceration, and some while on community supervision. Dr Beech had little confidence in the respondent’s capacity to remain abstinent from alcohol upon release. The respondent also had a poor track record of recidivism, had made only limited gains during the Sexual Offender Treatment Program, which he participated -- 5 of 10 -- 6 in 2005 and 2006, and could not readily identify risks and strategies for the future. His insight and self-awareness were very limited and his relapse plan was inadequate. It was likely the respondent would quickly relapse in the community. [12] In evidence, Dr Beech opined that the level of supervision required to make the risk of re-offending acceptable would necessitate supervision akin to home detention, and require actual supervision whilst the respondent moved within the community. [13] Professor Lawrence prepared a report dated 14 February 2011, pursuant to s 11 of the Act. She considered the respondent had a narcissistic personality disorder with significant psychopathic quality to it. The respondent’s rapid sexual re-offending soon after release from institutional life, whether from hospital or prison, was suggestive of manipulation of behaviour to achieve institutional satisfaction of his dependency needs. The respondent also displayed a range of sexual deviancies. His behaviour was consistent with an adult with no acceptance of responsibility for himself, combined with a certain degradation of women. In Professor’s Lawrence’s opinion, the respondent retained little understanding of, or value of, what he had acquired during the Sexual Offender Treatment Program and showed little motivation for change. The respondent’s risk of sexual re-offending was high. [14] Whilst her report stated the risk of re-offending would be significantly reduced if released on a supervision order, in evidence, Professor Lawrence agreed with Dr Beech that the respondent would require extremely close, high level supervision before the risk to the community could be said to be acceptable. Statutory regime -- 6 of 10 -- 7 [15] 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. There are a number of factors to be considered in determining what is an unacceptable risk.3 [16] 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; 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 10 -- 8 (h) the respondent’s antecedents and criminal history; (i) the risk of the respondent committing another serious sexual offence if released into the community; (j) the need to protect members of the community from that risk; (k) any other relevant matter. 4 [17] 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 [18] 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.7 If supervision is apt to ensure that adequate protection of the community, a supervision order should in principle be preferred,8 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.9 Conclusions 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)(b) of the Act. 8 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405. 9 Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505 at [33]. -- 8 of 10 -- 9 [19] Having considered all of the evidence, and, in particular the reports and evidence of Doctors Beech and Harden and Professor Lawrence, the Attorney-General has satisfied me that the respondent is a serious danger to the community in the absence of a Division 3 order. The respondent has shown persistent re-offending over many years, notwithstanding completion of relevant programs and being placed on community based supervision orders. I accept the evidence of Drs Beech and Harden, and of Professor Lawrence, that the respondent represents a high risk of sexual re-offending. I also accept that his most recent offences demonstrate that his past participation in high intensity sexual offender programs and alcohol abstinence programs have not been adequate to treat his deviancies or his alcohol dependence. [20] The remaining issue to determine is whether the Attorney-General has satisfied me that a continuing detention order should be made rather than a supervision order. In deciding whether to make such an order, the paramount consideration is the need to ensure the adequate protection of the community. This requires a consideration of 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. [21] The evidence of the psychiatrists is overwhelmingly to the effect that adequate protection of the community could not reasonably and practically be managed by a supervision order. Any supervision order would require a high level of compliance by the respondent. The respondent’s past conduct, together with the psychiatric assessments, indicate no such compliance will be forthcoming from the respondent. It is no answer to this issue to allow his release, and await evidence of non- compliance. Non-compliance is likely to be evidenced in sexual re-offending. That -- 9 of 10 -- 10 represents an unacceptable risk to the community. I am satisfied that adequate protection of the community could not reasonably and practically be managed by a supervision order and that to place the respondent on such an order would not ensure the adequate protection of the community. [22] The Attorney-General has satisfied me a continuing detention order ought to be made in all the circumstances. [23] The respondent be detained in custody for an indefinite term for control, care or treatment. -- 10 of 10 --