Attorney-General for the State of Queensland v Skipsey [2010] QSC 468

1-1 SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Skipsey [2010] QSC 468 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DARREN LEIGH SKIPSEY (respondent) FILE NO/S: BS 12723 of 2010 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 9 December 2010 DELIVERED AT: Brisbane HEARING DATE: 9 December 2010 JUDGE: Fryberg J ORDER: Application dismissed CATCHWORDS: Criminal law – Sentence – Post-custodial orders – Parole – Other matters – Application by prisoners convicted of serious, violent offences to Parole Board – Necessity for the Board to consider applications promptly Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 8, s 51 COUNSEL: B H Mumford for the applicant J Sharp for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent -- 1 of 10 -- 1-2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application by the Attorney General pursuant to section 8(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order that the respondent, Darren Leigh Skipsey, undergo examinations by two psychiatrists who are to prepare independent reports in accordance with section 11 of that Act. The application is opposed. The evidence discloses that the respondent pleaded guilty in the District Court, Maroochydore, to two counts of common assault, one count of deprivation of liberty, nine counts of rape, one count of sexual assault, and one count of assault occasioning bodily harm on the 17th of December, 2001. He was sentenced to ten years imprisonment on two of the rape counts, and to lesser concurrent terms on the other counts. It was declared that he had been convicted of a serious, violent offence. His full time release date is presently 27th of April, 2011. Apart from a trivial offence of using insulting words as a youth, he has no other criminal history. Those offences were all committed as part of the one event when Mr Skipsey abducted a stranger and took her to his home, where he committed the offences. The victim escaped and ran to a friend's house. Mr Skipsey was apprehended and charged and remained in custody. The evidence in support of the application that has been filed is extensive, but the submissions on behalf of the Attorney focus on reports by two psychiatrists, which are in evidence. -- 2 of 10 -- 1-3 ORDER 1 10 20 30 40 50 60 The first is an assessment by Dr Don Grant, who was engaged on the 19th of February, by a legal officer in Crown Law to conduct a psychiatric assessment of Mr Skipsey, and to provide a risk assessment in relation to him. Dr Grant provided a report. It is dated 16th of May, 2010. In it, Dr Grant concluded that the risk of re-offending is low to moderate. He noted that Mr Skipsey had made significant progress in the prison environment, and in particular, through the sexual offender programmes. He recorded that Mr Skipsey appeared to have matured, and his relationship with his family had shown marked improvement. He thought that if re-offending were to occur, it would be likely to be in a situation where Mr Skipsey was socially isolated and rejected; and was feeling pent up anger from things occurring in his life. Those factors would be exacerbated by intoxication with alcohol or amphetamines, or to a lesser extent, cannabis. There is, however, no reason to suppose that such intoxication is a high risk. Dr Grant was optimistic about the prospects of Mr Skipsey's rehabilitation, and thought them reasonably good, even without a supervision order. In his opinion, a supervision order would serve primarily to assist in Mr Skipsey's adjustment to society and social rehabilitation, providing assistance in terms of individual counselling, and a maintenance sexual offender programme. -- 3 of 10 -- 1-4 ORDER 1 10 20 30 40 50 60 In oral evidence, however, it became apparent that such a programme would be of little relevance, having regard to Mr Skipsey's psychiatric profile. Dr Grant further recorded that the order would also provide a structure for monitoring his progress in terms of employment, social rehabilitation and inter-personal relationships. Dr Grant was of the view that these things could also be achieved by a parole order, and he was in favour of granting Mr Skipsey parole. Indeed, it is fair to say that Dr Grant was of the view that it would have been desirable for Mr Skipsey to have been granted parole before now. Dr Grant did not suggest that a supervision order was necessary to ensure the adequate protection of the community. Its object was more to benefit Mr Skipsey, although he said that the protection of the community would follow from this. The second piece of evidence relied upon by the applicant is a report by Dr Kar dated 23rd September, 2010, which was prepared for the Parole Board in relation to an application for parole made by Mr Skipsey. That report dealt with Mr Skipsey's suitability for parole. Obviously one of the factors which the Board considers is the risk which an offender poses to the community if released on parole. That, I know from other cases, is a primary factor in -- 4 of 10 -- 1-5 ORDER 1 10 20 30 40 50 60 the Board's considerations. Dr Kar described Mr Skipsey as being unstable in the interview. He became agitated and upset and reluctant to speak about the offence. Dr Kar noted a generally positive attitude while in custody. He was of the opinion that the short term risk of committing a violent sexual offence during the period of parole was negligible. In his opinion, Mr Skipsey had anti-social and prominent narcissistic traits, and a mixed personality disorder. He believed the risk of future violent sexual offences in the community moderate in the longer term, but if he was able to remain drug and alcohol free, the risk would be low. He believed that Mr Skipsey would benefit from counselling and a maintenance programme, and recommended long term supervision and monitoring. He favoured Mr Skipsey's release on parole. That is not surprising as the purpose of parole is to achieve the very things to which Dr Kar referred. The present application requires, if it is to be granted, that the Court be satisfied that there are reasonable grounds for believing the prisoner to be a serious danger to the community in the absence of a Division 3 order. The evidence relating to the risk of re-offending does not satisfy me that Mr Skipsey presents such a danger. He has -- 5 of 10 -- 1-6 ORDER 1 10 20 30 40 50 60 plainly benefited from his time in prison, and from the courses which he has undertaken. There simply is, in the evidence, insufficient to reach a conclusion that in the state in which he now is, he presents such a risk. On behalf of the Attorney, it was submitted that the onus on the Attorney was only of showing the existence of reasonable grounds for belief, not that the prisoner actually was a serious danger to the community. That no doubt is so. However, the grounds must be reasonable. The evidence, in my judgment, does not achieve that level of proof. There are two other matters of concern which I would mention before parting with this case. One is a minor matter. Dr Grant's report goes further than is appropriate on the part of an expert witness, and makes recommendations in effect on what should be the outcome of this application. It is apparent that Dr Grant has taken into account, not only the risk of re-offending, but also the consequences to the community should re-offending occur. It is not a matter of psychiatric expertise to comment on that, and to the extent that Dr Grant has said in his report that the risk needs to be taken in context of the likelihood of severe damage to any potential victim if an offence was to occur, it is unfortunate. I do not think that expert witnesses ought to try to pre-empt the decision which is committed to this Court. I am sure it was done with the best of motives, and I am not being particularly critical of -- 6 of 10 -- 1-7 ORDER 1 10 20 30 40 50 60 Dr Grant, but it is a matter which those involved in commissioning these reports might bear in mind. The second matter is much more serious. One of the effects of a supervision order is similar to the effect of a parole order. That is, a person released from full time imprisonment is provided with a supervised environment to ease his transition back into the community. Parole forms an important part of that function. The purpose of parole is frustrated if the Parole Board fails to give prompt consideration to parole applications. This is particularly the case in respect of prisoners who have been convicted of offences declared to be serious, violent offences. In those cases, a prisoner will not become eligible for parole until he has served 80 percent of his sentence. In Mr Skipsey's case, that was eight years. Therefore, the maximum period available for parole was two years. The shorter that period becomes due to delay in considering a parole application, the less opportunity there is for the objectives of parole to be achieved. It is, therefore, particularly important for applications by prisoners convicted of offences declared to be serious, violent offences, to be considered speedily. In the present case, the application made by Mr Skipsey has not been considered speedily. The application was made in January, 2010. It was given by Mr Skipsey to officers of the -- 7 of 10 -- 1-8 ORDER 1 10 20 30 40 50 60 Corrective Services Department to be forwarded to the Parole Board. It was not forwarded to the Parole Board until June, 2010. There is no evidence before me to explain that delay. It is a matter of great concern that an application destined to be sent to the Parole Board should be withheld by the Corrective Services Department from that Board. I was told that the practise is for the Department to submit a report, and that is a very proper thing to occur. However, I see no reason why the forwarding of the application to the Parole Board should be deferred until the Department gets around to making its own report. That is an unwarranted interference by the Department in the prisoner's lawful entitlement to make an application. It is a matter of concern that it has happened in this case. It is also a matter of concern that the Board appears to have been starved of information in relation to Mr Skipsey, and quite possibly misled. Mr McInnes, the President of the Board, was certainly concerned at the delay in forwarding the parole application. And he was also concerned that the Board was not told in a timely way of the existence of Dr Grant's May report. The Board, when it did receive Mr Skipsey's application in June, was told by someone, apparently a Corrective Services representative, that an application under the Dangerous Prisoners Act would not be made until October or November. -- 8 of 10 -- 1-9 ORDER 1 10 20 30 40 50 60 Over a series of meetings the matter was deferred by the Board, first to obtain a report by Dr Kar on behalf of the Board, a step which I infer would have been unnecessary had the Board been provided with Dr Grant's report; and second, by reason of a possible Dangerous Prisoners application. The net result has been nearly a year’s delay in dealing with an application for parole which ultimately had the recommendation of the assessment team, and the recommendation of Dr Kar, and which was quite consistent with the view of Dr Grant. Indeed, it was supported, as it turned out in his evidence, by Dr Grant. It has not yet been considered by the Board, notwithstanding that it was made by the prisoner nearly a year ago. In my view, that is a disgraceful situation. What has brought it about, I cannot say. But, it certainly would be appropriate now for the Board to consider Mr Skipsey's application for parole as a matter of urgency. And in particular, to do so before Christmas. I would add that the Board appears also to have acted on an incorrect view of the legislation which came into effect only on the 1st of December, and on a false fact. It was told, Mr McInnes thought, by a representative of the Attorney General's Department that a preliminary hearing date had been set by the Court for Mr Skipsey. That information was not correct. It was given to the Board in an attempt to invoke an amendment to s 51 of the Dangerous Prisoners (Sexual Offenders) Act, which -- 9 of 10 -- 1-10 ORDER 1 10 20 30 40 50 60 came into force on 1 December. It resulted in yet another unfounded deferral of Mr Skipsey's application. It is to be hoped that his application had not been deferred to await the commencement of that amendment. In any event, the section did not apply. Mr Skipsey has had a very rough trot. The application is dismissed. I would ask that my reasons for judgment in this matter be transcribed as a matter of urgency. ----- -- 10 of 10 --