Attorney-General for the State of Queensland v Costello [2010] QSC 456

1-1 SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Costello [2010] QSC 456 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DARREN MICHAEL COSTELLO (respondent) FILE NO: BS9809 of 2010 DIVISION: Trial Division PROCEEDING: Originating Application DELIVERED ON: 3 December 2010 (ex tempore reasons) DELIVERED AT: Brisbane HEARING DATE: 3 December 2010 JUDGE: Mullins J ORDER: Order as per amended draft initialled by Mullins J and placed with the file. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where respondent currently serving a term of imprisonment for the rape of a 14 year old girl – application for orders pursuant to s 13 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the respondent is a serious danger to the community in the absence of a division 3 order – whether a supervision order rather than a continuing detention order can ensure adequate protection of the community – whether the requirements of the proposed supervision order can be reasonably and practicably managed by Corrective Services officers – where supervision order made for a period of 10 years COUNSEL: B H Mumford for the applicant J M Sharp for the respondent SOLICITORS: G R Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent -- 1 of 9 -- 1-2 ORDER HER HONOUR: The Attorney-General applies for an order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) for either a continuing detention order in relation to the respondent, or a supervision order upon the respondent's release from prison, which is due to occur on 7 December 2010. A risk assessment was initially done for the purpose of the Act in relation to the respondent by psychiatrist Dr Moyle. In addition, Court-appointed psychiatrists, Professor Nurcombe and Dr McVie, have assessed the risk of whether the respondent will commit sexual offences upon release. The opinions of the psychiatrists range from moderate to moderate to high risk of re-offending. All the psychiatric evidence points towards a supervision order being the appropriate means in the circumstances to manage that risk. Although the applicant does not desist from seeking a continuing detention order, the applicant realistically accepts that the psychiatric evidence supports the future management in the community of the respondent under a supervision order with conditions that address the matters that are particularly relevant to the risks of the respondent sexually re-offending. The respondent is 39 years old. He has been in prison in relation to his current imprisonment since 24 November 1995, a period of 15 years. The sexual offence that has resulted in the regime under the Act being invoked in relation to the respondent was a vicious rape of a 14 year old girl that was -- 2 of 9 -- 1-3 ORDER committed by the respondent on 22 November 1995 whilst he was on parole after having served some 18 months of a sentence of four years, six months for an armed robbery and associated offences of violence arising from a home invasion in connection with a drug debt. The respondent pleaded guilty to the offence of rape. It was tragic that the victim committed suicide before the sentencing of the respondent took place. The victim's mother has been notified of this application and has provided a written submission to the Court, which I have read. The victim's mother makes submissions on the basis of assumptions that are not borne out by the psychiatric evidence. Although her daughter was 14 years old when raped, the psychiatric evidence does not diagnose the respondent as a paedophile. He was in a relationship with an older woman at the time he committed the sexual offence and his history of relationships involved older women. I have read, with sympathy, the submissions of the victim's mother. Those submissions, however, are to be taken into account with the other evidence that is before the Court, which overwhelmingly supports the conclusion that the respondent is not a paedophile, but has other issues that require to be managed in order to moderate the risk of sexual re-offending. The victim's mother also expresses personal fear for her safety as a result of the release of the respondent from prison. That fear is not borne out by the other evidence that is before me. The respondent appears to have been using alcohol and illicit -- 3 of 9 -- 1-4 ORDER substances, commencing with marijuana, at the age of 12 years. He left school in the middle of Year 8. He has a significant stammer, which caused problems for him whilst at school and resulted in issues such as a lack of self-esteem. His use of illicit substances escalated from cannabis sativa to other drugs such as amphetamines. Alcohol and drugs appear to have been part of his problem, which resulted in the commission of other offences, apart from the rape that I have already referred to. The addiction to alcohol and drugs is of such concern in the material before me that it is a matter which is at the forefront for those who have been responsible for fashioning the conditions of the supervision order. The psychiatric evidence summarises the treatment and diagnoses that have been made in respect of the respondent whilst in prison. The respondent's symptoms have been inconsistent and the diagnoses that have been made of his mental health issues over the years have also varied. Dr Moyle described the respondent's descriptions of his symptoms and experiences as possibly consistent with the respondent suffering a chronic paranoid schizophrenia. On any view, however, Dr Moyle was of the opinion that the respondent's personality is disordered and his mental health issues in conjunction with his life-long mental slowness and his drug abuse have affected the respondent's ability to deal with his own issues. Dr Moyle concluded that the respondent posed a moderately high risk of violent sexual re-offending, but was of the opinion -- 4 of 9 -- 1-5 ORDER that his issues could be treated by a graded reintroduction to the community using the facilities set up by Community Forensic Mental Health Services, and ensuring that the respondent had continued monitoring by the Corrective Services officers with the respondent's compliance with a Forensic Mental Health Management Plan. Professor Nurcombe spent five hours with the respondent when he interviewed him on 15 November 2010. Professor Nurcombe isolated symptoms of a post-traumatic stress disorder that was related to an early experience by the respondent of sexual abuse in the prison system in the early 1990s. Professor Nurcombe was not convinced that the respondent was suffering from a schizophrenic-type condition, but did diagnose a psychotic disorder and alcohol and marijuana abuse disorder, although that disorder was in remission due to his imprisonment. Professor Nurcombe expanded on the diagnosis and suggested that the psychotic disorder may be secondary to drug and alcohol abuse and that the respondent may have an antisocial personality disorder with psychopathic traits. Professor Nurcombe thought that it was also appropriate to diagnose the respondent with chronic post-traumatic stress disorder related to the homosexual rape that the respondent had experienced in prison, and in respect of which the symptoms were intermittently reactivated in times of stress for the -- 5 of 9 -- 1-6 ORDER respondent. Professor Nurcombe could find no evidence of sexual deviation and considered that what has to be treated is the major mental illness, from which it is clear the respondent suffers, although the precise diagnosis of which is unclear. The respondent is presently being treated by the prison Mental Health Service and is medicated for his mental illness, and both Dr Moyle and Professor Nurcombe are at one in recommending the continued medication and treatment by a Mental Health Service for the respondent's mental illness. Professor Nurcombe noted the extremely low self-esteem that the respondent presents with, and both Professor Nurcombe and Dr Moyle agreed with the suggestion put to them by the respondent's counsel that speech therapy to address the significant speech impediment from which the respondent suffers would assist in addressing this problem of low self- esteem. Professor Nurcombe was of the opinion that the likelihood of further sexual re-offending in the absence of a supervision order is moderate to high, but with a supervision order, the likelihood drops to moderate to low. Professor Nurcombe recommended that the supervision order be of 10 years duration. Dr McVie interviewed the respondent on 4 October 2010. She is of the opinion that the respondent is of moderate to high risk of re-offending in a sexual manner and that in order to reduce -- 6 of 9 -- 1-7 ORDER the risk of re-offending, that the respondent must remain abstinent from alcohol and illicit substances and that conditions addressed to achieving that should be monitored closely and randomly checked regularly. Dr McVie recommends that the respondent requires an intensive supervision order in order to transition to a public Mental Health Service treating psychiatrist and transitional support that will build on the treatment that he has received whilst in prison. Because of the respondent's limited intellectual capacity, Dr McVie flags that he will need ongoing and repeated reenforcements of the principles involved in all the programs that the respondent successfully completed in custody. Dr McVie considers that the respondent will also require supervision for at least 10 years. Ms Sharpe, of counsel, for the respondent, concedes that, on the basis of the psychiatric evidence, the Court would be satisfied to the requisite standard that the respondent is a serious danger to the community without a supervision order being made. It is a positive step that the respondent recognises that he requires the assistance of a supervision order, not only because of the benefit to the community, but also for the benefits it will provide to him which in turn should assist in ensuring that the risk to the community from his release is reduced. The evidence of the three psychiatrists is acceptable and cogent and satisfies me to the high degree of probability that is required under the Act that -- 7 of 9 -- 1-8 ORDER the respondent's moderate to high risk of sexual re-offending, unless appropriately supervised, is an unacceptable risk in terms of section 3 subsection 2 of the Act. In deciding whether a continuing detention order, or a supervision order is made, section 13 subsection 6 of the Act gives paramount consideration to the need to ensure adequate protection of the community. In addition, the Court must consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order and requirements under section 16 of the Act can be reasonably and practicably managed by Corrective Services officers. The form of the order which I am proposing to make was propounded before me both by the applicant and the respondent as to the individual conditions on which the supervision order should operate. In light of the psychiatric evidence and the submissions that have been made both on behalf of the applicant and the respondent, I am satisfied that appropriate conditions can be formulated for a supervision order that will address the need to ensure the adequate protection of the community, and that the requirements of the proposed supervision order can be reasonably and practicably managed by Corrective Services officers. I am satisfied that a supervision order should be made until 3 December 2020 on the conditions which are set out in the amended draft order that I have settled with counsel in the course of this proceeding. I therefore make an order in terms of the amended draft which is initialled by me and placed with -- 8 of 9 -- 1-9 ORDER the file. ----- -- 9 of 9 --