Attorney-General for the State of Queensland v MUW [2010] QSC 404

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v MUW [2010] QSC 404 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v MUW (respondent) FILE NO/S: 6117/09 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 26 October 2010 DELIVERED AT: Brisbane HEARING DATE: 26 October 2010 JUDGE: Ann Lyons J ORDER: (i) The order made pursuant to s.13(5)(b) of the Act, on 6 November 2009 is rescinded; (ii) The respondent is detained in custody for an indefinite term for control, care or treatment. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where respondent sentenced in 2003 and again in 2007 to terms of imprisonment in relation to multiple sexual offences against children – where respondent released subject to a supervision order in November 2009 – where evidence that the respondent contravened a condition of that supervision order in May 2010 – where applicant seeks a continuing detention order pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent does not oppose the making of the orders sought by the applicant – where the respondent indicated that he wished to participate in a High Intensity Sex Offender Treatment Program prior to his release from custody. COUNSEL: R Rolls for the applicant J Sharp for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent -- 1 of 9 -- 2 ANN LYONS J: [1] On 6 November 2009 an order was made by Daubney J that the respondent, MUW, was to be released pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) and that he be subject to a supervision order which contained forty five conditions until 14 November 2019. [2] That supervision order contained as condition (xxx) a requirement that he not have supervised or unsupervised contact with children under 16 years of age without prior written approval of a Corrective Services Officer and that he was required to fully disclose his offences to the guardians and caregivers of the children before any such contact could take place. Condition (xxi) required that he not be within 100 metres of schools or child care centres without reasonable excuse. Condition (xxxiv) provided that he was not to visit public parks without the prior written approval of a Corrective Services officer. Condition (xxxviii) required the respondent to advise a Corrective Services officer of any repeated contact with a parent of a child under the age of 16 and that he must, if directed by a Corrective Services officer, make complete disclosure of the terms of the supervision order and the nature of his past offences to any person as nominated by the Corrective Services officer, who was able to contact such persons to verify that full disclosure has occurred. It would seem that through a typographical error condition (xxx) may not technically have been breached. It would seem clear however that the respondent was very aware that he was not to have contact with children under the age of 16. [3] On 13 May 2010 the respondent was seen with two adults and two teenage children. The evidence indicates that the respondent had been regularly seeing his daughter A, who was 13 at the time and her half sister B who was 16. Both girls resided with their mother who was the respondent’s ex partner. They all resided with her current partner. The evidence indicates that the respondent had re-established contact with his ex-partner after his release from prison in November 2009 and saw his daughter for the first time in many years in late April 2010 when he met her in the company of others for about an hour. Since that time the respondent has visited the family on a daily basis in the afternoons after his daughter arrived home from school. The respondent regularly had dinner with the family. [4] There is evidence from the mother and her partner that they were always present when the respondent was in the house and the young girls were in attendance. The respondent participated with fishing trips and other social activities with the family. [5] The respondent did not at anytime during these weeks of contact inform Corrective Services about his contact with the girls and the family. The self reports to Corrective Service officers indicate that he in fact specifically denied any such contact with families or children. The respondent indicates that he did not do so because he was concerned that he would not be allowed contact with his daughter. [6] It would also seem clear that whilst the family was aware he had been in prison as he wore an ankle monitoring device and he had to return to his residence by 10 pm in order to comply with a curfew, he had informed them that he had been “set up”. The evidence of the Corrective Services Officers is that there is no consent that they would have given to allow contact with his daughter or her sister. The respondent -- 2 of 9 -- 3 did not at any time obtain permission to attend parks. He clearly did not advise the parents of the terms of his supervision order. [7] On 14 May 2010 the respondent was arrested and has been incarcerated since that time. He has continued to maintain telephone contact with his daughter and her mother whilst in custody. [8] In my view there is clear evidence that the respondent has breached his supervision order within five months of his release on supervision. This is conceded by the respondent. This application [9] By this application the Attorney-General, pursuant to s 22 of the Act, seeks that the supervision order be rescinded and a continuing detention order be made. [10] Section 22 provides that if the court is satisfied “on the balance of probabilities” that the respondent has contravened the supervision order then unless the respondent satisfies the court on the balance of probabilities that adequate protection of the community, despite the contravention, can be ensured, the court must rescind the supervision order and make a continuing detention order. Previous offending [11] The respondent is a 50 year old man who has five children by a number of different women who also have other children. He has separately sexually offended against three young people on three separate occasions. Those offences occurred over a two year period and were against children of whom he was the parent or step parent. The victims included an 8 year old female, a 10 year old male and an 11 year old female but did not include either A or B. [12] On 1 August 2003 he was sentenced to a term of six years’ imprisonment with a parole eligibility date after two years for multiple counts of indecent treatment of a child under 12 and multiple counts of rape. The complainants were a natural daughter aged 11, and a stepdaughter who was 8. The offences of rape were committed against his stepdaughter who was in his care at the time. The respondent had on numerous occasions compelled her to engage in sexual acts which included vaginal penetration. With respect to his 11 year old natural daughter, the respondent had on four occasions over a two week period engaged in inappropriate touching and other sexual contact with her. [13] On 15 November 2007 the respondent was sentenced for two counts of indecent treatment of a child under 12; two counts of sodomy; one count of rape; and one count of maintaining a sexual relationship with a child with circumstances of aggravation. The complainant in relation to those offences was his stepson who was aged between 11 and 13 during the offending period. He had been made to engage in sexual acts with the respondent on numerous occasions. Those acts included requiring him to perform oral sex and the respondent sodomising him. -- 3 of 9 -- 4 The existing supervision order [14] At the time the supervision order was made in November 2009 Daubney J had before him three psychiatrists’ reports from Professor Basil James, Dr Michael Beech, and Dr Scott Harden. [15] Dr Beech’s report dated 4 September 2009 at the time of the supervision order was made stated the following: “]MUW] is a 49 year old man coming to the end of his term of imprisonment for a large number of sexual offences against children in his care who were either step-children or his own daughter. The victims have been both male and female and all were under twelve years of age. The offending was physically coercive and notable for the persistence of the abuse and the lack of empathy which it entailed. [MUW’s] account of the fantasies that gave rise to the offending and the nature of the offences indicate that he has the Paraphilia Paedophilia. This has occurred in association with an earlier history of recklessness and impulsivity and adult criminality. I believe he has substantial anti social personality traits but not sufficient to warrant a diagnosis of Anti-social Personality Disorder. There are other traits that speak to a narcissistic sense of entitlement and a tendency to some grandiosity. Most notable is the manner in which he reacted poorly to the separation from his first wife and the enduring sense of resentment and recrimination. Unusually, his sexual offending has come to light later in life and his victims should be seen an intra-familial. I believe that his offending has been opportunistic although clearly he pursued the abuse with the boy over some time. It is likely to have been facilitated by alcohol use but the most important factors I believe have been his Paedophilia and the proximity of children in his care. Over time the recklessness and thrill-seeking of his youth have matured and his behaviour in prison has generally been good. He has completed courses in Substance use and Sexual Offending with good reports. The 2006 letter belies some of the gains he was thought to have made and it is this issue that I believe warrants him as being seen as more than the Moderate-low risk that the actuarial assessment would indicate.” [16] Dr Beech concluded: “I would therefore concur with Prof James that the overall risk of sexual re-offending for [MUW] is moderate. His response to community life is untested and he has few social supports. -- 4 of 9 -- 5 I believe that the risk is that he will on release form a relationship with a woman or he will make contact with his family. In these contexts he will come into contact with children and this will re-kindle latent fantasies of sex with children that he will act on, possibly while intoxicated. The offending could escalate to rape and the effects would be similar to those described by his last victim.” (my emphasis) [17] Professor James stated that “It is in my experience very unusual for a person first to develop paedophilic tendencies at the age of forty-two, as MUW says was the case with him. There is, however, certainly no record of the respondent ever having offended previously.” [18] Professor James concluded that his overall opinion with respect to the respondent’s risk of future sexual offending was that it should be considered moderate and he considered that a supervision order should contain provisions limiting his contact with children under the age of 17. [19] Dr Harden in a report dated 18 October 2009 states that the respondent met the diagnosis of “Paedophilia – sexually attracted to both, limited to incest, non- exclusive type”, as well as “Personality disorder not otherwise specified with anti- social and narcissistic traits”. [20] Dr Harden considered: “If he were to re-offend based on his previous sexual offences it would most likely be against a young person who is in his care to some degree and with whom he has had some period of association.” (my emphasis) It is my opinion based on the current information that I have available that his risk of sexual re-offence would be increased if he were to be released from custody without a high level of compulsory supervision and treatment consistent with a supervision order being made.” [21] The essence of the breach of the supervision order is that he has breached the supervision order by having sustained contact with daughter who was 13 at the time of the contact and lying about this contact to his supervisors. Indeed he was in the company of the daughter, her half sister, his previous partner and her new boyfriend at the site of the probation and parole staff which, as Dr Harden states, “seems to display either a reckless lack of concern about detection or some sort of defiance”. [22] The question which needs to be addressed in this application is whether despite being satisfied on the balance of probabilities that the respondent has contravened the supervision order the Court is satisfied that adequate protection of the community, despite the contravention, can be ensured. If I am not so satisfied then I must rescind the supervision order and make a continuing detention order. -- 5 of 9 -- 6 The Current Reports of the Psychiatrists [23] Dr Beech, in a report dated 17 September 2010 states– “The importance of the breach lies in his history of sexual offences against children who have been either biological relatives or the children of his partners. The breach has occurred despite his participation in a Sexual Offender Treatment Program and his earlier acknowledgment of the risk that being alone with children brings. While he expresses regret for the consequences there is little to suggest remorse or indeed insight into his behaviour. It resonates with an earlier letter he wrote to a daughter about arranging to meet children. At interview he does not accept the inherent significance of the breach; indeed he does not seem to accept that he should not be able to contact those who were not the original complainants. In my opinion the breach was at its best an insightless disregard for the order and the inherent risk; at its worst it was a deliberate attempt to groom a young teenage girl. That he did not tell her, her mother or her stepfather about the original offences (or if he did it was to deny his guilt) and the order, is of concern to me. [MUW], in contrast to his daughter’s statement, denies that he was ever alone with her. However, it is easily conceivable that had the contact continued that could have changed and he could have been allowed to be alone with the girl. It is my opinion that his behaviour represented an increased risk of sexual offending. I believe that it is clear that he has not really assimilated as much from the SOTP as the facilitators had thought that he had done. Over the years its benefit has waned and in truth I believe that the evidence indicates that left to his own devices in the community he is likely to attempt to seek out young relatives and make contact with them. It is probably in part his narcissism that allows him to think that the order’s conditions do not or should not apply to him, that there is no risk in what he is doing, and that it is solely regard for his children that compels him to try to contact them. The concern now really is whether he can be trusted to return to the community and comply with a similar order. His continued phone contact with his daughter, his indication that he wished to contact others, his earlier letter to a daughter and his deception while in the community give me grave concerns that he would again breach the order if he were to be released at present. It would be of assistance to obtain a report from Dr John to see what progress was being made in therapy. In the absence of that report, I believe that [MUW] might be best served by attending a refresher maintenance offender course.” [24] Dr Harden, a consultant psychiatrist, in a Report dated 22 September 2010 states; -- 6 of 9 -- 7 “He has now gone on to breach his supervision order by having sustained contact with his daughter who was 13 years of age at the time of the contact and lying about this repeatedly to supervising authorities. At the time when he was detected he had gone so far as to be in the company of this daughter, her half sister and his previous partner and her new boyfriend at the site of his reporting to the probation and parole staff. This seems to display either a reckless lack of concern about detection or some sort of defiance. … Unfortunately this behaviour is the kind of behaviour associated with his previous pattern of offending and also displays an ability to evade supervision and reporting. If he were to reoffend based on his previous sexual offences it would most likely be against a young person who is in his care and with whom he has had some period of association.” [25] Dr Harden considers that the respondent meets the diagnosis of paedophilia – sexually attracted to both, limited to incest, of a nonexclusive type. He also has diagnosed the respondent as having a personality disorder, not otherwise specified, with antisocial and narcissistic traits. Dr Harden considers the personality disorder is not severe in nature and seems to have been sufficient for the respondent to have a steady string of antisocial acts throughout his adult life that have led him to be criminally sanctioned or incarcerated. [26] Dr Harden considers that the risk of sexual reoffence is, at least, moderate. There has been an increase in the dynamic risk factors, in Dr Harden’s view because of the respondent’s demonstrated lack of compliance with the supervision order. He states; “It would have been useful for him to have completed the sexual offending program in the high-intensity mode and then to go on to have both group as well as individual maintenance therapy in the community if this was available as this would have given him a more significant period of time and intervention in order to break down his issues around denial, minimization and lack of compliance with supervision. It is my opinion based on the current information that I have available that his risk of sexual reoffence could still be decreased if he were to be released from custody with a high level of compulsory supervision and treatment consistent with a supervision order being made. It is likely that his supervision processes will need to be more stringent with any future release.” [27] Later Dr Harden recommends – “I would recommend that he be monitored in the community by means of a supervision order and that this involve a prohibition on contact with young people under 18 years of age. -- 7 of 9 -- 8 It is not clear to me whether or not there is a supervisory process that is robust enough to guarantee the safety of his daughter if she were to have ongoing contact with him. It is still not clear that substance abuse has been a significant part of his offending behaviour and so there is no clear necessity for him to be completely abstinent from alcohol. Clearly avoiding intoxication and the associated disinhibition would still be advisable. I would recommend that he complete a further sex offender intervention program in a group setting and as well as having individual psychological intervention around his sexual offending. While a high intensity program would be preferable I am ambivalent with regard to whether the need is so great the he should be kept in detention to attend such a program. I would suggest from information available that the focus of his intervention should include attempts to improve his:capacity for relationship stability, possible deviant sexual preference, lack of concern for others and past issues around cooperation with supervision when in the community.” [28] The respondent has also been consulting with Dr Michael John a clinical psychologist who has prepared a report dated 12 June 2010. This report has been shown to both psychiatrists. The report states the respondent held strong opinions and had “little capacity for reflective higher order thought”. Dr John also considered that he detected in the respondent “an asocial, self -gratifying position”. He also considered that he had not resolved the thought patterns which had allowed the deviant behaviour. Dr John also considered that the respondent displayed “an unwillingness to meaningfully engage in the counselling/therapy opportunity open to him”. Dr John continued; “13. Concomitant with this uncertain understanding of [his] sexual ideation was the observation that he preferred to live on the margin of everyday society, rather than seek opportunities to more normalise his every day existence.” [29] It is clear from an analysis of the reports that the concern of the psychiatrists is whether the respondent can be trusted to return to the community and comply with a similar order. It is very clear that the respondent was only released in late November 2009 and, yet, by May of 2010 he has breached the order precisely in the way predicted by Dr Beech. Applicant’s submission [30] Counsel for the Attorney General submits that a continuing detention order should be made because the onus is on the respondent to demonstrate that adequate protection of the community is able to be ensured by his release on a supervision order and that the respondent is unable to discharge this onus. [31] Counsel for the applicant advised that the applicant’s position is essentially that the respondent should complete another sexual offender treatment program. The basis for that submission is that whilst the respondent has undertaken a sexual offender treatment program in the past he appears to have had limited benefit from that -- 8 of 9 -- 9 course. Counsel submitted that the respondent has demonstrated an inability to comply with the requirements of supervision and that he would gain some benefit from intensive treatment. [32] It is clear that the report of Dr John indicates that the respondent has not been well engaged in the rehabilitative process offered to him but rather indicates that he has been unguarded and uncooperative. Rather the respondent has stood outside that process essentially due to his defiance and narcissism. It is clear that it was that defiance which led to the detection of his breach. [33] At the hearing the respondent did not oppose the making of the orders sought by the applicant. Counsel for the respondent indicated that the respondent wished to participate in a High Intensity Sex Offender Treatment Program prior to his release from custody and that Corrective Services had advised that such a program was due to commence in January 2011 and would continue over a period of nine months. The respondent was advised that a place was available on such a program. [34] The Annual Review of the detention order would coincide with the completion of that course. Conclusion [35] I am satisfied that the respondent has breached the conditions of his supervision order. [36] I am also satisfied that the adequate protection of the community could not currently be ensured by the respondent’s release on supervision. I am satisfied that the respondent ought be indefinitely detained for his care, treatment and control. In particular I consider that the respondent should be detained to undertake the High Intensity Sexual Offenders Treatment Program. Order (i) The order made pursuant to s.13(5)(b) of the Act, on 6 November 2009 is rescinded; (ii) The respondent is detained in custody for an indefinite term for control, care or treatment. -- 9 of 9 --