Attorney General for the State of Queensland v Sagiba [2010] QSC 401

1-1 SUPREME COURT OF QUEENSLAND CITATION: Attorney General for the State of Queensland v Sagiba [2010] QSC 401 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v FRANK SAGIBA (respondent) FILE NO/S: BS 10429 of 2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 4 October 2010 DELIVERED AT: Brisbane HEARING DATE: 4 October 2010 JUDGE: Applegarth J ORDER: That pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 the respondent be released subject to the terms of the supervision order imposed by Fryberg J. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY- where respondent subject to a supervision order – where respondent contravened the order – whether, on the balance of probabilities, respondent satisfied the Court that adequate protection of the community can be ensured despite the contravention by a supervision order Dangerous Prisoner (Sexual Offender) Act 2003 (Qld), s 22 COUNSEL: K Philipson for the applicant S M Ryan for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent -- 1 of 11 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This morning I made an order upon the final hearing of contravention proceedings pursuant to section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003. On the basis that of the evidence before me, I concluded that there should be a continuation of the supervision order made by Fryberg J on 16 December, 2009. These are my reasons. I note at the outset that the applicant, the Attorney-General for Queensland, acknowledged in written submissions and orally that the evidence supported the continuation of the order made by Fryberg J. In making the order that he did, Fryberg J pointed to the importance of the respondent abstaining from alcohol and drugs. He noted that it was fairly clear that Mr Sagiba's history was dominated by excessive use of alcohol and drugs, and that those substances had led him to behave in a way that he now recognises is not acceptable. The immediate background to the contravention appears in the appendix to the submissions filed on behalf of the respondent, which helpfully notes the course of events following the respondent being released under a supervision order. It appears that the respondent progressed well. He was co- operative in his dealings with the Corrective Services officers who were charged with his supervision. There were changes from time to time to curfew requirements, and he -- 2 of 11 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 passed random urine analysis and breath testing with clear results. Matters became difficult in his personal life in March, 2010. He was placed on certain restrictions governing his movements. He was able to make telephone calls to his mother. He was developing a relapse prevention plan. All this was taking place at a facility close to the prison in Townsville. It appears that there is housing there for persons who are subject to the Act. However, the location of that facility is rather removed from Townsville. Professor James described it in his evidence this morning, and he noted that it is a fairly bleak environment. Importantly, for practical purposes, there is no public transport to or from it. I've had regard independently to the records of the Department which revealed the frustration experienced by the respondent in not being able to travel to Townsville to progress matters relating to his employment, housing and the like. Remarkably, the respondent stated in an interview that he was prepared to buy a bike, since it seems there was no bike then available to him. In any event, he became increasingly frustrated with matters and by April was not coping well with his circumstances. He appeared to the Corrective Services officers who saw him on 12 April, 2010, to be in a depressed mood, and was behaving -- 3 of 11 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 "very fidgety, but he was nevertheless polite and respectful towards staff." An uncle was in the same facility, and the respondent foolishly smoked a joint with his uncle. This was soon detected. Upon it being detected on normal drug testing, he admitted to having had that joint, and remarked that he had been unable to resist that peer pressure, and he had done so in circumstances in which he was sick of everything. The respondent was then subject to the provisions of the Act which required him, upon issuing of an arrest warrant, to be taken into custody, where he has remained since 19 April 2010. As I explained to the respondent at the end of the hearing, some level of frustration is inevitable with supervision orders. The Court fully tolerates and expects people to be frustrated that supervision orders restrict their freedom of movement and other aspects of daily life. That frustration has to be accepted by persons who are subject to these orders. The respondent was warned of the consequences of breaching the order, and I fully concur with Fryberg J in taking the view that there should be zero tolerance of the respondent consuming alcohol and illicit drugs. I need not elaborate on the reasons for that. These are apparent from the respondent's history and from the expert -- 4 of 11 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 evidence concerning the trigger factors that could lead to re- offending. I have had the benefit of expert reports from Professor James and Dr Harden. They reflect on matters, and reach the view that it is appropriate that the respondent remain subject to a supervision order. I consider that the respondent has discharged the onus of establishing that in this instance of contravention, the continuation of the supervision order is preferable to making an order for the respondent's continued detention. In addition to their reports, Professor James and Dr Harden each gave oral evidence. There also was affidavit evidence and oral evidence from Ms Embrey which dealt with the immediate future which is that the respondent be accommodated in what is described as “contingency accommodation” at Wacol. Ms Embrey's affidavit was sparse on details concerning how being located at Wacol would facilitate the respondent's re- integration into activities such as employment and beneficial recreation. As a consequence, she gave oral evidence. Ultimately it is the respondent who has to be responsible for his own re-integration into the community, subject to the supervision that the order provides. -- 5 of 11 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 I must say, as I said during the course of the hearing, that that will not be an easy path for someone who has spent his life in Far North Queensland, and has more immediate associations with the community in North Queensland than the community in South-East Queensland. However, the manner in which the respondent progresses, and where he is accommodated is not a matter immediately for the Court to determine. I would expect the authorities in charge of the respondent's supervision and care to have particular regard to the oral evidence given by both Professor James and Dr Harden. I will not attempt to accurately summarise all that they said. However, it is important to note that Professor James' view is that Wacol is preferable to the Townsville facility in the very short term. Professor James thought it important that the respondent be in what he described as familiar territory, and it was important for the respondent to be able to address many matters such as gaining employment and social and recreational support. This includes the support of his peers, and members of his community. It is unfortunate, to say the least, that some of the problems that have beset the respondent are due to the isolation of the housing provided in the Townsville Correctional Centre precinct. As Ms Embrey explained, the Department works with others and attempts to locate suitable housing, and persons -- 6 of 11 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 subject to the Act, such as the respondent, attempt to go on housing lists. However, there are obvious difficulties with obtaining housing. I infer from what Ms Embrey said, although she did not say so in these precise terms, that private accommodation which would ordinarily be obtained through real estate agents is not readily obtainable for persons who are subject to this Act. Some hostels will not provide accommodation to persons who are subject to this Act. In Cairns it seems there is only one position available at a hostel for people who are subject to this Act, and that place is presently occupied. It is an unfortunate fact of life that persons who are subject to this Act are publicly vilified, and when they have the opportunity to take up accommodation in the community, their presence is sometimes detected, and they are vilified, and subject to all kinds of abuse and threats. In circumstances in which persons such as the respondent have difficulty in accessing ordinary public housing, let alone private housing, it would seem to me to behove the authorities to ensure that the housing that they are provided, described as contingency accommodation, is of a kind that facilitates their re-integration into the community. -- 7 of 11 -- 1-8 JUDGMENT 1 10 20 30 40 50 60 I say that not simply because that is an important part of the human dignity to which all members of society are entitled. The re-integration of individuals such as the respondent serves the purpose of the Act which is reducing the risk of their re-offending. Having individuals isolated geographically and in other respects from employment opportunities does nothing to serve the objectives of the Act. Ms Embrey explained that there are some steps being taken to progress the provision of transport between the facility in Townsville and Townsville City for when individuals have a need to go to the city. Steps should be taken towards ensuring that there is no recurrence of the problems that the respondent experienced. It is fine for people such as the respondent to save up for a bike or even to be given a bike. But this was North Queensland, and one has to question whether it is appropriate that people with the need to re-integrate into the community should be required to pedal long distances in the hot northern sun, particularly when they have health problems. One would think that the procurement by the government of a vehicle of some kind, even if it does involve some public expense, may be to the public good. The type of costs that are associated with contravention proceedings, including the keeping in custody of individuals such as the respondent for many months, the provision of psychiatric reports, and the -- 8 of 11 -- 1-9 JUDGMENT 1 10 20 30 40 50 60 conduct of hearings such as these, would vastly exceed the cost of a vehicle. In any event, the immediate future for the respondent is that he will be accommodated at Wacol, and I would expect, in the light of the evidence given, that some definite plan is made for the respondent to progress with the assistance of voluntary bodies in the community who assist in this regard, and with psychologists and others, to progress so that he is employable. I should also say that Professor James noted that part of the successful re-integration of the respondent into the community, and with it, the reduction in the risk of his re- offending, requires him to interact socially and engage in recreation. It would be a misinterpretation of the expert evidence of Professor James to simply say that society should provide this respondent with recreational pursuits. But there is a certain advantage in someone such as the respondent engaging in productive recreational pursuits, such as sport. It has an obvious benefit in terms of keeping him busy and occupied, and building self-esteem. I would expect that apart from looking towards his employment, one would expect the authorities to include in the immediate future, and in the medium term future, some process by which the respondent can occupy some of his time on positive social and recreational activities. -- 9 of 11 -- 1-10 JUDGMENT 1 10 20 30 40 50 60 The benefit of those is obvious in terms of the interest of the community. The respondent also has recognised his need for support in terms of abstaining from alcohol, and he wishes to re- integrate into the community. He wishes to have contact with his church and his indigenous community. It is not for the Court to micro-manage these matters. I have not made any prescriptive kind of orders which mandate steps that will be taken. However, the public interest and the respondent's interests will be well served by those with immediate responsibility for the respondent to have access to both the reports of Professor James and Dr Harden, and their oral evidence. It is for those with the obligation to supervise the respondent and to make arrangements for his care to carefully consider whether he should remain in South-East Queensland for any lengthy period. Regard should be had to what Professor James said in that regard. Consideration should be given to whether at some stage the respondent's interest and the interest of the general community will be better served by his re-integration into the community in North Queensland, with which he is familiar, and which one would think provides a more supportive community for him. -- 10 of 11 -- 1-11 JUDGMENT 1 10 20 30 40 50 60 For the reasons more fully canvassed in the submissions of the parties, and in the evidence which I have considered, I concluded that it is appropriate that the respondent be subject to the supervision order that was made by Fryberg J. It was for those reasons that I made the order that I did this morning. ----- -- 11 of 11 --