Attorney-General for the State of Queensland v Cullen [2010] QSC 202

1-1 SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Cullen [2010] QSC 202 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALFRED FRANK CULLEN (respondent) FILE NO: BS230 of 2010 DIVISION: Trial Division PROCEEDING: Originating Application DELIVERED ON: 9 June 2010 (ex tempore reasons) DELIVERED AT: Brisbane HEARING DATE: 9 June 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 serving 12 years’ imprisonment for sexual offences involving children – where applicant seeking orders pursuant to section 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 – where supervision order made for a period of 5 years Dangerous Prisoners (Sexual Offenders) Act 2003, s 13 COUNSEL: B H P Mumford for the applicant K Prskalo for the respondent SOLICITORS: G R Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent -- 1 of 11 -- 1-2 ORDER 1 10 20 30 40 50 60 HER HONOUR: This is an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act)for orders that the respondent either be detained in custody for an indefinite term for care, control or treatment, or be released from custody subject to the conditions that the Court considers appropriate and that are stated in the order. Before the hearing took place today, considerable work had been undertaken by the Attorney-General and the respondent and their lawyers in considering what orders were appropriate to make in relation to this application. I had before me the benefit of three very thorough psychiatric assessments of the respondent. Mr Mumford of counsel for the Attorney-General conceded that the psychiatrists' opinions support the making of a supervision order rather than a detention order. Ms Prskalo of counsel on behalf of the respondent also appropriately conceded that there was acceptable and cogent evidence of sufficient weight that would justify the Court that the respondent is a serious danger to the community in the absence of a division 3 order, but then submitted that adequate protection of the community can be ensured by ordering that the respondent is released from custody subject to a supervision order. -- 2 of 11 -- 1-3 ORDER 1 10 20 30 40 50 60 Appropriately, the lawyers had considered the terms of a proposed supervision order and obtained further input from the psychiatrists on that before the hearing commenced. Each of the psychiatrists then gave short evidence in relation to the two issues that remained in contention. They were the period of the supervision order and whether or not the supervision order should contain a condition that the respondent not visit public parks without the prior written approval of an authorised Corrective Services officer. After considering the evidence relied on by the Attorney-General for the purpose of this application and the further oral evidence and the submissions that had been made in writing by both counsel, I am satisfied that the appropriate period for the supervision order in this case is five years and that it is unnecessary to have the condition that was in the proposed order about a prohibition on visiting public parks without the prior written approval of an authorised Corrective Services officer. In order to make the orders that I propose making in this matter, it is necessary to give some history of the respondent and his offending and to refer briefly to some aspects of the psychiatrists' reports. The respondent is 61 years old. He was convicted in 1998 after pleading guilty to 20 child sex offences. He was -- 3 of 11 -- 1-4 ORDER 1 10 20 30 40 50 60 sentenced to 12 years imprisonment. That was his first imprisonment for sexual offending. The nature of his offences is relevant to the risks of future offending. There were three sets of offences. The first set was committed between 1977 and 1984 and involved a boy who was aged between eight years and 14 years over that period. The respondent met the boy through a community youth group where he was a supervisor. He was trusted by the boy's parents to take care of the boy and was permitted to undertake activities with the boy. Over the period of time, indecent acts were committed by the respondent against the boy. They involved masturbation and oral and anal sex. The relationship ended when the boy refused further contact. The second set of offences involved a 15 year old boy whom the respondent met at a caravan park where he was a groundsman. The respondent became friendly with the boy's mother and, again, another relationship of trust was involved between the respondent, the boy's mother, and the boy. When the boy's mother left the caravan park with her other children, the boy stayed with the respondent. The nature of offending was the same as with the first complainant. The third set of offences involved a boy aged between 12 to 15 years old and these offences were committed over the period between 1988 and 1991. Again, the boy had been entrusted to the respondent's care by the boy's parents. The nature of the -- 4 of 11 -- 1-5 ORDER 1 10 20 30 40 50 60 offences was similar to the offences committed against the other complainants. The offending activity ceased when the respondent met his adult partner. It should be noted that the respondent's offending activity occurred at a time when the respondent had hidden his homosexuality. It is apparent from the reports that upon the respondent becoming open about his homosexuality and engaging in relationships with adult males, his interest before he was imprisoned was, on his reporting, confined to adult males. It is relevant in considering his risk of future offending that his offences or offending activity had ceased prior to his being charged with the offences. He will serve the entire period of the 12 years imprisonment. His discharge date is 25 June 2010. In the latter part of his imprisonment, he has undergone the preparatory Sexual Offender Treatment Program. He then underwent the Medium Intensity Sexual Offender Program, and then a Sexual Offender Maintenance Program. He has satisfactory exit reports from these programs. It is recommended by the psychiatrists that the respondent build on the benefits that he has gained from the sexual offender treatment programs within the prison by engaging in a Community Sexual Offender Maintenance Program. -- 5 of 11 -- 1-6 ORDER 1 10 20 30 40 50 60 The respondent's age and medical problems also are relevant to gauging the risk of reoffending. He has emphysema and heart problems. Dr Beech assessed the respondent on 12 March 2010. He expressed the opinion that the nature of the respondent's offending and the persistence of the offending over many years combined with the respondent's description of having formed an attraction to young boys indicate that the respondent has the sexual deviance of homosexual paedophilia. Dr Beech noted, however, that the respondent is not exclusively attracted to young males and has been able to form adult sexual relationships. There is nothing in the history or the assessment that Dr Beech undertook to indicate that the respondent has a personality disorder, although there may be some dependent traits. Dr Beech noted that the respondent is not generally antisocial or psychopathic. There is no mental illness and no history of substance abuse. Overall, Dr Beech assessed the risk of reoffending in the moderate range and expresses the opinion that the ability prior to the respondent's imprisonment of his being able to form an adult homosexual relationship was a protective factor at that time. -- 6 of 11 -- 1-7 ORDER 1 10 20 30 40 50 60 Dr Beech suggests that the risk on release for the respondent is loneliness and that it is important that the respondent put supports in place to meet the risks that he faces from being unable to meet his social needs and the possibility of loneliness. Ongoing counselling and support in the community are, therefore, essential. Dr Beech recommends that the respondent participate in a maintenance program in the community and follow this with individual counselling. It is imperative that the respondent not have unsupervised contact with male children which would extend to online and internet contact. Dr Grant expressed the opinion originally that the supervision order should be for a minimum of five years but preferably for 10 years. On giving further oral evidence, Dr Grant accepted that the need for a supervision order to last as long as 10 years is only for the purpose of addressing the low grade long-term risk that would continue to be present for the respondent having regard to his history. All psychiatrists were of the view that the real risk of reoffending would be within the first five years of the release from prison. The success of the proposed supervision will obviously be an important factor in ensuring that that risk is minimised. Dr Beech and Dr Lawrence considered a supervision order for five years would be appropriate. In relation to the condition that was proposed by the Attorney-General in relation to parks, it appears unnecessary -- 7 of 11 -- 1-8 ORDER 1 10 20 30 40 50 60 in view of the other conditions in the proposed supervision order. The respondent's history of offending is in relation to grooming a boy who comes within his social circle and with whom he has sustained contact. Obviously the Attorney-General was concerned that such a situation could arise if the respondent met a boy in a public park. There are, however, other conditions in the proposed supervision order that are more directly addressed to social contact with boys under the age of 18 years. For example, proposed condition 25 is that the respondent not establish or maintain any supervised or unsupervised contact with male children under 18 years of age, except with prior written approval of an authorised corrective services officer. Any attempt by the respondent to speak with a boy in a public park would immediately put him in breach of his supervision order. The respondent has to discuss his activities with a Corrective Services officer and that will assist in the Corrective Services ascertaining whether the respondent is frequenting a place where he may be able to meet boys and to discuss with the respondent the identity of those persons with whom he has socialised in the preceding period and expects to socialise in the prospective period after meeting with the authorised Corrective Services officer. The psychiatrists did not support the inclusion of that condition in relation to the public park because it would be -- 8 of 11 -- 1-9 ORDER 1 10 20 30 40 50 60 so easy to breach inadvertently and where there was no risk of any offending being committed by the respondent. Dr Beech also made the point that it is important that the respondent be aware that he must be vigilant for not having contact that is unauthorised with any 18 year old or younger boy at any place, not just public parks. The evidence of the psychiatrists is acceptable and cogent and satisfies me to the high degree of probability that is required under the Act that the respondent's moderate to low risk of sexual offending, unless appropriately supervised, is an unacceptable risk in terms of the Act. In light of the psychiatric evidence 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 a supervision order should be made for a period of five years. I am satisfied that the period of five years will be a sufficient period to ensure the adequate protection of the community from the risks of reoffending that have been identified in the material in relation to the respondent. I should add that, although Dr Beech estimated the risk of reoffending as moderate, both Dr Lawrence and Dr Grant estimated the respondent's risk of sexual reoffending in terms of being a moderate to low risk. -- 9 of 11 -- 1-10 ORDER 1 10 20 30 40 50 60 I therefore make an order in terms of the amended draft initialled by me and placed with the file. ... HER HONOUR: Mr Cullen, I am not sure how much - please stand. Mr Cullen, I'm not sure - are you right? RESPONDENT: Yes, right, sorry. HER HONOUR: I'm not sure how much you understood of what went on today, but I have made the supervision order, but it really requires a lot of hard work on your part to comply with the conditions and to make the most use of the Corrective Services Corrective Services Officer who will be assigned to liaise with you and to help you in the transition from your imprisonment to the community. RESPONDENT: Yes. HER HONOUR: You will find it is going to be a big change for you after having been in prison for 12 years to adjust to the community and you are going to have to familiarise yourself with the terms of the supervision order and make sure that you abide by them to the letter, but to the spirit as well. All right? RESPONDENT: Yes. HER HONOUR: That's what Corrective Services and the Court has -- 10 of 11 -- 1-11 ORDER 1 10 20 30 40 50 60 found, that some men in your position have become a bit cute and they decide - they look at the order and they decide, "Oh, well, McDonald's wasn't mentioned, I can go to McDonald's." Well, if you are planning to go to McDonald's, can I tell you that that is covered by your order. You cannot visit any premises where there is a dedicated children's play area or a child minding area, so you have just got to be really careful. Now, I am sure your lawyers will spend a little bit of time telling you about the terms of the order as well. ------ -- 11 of 11 --