Attorney General for the State of Queensland v Smith [2009] QSC 381

SUPREME COURT OF QUEENSLAND CITATION: Attorney General for the State of Queensland v Smith [2009] QSC 381 PARTIES: ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v MICHAEL BRADLEY SMITH (Respondent) FILE NO/S: BS9445/07 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 25 November 2009 DELIVERED AT: Brisbane HEARING DATE: 20 February and 25 November 2009 JUDGE: Mullins J ORDER: 1. The Court is satisfied that, despite the contravention by the respondent of paragraph (xxi) of the supervision order made by His Honour Justice Byrne on 21 February 2008 by the respondent failing to provide a specimen of urine for analysis on 22 July and 6, 13, 14 and 15 September 2008, the adequate protection of the community can be ensured by the continuance of the supervision order, subject to it being amended by substituting for paragraphs (xxi) and (xxv) the following paragraphs: (xxi) submit to any form of drug and alcohol testing including random urinalysis, breath testing, and other forms of substance testing (including blood testing if required), as directed by a corrective services officer; (xxv) comply with a curfew direction or monitoring direction. 2. It is ordered that the supervision order made by of His Honour Justice Byrne on 21 February 2008 is amended as set out in the preceding paragraph of these orders. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – application under s 22 of the Dangerous Prisoner (Sexual Offenders) Act – where respondent breached supervision order by failing to provide a specimen of urine for analysis on four occasions – where -- 1 of 11 -- 2 substance abuse respondent’s primary risk factor for re- offending – where respondent consented to adjournment of the hearing of the application and undertook intensive substance abuse program while in custody – whether adequate protection of the community can be ensured by the continuance of the supervision order Dangerous Prisoners (Sexual Offenders) Act 2003, s 22 COUNSEL: B H P Mumford for the applicant D C Shepherd for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid Queensland for the respondent HER HONOUR: (1) The Court is satisfied that, despite the contravention by the respondent of paragraph (xxi) of the supervision order made by his Honour Justice Byrne on 21 February 2008 by the respondent failing to provide specimens of urine for analysis on 22 July and 6, 13, 14 and 15 September 2008, the adequate protection of the community can be ensured by the continuance of the supervision order, subject to it being amended by substituting for paragraphs (xxi) and (xxv) the following paragraphs: (xxi) submit to any form of drug and alcohol testing including random urinalysis, breath testing and other forms of substance testing (including blood testing if required), as directed by a corrective services officer; (xxv) comply with a curfew direction or monitoring direction. (2) It is ordered that the supervision order made by his Honour Justice Byrne on 21 February 2008 is amended, as set out in the preceding paragraph of these orders. These are the reasons for making orders in those terms. -- 2 of 11 -- 3 On 21 September 2008, his Honour Justice Byrne made a supervision order in respect of the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). The respondent's criminal history and details of his sexual offending and the social history that underpinned the making of the supervision order were set out in his Honour's reasons in this application, Attorney-General for the State of Queensland v. Smith [2008] QSC 22. In order to understand the reasons that I am giving for the orders that I am making today, it is necessary to read my reasons in conjunction with the decision that was made in favour of a supervision order for the respondent on 21 February 2008. Upon the respondent's release from custody, he went to live in a house in the Wacol precinct. I have before me extensive material from the Department of Corrective Services dealing with the respondent's response to the supervision. Particularly in the first three months or so, there was good compliance in the main by the respondent. He is still a relatively young man presently aged 28 years who has spent most of his adult life in custody. He has issues with authority and personality issues that were reflected in his response to the supervision under the supervision order. Positively, it can be said that he started counselling with a psychologist Mr Whittingham who provided a report for this proceeding. Mr Whittingham saw him on six occasions between May and August 2008. Mr Whittingham feels that he did not make a lot of progress with the respondent because the counselling was still at the early stages. Mr Whittingham -- 3 of 11 -- 4 is certainly prepared to continue counselling the respondent. The respondent's problem with his supervision appears to have spiralled downwards from July 2008. On 22 July 2008, his premises were the subject of a random visit and a jar of urine was found in the refrigerator. The respondent denied to those who questioned him about it that he had used illicit substances at that stage, but did admit that the jar of urine was being held in case he was tempted to use cannabis sativa. That incident was not the subject of any contravention that was before me in this proceeding. It is relevant in the chronology as later that evening, when the respondent was requested to do so on three occasions over a period of two hours, he failed to supply any urine sample. That is one of the instances that is still relied on by the applicant to prove a contravention of the supervision order. By the end of the hearing today the other instances that were relied on by the applicant where the respondent accepts that he failed to supply urine samples when requested by the Corrective Services officer were on 6, 13, 14 and 15 September 2008. The respondent has filed material in relation to those occasions in which he acknowledges that he failed to supply a sample, but asserts that he was not deliberately trying to evade testing. Tests of urine samples taken around the time between 22 July and 18 September 2008 do show that the results were negative for illicit substances. On 18 September 2008 a warrant was issued for the arrest of the respondent on the basis of alleged contravention of the -- 4 of 11 -- 5 requirement in paragraph (xxi) of the supervision order to submit to any form of drug and alcohol testing including both random urine analysis and breath testing as directed by a Corrective Services officer. The respondent came before the Chief Justice on the same day who ordered the respondent to undergo examination by two independent psychiatrists and ordered that the respondent be detained in custody until the final decision of the Court under section 22 of the Act. Psychiatrist Dr Beech examined the respondent on 6 November 2008 and provided a report to the Court dated 2 February 2009. Psychiatrist Dr Harden examined the respondent on 3 October 2008 and provided a report to the Court dated 21 December 2008. The hearing under section 22 of the Act first came on before me on 20 February 2009. On that day I heard oral evidence from Mr Whittingham and Drs Harden and Beech. On that occasion the Attorney-General was seeking a detention order on the basis of the evidence of the psychiatrists for two reasons, that the respondent's risk of re-offending as suggested by the contraventions was unacceptable and that the respondent could receive in prison treatment which was appropriate to his primary risk factor, substance abuse. Reliance was also placed on the fact that one of the reasons that his Honour Justice Byrne made the supervision order was that it was contemplated at that time that there was a suitable drug program available to the respondent in the community: see paragraphs 34 and 37 of his Honour Justice Byrne's reasons. That turned out not to be the case. -- 5 of 11 -- 6 One of the reasons for that was that when the respondent attended on two occasions at two different places for drug programs, he responded to the questions about his drug use that he was not using any illicit substances. On that basis, he did not, effectively, qualify for the community drug programs. It should be said that the respondent, who has had a problem with illicit substances from the age of 13 years and has acknowledged that in his material, on his release under the supervision order, did consult Dr Reece and was being treated with Subutex. During the course of the hearing on 20 February 2009 I was concerned that, even if I did not find the breaches proved, or found that the breaches were proved and that the supervision order should continue, the respondent would not have the benefit of undertaking an intensive substance abuse program that was called Pathways that was only offered to prisoners in custody and that, on the evidence from the psychiatrists, there was strong support for such a course to be undertaken by the respondent, because his risk of sexual offending was linked to substance abuse. I should say that there was a difference in emphasis between Dr Harden and Dr Beech in their reports that were before me and their oral evidence on 20 February 2009. Dr Beech gave primacy to the substance abuse program for the respondent’s treatment. Dr Harden also favoured the completion of an appropriate sex offender treatment program. Ultimately, it was, as Dr Harden confirmed in evidence today, a difference in emphasis as Dr Harden still considered that, despite the fact that the respondent did not undertake in custody an intensive sex offender treatment program, his risk of re-offending in a sexual way would be -- 6 of 11 -- 7 adequately addressed by the supervision order, including the amendments that are proposed to meet the difficulty that the respondent sometimes finds in providing a urine sample on demand. At the time of the hearing on 20 February 2009, the dates of the next Pathways course in a Queensland prison were not fixed, but it was not anticipated to start until July 2009, and would take 21 weeks. The Department of Corrective Services undertook to give priority to the respondent to participate in the next Pathways program. At the hearing on the 20th of February 2009 the respondent consented to the hearing of this application being adjourned, and thereby to his remaining in custody so that he could participate in the program. I observed at the time that it showed some maturity on the respondent's part in that he was willing to facilitate his participation in the Pathways program by consenting to the adjournment of this application under section 22 of the Act. The applicant undertook the Pathways program from 30 June 2009. He attended 41 of 42 sessions. I have in the evidence before me the report that was prepared by one of the coordinators of the course to evaluate the respondent's progress in the participation of the course. It can be said that there are some positives and negatives in the report. As Mr Shepherd of Counsel for the respondent made the point in the course of the hearing today, one cannot expect that someone in the respondent's position, who has been involved with illicit substances since the age of 13 years and who has an antisocial personality disorder and problems with impulsivity, to undertake a course and to show immediate benefits. -- 7 of 11 -- 8 The consensus, both of the psychiatrists and of the coordinator of the course, is that the undertaking of the course itself has given the respondent something to build on and will need to be supported by further counselling that hopefully will be provided to the respondent under the supervision order. Both Dr Harden and Dr Beech gave further short evidence today to supplement further written reports given by them. In Dr Harden's original report, he recommended that the respondent be closely monitored in the community by means of a supervision order and that he continue to be required to be abstinent from alcohol and drug use, and undergo an appropriate random testing regime. Dr Harden also suggested that the respondent complete an appropriate sex offender treatment program as a group process and have specific psychological treatment administered by a practitioner familiar with dealing with sex offenders. Dr Beech noted that by undertaking the Pathways program, the respondent has now completed one of the aspects of the recommendation made by Dr Beech for the respondent's treatment. Dr Beech is of the opinion that the respondent remains of moderate risk of re-offending if released into the community, but that the risk could be managed by a supervision order and in evidence today confirmed as appropriate the terms of the original supervision order together with the changes that are proposed by the applicant. Both Dr Harden and Dr Beech confirm their opinions that the risk of the respondent re-offending sexually is likely to be -- 8 of 11 -- 9 in the context of substance intoxication and opportunistic rather than planned. This provides support for the more rigorous alcohol and drug testing regime that is proposed by the Attorney-General in that the new paragraph (xxi) will allow for blood testing if required, rather than limiting it to breath testing and urine analysis. I should say that the applicant on this application has not abandoned seeking a detention order, but acknowledges that there is evidence from Doctors Harden and Beech that support the conclusion that a supervision order will be sufficient to manage the respondent's risks of re-offending. The application that I have before me is made under section 22 of the Act. I am satisfied that the applicant has shown that there have been contraventions of the supervision order by the failure to supply urine samples on the occasions requested on the days of 22 July and 6, 13, 14 and 15 September 2008. There was argument about what contravention meant - whether it incorporated a mental element of deliberately failing to comply or whether contravention was established if there was failure to comply. The respondent swore two affidavits in this proceeding that expanded on the factual circumstances around his failures to supply urine when requested. In relation to the instances of contravention, there were more dates, than the dates that I have just identified, that were originally relied on by the applicant. Ultimately, however, the occasions of 22 July, 6, 13, 14 and 15 September were the only ones relied on for pursuing a contravention of the supervision order for the purpose of section 22 of the Act. -- 9 of 11 -- 10 It seems to me that when considering whether the respondent has contravened by failing to supply a urine sample, contravention is not necessarily established by the respondent failing to comply on the first request. The respondent has dealt with in his material some of the conditions of the requests and his natural hesitation in responding to supply urine on demand, particularly when he was feeling stressed about it. I consider, however, for example, in relation to the instance of 22 July, when he was given a period of 2 hours over which to supply the urine, that failure to supply after a period of 2 hours gives due weight to the physical difficulties that the respondent has dealt with in his evidence. And for the same reason, in relation to 6 September, I consider that it is only one contravention when the failure was over a period of an hour, but when the failure was in relation to two requests over the hour. The contravention did not occur until the second request was unable to be complied with. I have applied the same reasoning in relation to the 13th September 2008. There is only the one contravention even though the respondent was unable to supply over 40 minutes at three different times. On the 14th September there were two failure to supplies, one in the morning and one in the afternoon, and that on the 15th September the failures to supply occurred when the respondent was unable to supply the second time he was asked after an hour had elapsed from the first time he was requested to supply urine. The requirement of the condition of paragraph (xxi) was to submit to a random urine analysis as directed by a -- 10 of 11 -- 11 Corrective Services officer which means providing a sample. I find that the respondent did not comply in the manner in which I have outlined after he was eventually unable to supply the sample even if he was not trying to evade doing the test deliberately. I am, therefore, satisfied on the balance of probabilities that the applicant has shown that the respondent has contravened a requirement of the supervision order in the manner that I have indicated. I am also satisfied, however, that the respondent has shown on the balance of probabilities that the adequate protection of the community can, despite the contravention of the supervision order, be ensured by the supervision order continuing but with being amended by the substitution of paragraphs (xxi) and (xxv) in the manner in which I have already indicated. -- 11 of 11 --