Attorney-General for the State of Queensland v Little [2008] QSC 269

1-1 [2008] QSC 269 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MULLINS J No BS6713 of 2008 ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Applicant and BARRY ALLEN LITTLE Respondent BRISBANE ..DATE 04/11/2008 REASONS -- 1 of 12 -- 04112008 D.1 T(1)02/JMA(BNE) M/T BRIS14 (Mullins J) 1-2 1 10 20 30 40 50 60 HER HONOUR: Mr Little was born in 1974. On 28 July 2000 he was convicted of one charge of maintaining an unlawful relationship for a period of 12 months from August 1998 with circumstances of aggravation and two charges of indecent dealing. The victim of the maintaining charge was a girl aged between nine and 10 years at the time of the offences. The victim of the indecent dealing charges was a girl aged around 12 years at the time of the offences. Mr Little had pleaded guilty to these offences and was sentenced on the maintaining charge to a term of imprisonment of three years that was wholly suspended for an operational period of five years. He was sentenced on the indecent dealing charges effectively to an intensive correction order for a period of 12 months. This was an unusual sentence as normally sex offending of this type requires actual imprisonment. It was to Mr Little's credit at the time that he was sentenced that he had already commenced undergoing individual counselling with a psychologist. This and other steps that the respondent had taken impressed the sentencing judge to such a degree that the sentences that I have indicated were imposed. The respondent attended for counselling after the sentence. In total he underwent 45 individual counselling sessions over a period of 11 months. He also participated in group counselling with the sexual assault counselling service. -- 2 of 12 -- 04112008 D.1 T(1)02/JMA(BNE) M/T BRIS14 (Mullins J) 1-3 1 10 20 30 40 50 60 Unfortunately, this regime did not provide the respondent with the degree of assistance that he required to address his underlying problems. In 2004 he committed two counts of indecent dealing involving the primary victim from his first set of offending. He pleaded guilty to an ex officio indictment and was sentenced to six months' imprisonment on each of those counts that was concurrent with each other, but the whole of the three year sentence was activated. Effectively, the respondent was required to serve three and one half years' imprisonment for both sets of offences. His full-time discharge date is 5 November 2008. The second sentence was imposed on 6 May 2005. The Corrective Services requested psychiatrist Dr Sundin to assess the respondent for the purpose of determining whether an application should be made in respect of the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003. Dr Sundin interviewed the respondent for two hours on 17 January 2008 and determined that the respondent was at risk of reoffending in the moderate to high zone without further intensive individual psychotherapy. Dr Sundin was of the opinion that with further therapy the respondent had the opportunity to substantially reduce his risk of reoffending into the moderate to low zone. Dr Sundin's report, that is dated 23 January 2008, summarised the respondent's personal and social history, his offending and his time in prison. I will briefly refer to some of that history because it is relevant to the conclusions that I am -- 3 of 12 -- 04112008 D.1 T(1)02/JMA(BNE) M/T BRIS14 (Mullins J) 1-4 1 10 20 30 40 50 60 required to consider reaching on this application. The applicant had an acrimonious and difficult relationship with his mother. It appears that his relationship with his sisters was not functional during his growing up years. His natural father had left the family home when the respondent was of a young age. He had unhappy schooling and ultimately dropped out of school in year 11 to go to work. He had various jobs. He had always been involved in attending church and ultimately worked as a youth worker in a church organisation where he met the two girls who were the victims of his offences for which he was sentenced in 2000. The respondent met his wife in 1998, and they married in 1999. There is a son of that relationship. They separated permanently after the respondent was sentenced in 2005. The divorce was finalised in September 2007. The respondent is taking steps to obtain some access to the son of that relationship. Any access will obviously be supervised. The respondent has developed a relationship with his natural father in his adult life. He has also now developed a positive and strong relationship with his mother. Despite the unhappy childhood it is now his mother and his father and one of his sisters and her husband who are willing to provide support for the respondent on release from prison. It is apparent from the plans that the respondent has formulated for his release that he recognises the importance -- 4 of 12 -- 04112008 D.1 T(1)3/RDT(BNE) M/T BRIS14 (Mullins J) 1-5 ORDER 1 10 20 30 40 50 60 of continuing a strong relationship with those family members who are willing to provide him with support and that he must be prepared to seek their help as he transitions from the prison environment to the community. The respondent has maintained his Christian beliefs and also wishes to utilise support from the counselling services available through churches and through church membership. In view of how he came upon the victims of his offending, he has to be careful about any involvement in church organisations and the future plans that he has formulated for his release have set out the high risk factors that he has been able to identify through the assistance of the Sex Offender Treatment Program that he has undertaken so that he can be on the alert for finding himself in a position where he may be vulnerable to reoffending. He has developed strategies to avoid the high risk factors and to deal with them. The respondent will, however, need to be cognisant of the need not just to pay lip service to that list of high risk factors and strategies, but to act on the strategies when he becomes aware of finding himself in a risk situation. After this application under the Dangerous Prisoners Sexual Offenders Act 2003 was filed the respondent underwent interviews with two psychiatrists who were appointed by the Court for the purpose of this application. Those psychiatrists are Dr Beech and Dr Lawrence. Each of Doctors Sundin, Lawrence and Beech have applied the -- 5 of 12 -- 04112008 D.1 T(1)3/RDT(BNE) M/T BRIS14 (Mullins J) 1-6 ORDER 1 10 20 30 40 50 60 instruments of risk assessment to the respondent and his history. There are some slight differences in their assessments, but ultimately each of them has come to a conclusion that is similar. Both Dr Beech and Dr Lawrence were able to interview the respondent for about five hours and at a stage where the respondent was a little bit more advanced in his preparation for release. Doctors Beech and Lawrence's opinions are slightly more favourable to the respondent than Dr Sundin, but ultimately I found that the discussion in each of the psychiatrists' reports pointed to the same risks for the respondent and the same conditions or conditions of similar type for the respondent's supervision. Whilst in prison the respondent participated in the medium intensity Sex Offenders Treatment Program between 19 February and 8 August 2007. Each of the psychiatrists notes that the respondent has responded positively to that program. In general terms the psychiatrists have each diagnosed the respondent as meeting the diagnostic criteria for paedophilia. There is a difference in opinion as to whether the paedophilia is limited to attraction to females or is a heterosexual paedophilia. For the purpose of this application I consider that I will act on Dr Beech's opinion that the diagnosis is one of heterosexual paedophilia, but consistent with the history of offending and consistent with the view taken by Doctors Sundin and Lawrence, I am satisfied that it is female -- 6 of 12 -- 04112008 D.1 T(1)3/RDT(BNE) M/T BRIS14 (Mullins J) 1-7 ORDER 1 10 20 30 40 50 60 children that are most at risk from the respondent than male children. Whilst in prison the respondent has undertaken a number of courses, including tertiary preparation studies. He is motivated to do further tertiary study and this is commented upon favourably by each of the psychiatrists. His work history before being incarcerated was such that it is likely that the respondent will be able to find employment. He is of at least average intelligence and has shown himself capable of studying and improving himself. This is also positive for his rehabilitation. Dr Lawrence considered that in diagnostic terms the respondent would also qualify on Axis 2 as showing traits of avoidance, dependence and unfulfilled dependency and attachment needs. This is of relevance on this application as it became apparent in considering the history of the respondent's sexual offending and his performance in the Sex Offender Treatment Program that he has used avoidance strategies in order to downplay his offending. He needs, according to Dr Lawrence, to continue to work in overcoming his use of avoidance strategies and by undertaking further study and obtaining employment this hopefully will assist him in this area as well. Each of Doctors Lawrence and Beech were of the opinion that detention in prison on a continuing basis was not required. Dr Sundin's opinion is more in favour of supervision than detention as well. Doctors Beech and Lawrence have given some -- 7 of 12 -- 04112008 D.1 T(1)3/RDT(BNE) M/T BRIS14 (Mullins J) 1-8 ORDER 1 10 20 30 40 50 60 indication of the types of conditions that should be imposed on any supervision order that would assist the respondent in remaining offence free and continuing with his rehabilitation. The respondent gave instructions to his counsel to concede that the material that was filed in support of the application supports the making of a supervision order. That is a positive sign from the respondent that he has some insight into what is needed to help him in the period after his release from prison. On the hearing of an application of this nature the Court may decide that it is satisfied that the respondent is a serious danger to the community in the absence of a division 3 order only if the Court is satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision. I am required to have regard to the matters prescribed in section 13 subsection 4 of the Act in deciding whether the respondent is a serious danger to the community. The material that has been filed on behalf of the applicant in support of the application has addressed the matters set out in section 13 subsection 4 of the Act. Dr Lawrence's ultimate opinion was that whilst the risk of reoffending on account of the respondent's past behaviour would be regarded as moderate to high, following successful completion of the programs that the respondent has undertaken -- 8 of 12 -- 04112008 D.1 T(1)3/RDT(BNE) M/T BRIS14 (Mullins J) 1-9 ORDER 1 10 20 30 40 50 60 to the date that he was interviewed by Dr Lawrence, Dr Lawrence expressed the view that the risk was reduced from that to moderate to low. Dr Lawrence gave some short oral evidence on what length of time she thought that a supervision order should apply for. There is no exact science for coming up with the period. Dr Lawrence thought 10 years would be an appropriate time in view of the fact that the respondent is still a relatively young man and his tendencies for paedophilia have been present since his late adolescence. In view of what Dr Lawrence described as the commendable efforts that the respondent has taken to address these tendencies, Dr Lawrence considered that a period of 10 years should be sufficient to enable him to respond to the conditions of the supervision order and obtain the sort of help that the respondent will need in order to remain offence free in the long term. Dr Beech's conclusion was that the respondent is at moderate risk of reoffending if released into the community, but did not consider that the risk was imminent. Of note, Dr Beech recorded that the respondent has an intellectual understanding of appropriate thinking in order to avoid offending and that he is not without empathy or remorse. Dr Beech emphasised, however, that the respondent should not have the opportunity to contact or engage with minors without supervision and any supervision should be by people fully cognisant and -- 9 of 12 -- 04112008 D.1 T(1)3/RDT(BNE) M/T BRIS14 (Mullins J) 1-10 ORDER 1 10 20 30 40 50 60 understanding the risk. Dr Beech thought that the respondent should not be employed in work that involves minors and he should not enter into any relationships where he would have ongoing contact with minors. The evidence of Doctors Sundin, Lawrence and Beech is acceptable and cogent and satisfies me to the high degree of probability that is required under the Act that the respondent's moderate risk of sexual reoffending unless appropriately supervised is an unacceptable risk in terms of section 13 subsection 2 of the Act. Under section 13 subsection 6 of the Act in deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community. In the 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. At the commencement of this hearing Mr Rolls, of counsel, for the applicant provided a draft supervision order that had been the subject of discussion between Mr Rolls and the respondent's counsel, Mr East. As a result of further discussion during the course of the hearing of this application, some amendments have been made to the written draft in order to clarify some of the conditions and to -- 10 of 12 -- 04112008 D.1 T(1)3/RDT(BNE) M/T BRIS14 (Mullins J) 1-11 ORDER 1 10 20 30 40 50 60 reflect the understanding that the respondent proposes to undertake tertiary studies that will require him to have the use of a computer and access to the Internet. The respondent, however, must not access child pornographic images in any format, whether on the computer, in magazines or otherwise, and must allow any computer or other device that he uses and is in control of where the Internet is accessible to be randomly examined to determine whether the device has been used for unacceptable purposes involving children. The respondent has to be prepared to respond truthfully to any questions that the Corrective Services Officer who supervises him asks him about the access that he has made of the Internet. Hopefully as the respondent settles into studies and develops a pattern of usage of the Internet and shows that he can be responsible in using the computer, the extent of these inquiries may not be as extensive as the respondent can expect when he is first released. I am satisfied that, in light of the results of the risk assessment instruments applied to the respondent and the evidence of Dr Lawrence as to an appropriate period of supervision, that the conditions should apply for a period of 10 years, but the conditions are formulated on the basis that Corrective Services will be able to reduce the degree of supervision over the period of time consistent with appropriate performance by the respondent in the community and in response to the conditions. -- 11 of 12 -- 04112008 D.1 T(1)3/RDT(BNE) M/T BRIS14 (Mullins J) 1-12 ORDER 1 10 20 30 40 50 60 I make an order in terms of the amended draft initialled by me and placed with the file. Mr Little, I hope that you live up to what the psychiatrists have indicated is the plan that you have got and the psychiatrists have been very positive about the steps that you have taken to date, but you are going to be faced with a lot more temptations once you're released from prison, so you are going to have to work very hard on avoiding those risk factors that you are aware of and making sure that you do access the support that you have put in place for your release. You know now what will be the consequence of your offending. You are not going to be treated to any sentence other than actual imprisonment if you commit another sexual offence. As Dr Lawrence said, you are a relatively young man and you can have a very productive life if you take advantage of the treatment that you have had to date and ensure that you use the support systems that will be in place for you in this period of transition. ------ -- 12 of 12 --