Attorney-General for the State of Queensland v Bickle [2008] QSC 211

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Steven Shane Bickle [2008] QSC 211 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Applicant V STEVEN SHANE BICKLE Respondent FILE NO/S: BS846/06 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court Brisbane DELIVERED ON: 9 September 2008 DELIVERED AT: Brisbane HEARING DATE: 8 September 2008 JUDGES: White J ORDER: 1. The respondent is subject to the amended supervision order annexed to these reasons. 2. The report of Professor Barry Nurcombe dated 25 July 2008 be sealed and marked “not to be opened without the order of a Judge of the Supreme Court”. CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – PRACTICE AND PROCEDURE – the respondent is subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 – the respondent breached that supervision order – the community will be adequately protected by a supervision order – changes made to the supervision order made as a result of agreement between the parties or operation of the legislation – whether the term of the supervision order should be reduced – whether the requirement that the respondent abstain from alcohol should be removed Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 16, -- 1 of 12 -- 2 s 20, Attorney-General v Francis [2007] 1 Qd R 396, cited COUNSEL: Mr J Hunter for the applicant Mr J Allen for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] On 2 June 2006 Moynihan J made orders that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3, Section 13(2)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). His Honour ordered that the respondent, on his release at the expiration of his sentence, be subject to requirements which would address that risk until 18 May 2026. [2] The respondent was released on 18 May 2006 after serving 13 years and 9 months for various sexual offences against a number of children. One of the requirements of the order was that he abstain from the consumption of illicit drugs. On 24 June 2008 he provided a urine specimen as required by the conditions of his release which tested positive for the presence of cannabinoids. He was arrested on a warrant issued pursuant to s 20 of the Act and appeared before the Supreme Court on 2 July 2008. [3] The respondent admitted his breach and, subsequently, on 5 August 2008, pleaded guilty in the Magistrates Court to an offence pursuant to s 43B of the Act of contravening a requirement of his supervision order. He was sentenced to imprisonment for one week wholly suspended with an operational period of six months. [4] Pursuant to an order of this court made on 4 July 2008 Professor Barry Nurcombe and Dr Scott Harden have prepared psychiatric reports about the risk which the respondent poses to the community in consequence of his breach and generally. [5] An eligible person, as defined in the Act, has been informed of this application but no submission has been received. [6] Where a prisoner released on a supervision order has breached a requirement of that order that person must satisfy the court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by a supervision order.1 [7] Mr Hunter, for the Attorney-General, accepts that the respondent has discharged that onus in light of all the material and particularly the two recent psychiatric reports. What is in contention is the duration of the supervision order and the 1 Section 22(7). -- 2 of 12 -- 3 retention of the requirement that the respondent continue to abstain from the consumption of alcohol. Mr J Allen, for the respondent, submitted that the period of the operation of the order should be reduced to 10 years rather than the 20 years originally ordered by Moynihan J. He also submitted that the respondent should be permitted to drink a moderate amount of alcohol. There was no support by Professor Nurcombe or Dr Harden for the continuation of a requirement that the respondent not be within a certain distance of schools or public places where children frequent. This was because the pattern of the respondent’s offending did not relate to predatory molestation of unfamiliar juveniles. The offending arose out of intimate relationships with women who had pre-pubescent children. Other requirements are proposed to be added to the order, either because they are mandated by the amendments to the Act2 , or because both parties agree they should be added.3 [8] The respondent is now aged 52 years. Both Professor Nurcombe and Dr Harden diagnose the respondent as suffering from Paedophilia, non-exclusive, predominantly heterosexual, involving pre-pubertal females, regressive in type. He also has a Substance Abuse Disorder (opiate dependence) which is in remission. He has a Mixed Personality Disorder with anti-social and narcissistic traits. Professor Nurcombe describes the respondent’s paedophilic impulses as related to a particular context of emotional stress. Dr Harden describes the respondent as having a strong desire not to re-offend again. The respondent participated in sexual offender treatment programs whilst in custody as well as a range of other programs. Apart from the subject breach, the respondent has been compliant with the requirements imposed upon him by the order over the more than two years since his release. Circumstances of breach [9] On the respondent’s account, his children gave him a present of a marijuana cigarette wrapped in foil inside a snap-lock plastic bag. He put it in a bush outside his house. His father died in June 2008 and, as Professor Nurcombe relates, in the aftermath of grief, he retrieved the cigarette, lit it and inhaled two to three puffs. He then realised how foolish this was because a random urine test had already been organised for the following day. A perusal of the case management records for the respondent4 reveals that the respondent was subject to regular urine analysis tests: sometimes weekly, sometimes fortnightly, sometimes more frequently, consistently with the random nature of those tests. He has had no breaches of any of the requirements of his supervision order and, particularly, no breaches of the requirement that he abstain from illicit drugs and alcohol since his release. He has been subjected to random breath tests for alcohol and has returned negative tests on every occasion. As a young man the respondent developed an addiction to narcotics and had a significant alcohol abuse problem. He appears to have gained control over those problems many years ago and they likely played no part in his offending. 2 Curfew direction or monitoring direction in s 16(1)(da), and “comply with every reasonable direction of a corrective services officer” in s 16(1)(db). 3 Concerning a relapse prevention plan. 4 Exhibited to the Affidavit of Jolene Forsyth filed by leave 8 September 2008. -- 3 of 12 -- 4 Relationship [10] The respondent formed a relationship with a woman whom he had known from his childhood prior to his release from prison. He has formed a loving relationship with her and they plan to marry. He acts as her carer as she suffers from serious medical problems. She has no children. The relationship is very important to him, and to her. Professor Nurcombe spent some hours interviewing the woman and is persuaded that the relationship is a close and beneficial one. Indeed both psychiatrists predicate their risk assessment on the basis of the continuation of that relationship. Risk appraisal [11] Professor Nurcombe concluded that whilst the respondent remains in a fulfilling, adult heterosexual relationship and not in a family with dependent children his risk of re-offending is low. However, if he were placed under emotional stress by perceived rejection, abandonment or injustice and put in a position where he had contact with dependent children the risk is moderate to high. Professor Nurcombe added that although alcohol and substance abuse were not associated with his previous offences, it would be reasonable to predict that such usage would increase the risk of re-offending. This is largely because the respondent had a serious problem when young. Professor Nurcombe concluded that the scientific evidence about whether a person with a previous alcohol dependency could ever safely resume taking alcohol was not conclusive. Dr Harden was of a similar view. [12] The submission about the removal of the requirement that the respondent abstain from consuming alcohol was couched on the basis that it may be beneficial to his relationship if, for example, he could toast his forthcoming nuptials with his prospective bride and that they could have a glass of wine with dinner together. Whatever promoted the relationship should, therefore, be permitted, Mr Allen submitted. Whilst those modest proposals might not enhance the risk, as the psychiatrists noted, it is impossible to police consumption. The concern about the effect of resumed alcohol consumption on one who has had a serious alcohol abuse problem remains a potential risk factor. It is not worth, in my view, taking that risk. If the applicant can satisfy that requirement for a further period then he can make application to the court for removal of that requirement pursuant to s 18 of the Act on another occasion removed from the consideration of his impulsive use of cannabis, which is what brings him before the court. Duration of the order [13] Professor Nurcombe emphasised the rehabilitative objects of the Act. He considered, in the case of the respondent, that an emphasis upon restriction would be counter-productive for the respondent. In his opinion, at the end of ten years, the risk of re-offending would be “infinitismal”, largely because of his age. He accepted that intrinsic to that assessment was the continuation of the respondent’s present relationship which provides for his emotional and intimacy needs. Whilst -- 4 of 12 -- 5 not as firm in his opinion as Professor Nurcombe, Dr Harden accepted that ten years was a sufficient period adequately to protect the community. [14] Except for the single breach, which should be seen in the context of almost daily contact with his case management officers, the respondent has been compliant with the requirements imposed upon him by the order made on 2 June 2006. That is no small achievement. Furthermore, he explains his breach in the context of the grief that he felt at the death of his father. [15] Mr Hunter submitted that it was inappropriate that a hearing brought about by the respondent’s breach should be productive of a reduction in the time that the order operates upon him. This is to see such an order as in some way punitive. The only justification for making an order of the kind contemplated by Division 3 is the protection of the community and the facilitation of the rehabilitation of the respondent.5 The two years during which the respondent has been subjected to the order demonstrates that the risk to the community may be addressed with a reduced period. That reduction will, positively, facilitate the respondent’s rehabilitation. I am persuaded that the opinion, particularly of Professor Nurcombe, and not dissented from by Dr Harden, together with the period of supervision without breach, dictates that the duration of the order should be reduced from 20 to 10 years. Deletion of certain conditions [16] The pattern of the respondent’s offences did not relate to predatory molestation of unfamiliar juveniles. Neither Professor Nurcombe nor Dr Harden saw any basis for the retention of paragraph 2(c) of the order in so far as the respondent was ordered not to be in a place within 200 metres of a school or some other public place or business where children frequent unless authorised in writing in order to provide temporary accommodation. Neither is there any basis for paragraphs 2(o) and (p) which are of a similar kind. Condition relating to group therapy [17] The psychiatric reports make it clear that the respondent does not like or find helpful group therapy. He has an excellent relationship with his present individual psychotherapist and both Professor Nurcombe and Dr Harden agree that this form of individualised counselling should continue. Whilst initially Mr Allen submitted that the condition in paragraph 2(z) that he should attend “any program, course, counselling, therapy or treatment in a group or individual capacity as directed by the Corrective Services officer in consultation with the treating psychiatrist/psychologist…” should be amended to delete “group activities”, he withdrew that submission when it became clear that the psychiatrists opined that if more suitable group courses became available in the future they may be appropriate for the respondent. A 5 Attorney-General v Francis [2007] 1 Qd R 396 at 401. -- 5 of 12 -- 6 direction contemplated by paragraph 2(z) will only occur after consultation with the treating psychiatrist or psychologist. It would be most surprising therefore, if the supervising corrective services officer directed group treatment in the absence of that recommendation. Relapse prevention plan [18] The respondent told Professor Nurcombe that he kept his relapse prevention plan “in his head”. He told Professor Nurcombe he understood that he should not take cannabis or other illicit drugs; that he should keep away from drug abusers; that he should not develop an emotional attachment or identification with children; that he should not be in the company of or care for children; that he should avoid a non- fulfilling relationship with his partner; that he should cease dwelling on past injustices or hardships and avoid thinking that life owes him something; and that he should value those advantages that he does in fact have. However, the psychiatrists concluded that it was appropriate for his welfare and rehabilitation, and would assist his supervising officer to write the plan down and that it be accessible to his supervising officer as well as his psychotherapist. For that reason new conditions, paragraphs 2(cc) and 2(dd) have been proposed. They are: “(cc) Engage with treating psychologist or psychiatrist to develop and complete a written Relapse Prevention Plan relating to his sexual offending behaviour and drug use; (dd) Provide a copy of the written Relapse Prevention Plan to his Corrective Services supervising officer and respond truthfully to enquiries relating to compliance with the plan.” There was no resistance by the respondent to the inclusion of those conditions. Professor Nurcombe was concerned that the supervising officer should aim to balance “restrictiveness with encouragement”. He particularly noted, as did Dr Harden, that the respondent’s close relationship with his present partner is the chief factor preventing him from re-offending and that those “who are supervising him should value and aim to preserve this relationship”. Electronic monitoring or curfew direction [19] By amendments to the Act, when a court is dealing with a breach of a condition of a supervision order the court is required to amend the existing order to include the requirements mentioned in s 16(1)(da) and (db) if the existing order does not already include those requirements. Those requirements are that the respondent comply with the curfew direction or monitoring direction and comply with every reasonable direction of a corrective services officer. The latter appears as paragraph 2(k) of the proposed amended order. The curfew requirement appears in the draft order as 2(ee). A court has no discretion as to whether that condition is necessary to achieve the objects of the legislation. The discretion resides in the corrective services supervising officer. Neither psychiatrist thought that the pattern of the respondent’s offending was such as to justify imposing either a curfew or electronic monitoring. -- 6 of 12 -- 7 Conclusion and order [20] The order made 2 June 2006 by Moynihan J must be amended to take account of the extra conditions required by the Act which will appear as paragraphs 2(k) and 2(dd) and 2(ee). The conditions with respect to public places in paragraphs 2(c), 2(o) and 2(p) are removed. New paragraphs 2(cc) and (dd) relating to the Relapse Prevention Plan are included. [21] The duration of the order is until 18 May 2016. The amended order is annexed to these reasons. [22] Professor Nurcombe’s report identifies the woman with whom the respondent lives. Mr Hunter applied for his report to be sealed and not available for public search. Mr Allen agrees. There is no reason why her privacy should be compromised. She suffers from poor health and should not be the subject of unwanted intrusive scrutiny which may follow this hearing. I order that the report of Professor Barry Nurcombe dated 25 July 2008 be sealed and marked “not to be opened without the order of a Judge of the Supreme Court”. -- 7 of 12 -- Order Filed on behalf of the applicant Form 59 R. 661 CW Lohe CROWN SOLICITOR 11 th Floor, State Law Building 50 Ann Street Brisbane Qld 4000 Per Lisa Evans PL4/ATT110/1578/EVL Telephone 07 3239 6167 Facsimile 07 3239 6022 VF: 137970 SUPREME COURT OF QUEENSLAND REGISTRY: Brisbane NUMBER: BS 846/06 Applicant ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND AND Respondent STEVEN SHANE BICKLE AMENDED SUPERVISION ORDER Initiating document: Originating Application filed 2 February 2006 Before: Moynihan J Date: 2 June 2006 Amended by: White J Amended on: 8 September 2008 THE ORDER OF THE COURT IS THAT 1. The Court is satisfied to the requisite standard that Steven Shane Bickle is a serious danger to the community in the absence of an order pursuant to Division 3 s 13(2)(b)of the Dangerous Prisoners (Sexual Offenders) Act 2003. 2. The Respondent be subject to the following conditions until 18 May 2026 2016: The Respondent must: (a) Be under the supervision of a corrective services officer for the duration of this order; -- 8 of 12 -- (b) Report to the corrective services officer at the Department of Corrective Services Area Office closest to his place of residence between 9am and 4pm on or before 16 June 2006 and therein to advise the officer of the respondent’s current name and address; (c) Reside at a place within the State of Queensland as approved by the supervising corrective services officer by way of a suitability assessment. The place not to be within 200 metres of a school, or some other public place or business where children frequent unless authorised in writing by the supervising corrective services officer in order to provide temporary accommodation; (d) Report to and receive visits from the corrective services officer at such frequency as determined necessary by the supervising corrective services officer; (e) Notify the corrective services officer of every change of the prisoner’s name at least two business days before the change happens; (f) Notify the corrective services officer of the nature of his employment, the hours of work each day, the name of his employer and the address of his premises where he is employed; (g) Notify the corrective services officer of every change of employment at least two business days before the change happens; (h) Notify the corrective services officer of every anticipated change of the respondent’s place of residence at least two business days prior to the change and to obtain the approval of the supervising corrective services officer prior to the change of residence; (i) Not leave or stay out of Queensland without the written permission of the corrective services officer; (j) Not commit an offence of a sexual nature during the period for which these orders operate; (k) Obey the lawful and reasonable directions of the supervising corrective services officer; Comply with every reasonable direction of a corrective services officer; (l) Respond truthfully to enquiries by the supervising corrective services officer about his whereabouts and movements generally; -- 9 of 12 -- (m) Not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation without the prior written approval of the supervising corrective services officer; (n) Notify the corrective services officer of the make, model, colour and registration number of any motor vehicle owned by , or generally driven by him; (o) Not without reasonable excuse be in the area within 200 metres of a school between 8.00 am to 9.30 am and 2.30 pm to 4.30 pm on school days, save if the respondent is in transit travelling in a motor vehicle or a form of public transport; (p) Not without reasonable excuse be within 200m of a children’s playground or child care area, save if the respondent is in transit travelling in a motor vehicle or a form of public transport; (q) Not have any supervised or unsupervised care of children under 16 years of age; (r) Not have any unsupervised contact with children under 16 years of age; (s) Not establish and/or maintain a relationship with a woman who has children under 16 years of age in her care permanently or from time to time; (t) Not access pornographic images containing photographs or images of children on a computer or on the Internet; (u) Abstain from illicit drugs and alcohol for the duration of this Order; (v) Take prescribed drugs only as directed by a medical practitioner; (w) Submit to random testing for illicit drugs and alcohol as directed by a corrective services officer, the expense of which is to be met by the Department of Corrective Services; (x) Attend a psychiatrist or psychologist who has been approved by the corrective services officer at a frequency and duration which shall be recommended by the treating psychiatrist/psychologist, the expense of which is to be met by the Department of Corrective Services; (y) Permit any treating psychiatrist, psychologist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of re-offending and compliance with this order to the Department of Corrective Services if -- 10 of 12 -- such request is made in writing for the purposes of updating or amending the supervision order and/or ensuring compliance with this order; (z) Attend any program, course, counselling, therapy or treatment, in a group or individual capacity, as directed by the corrective services officer in consultation with the treating psychiatrist/psychologist, the expense of which is to be met by the Department of Corrective Services; (aa) Attend any such sex offending treatment program or counselling as considered appropriate by the corrective services officer in consultation with the treating psychiatrist/psychologist, the expense of which is to be met by the Department of Corrective Services; (bb) Agree to undergo medical testing or treatment as deemed necessary by the treating psychiatrist/psychologist in consultation with the corrective service officer, and permit the release of the results and details of the testing to the Department of Corrective Services, if such a request is made in writing for the purposes of updating or amending the supervision order, the expense of which is to be met by the Department of Corrective Services. Further and specifically, if it is deemed by the treating psychiatrist/psychologist in consultation with the corrective service officer that sexual impulse medication is an appropriate course of therapy/treatment this is only to occur with the respondent’s consent. (cc) Engage with treating psychologist or psychiatrist to develop and complete a written Relapse Prevention Plan relating to his sexual offending behaviour and drug use; (dd) Provide a copy of the written Relapse Prevention Plan to his Corrective Services supervising officer and respond truthfully to enquiries relating to compliance with the plan; (ee) submit to electronic monitoring and curfew requirements as directed by a Corrective Services officer. Signed: Registrar -- 11 of 12 -- -- 12 of 12 --