Attorney-General for the State of Queensland v Murry [2007] QSC 121

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Murry [2007] QSC 121 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v GORDON FRANCIS MURRY (respondent) FILE NO: BS209 of 2007 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 28 May 2007 DELIVERED AT: Brisbane HEARING DATE: 24 May 2007 JUDGE: Chesterman J ORDER: The respondent be released from custody subject to the conditions set out at para. 23 of this judgement CATCHWORDS: CRIMINAL LAW - OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEEDURE – JUDGEMENT AND PUNISHMENT - OTHER MATTERS - where the respondent was convicted of aggravated indecent treatment of a child under the age of 16 - where the respondent was sentenced to three years imprisonment to be released on parole after serving 12 months – but served entire three years and remains in custody beyond term of imprisonment - where respondent has extensive criminal history of sexual offences – where the applicant made application under the Dangerous Prisoners (Sexual Offenders Act) 2003 for release on conditions relating to supervision. – whether there existed an unacceptable risk that the respondent would commit a serious sexual offence if released unconditionally – whether proposed order appropriately addressed the need to protect the community. - Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s13 Fardon v Attorney General for Queensland (2004) HCA 46, -- 1 of 11 -- 2 cited COUNSEL: Mr J Rolls for the applicant Mr J Fenton for the respondent SOLICITORS: Crown Solicitor for the applicant A W Bale & Son for the respondent [1] On 2 July 2004 the respondent was convicted on an indictment charging him with the indecent treatment of a child under the age of 16 with circumstances of aggravation. The offence was committed on 25 September 2001. He was sentenced to three years’ imprisonment with a recommendation that he be released on parole after serving 12 months. The respondent remains in prison. He has served every day of the sentence, despite the judge’s recommendation for parole, and remains in prison beyond the three year term imposed. His detention is a consequence of the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’). [2] By s 13 of the Act the court is required to determine whether the respondent would be a serious danger to the community if released, or if released without conditions designed to remove or reduce the danger. Section 13 provides: ‘(2) A prisoner is a serious danger to the community … if there is an unacceptable risk that [he] will commit a serious sexual offence – (a) if the prisoner is released from custody; or (b) if the prisoner is released … without a supervision order.’ [3] Subsection (4) sets out the matters to which the court must have regard when deciding whether a prisoner is a serious danger to the community. The Attorney- General bears the onus of proving that a prisoner would be such a danger if released. In making the determination the ‘paramount consideration’ is the protection of the community against sexual depredation. [4] The Act is, as is obvious, concerned to protect the community against ‘unacceptable’ risks that a released prisoner will commit further ‘serious sexual offences’. These are defined to mean offences of a sexual nature involving violence or against children. [5] I was informed by Mr Rolls, who appeared for the Attorney, that 23 supervision orders have been made since the Act was passed. Of those 23 prisoners released on conditions all but four have complied with the terms of the order. One has absconded to New South Wales, perhaps to start a new life. The other three have contravened one or more of the conditions of their orders though none of them, as I understood the communication from counsel, has committed another sexual offence subsequent to release. [6] One hears, sometimes, and from some quarters, a suggestion that prisoners jailed for committing sexual offences, especially against children, should never be released. The figures I was given do not support such a position. Only one in six (almost) of -- 2 of 11 -- 3 those released has not complied with the conditions imposed. Keeping six men in jail indefinitely after they have served their sentence, thereby destroying their lives, scarcely seems justified if only one of them might re-offend if released. The figures suggest that supervision orders are effective to prevent recidivism. [7] The respondent is 61 years of age. He has an extensive criminal history. Not all of his convictions are for sexual offences, though many are. These are the ones relevant to the present application. Criminal History Date Description of Offence Sentence 09/03/1965 Mackay DC Carnal knowledge of a girl under 17 years (2 charges) Charge 1: released on good behaviour recognisance of £25 for 2 years Charge 2: 6 months imprisonment. 03/02/1972 Brisbane MC Wilful exposure Fined $40 12/12/1972 Brisbane MC Wilful exposure Fined $100 30/03/1973 Holland Park MC Wilful exposure 2 years probation. Ordered to receive psychiatric treatment for 2 years. 05/11/1973 Ipswich MC Wilful exposure Aggravated assault on a female (2 charges) 2 years probation. Ordered to receive psychiatric treatment for 2 years. Fined $50. 02/12/1982 Townsville DC Indecent assault on a female 6 months imprisonment with hard labour and 3 years probation. To receive psychiatric treatment while on probation. 17/08/1990 Mackay District Court Wilfully did an indecent act (09/05/1990) Indecent assault on a female (2 charges – 09/05/1990) Convicted. 6 months imprisonment. Charge 1: 5 years imprisonment Charge 2: 2 years imprisonment All sentences to be served concurrently. 14/11/1996 Brisbane Magistrates Court Wilfully did an indecent act with intent to offend (19/08/1996) 6 months imprisonment. To serve 2 months imprisonment; balance suspended for 2 years. 21/01/1997 Brisbane DC Appeal against conviction and sentence imposed on 14/11/1996 Appeal dismissed. 18/11/1997 Brisbane DC Wilfully expose a child under the age of 16 years to an indecent On each charge:- Conviction recorded. 2 years imprisonment to -- 3 of 11 -- 4 act with circumstances of aggravation (5 charges, date unknown between 01/12/1995 & 02/09/1996, 22/09/1996) Indecent dealing with a child under the age of 16 years with circumstances of aggravation (on 17/08/1996 Attempt to procure a child under 16 years to commit an indecent act with circumstances of aggravation (on 22/09/1996) Wilfully expose a child under the age of 12 years to an indecent act with circumstances of aggravation (3 charges on 22/09/1996) Wilfully expose a child under the age of 16 years to an indecent act with circumstances of aggravation (5 charges, date unknown between 01/12/1995 & 22/09/1996, 22/09/1996) Indecent dealing with a child under the age of 16 years with circumstances of aggravation (on 17/08/1996) Attempt to procure a child under 16 years to commit an indecent act with circumstances of aggravation (on 22/09/1996) Wilfully expose a child under the age of 12 be served concurrently. Sentence suspended for 3 years after serving 9 months. Court recommended a place be found for accused in the sexual offenders unit of Moreton Correction Centre. -- 4 of 11 -- 5 years to an indecent act with circumstances of aggravation (2 charges on 22/09/1996) 2 July 2004 Brisbane DC Indecent treatment of child under 16 years with circumstances of aggravation (on 25/09/2001) Conviction recorded. 3 years imprisonment. Recommendation for parole after serving 12 months imprisonment. Order that prisoner report his address to the officer in charge of police at Brisbane City Police Station within 48 hrs after being released from custody and thereafter for a period of 5 years report any change of address within 48 hours of the change taking place to the police or at another place approved by the commissioner of police. [8] It will be seen that only two of the convictions were for assault. The most serious was that committed in 1990 for which the respondent was imprisoned for five years. He encountered a woman whose car had broken down on a secluded road. He stopped to offer assistance but then insisted, as recompense, that the woman commit an act of fellatio upon him. He then masturbated in front of her. He achieved the woman’s compliance by threats but not with the use of any actual force. [9] The offence in 1982 of indecently assaulting a female involved a young woman hitchhiker. Her presence in his car aroused him and he asked for intercourse. She undressed, he touched her and she fled. [10] The offences in 1990 appear out of character. They occurred on an occasion when the respondent had been drinking heavily after an unpleasant difference with his employer. [11] The other offences all involve exhibitionism. The respondent exposed himself to children, mostly girls, in a variety of circumstances. On some occasions he masturbated in front of them and on one or two occasions invited the children to assist with the masturbation. He was not violent towards any of them and never used force. The last offences of which he was convicted, in 2004, occurred at a construction site. Some children, including a 10 year old girl, were playing on the site. The respondent drove there, in the course of his work, to make deliveries. He exposed himself and masturbated in view of the girl. No physical contact occurred and there was no evidence of coercion or intimidation. [12] The respondent’s criminal history shows that since 1963 he has been convicted on ten occasions of 23 counts of sexual offences. All but two of these have involved sexual exhibitionism with under-aged female children. The two exceptions are the assault on the hitchhiker and stranded female motorist. Neither women suffered physical harm. -- 5 of 11 -- 6 [13] The respondent has been examined by a number of eminent psychiatrists for the purposes of the application. One of them, Professor Nurcombe, summarised the respondent’s offending in these terms: ‘[The respondent] does not commit and is not likely to commit violent sexual offences. His offences involve sexual exhibitionism toward females ranging in age from pre-pubertal to young adult. The likely motivation for the offences is low self-esteem and the need to authentication as a male. Physical harm to victims is not likely, and there is little chance that violence would escalate to life-threatening levels. Psychological harm to victims is likely to be minor, unless the victims had already been sexually traumatised prior to their encounter with [the respondent].’ [14] Dr Beech wrote this opinion: ‘There is a long history of offending … that dates back to his youth. In my opinion this is consistent with his having an anti-social personality disorder. There is evidence that his general offending has markedly lessened with time which … is the effect of ageing and maturity on his impulsivity. … There is a long history of sexual offending … this reflects his anti-social personality, his circumstances of upbringing, and his notable lack of empathy. Earlier offences included both indecent exposure and assault but over time I think there has been a change to his pattern of offending with a predilection towards indecent exposure towards older children or young teenagers. This has … included attempts to have his victims touch or masturbate him. … The origins of his behaviour are likely to be the social context in which they commenced … and his anti- social nature. However, it is more than likely that the indecent exposure offences have arisen in the context of the inadequacy that he felt when he was told he was infertile. The behaviour itself is likely to have become eroticised in its own right and I doubt that the factors that initiated it in the 1970’s are those that perpetuated in the present. … He is at moderately high risk of re-offending in the future. …’ [15] Professor James expressed the opinion that the risk that the respondent might re-offend on release is tempered by his age ‘and the tendency of anti-social traits … to diminish with maturation.’ Professor James also made the point that the psychological origin of the respondent’s exhibitionism was his sense of personal inadequacy and doubts about his manhood. He is infertile and despite three marriage-like relationships has been unable to father children. This has been a cause of disappointment and anxiety and coupled with shortcomings in his upbringing led him to have doubts about his self-value. To convince himself (and others) of that value he displayed his genitals to women and girls whom he thought might care for the exhibition. [16] Professor James thought that this need to prove himself and its consequent unlawful display of his organ had diminished with the respondent’s success in his modest trucking business and the establishment of a supportive relationship with his current partner, both of which have given the respondent a sense of personal security. -- 6 of 11 -- 7 [17] Professor James wrote: ‘Whilst I would judge that there is a risk of recidivism … of moderate proportions, I am … of the opinion that his offending behaviour does not suggest a trend to escalation … towards … serious violent behaviour … . The developments in [the respondent’s] life in recent years, particularly the evolution and success of his business are likely to prove an important element in risk reduction; and his long-standing and apparently mutually satisfying relationship … would be further supportive elements in this regard …’. [18] It is apparent from this rehearsal of the facts that the respondent’s continued detention is prison is not justified. He has been held in custody two years beyond the date at which the learned Chief Judge recommended he be released on parole. Even if he re-offended the indications are that he would cause no physical harm to anyone and only ‘minor’ psychological harm. The risk of re-offending has diminished with age, and will continue to fall. His personal circumstances, success in business and a satisfying relationship, further decrease the risk. [19] The respondent is not a serious danger to the community as those words would ordinarily be understood. The psychiatrists have explained why. He is such a danger as that term is defined specifically in the Act. There must, I think, be a doubt about whether the Act was meant to apply to such people as the respondent. If one had to select an epithet to describe him, ‘pathetic’ would come to mind more readily than ‘dangerous’. [20] The Act itself only requires an order detaining a prisoner indefinitely, or releasing him on a supervision order, if there is an unacceptable risk that he will commit a serious offence if released. The test, whether the risk is unacceptable, is not ‘devoid of content’ but is not capable of any precise definition. See Fardon v Attorney- General for Queensland (2004) HCA 46 per Gleeson CJ, para 22. There was no inquiry of the psychiatrists or in submissions about whether the risk of the respondent’s re-offending was ‘unacceptable’. There is some risk that he will re-offend but the slightness of harm that would follow such re-offending may not pass the test. Nevertheless the imposition of a supervision order will remove, or substantially reduce, the risk and it is probably in the respondent’s own interest that such an order be made. As he himself has noted ‘every time he offends he is caught’. Given his criminal history any offence is likely to result in a further term of imprisonment. It is best for all concerned if that is avoided. [21] The Attorney-General does not seek his continued detention but rather an order imposing conditions on the respondent’s release to minimise the chances that he will re-offend. The resopndent’s counsel did not contend that a supervision order should not be made and did not argue that the pre-conditions for the making of such an order had not been satisfied. The only debate was as to the terms of the order and they were settled in argument with counsel and with the expert testimony of the psychiatrists. There is no doubt that the conditions suggested will assist the respondent not to re-offend by offering him psychological assistance and in restricting his exposure to circumstances of temptation. The order should therefore be made. -- 7 of 11 -- 8 [22] In summary, the respondent should be released on a supervision order because: • The risk that he will re-offend is moderate. • If he should re-offend the risk that he will cause any physical harm is negligible. • Any psychological harm his re-offending causes will be minor. • The risk of re-offending has diminished with the respondent’s age and personal circumstances. • The risk will further reduce with age. • The making of a supervision order with strict conditions regulating the respondent’s way of life should remove or substantially reduce the risk of re-offending. [23] Accordingly I order: 1. The Court is satisfied to the requisite standard that the respondent, Gordon Francis MURRY, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003. 2. The respondent be subject to the following conditions until 24 May 2012: The respondent must: (i) be under the supervision of an authorised corrective services officer for the duration of the order; (ii) report to an authorised corrective services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of the respondent’s current name and address; (iii) report to, and receive visits from, an authorised corrective services officer at such times and at such frequency as determined by Queensland Corrective Services; (iv) notify and obtain the approval of the authorised corrective services officer for every change of the prisoners name at least two business days before the change occurs; (v) notify the authorised corrective services officer of the nature of his employment, or offers of employment, the hours of work each day, -- 8 of 11 -- 9 the name of his employer and the address of the premises where he is or will be employed; (vi) seek permission and obtain approval from an authorised corrective services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; (vii) reside at a place within the State of Queensland as approved by corrective services officer by way of a suitability assessment; (viii) not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised corrective services officer; (ix) must seek permission and obtain the approval of an authorised corrective services officer prior to any change of residence; (x) not leave or stay out of Queensland without the written permission of an authorised corrective services officer; (xi) not commit an offence of a sexual nature during the period of the order, and in particular not wilfully expose his genitals in a public place or in a place without reasonable excuse contrary to s 9 of the Summary Offences Act 2005; (xii) not commit an indictable offence during the period of the order; (xiii) must comply with every reasonable direction of an authorised corrective services officer; (xiv) respond truthfully to enquiries by authorised corrective services officers about his whereabouts and movements generally; (xv) not to have any direct or indirect contact with a victim of his sexual offences without the prior approval of the authorised corrective services officer; (xvi) notify the authorised officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use; (xvii) submit to medical, psychiatric, psychological or other forms of assessment and/or treatment as directed by an authorised corrective services officer; (xviii) abstain from illicit drugs for the duration of this order; (xix) take prescribed drugs as directed by a medical practitioner; -- 9 of 11 -- 10 (xx) submit to any form of drug testing including both random urinalysis and breath testing as directed by the authorised corrective services officer; (xxi) attend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by the authorised corrective services officer at a frequency and duration which shall be recommended by the treating intervention specialist, the expense of which is to be met by Queensland Corrective Services; (xxii) agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist and supervising corrective services officer, and permit the release of the results and details of the testing to Queensland Corrective Services, if such a request is made for the purposes of updating or amending the supervision order or for ensuring compliance with this order, the expense of which is to be met by Queensland Corrective Services; (xxiii) permit any medical, psychiatric, psychological or other mental health practitioner to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order; (xxiv) attend any program, course, psychologist or counsellor, in an individual capacity, as directed by an authorised corrective services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate; (xxv) not have any ongoing unattended contact with , or approach any children under 16 years of age except with prior written approval of an authorised corrective services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children; (xxvi) not establish and maintain contact with children under 16 years of age without written prior approval by an authorised corrective services officer; (xxvii) seek written permission from an authorised corrective services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group; -- 10 of 11 -- 11 (xxviii) 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; (xxix) not to be on the premises of any shopping centre, without reasonable excuse, between 8am to 9.30am and between 2.30pm and 4.30pm on school days other than for the purpose of: a. approved employment; b. attending an approved bona fide pre-arranged appointment with a Government agency, medical practitioner or the like. (xxx) not visit public parks without prior written permission from the authorised corrective services officer; -- 11 of 11 --