A-G for the State of Qld v Ward [2007] QSC 33

SUPREME COURT OF QUEENSLAND CITATION: A-G for the State of Qld v Ward [2007] QSC 033 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALLAN WILLIAM WARD (respondent) FILE NO/S: BS9152 of 2006 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 21 February 2007 DELIVERED AT: Brisbane HEARING DATE: 12, 13, 14, 15 February 2007 JUDGE: Muir J ORDER: 1. The Court is satisfied to the requisite standard that the respondent, Allan William WARD, 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 (Qld). 2. The respondent be subject to the conditions set out in paragraph [39] of these reasons until 1 February 2017, or until further order of the Court: CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – STATUTORY POWERS AND DUTIES – EXERCISE – GENERAL MATTERS – application by Attorney-General for order under s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) – whether under s 13(2) of the Act there is an “unacceptable risk” that prisoner will re-offend if released or released unsupervised – whether appropriate supervision order can be devised that ensures adequate protection to the community if prisoner released from custody Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 8(1), s 13(1), (2), (5), (6), (7), s 14, s 15, s 16, s 17 -- 1 of 11 -- 2 COUNSEL: J Horton for the applicant B H P Mumford for the respondent SOLICITORS: C W Lowe Crown Solicitor for the applicant Legal Aid Queensland for the respondent The application [1] The applicant applies pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) for an order (“a continuing detention order”) that the respondent be detained in custody for an indefinite term for care, control or treatment. In the alternative, the applicant seeks an order pursuant to s 13(5)(b) of the Act that the respondent be released from custody subject to such conditions as the Court considers appropriate (“a supervision order”). Mr Horton, who appeared for the applicant, submitted that the evidence supported the making of a continuing detention order. Mr Mumford, the respondent’s counsel urged the making of a supervision order. The relevant statutory provisions [2] The Attorney-General may apply to the Court for an order that a person serving a term of imprisonment for a “serious sexual offence” either be detained in custody for an indefinite term for control, care or treatment1 or for an order that the person be released from custody subject to conditions imposed by the court.2 [3] A continuing detention order or a supervision order may be made if, on an application for an order under s 13 of the Act, the Court is satisfied the prisoner is a serious danger to the community in the absence of such an order.3 [4] Subsection (2) of s 13 provides: “(2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence – (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made.” [5] Subsections (6) and (7) of s 13 provide: “(6) In deciding whether to make an order under subsection (5)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” 1 Section 13(5)(a). 2 Section 13(5)(b). 3 Section 13(1). -- 2 of 11 -- 3 [6] A “serious sexual offence” is defined as an offence of a sexual nature, whether committed in Queensland or outside Queensland – (a) involving violence; or (b) against children. [7] In deciding whether a prisoner is “a serious danger to the community” the court is required to have regard to the matters listed in s 13(4). They include: “(c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk…” The respondent’s background and prior criminal history [8] The respondent is serving a ten year term of imprisonment imposed on 2 December 1997 for the offence of maintaining an unlawful sexual relationship with a child under the age of 16 with circumstances of aggravation. The period during which the relationship was maintained commenced on 1 June 1995 and concluded on 23 March 1997. [9] The conduct constituting the offence occurred when the complainant, a relation by marriage of the respondent, was 12 and 13 years of age. The acts complained of commenced with sexual touching and progressed to regular sexual intercourse over a period of about ten months at the end of the relationship. [10] The respondent was also convicted on the same day of a series of other offences including: (a) Knowingly possessing child abuse computer games (on 22 March 1997); (b) two counts of taking an indecent photograph of a child under the age of 12 years with circumstances of aggravation (between 1 June 1995 and 8 June 1995 and between 14 August 1995 and 31 December 1995); (c) two counts of procuring a child under 12 years to commit an indecent act with circumstances of aggravation (between 1 June 1995 and 8 June 1995 and between 14 August 1995 and 31 December 1995); (d) six counts of indecent dealing with a child under the age of 16 years with circumstances of aggravation (on and between 17 October 1995 and 15 March 1997); (e) two counts of carnal knowledge of a female child under the age of 16 years with circumstances of aggravation (between 17 October 1995 and 23 March 1997 and on 15 March 1997); (f) four counts of taking indecent photographs of a child under the age of 16 years with circumstances of aggravation (between 17 October 1995 and 23 March 1997 and on 15 February 1997 and 15 March 1997); -- 3 of 11 -- 4 (g) nine counts of procuring a child under the age of 16 years to commit an indecent act with circumstances of aggravation (between 17 October 1995 and 23 March 1997 and 1 & 15 March 1997); (h) six counts of recording by means of a video camera, an indecent visual image of a child under 16 years with circumstances of aggravation (between 4 May 1996 and 31 December 1996 and on 15 February 1997 and 15 March 1997); (i) permitting himself to be indecently dealt with by a child under the age of 16 years with circumstances of aggravation (on a date unknown between 4 May 1996 and 31 December 1996) (j) three counts of carnal knowledge of a child under the age of 16 years with circumstances of aggravation (between 4 May 1996 and 23 March 1997); (k) five counts of wilfully exposing a child under the age of 16 years to an indecent videotape with circumstances of aggravation (on and between 15 February 1997 and 15 March 1997); (l) two counts of wilfully exposing a child under the age of 16 years to an indecent act with circumstances of aggravation (on 15 March 1997); (m) wilfully exposing a child under the age of 16 years to an indecent object with circumstances of aggravation (on 15 March 1997); and (n) attempted carnal knowledge of a female child under the age of 16 years with circumstances of aggravation (on 15 February 1997). [11] The longer indictment presented against the respondent on his trial in 1997 included 45 counts, two of which were withdrawn. Twenty-five of the counts related to the first mentioned complainant. There were two other complainants both of whom were friends of the first complainant. Sixteen counts concerning one of these complainants were summarised by the Crown Prosecutor to the sentencing Judge as charges which “relate to the prisoner showing pornographic videos to the complainant, taking indecent photos of the complainant in a naked state, having intercourse and oral sex with the (first) complainant… in the presence of this complainant and procuring [this complainant] to commit indecent acts upon the other complainants. The prisoner has performed oral sex and digital penetration in respect of this complainant.” He described the five counts in respect of the third complainant as charges which “relate to the prisoner showing pornographic videos to the complainant, the prisoner taking photographs of this complainant naked and procuring the complainant to commit indecent acts.” [12] One or more of the counts of which the respondent was convicted concerned his possession of 129 pornographic images on computer disks. Twenty-four of the images were of the first complainant and 105 were of other children. [13] Terms of imprisonment of eight years were imposed for each of the other counts on the indictment other than a count of attempted unlawful carnal knowledge and a count of unlawful possession of a child abuse computer game: they attracted sentences of five years and one year respectively. All sentences were ordered to be served concurrently. [14] The respondent’s criminal history commenced with a conviction on 21 December 1971 for an aggravated assault of a sexual nature. He was fined $200. -- 4 of 11 -- 5 [15] On 11 August 1986, the respondent was convicted in the Supreme Court on two counts of incest and sentenced to concurrent five year terms of imprisonment. The sentencing judge remarked that the respondent had admitted allegations of sexual misconduct against each of the complainants over a period approximately ten years prior to the date of the offences. He said also that the respondent “apparently fairly regularly had sexual intercourse with each child…” The complainants were both quite young when the sexual misconduct commenced. [16] The respondent was born on 6 July 1941. He was employed as a bus driver and was between 53 and 55 years of age when he committed the offences of which he was convicted in December 1997. [17] The expert opinion evidence [18] Three psychiatrists gave evidence on behalf of the applicant. Each of the psychiatrists produced a report containing his evidence-in-chief and was cross- examined. A summary of their evidence is as follows. The evidence of Dr Beech [19] Doctor Beech, psychiatrist, saw the respondent briefly on 9 June 2006 at the Wolston Correctional Centre. The respondent declined to be interviewed and Dr Beech’s report was therefore based on documentary materials provided to him. In Dr Beech’s opinion, the respondent meets the criteria for paedophilia, sexually attracted to females, non-exclusive type (DSM4TR 302.2). Doctor Beech’s report concluded that the respondent’s history of sexual offences involving female children and the case of the later offences being “of high density and multiple types”, “place (the respondent) in the moderate to high risk of re-offending.” The report stated: “Mitigating factors are his advancing years and physical health. There are other factors which may act to lower this risk. In particular, he maintained an adult relationship for many years…there is no history of substance use disorder, and no history of employment problems. The offences do not involve harm to the victims or the use of threats or weapons.” [20] On the other hand, Dr Beech was concerned that “the available material documents a number of assessments that indicate that he has a personality disorder and that this has interfered with his participation in a relevant offender program and is associated with distorted views and attitudes to his offending.” [21] In his oral evidence, Dr Beech said that with the benefit of the information contained in the reports of Dr Moyle and Professor Nurcombe, he was able to rate the respondent’s risk of re-offending on “the sexual offender risk assessment guide scale.” He agreed with Professor Nurcombe’s finding that the respondent had a “raw score of 17” and concluded that he had a “0.58 probability” of re-offending within seven years. Cross-examined in relation to the effect of the respondent’s age, ill health and decreased libido as a result of a prostate operation, Dr Beech conceded that such matters could reduce the risk of re-offending. He observed, however, that the respondent’s conduct was “not just a matter of sexual deviance, but also seeking, I think, intimacy with young girls…” In that regard, he said that “even if he were impotent I would think that he would still be at risk of offending -- 5 of 11 -- 6 with young girls.” He agreed with Mr Mumford that the respondent’s pattern of offending was that of “a groomer”. [22] Referred to the respondent’s diagnosed conditions of personality disorder and depression, Dr Beech considered it doubtful that the former was treatable. He accepted that the depression was treatable and that such treatment could lower the respondent’s risk of re-offending. The evidence of Dr Moyle [23] In his report of 6 February 2007, Dr Moyle, psychiatrist, concluded that: “…(the respondent) is likely to pose at least a moderately high risk…that he will befriend and sexually abuse girls as young as 8-10, to the extent of full sexual intercourse, if released without an awareness of ways he can minimise the risk factors that are subject to his voluntary control, and having in place restrictions on his freedom to have free access to female children.” [24] Dr Moyle found that the respondent has “significant narcissistic personality disorder” and evidence of “…a preferential heterosexual paedophilia.” [25] In Dr Moyle’s opinion, the respondent’s illnesses are not of sufficient severity to lessen the respondent’s moderately high risk of re-offending (when he entered gaol) “and other clinical risk factors he has had 10 years to address, remain, if anything higher now he has no intention to work for a living, and as he has no independent means of support…” [26] Doctor Moyle made his assessments using both “structured clinical judgments” and actuarial assessments. [27] In relation to the respondent’s alleged impotence, Dr Moyle observed in evidence- in-chief “…the loss of potency does not necessarily mean the loss of interest when potential victims are available. One may develop sexual interest in that way, and potency is not necessary for a lot of Mr Ward’s crimes…” He also made the point that “…factors other than sexuality quite significantly affect the risk of sexual re- offending and one of those is occupational instability…” Professor Nurcombe’s evidence [28] Professor Nurcombe was the only one of the three psychiatrists who gave evidence who had the benefit of an interview with the respondent. Professor Nurcombe applied a number of recognised actuarial tests with a view to gauging the likelihood of the respondent’s re-offending. Three of those tests indicated a high risk and one indicated a moderate to high risk of sexual recidivism. Professor Nurcombe’s clinical assessment, having regard to the results of the tests, was that the respondent was a moderate risk of re-offending. In his opinion, although historical factors point toward a high risk, recent dynamic factors mitigate that risk. Those factors include the probability that the respondent is sexually impotent, the respondent’s age and ill health. Factors which Professor Nurcombe considered would increase the risk of the respondent’s re-offending include his “tendency to minimisation, rationalisation, projection of guilt onto others, and resistance to therapy.” -- 6 of 11 -- 7 [29] In Professor Nurcombe’s opinion, the respondent would benefit from continued probationary supervision, the provision of an occupation suitable given his age and physical limitations and suitable accommodation. He did not regard the respondent as likely to abduct children or to inflict physical harm. [30] Addressing the pattern of the respondent’s offences, Professor Nurcombe’s report states: “Mr Ward offends against children to whom he is a familiar figure. He adopts a paternal or avuncular role, and offers inducements (gifts of clothing, sweets, etc.) and companionship. He grooms the prepubescent or pubescent female and progresses from fondling, through digital penetration, to cunnilingus and sexual intercourse. He takes photographs and videotapes of activities for his own delectation… Depressed at the time of the offences, he overrides any inhibitions he might feel, and suppresses guilt. He confuses his own needs with empathy for the child ... Sexual offences are precipitated by feelings of loneliness, neglect, depression, rejection, and the feeling that much has been demanded of him in return for little affection…the likely victims are females aged 11 to 14 years, related to or familiar to him... sexual re-offending following release would not be imminent. Warning signs that the sexual violence risk is increasing would be depression, and a sense of loneliness and neglect. Sexual re-offending is likely to be repeated should it occur. The risk of offending is chronic but may be diminished (though not necessarily abolished) by post-prostatectomy erectile impotence.” [31] In Professor Nurcombe’s opinion, the respondent suffers from Dysthymic Depressive Disorder and depression and that the risk of suicide after the respondent’s release is high. He considers also that the respondent suffers from narcissistic personality disorder, hypertension, coronary artery disease, and Type II diabetes. Psychological assessments [32] The respondent has been the subject of a number of psychological assessments during his imprisonment. Two psychologists primarily responsible for the preparation of a report dated 22 March 2002, in connection with the respondent’s withdrawal from a sexual offender treatment program, concluded, on the basis of the application of three actuarial tests, that the respondent’s risk of re-offending was “medium-high”. Other factors, though, including the respondent’s prior convictions for a variety of sexual offences against young and adolescent females, the removal of family connection and support, the respondent’s disposition to minimise the nature and effect of his conduct and his withdrawal from the program, suggested to these witnesses the existence of a high risk of re-offending. [33] The report was challenged on the basis of a number of factual inaccuracies contained in it and the two principal authors were cross-examined. Their evidence, which I accept, was that the validity of the opinions expressed in the report concerning the respondent’s capacity to re-offend was not affected by the factual -- 7 of 11 -- 8 errors. Cross-examination of both witnesses cast no doubt on their professional competence or integrity. Conclusion [34] I am satisfied, having regard to the requirements of s 13(3) of the Act, that there is an unacceptable risk that the respondent will commit offences of a sexual nature against children if the respondent is released from custody without a supervision order being made. That there is an appreciable risk of re-offending is the unanimous view of the psychiatrists and psychologists who gave evidence. The assessments of the degree of risk range from moderate (Professor Nurcombe) through “moderately high” (Dr Beech and Dr Moyle) to “probably high” (the 2002 report). The psychological assessments, however, were made some years ago. There was no challenge in cross-examination to the methodology employed by any of the psychiatrists and no doubt was cast on the substance of the professional opinions expressed. [35] The pattern, nature and extent of the respondent’s past offending conduct coupled with the evidence as to his personality and psychiatric condition would, in my view, lead most reasonable persons unassisted by expert opinion evidence to conclude that, absent the imposition of appropriate conditions, the risk of the respondent’s re- offending was substantial. [36] It is the unanimous view of the psychiatric specialists that factors such as the applicant’s age, loss of libido and lost or weakened capacity to sustain an erection reduce but do not remove the risk of re-offending. Such risk, however, can be reduced substantially by the imposition of appropriate conditions. The fact that the respondent’s offending has always occurred within his family or after or in consequence of the establishment of a close relationship with a young female over a protracted period suggests that appropriate constraints and supervision will prove effective in minimising the risk of re-offending. [37] The psychiatric evidence also suggests that continued treatment will assist in reducing the risk. I am of the view that it is unlikely that the respondent would re- offend without first breaching the orders I am about to make and without the detection of such a breach or breaches. That conclusion strongly supports the making of a supervision order rather than a continuing detention order. [38] Satisfaction by the Court that there is an unacceptable risk that a prisoner will commit an offence of a sexual nature involving violence or against children gives rise to a discretion under s 13(5) to make a continuing detention order, a supervision order or no order at all. In deciding between a continuing detention order and a supervision order “the paramount consideration” is “the need to ensure adequate protection of the community.” For the reasons I have given, the adequate protection of the community against the risks posed by the respondent, if or when released, does not require the making of a continuing detention order. [39] The order will be as follows: 1. The Court is satisfied to the requisite standard that the respondent, Allan William WARD, 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 (Qld). -- 8 of 11 -- 9 2. The respondent be subject to the following conditions until 1 February 2017, or until further order of the Court: 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/or within 24 hours of the day of his 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 are reasonably determined by Queensland Corrective Services; (iv) notify and obtain the approval of an authorised corrective services officer of every change of the respondent’s name at least two business days before the change occurs; (v) notify and obtain the approval of an authorised corrective services officer at least two business days prior to any change to the nature of his employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed; (vi) notify an authorised corrective services officer of any offers of employment, 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 a corrective services officer by way of a suitability assessment; (viii) not reside at a place by way of short term accommodation (excluding two overnight stays in any one period of twelve months) without the permission of an authorised corrective services officer; (ix) notify and obtain the approval of an authorised corrective services officer prior to any change of residence at least two business days before the change occurs; (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; (xii) not commit an indictable offence during the period of the order; (xiii) 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 initiate any direct or indirect contact with a victim of his sexual offences without the prior approval of an authorised corrective services officer and promptly conclude such contact if it occurs by chance or is initiated by another; (xvi) notify an 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) abstain from illicit drugs for the duration of this order; (xviii) take prescribed drugs as directed by a medical practitioner; (xix) submit to any form of drug including random urinalysis as directed by an authorised corrective services officer; -- 9 of 11 -- 10 (xx) attend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by an 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; (xxi) 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 (excluding travel) is to be met by Queensland Corrective Services; (xxii) 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; (xxiii) attend any program or course (but not in a group) and attend on a psychologist or counsellor, as directed by an authorised corrective services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate, the expense of which (excluding travel) is to be met by Queensland Corrective Services; (xxiv) not have any unsupervised contact with any child under 16 years of age (which is not brief and not pre-arranged or planned) 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; (xxv) not establish and maintain contact with any child under 16 years of age without written prior approval by an authorised corrective services officer; (xxvi) 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; (xxvii) not join, affiliate with, attend on the premises of or attend at the activities carried on by any club, group or organisation in respect of which there is or there are reasonable grounds for believing there is either child membership or child participation; (xxviii) not 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 purposes of: (i) approved employment; (ii) attending an approved bona fide pre-arranged appointment with a Government agency, medical practitioner or the like; (xxix) not reside with a person who has the care of a child or children under 16 years of age without the prior written approval of the corrective services officer; (xxx) not enter into a relationship with a person who has the care of a child or children under 16 years of age without the prior written approval of the corrective services officer; -- 10 of 11 -- 11 (xxxi) not access pornographic images of children on a computer or on the internet or in any other format; (xxxii) not to communicate with a child under the age of 16 years; and (xxxiii)submit to electronic monitoring by Queensland Corrective Services if requested to do so and to submit to conditions of electronic monitoring which may include wearing a monitoring device as directed by an authorised corrective services officer. -- 11 of 11 --