Attorney-General for the State of Queensland v Murray [2007] QSC 36

1 [2007] QSC 036 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE J No BS209 of 2007 ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Applicant and GORDON FRANCIS MURRY Respondent BRISBANE ..DATE 05/02/2007 JUDGMENT -- 1 of 14 -- 2 JUDGMENT 1 10 20 30 40 50 60 HER HONOUR: The Attorney-General has applied for an order pursuant to section 8(2) of the Dangerous Prisoners (Sexual Offenders) Act 2000 that the respondent undergo examinations by two psychiatrists for a risk assessment. Should that order be made the parties are agreed that Professor Barry Nurcombe and Dr Michael Beech may be named in the order as the two psychiatrists. The Act has been in operation since 2003 and there is now a body of jurisprudence from this Court and the High Court about its operation. There is, accordingly, no particular need to analyse many of its provisions for this application. The Court may make an order of the kind mentioned in section 8(2) at the preliminary hearing "if the Court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order" section 8(1). A prison is a serious danger to the community "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" section 13(2). If the Court is satisfied the application may not be finally decided until after the prisoner's release day the Court may order that his release be supervised or that he be detained in custody for a stated period. -- 2 of 14 -- 3 JUDGMENT 1 10 20 30 40 50 60 In the originating application the Attorney-General seeks a further order pursuant to section 8(2)(b) of the Act that the respondent be detained in custody after the expiration of his sentence until the final determination of the principal application that the respondent be detained for an indefinite term or alternatively on conditional release. The respondent's full-time release date is the 1st of July 2007. The psychiatrists anticipate examining and reporting by the end of April 2007 should a risk assessment order be made. The respondent resists the making of a risk assessment order on the ground that he is not a serious danger to the community. The objects of the Act set out in section 3 are to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community and to facilitate their rehabilitation. A prisoner for the purpose of such an order is "...a prisoner detained in custody who is serving a term of imprisonment for a serious sexual offence" section 5(6). A "serious sexual offence" is defined in the dictionary schedule to the Act. It is "an offence of a sexual nature...(a) involving violence; or (b) against children". Mr Fenton for the respondent submits that the respondent's offending is not of that kind but much of the respondent's offending is of a sexual nature and against children, although -- 3 of 14 -- 4 JUDGMENT 1 10 20 30 40 50 60 without apparent violence, but some conduct against adult women had violent aspects. It is clear that the proof required to persuade the Court to make a risk assessment order is different from and less than that required for a final order which is "to a high degree of probability" section 13(3)(b). It is that the Court must have reasonable grounds for believing that the respondent is a serious danger to the community. It is accepted that that belief will be informed by the matters set out in section 13(4) to which the Court must have regard when considering making a final order. Those matters are medical, psychiatric and psychological assessments relating to the prisoner, information indicating whether or not there is propensity on the part of the prisoner to commit serious sexual offences in the future, the pattern of offending behaviour on the part of the prisoner, efforts by the prisoner to address the cause or causes of the offending behaviour and his participation in rehabilitation programs, whether or not the prisoner's participation in rehabilitation programs has had a positive effect on him or her, the prisoner's antecedents and criminal history, the risk of he prisoner committing another serious sexual offence if released into the community, and the need to protect member's of the community from that risk. -- 4 of 14 -- 5 JUDGMENT 1 10 20 30 40 50 60 I turn now to matters personal to the respondent. He was born on the 14th of August 1945 and is now 61 years old. He is serving a term of imprisonment of three years for one count of indecent treatment of a child under the age of 16 years with a circumstance of aggravation. The child was 10 years old. The sentencing Judge recommended that the respondent be eligible to apply for release on parole after serving 12 months. He has been refused parole. His full-time release date, as I have mentioned, is the 1st of July 2007. A summary of the respondent's past offending of a sexual nature is set out in Ms Moloney's outline of submissions and appended to these reasons. Mr Fenton accepts that summary save for the first offence. Police records indicate that he was convicted in the District Court at Mackay in 1965 when he was 19 years old of two counts of "carnal knowledge of a girl under 17 years". On charge 1 he was released on a good behaviour bond and on charge 2 sentenced to six months' imprisonment. The submission is that that is a description of an offence not known to the Criminal Code in 1965 and has not been proved in accordance with the provisions of the Evidence Act 1977 section 53. The objection is noted but Professor Basil James discussed each of his relevant past criminal offences with the respondent as set out in his report of the 26th of May 2006 and there is no suggestion that the respondent challenges -- 5 of 14 -- 6 JUDGMENT 1 10 20 30 40 50 60 either the description or the punishment and for this application that is sufficient. The respondent has also been convicted of other offences including breaking and stealing in Victoria but they are in the quite distant past. The respondent has served numerous relatively short terms of imprisonment for his sexual offences which have been persistent over some 30 to 40 years. His modus operandi, which I take from Professor James's report, mainly involved wilful and obscene exposure of his genitals, with or without masturbation, or request for masturbation, many in front of children and, it seems, without threats. The offences for which he was sentenced to five years' imprisonment involved serious sexual handling of an adult woman whose car had broken down in a remote area in 1990. Whilst, as I have said, there is a large amount of material before the Court arising from the respondent's long association with Corrective Services and the criminal justice system, I have been most assisted by Professor James's report of the 26th of May 2006 and it is to that report that I shall refer. Professor James was requested by Crown Law to provide a risk assessment report to enable the Serious Sex Offenders Review Committee in the Department of Corrective Services to advise the Attorney-General about an application under the Act. Relevantly Professor James established that the respondent grew up in a stable, loving, family environment; that he had -- 6 of 14 -- 7 JUDGMENT 1 10 20 30 40 50 60 long felt inadequate as a person and had not been financially or otherwise successful; he sustained a head injury in 1963 which may have involved frontal lobe damage; he had two sexually satisfactory marriages and is in a third satisfactory and supportive relationship; he learnt that because of a low sperm count it was unlikely that he would father children in 1972; and from about 1997 he had established a successful trucking business which survives his incarceration with the help of his partner and a good employee. The respondent attributed his deviant sexual behaviour to his sense of male inadequacy at his infertility and wished to demonstrate his maleness but, as Professor James observed, his sexual offending commenced before he knew he was infertile. He explained to Professor James that he had declined to participate in the sexual offenders treatment program, something which caused the departmental psychologists and senior case workers great concern, for a number of reasons set out at page 11 of Professor James's report, including that he did not want to reveal private and shameful aspects of himself in a group setting and felt pressure and intimidation to undertake the course. Professor James concluded, as had Dr Sue McCullough, a psychologist whom the respondent had consulted on one occasion in 2003 and another 2004, that compulsion or coercion for the respondent to attend such a course would be counterproductive and he was a good candidate for therapeutic one on one counselling. -- 7 of 14 -- 8 JUDGMENT 1 10 20 30 40 50 60 Professor James noted that the respondent had been prescribed the libido inhibiting pharmaceutical agent Cyproterone by Dr Del Mar in 1998 which the respondent believed had been effective while taking it. He had explained running out of the medication prior to the present offence and thought he could do without it. He has not taken it since incarceration. The respondent acknowledges its possible placebo effect and Professor James makes some positive comments about its usefulness to the respondent. Professor James has employed both actuarial and dynamic methods in assessing the respondent's risk of re-offending, pointing out the limitations in using the actuarial data based on the predictive formulae derived from North American studies. The three measures of actuarial risk assessed gave the following results; 1. Psychopathy Check List 17 a relatively modest score falling well below the cut-off point of 30 necessary for a diagnosis of psychopathic personality; 2. The Violence Risk Appraisal Guide with a score of 8 was translated as a 44 per cent chance that he will offend violently in the next seven years and a 58 per cent chance in the next 10 years. -- 8 of 14 -- 9 JUDGMENT 1 10 20 30 40 50 60 3. Sex Offenders Risk Appraisal Guide was scored a 22 translated into 58 per cent risk of re-offending sexually in the next seven years with an 80 per cent risk in the next 10 years. According to Professor James the clinical assessment tendered to temper the degree of risk predicted by the actuarial method, in particular his age, and that antisocial trends diminish with age, the underlying dynamics of the respondent's sexual misbehaviour being largely based on self-doubt has been mitigated by the establishment of a successful business; with therapeutic face to face clinical treatment, which the respondent is willing to undergo, the respondent will be likely to address issues of concern, for example full responsibility for actions and empathy to victims. Professor James's overall conclusions are set out at pages 21 and 22 of his report: 1. "Whilst I would judge that there is a risk of recidivism in Mr Murry's case, of moderate proportions, I am also of the opinion that his offending behaviour does not suggest a trend to escalation of offending towards the "more serious, violent behaviour", regarding which Psychologist Mr Stephen Smallbone, expressed concern in 1992. 2. The developments in Mr Murry's life over recent years, particularly the evolution and success of his business, as described above, are likely to prove an important -- 9 of 14 -- 10 JUDGMENT 1 10 20 30 40 50 60 element in risk reduction; and his long-standing and apparently mutually satisfying relationship with Ms [AB]; and the maintenance of good and supportive relationships with his surviving siblings; would be further supportive elements in this regard. 3. There would be very considerable value in Mr Murry continuing to address, within a persistent and sustained therapeutic relationship, the deficiencies in his responses to his offences as noted above; but for the reasons outlined above, it is my view that this is more likely to be successfully effected in a one- to-one situation, and would not in my opinion need to be completed prior to his release from prison. It would in my opinion be of value, however, if such therapy were made a condition upon his release, and if his attendance and progress were overseen and administered by a member of the Community Correctional Services. 4. With respect to the continuing use of the libido-reducing drug Cyproterone Acetate, I note that the prescription is generally recommended for persons whose behaviour is driven by impulses of an intrinsically hypersexual nature. The major dynamics of Mr Murry's offending appear somewhat differently based. It is, however, self- evident that notwithstanding their non-sexual origin, the impulse finds blatant sexual expression in Mr Murry's offending behaviour, and libido-reduction could thus, in my opinion, could be expected to play an important -- 10 of 14 -- 11 JUDGMENT 1 10 20 30 40 50 60 ancillary role. Moreover, Mr Murry's own conviction that the Cyproterone has been of value adds a further element of risk reduction; whilst this may be regarded, as he himself suggests, as something of a placebo reaction, this latter in itself frequently proves to be not insignificant in bringing about change. 5. Given his history of frontal head injury, it would be desirable, for completion of the evaluation, f Mr Murry were to have a CAT scan of brain. 6. Other requirements which would be necessary upon Mr Murry's release include: - direction on the location of his residence and on the nature of his employment and of his recreational activities, to ensure that unsupervised conduct with female children in particular is discouraged; - he should also be required to abstain from alcohol and from illicit recreational drug use." These findings, together with the consideration of the matters referred to in section 13(4), particularly in (c), (d), (f), (g), (h) and (i) suggest that the Court can be reasonably satisfied that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a Division 3 order but the evidence, including the opinion -- 11 of 14 -- 12 JUDGMENT 1 10 20 30 40 50 60 of Professor James, presently before the Court strongly suggests that he should be released on a supervision order. Mr Fenton has submitted that those conditions could be the basis of a parole release order but it must be pointed out that the respondent's sentence will have virtually expired because his full-time release date is the 1st of July 2007, so there will be next to no supervision of him for the future. Mr Fenton seeks an order for disclosure of all the material used by Professor James. That is likely to have occurred already and all documents, including those recording its deliberations, of the Serious Sexual Offenders Review Committee concerning the respondent, mentioned at page 7 of the Queensland Corrective Services public document, which is available on the Internet, and which Mr Fenton tendered in print copy. Whilst this is an application by the Attorney-General, nonetheless all material which might be relevant to the question to be decided by the Court at the final hearing should be disclosed. There will, of course, be no automatic disclosure because this is not a proceeding which is commenced by a claim. Accordingly, I would order that the Attorney-General disclose any relevant material not already provided to the respondent within 21 days including the material before or emanating from -- 12 of 14 -- 13 JUDGMENT 1 10 20 30 40 50 60 the Serious Sexual Offenders Review Committee. Is 21 days sufficient, Ms Maloney? MS MALONEY: Should be, your Honour, yes. HIS HONOUR: And is that a sufficiently broad description of the documents, Mr Fenton for your purposes? MR FENTON: Yes, and any documents created by the Serious Sexual Offenders Review Committee. HER HONOUR: I think that is necessarily implied in there. HIS HONOUR: Mr Fenton has referred to the obligations of the Corrective Services Department to provide suitable treatment for the respondent and the objects of the Act to rehabilitate such offenders. He points to the failure to treat the respondent's individual needs treating him rather as a member of a group. An interim hearing is not the occasion to comment on those matters, but it will no doubt be an important consideration for the Court on the final hearing as to whether supervised release is the way that this man is to be dealt with if it decides to make an order at all under section 13. Anything else, Ms Maloney or Mr Fenton? MS MALONEY: Just the actual making of the order. HER HONOUR: Yes, the order itself. Well, you handed me a draft order and that looks satisfactory to me so far as it goes. I have just deleted in order 3 "named by this honourable Court" because it is an order of the Court so those words could come out. -- 13 of 14 -- 14 JUDGMENT 1 10 20 30 40 50 60 MS MALONEY: Certainly, your Honour. The only other thing is the actual date for the final hearing. HER HONOUR: Yes. MS MALONEY: Inquiries were made with the Registry on last Thursday morning and at that stage dates in May were suitable. I would be asking for the 24th and 25th of May which allows a period of five weeks prior to the prisoner's release date for the Court to consider its decision before the release date. HER HONOUR: How are you placed on those dates, Mr Fenton, anticipating that you will hold the brief to do the final hearing. MR FENTON: Yes, I think that would be fine. I wouldn't think it would go more than one day. HER HONOUR: Probably not. In fact in my experience they tend not to on the whole, but who can tell what will emerge and sometimes it happens that once the material has been considered the real question is the parties, the Attorney and the respondent's advisers working towards appropriate supervision orders, if that be the outcome. And there is added to that the order which I have made for disclosure. MS MALONEY: Certainly, your Honour. HER HONOUR: Perhaps we should have some days involved in the liberty to apply, three days or two days, given the situation of the respondent. MS MALONEY: Three days. HER HONOUR: Content for that, Mr Fenton? MR FENTON: That's fine. HER HONOUR: And you can always come in differently, of course. All right, so 6 is liberty to apply on three days notice in writing and I will have my Associate add the order about disclosure. anything else, Ms Maloney? MS MALONEY: No, thank you, your Honour. HER HONOUR: Mr Fenton? MR FENTON: No, thank you. ----- -- 14 of 14 --