Attorney-General for the State of Queensland v Foy [2006] QSC 143

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General v Foy [2006] QSC 143 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v MARK ANTHONY FOY (respondent) FILE NO/S: BS 8990 of 2004 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 14 June 2006 DELIVERED AT: Brisbane HEARING DATE: 13 and 14 June 2006 JUDGE: McMurdo J ORDER: 1. The Court is satisfied on the balance of probabilities that the Respondent, Mark Anthony Foy has contravened the supervision order made by Justice Douglas on 6 January 2005. 2. The Court is satisfied that it is appropriate to amend the conditions of the supervision order made on 6 January 2005 in accordance with the conditions set out in the reasons for judgment. 3. The Respondent be subject to the supervision order as amended until 31 December 2014. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT– SENTENCE – OTHER MATTERS – QUEENSLAND – where on 6 January 2005 a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 was made against the respondent – where the respondent has breached at least one of the conditions of the supervision order – where the applicant applies to have that order rescinded and for the respondent to be returned to custody under a continuing detention order – where alternatively the applicant seeks an amendment of the present supervisory regime – whether the respondent should be returned to custody under a continuing detention order or the conditions of the supervision order -- 1 of 8 -- 2 should be amended Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Drugs Misuse Act 1986 (Qld) Penalties and Sentences Act 1992, s 114 COUNSEL: M D Hinson SC for the applicant M A Green for the respondent SOLICITORS: C W Lohe Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] McMURDO J: On 6 January 2005 a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was made against the respondent. The Attorney-General now applies to have that order rescinded and for the respondent to be returned to custody under a continuing detention order. Alternatively the Attorney seeks an amendment of the present supervisory regime. [2] The nature and extent of the respondent’s sexual offending is described in the judgment of Douglas J when making the supervision order last year. That judgment also summarises the respective opinions of three psychiatrists, none of whom advocated his continuing detention. They included Dr Lawrence and Professor Nurcombe who are witnesses in the present application. His Honour observed that the psychiatric evidence was to the effect that a supervisory order was more likely to have a beneficial result than continuing imprisonment in respect of the respondent’s risk of further offending. The supervision order which was then made was for a term of ten years and was subject to extensive conditions. It is a breach of at least one of those conditions which leads to the present application. [3] That condition was that he abstain from alcohol and non prescribed drugs for the duration of the order. The respondent told Professor Nurcombe, who interviewed him on 17 March 2006, that from about September 2005 the respondent had used intravenous methylamphetamine once or twice per week, until last February. That admission is confirmed by the respondent through his counsel.1 The respondent also accepts the summary of the circumstances of the operation of this order, set out in Professor Nurcombe’s report of last March, which is to the following effect. [4] The respondent attended the Sex Offender Maintenance Program between 24 January and 18 April 2005. His facilitators reported that his participation in the program was satisfactory. He co-operated with the facilitators but he missed the last of the eight sessions of the program and was late for another two, and it was reported that many of his comments as a participant “appeared superficial”. The author of an Offender Management Review of 17 June 2005 noted that there was no evidence to suggest that he had had contact with children, that he had provided a Relapse Prevention Plan, that urine/breath testing up to that time had revealed no alcohol or illicit drug intake and that the respondent was highly motivated to seek employment although he had recently been dismissed from a position. Again, according to that Review of last June, the respondent had then “done all that could be reasonably expected of him to secure employment” and he “appeared genuine in his attempt to comply with the Order”. But it seems that in the second half of 2005, he began to use illicit drugs and in particular methylamphetamine. A sample of 1 Outline of Submissions paragraphs 6 and 7 -- 2 of 8 -- 3 urine taken on 19 December 2005 was found to contain opiates, amphetamines, cannabinoids, cocaine and benzodiazepines. A specimen of urine collected on 29 December 2005 contained traces of benzodiazepine, amphetamine and cannabinoids. [5] A forensic medical officer employed by Queensland Health concluded in a report of 9 March 2006 as follows: • With one exception, 12 samples of urine collected between 13 October 2005 and 15 February 2006 indicated the presence of methylamphetamine and its metabolite in consistent amounts; • These amounts were in a range of concentration reported in people taking methylamphetamine regularly; • Cocaine metabolites were detected on only one occasion as were cannabinoids; • Morphine was detected on three occasions; • The evidence was unequivocal that the respondent was taking methylamphetamine regularly between October 2005 and February 2006. [6] On 14 February 2006 the respondent appeared in the Magistrates Court charged with two offences under the Drugs Misuse Act 1986 and another offence involving the same circumstances. The respondent is defending those charges and they are not relied upon by the Attorney-General as breaches of the present supervisory order. [7] The present application was then filed and the respondent appeared on its initial return date of 20 February. He then told Ms Walker, his supervisor from the Department of Corrective Services, that he was still using amphetamines but that he was motivated to stop and had an appointment with the Biala Facility in the coming week. On 21 February he was given a notice to leave his accommodation but it appears that he was permitted to stay through the intervention of the Department. On 27 February he told Ms Walker that he had not used illicit drugs since 17 February and he appeared to her to be lucid. [8] On 10 March 2006 the Director of Public Prosecutions applied to revoke the bail granted in relation to those drug charges. That application was dismissed by a judge of this court on 13 March. [9] On 13 March he was seen by Dr Lawrence who has provided one of the psychiatric evaluations for these proceedings. On 14 March he was taken into custody upon other charges. Hence he was in custody when interviewed by Professor Nurcombe on 17 March. He was released on bail on about 22 March. [10] Since then his circumstances have significantly improved. He has obtained employment and Ms Walker recorded him as “motivated to succeed in that employment”. He is attending a detoxification program at Biala and all of his drug testing since last February has produced satisfactory results. And he is in different and permanent accommodation. His apparent health has improved, according to Ms Walker. He is paying off some of his debts. -- 3 of 8 -- 4 [11] On 6 March 2006 he was directed to attend a Sexual Offenders Maintenance Program commencing on 8 March. He attended the first session but did not attend the next because he was in custody after which he was excluded from the program. His attendance upon Dr Wright, a consultant psychiatrist, has not been entirely satisfactory. Dr Wright says that the respondent has been unreliable in meeting appointments, at least on time, and in his view was not fully committed to receiving treatment. He says the respondent was not taking the anti-depressant medication which had been prescribed for him. The respondent has said different things at different times about this and I would not be prepared to find that he has not taken the anti-depressant medication as prescribed and as required by condition (r) of the existing order, by which he is required to take drugs as directed by a medical practitioner. The Attorney-General does not press for such a finding. [12] A further condition of the order is that he not visit public parks, yet his arrest in February 2006 occurred in a public park. A further condition requires him to notify details of any vehicle “owned or generally driven by him”. He notified his purchase of a particular car in April 2005 but the car he was driving when arrested in February 2006 had not been the subject of a notice. This had been hired and the respondent says that he has been hiring cars on a regular basis but different cars from time to time so that there is no hired car which is “generally driven by him”. Again, the Attorney-General does not press for such a finding. I am not satisfied that he has breached this condition in relation to vehicles. Condition (f) requires him to report to his Corrective Services Officer every Monday and Friday. In November last there was a series of missed Monday appointments, that appears to have been remedied. [13] In summary the operation of the supervision order made in January 2005 can be summarised by reference to three periods of time. The first is until about last September, during which the respondent was performing satisfactorily. But from then until about mid February 2006 he was taking illicit drugs, out of work and subject to attempts to dislodge him from his accommodation. It was that set of circumstances which, not surprisingly, brought the present application by the Attorney-General. Since March 2006 no test has revealed any further use of drugs and the respondent has found employment and alternative and apparently satisfactory accommodation. He has been in his present employment for nearly three months. [14] When Professor Nurcombe and Dr Lawrence wrote their reports last March, they were acting upon the circumstances of the preceding six months or so. With the benefit of more recent events, and in particular the respondent’s non use of drugs, his employment and his new accommodation, their respective opinions have changed and now favour the continuation of a regime of supervision rather than a return to prison. [15] In his report Professor Nurcombe had said that the respondent’s use of drugs signalled an unacceptable increase in the risk of further offending, including sexual offending. He said that there was no immediate alternative other than to return the respondent to prison for his own protection and treatment and that prior to his release, stable accommodation and satisfactory employment were required, without which it was not possible for him to cope with the requirements of a post-release program. So it can be seen that the three critical considerations which had led him -- 4 of 8 -- 5 to advocate a return to custody have now been met by the way in which the respondent has addressed these problems in the past three months. [16] Similarly, in her report Dr Lawrence had been particularly concerned by the respondent’s use of drugs and his participation in an illicit drug culture. Dr Lawrence had assessed him as being at a high risk of re-offending, including sexual re-offending. But with the benefit of information as to his present circumstances, her view has changed. Dr Lawrence says that it is a “very positive thing” that the respondent has found employment and kept it and it is also beneficial that he has found more suitable accommodation. She is also persuaded by his more recent history of being drug free and his attendance at a detoxification program and an alcohol/drug counselling program at Biala. And like Professor Nurcombe, she did not advocate that the respondent be returned to prison. [17] Because the respondent has contravened the supervision order made last year, the court may now amend the conditions of that order, or rescind it and make a continuing detention order or make another order considered appropriate to achieve compliance with the supervision order or ensure adequate protection of the community. As I have said, neither of the psychiatrists now recommends the rescission of the supervision order and its replacement by a continuing detention order. Importantly, the changes in the respondent’s circumstances are not matters that appear simply from what the respondent says has happened. They are verified facts and conceded by the Attorney-General. I accept the submission of Mr Green, on behalf of the respondent, that provided the respondent maintains his present level of compliance with the supervision regime, he cannot be said to be any greater risk to the community than when the supervision order was made, and in some respects, he is better placed to comply in that he has this employment and accommodation. The respondent has proposed a further condition, corresponding with the terms of s 114 of the Penalties and Sentences Act 1992 relating to intensive correction orders, that if directed by a Corrective Services officer, he will reside at community residential facilities for periods (not longer than seven days at a time) as so directed. As the Attorney-General accepts, such a condition would allow the Department of Corrective Services to act immediately to place him in a drug treatment facility should any test show the presence of an illicit drug. This adds to the protection to the community. So do other conditions proposed by the Attorney-General as appropriate variations to the existing supervision regime. [18] In the circumstances I am not satisfied that adequate protection of the community requires the rescission of the supervision order and the respondent’s return to prison. Accordingly it will be ordered that the supervision order be varied as proposed by the alternative application of the Attorney-General and by that particular further condition proposed by the respondent. The supervision order will be amended so that it is subject to the following conditions until 31 December 2014: (a) be under the supervision of a corrective services officer (“the supervising corrective services officer”); (b) reside at a place within the State of Queensland that has received prior approval from a corrective services officer by way of a suitability assessment; (c) not be in the area within 100 metres of the boundary of any school -- 5 of 8 -- 6 grounds between 7.30 am and 4.30 pm on school days without reasonable excuse; (d) report to his supervising corrective services officer on Monday and Friday every week, such visits to occur at the Area Office closest to Mr Foy’s residence; (e) report to the officer in charge of police at Goodna or Roma Street between the hours of 8 am and 4 pm on a weekly basis, on either Saturday or Sunday or at such police station as otherwise directed by the supervising corrective services officer; (f) notify the supervising corrective services officer of any affiliation with any club or organisation that has child membership or child participation in its activities; (g) comply with every reasonable direction of an authorised corrective services officer; (h) notify the supervising corrective services officer of the make, model, colour and registration number of any motor vehicle owned by, or generally driven by him, whether the vehicle is hired or otherwise obtained for his use; (i) notify the supervising corrective services officer of the nature of his employment, the name of his employer and the address of the premises where he is employed; (j) notify the supervising corrective services officer of every change of his name, place of residence or employment at least two business days before the change happens; (k) not leave or stay out of Queensland without the written permission of the supervising corrective services officer; (l) not commit an offence of a sexual nature during the period for which these orders operate; (m) not be on the premises of shopping centres between 8.00 am to 9.30 am and between 2.30 pm and 4.30 pm on school days other than for the purpose of his employment; (n) not visit either: (i) any public parks, or (ii) other public places containing children’s playgrounds; (o) not have any unsupervised contact with children under 16 years of age except with the supervising corrective services officer’s prior written approval and provided the respondent discloses the terms of this order to the guardians of the child/ren before any such contact takes place; -- 6 of 8 -- 7 (p) abstain from alcohol and non-prescribed drugs for the duration of this order and take prescribed drugs as directed by a medical practitioner; (q) submit to alcohol and drug testing as directed by a corrective services officer; (r) not access pornographic images containing photographs of children on the Internet; (s) attend and complete a Sex Offender Maintenance Program; (t) attend a psychiatrist, psychologist or other suitably qualified mental health professional who has been approved by the supervising 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; (u) permit any treating psychiatrist, psychologist, or other suitably qualified mental health professional 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 such request is made in writing for the purposes of enhancing rehabilitation and/or updating or amending the supervision order and/or ensuring compliance with this order; (v) attend any program, course, counselling, therapy or treatment, in a group or individual capacity, as directed by the supervising corrective services officer in consultation with the treating psychiatrist, psychologist or other suitably qualified mental health professional, the expense of which is to be met by the Department of Corrective Services; (w) agree to undergo medical testing or treatment as deemed necessary by the treating psychiatrist/psychologist in consultation with the supervising corrective services 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 supervising corrective service officer that sexual impulse medication is an appropriate course of therapy/treatment this is only to occur with the respondent’s consent; (x) the frequency of reporting as stated in clauses (d) and (e) contained herein may be changed, providing the reporting conditions are not more onerous to the respondent, if the supervising corrective services officer considers that in all the circumstances, such a change is warranted; (y) the respondent must, if the supervising corrective services officer -- 7 of 8 -- 8 directs, reside at community residential facilities for periods (not longer than 7 days at a time) that the officer directs. -- 8 of 8 --