Attorney-General for State of Queensland v Pearce [2005] QSC 60

State Reporting Bureau feoos] QZCO60 Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY CJ No 1523 of 2005 ATTORNEY-GENERAL FOR STATE OF QUEENSLAND and JESSE SPENCER PEARCE BRISBANE ..DATE 10/03/2005 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 18 March, 2005 Applicant Respondent WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- 1 THE CHIEF JUSTICE: This is an application for an order under section 8 subsection 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent undergo examinations by two psychiatrists. It is agreed that if an order is to be made the psychiatrists should be Drs Lawrence and Moyle each of whom should be able to prepare a report sufficiently in advance of the respondent's full-time release date which is 21st May 2005. On 1st May 1997 the respondent was sentenced to nine years' imprisonment upon pleading guilty to 38 sexual offences against children. When he was sentenced he was 76 years' of age. He is now 84. The offending had continued into the year 1995 when he would have been in his mid-70s. He admitted to the police that he had been engaged in paedophilic behaviour here and overseas since he was aged 22. He was diagnosed as HIV positive in 1993 but continued to offend. During his incarceration he has not participated effectively in the sexual offenders treatment program and was, in fact, in the end, excluded from it. The psychological assessments presently before me put the respondent at a high risk of similar offending should he be released into the community. See, for example, Tamara Smith's report dated 11 February 2005 . The substantial challenge to that view concerned whether Ms Smith attributed appropriate significance to the 10032005 T5-6/IRK13 M/T 1/2005 (de Jersey CJ) 10 30 50 2 JUDGMENT 60 -- 2 of 5 -- 1 respondent's physically debilitated condition. She was aware of his situation as confirmed by the following passage in her report: "Mr Pearce described numerous current health concerns. Liaison with nursing staff at Wolston Correctional Centre verified that these medical concerns are real and current. He reportedly requires 24 hour supervision. A letter on file dated 21st July 2004 from Dr H Ree, Consulting Physician, notes that Mr Pearce was considered 'to be so frail that I cannot believe he could be considered a significant risk to the community'." As I say, that is the substantial point taken by Mr Byrne QC, who appeared for the respondent. Mr Byrne refers also to the circumstances that the respondent is confined to a wheelchair, is faecaly incontinent, has HIV and needs 24 hour care and supervision. Mr Byrne asked rhetorically, "How would the respondent ever, let alone reasonably, be an unacceptable risk of committing a serious sexual offence?" The psychologist concluded that : "Despite the protective factors noted, for example, ill- health and age, it is my clinical opinion that Mr Pearce is still capable of planning and grooming behaviour." It was against a background including his physical debility that she concluded, nevertheless, that he was in the high risk of similar reoffending. In relation to her reference to planning and grooming behaviour, that is, possibly arranging for paedophilic behaviour on the part of others in which he was not a direct participant, one notes that the respondent's history includes circumstances where he has watched others engaging in 10032005 T5-6/IRK13 M/T 1/2005 (de Jersey CJ) 10 20 30 40 50 3 JUDGMENT 60 -- 3 of 5 -- paedophilic behaviour for his, that is, the respondent's own gratification. His past offending has been characterised by a grotesqueness and persistence which, to my mind, raises a real prospect that even in his debilitated state he would, as the psychologist fears, make serious efforts to rekindle this activity if given the opportunity. Of some significance also is that he has nominated, for prison purposes, as his current emergency contact and "close friend" a person convicted in 1997 of sexual offences against children. I take the force of Mr Byrne's submission but, notwithstanding that, I am satisfied that there are reasonable grounds for believing that the respondent is a serious danger to the community in the absence of a division 3 order in that there would be an unacceptable risk that if released he would commit a serious sexual offence. I acknowledge the care which must attend the Court ' s assessment of these applications. I draw my particular conclusion under section 8 subsection 1 from the combination of the respondent's antecedents and criminal history, the pattern of his offending behaviour in the past, the absence of any real effort on his part to address the causes of his offending behaviour and the psychological assessments presently before me, especially the latter, I might say. Have you got a draft order, Mr Hinson? 10032005 T5-6/IRK13 M/T 1/2005 (de Jersey CJ) 4 JUDGMENT -- 4 of 5 -- MR HINSON: I don't, I regret to say, your Honour. THE CHIEF JUSTICE: Well, I will order that the respondent undergo examinations by Dr Moyle and Dr Lawrence on the basis that those psychiatrists prepare independent reports pursuant to section 8 subsection 2 paragraph (a) of the Dangerous Prisoners (Sexual Offenders) Act 2003. 10032005 T5-6/IRK13 M/T 1/2005 (de Jersey CJ) THE CHIEF JUSTICE: I further order, pursuant to section 8 subsection 1, that the hearing of the application for a division 3 order take place on the 3rd, 4th and 5th May 2005. 1 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 5 --