Attorney-General for the State of Queensland v Purcell [2019] QSC 75

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Purcell [2019] QSC 75 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v HOWARD WILLIAM PURCELL (respondent) FILE NO: BS No 4424 of 2017 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 11 March 2019, ex tempore DELIVERED AT: Brisbane HEARING DATE: 11 March 2019 JUDGE: Bowskill J ORDER: 1. Pursuant to section 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the decision made by Douglas J on 22 September 2017, that the respondent, Howard William Purcell is a serious danger to the community in the absence of a division 3 order, be affirmed. 2. Pursuant to section 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 22 September 2017. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – application for review of continuing detention order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) COUNSEL: J Tate for the applicant T R Morgans for the respondent SOLICITORS: Crown Law for the applicant Fisher Dore Lawyers for the respondent -- 1 of 6 -- 2 [1] Mr Purcell is a 40 year old Indigenous man who is in custody under a continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003. The order was made in September 2017 for the reasons given by Douglas J in Attorney-General v Purcell [2017] QSC 206. As required under section 27 of the Act, the Attorney-General applies for review of that order. [2] In terms of his criminal history, and the offending which saw Mr Purcell become subject of an order under the Act, I refer to the following from Douglas J’s reasons: “[7] The respondent is 38, having been born on 12 November 1978. He was convicted on 18 March 2010 of one count of rape and one count of assault occasioning bodily harm. He was sentenced to 12 years’ imprisonment for the offence of rape. That term was later reduced on appeal to 10 years. [8] The offences occurred on 17 August 2007 in circumstances where the respondent, while on bail for a similar charge of rape which eventually did not proceed because the prosecution entered a nolle prosequi, grabbed a woman from a public street, pushed her into a park, struck her a number of times and then raped her. The respondent claimed at the trial that the intercourse was consensual, a version which the jury rejected. In his sentencing remarks, the learned District Court judge noted that the respondent showed no remorse, had been violent in the past and was violent to the complainant. He did not use a weapon, however, nor threaten to kill her. [9] His previous criminal history included a charge of carnal knowledge by anal intercourse of a child under the age of 12 years and indecent dealing with a child under that age in 1995 when the respondent was a 14 year old. The charge of carnal knowledge did not proceed as a nolle prosequi was entered, but he was sentenced to 18 months’ probation for the indecent dealing charge. Again, on 1 March 1996 he was convicted for procuring a child under 12 years to commit an indecent act. The evidence available on this application suggested, however, that he was now far less likely to be a danger to children. [10] His criminal history included numerous other offences, including several assaults occasioning bodily harm that were committed between 1995 and 2007, breaches of domestic violence orders in 2000 and 2001 and a charge of deprivation of liberty, also in 2000. He was convicted of possession of dangerous drugs on 18 June 2003 and there was a significant body of evidence from which one could conclude that he had a serious drinking problem.” [3] The making of a continuing detention order was opposed by Mr Purcell at the hearing before Douglas J. Having referred to the evidence and the parties’ submissions, the conclusions his Honour reached, leading to the making of the continuing detention order, were as follows: “[53] When weighing up the competing issues relating to whether I should order that the respondent be detained for an indefinite term for control, -- 2 of 6 -- 3 care or treatment or release him under supervision, I find it very difficult to reach a positive conclusion that the proposed supervision order will provide the adequate protection necessary. It is clear to me that the respondent presents a significant risk that he will commit a serious sexual offence if released effectively untreated. [54] His history testifies to that. His late engagement while he has been in custody with the courses available to treat him for the personality disorder from which he suffers and his failure to complete the SOPIM course leave me in a position where I am not confident that a supervision order will address his needs in a manner appropriate to ensure the adequate protection of the community. There are clearly actuarial risks associated with those who commence but do not complete such courses on the evidence. More importantly, it seems to me, his failure to complete the course means that those treating and supervising him are not adequately informed of what should be done to assist him to adjust to the community where he continues to suffer from a significant personality disorder. [55] The argument that the likely risk identified that he will rape an intimate female partner is not reflective of the behaviour previously proved against him in the past is not persuasive. His combination of a conviction for rape and other indecent dealing in the past together with the offences of violence in his record support the conclusion that he does pose a significant risk of committing another serious sexual offence. Whether the potential victim is in an intimate relationship or a stranger as occurred in 2007 is not particularly relevant to the question of risk. [56] The psychiatric evidence also is clear that there are concerns as to his current mental health and his ability to comply with a supervision order in the community. The individual counselling suggested for him before he can undertake the HISOP next year may assist in reducing his risks but, at present, they seem to me to be very significant. Dr Beech’s view that it would be difficult to envisage how the community could be protected from further indecent acts by him even under stringent supervision having regard to his continuing behaviour evidenced by the incident on 28 August 2017, is another illustration of the issues that concern me in considering whether a supervision order can be framed adequately.” [4] From Douglas J’s reasons, it appears the incident on 28 August 2017 that he was referring to was an incident involving an interaction between Mr Purcell and his then female Legal Aid solicitor outside an interview room in a corridor, which was recorded on video, and resulted in the solicitor lodging a complaint with the prison.1 [5] Since that continuing detention order was made, Mr Purcell has participated in the Getting Started: Preparatory Program for Sexual Offending between 6 March and 3 May 2018. The completion report states that he demonstrated some insight into his sexual offending behaviour and accepted responsibility for the offences, although did not explore specific 1 See the reasons at paragraphs 25, 34 to 35, and 37. -- 3 of 6 -- 4 impacts for the victim, and so his level of empathy was said to be “currently unclear”. The report said he participated to an appropriate level, and recommended that he participate in the High Intensity Sexual Offending Program. [6] He has subsequently commenced the High Intensity Sexual Offending Program and is currently still working through that. [7] There is in evidence extracts from Mr Purcell’s offender case file from the period September 2017 to November 2018. In the first few months, the notes reflect what Dr Sundin has summarised as “at times quite testing” behaviour on the part of Mr Purcell, including back chatting supervising officers, becoming involved in an altercation with a prisoner and, for a brief time, threatening to go on a hunger strike. As noted by Dr Sundin, there are multiple recordings which reflect Mr Purcell’s somewhat entitled attitude and approach within the prison, and he was described as manipulative in his behaviour. He had requested to be transferred to Wolston Correctional Centre, and it seems that after that occurred, his behaviour has improved. [8] Mr Purcell was interviewed by Dr Sundin on 11 January 2019, following which she prepared a risk assessment report dated 14 January 2019. Dr Sundin has previously assessed Mr Purcell and prepared reports in October 2016 and May 2017. At the time of his interview with Dr Sundin, Mr Purcell was undertaking the HISOP as well as studying literacy and numeracy. He told Dr Sundin that he expects to finish the HISOP in September 2019. [9] Dr Sundin’s opinion as to Mr Purcell’s diagnoses remains as per her previous reports: antisocial personality disorder and substance use disorder. Similarly, her opinion as to his overall risk remains the same, at moderate to high for future sexual recidivism, with the risk rising to high if he were to resume abuse of intoxicants. Although Dr Sundin did observe that he has developed a more positive attitude towards intervention for his sex offending and is now actively participating in a sex offending treatment program. [10] Dr Sundin expressed the opinion in her report that “it remains essential for Mr Purcell to complete the High Intensity Sexual Offenders Program before release from incarceration.” She notes that he is reporting positive gains from this program and has indicated a desire to remain incarcerated until he completes the program. But Dr Sundin also says that if, once he has completed the HISOP, he has a satisfactory exit report, she would be likely to recommend that he would be suitable for release on a supervision order for a duration of 10 years. [11] Dr McVie has also re-interviewed Mr Purcell on 8 December 2018 and prepared a report dated 12 January 2019. Dr McVie previously prepared reports in August and September 2017. Dr McVie also diagnoses substance use disorder for alcohol and cannabis, and says Mr Purcell’s personality structure includes antisocial, narcissistic and some psychopathic traits. In Dr McVie’s opinion, the actuarial risk assessment instruments place Mr Purcell at high risk of future sexual violence and as having high treatment needs. Dr McVie also considers that he needs to complete the HISOP prior to any consideration for release to the community. But like Dr Sundin, Dr McVie also says that subject to review of his HISOP completion report, she expects his risk could be managed on a community supervision order. Dr McVie also considers Mr Purcell would benefit from other programs in custody to address domestic violence and substance abuse issues. -- 4 of 6 -- 5 [12] Both doctors have given brief oral evidence before the court today and they confirm what they had each said in their written reports, that completion of the HISOP whilst in custody is essential – or vital, to use Dr Sundin’s word. It is also important, they consider, that the exit report or completion report show that Mr Purcell has diligently engaged with the program which, by all accounts, he is doing. [13] Having regard to the material before the court and the parties’ submissions, I am satisfied it is appropriate to affirm the decision made by Douglas J on 22 September 2017 that Mr Purcell is a serious danger to the community in the absence of a division three order. [14] Both Dr Sundin and Dr McVie express the opinion that Mr Purcell must complete the HISOP in custody before consideration can be given to his release to the community under a supervision order. As it appears from their reports, and consistent with the position he has taken on this review hearing today, Mr Purcell is accepting of the need for him to do this. In submissions on his behalf on this review, Mr Purcell does not oppose the making of a further continuing detention order. Having regard to the material, I am satisfied it is appropriate to make that order under section 30(3)(a) of the Act. [15] The issue in this case is the timing of a further review once Mr Purcell has completed the HISOP and further clinical assessments have been conducted by the psychiatrists. As to that, I note that section 27(1B) provides that, following the first review, “there must be subsequent annual reviews while the [continuing detention] order continues to have effect”. Section 27(1C) provides that “each annual review must start within “12 months after the completion of the hearing for the last review under this section”. Section 27(2) provides that the Attorney-General must make any application that is required to be made to cause the review to be carried out. [16] There is no reason why the next review of the continuing detention order could not start, in the sense of an application for a review being filed, as soon as Mr Purcell has completed the HISOP, assuming that will be “within 12 months” from today. Those words mean it must not be started more than twelve months from today, but they do not prevent a review starting less than twelve months from today. The Attorney-General will need to arrange for Mr Purcell to be further examined by two psychiatrists (see section 29(1)) but does not need an order of the Court to do this, because section 29(1) authorises examinations of the prisoner by the two psychiatrists. [17] If steps are taken to arrange these examinations, once the completion report in respect of Mr Purcell’s completion of the HISOP is available, there ought to be minimal delay in the review coming on for hearing by the Court. In the event that the Attorney-General fails to act or fails to act in a timely way, section 28 of the Act also provides for a prisoner to apply to the Court for the prisoner’s continuing detention order to be reviewed, at any time after the Court makes its first review under section 27. Section 28(1) contemplates a requirement for the Court’s leave for a prisoner to apply, on the grounds that there are exceptional circumstances that relate to the prisoner. [18] Having regard to the material before the Court, including the indications in Dr McVie’s and Dr Sundin’s evidence, in the event that there was a failure to act by the Attorney- General, or a delay in acting, it may well be that the Court would take those matters into consideration in giving leave to apply to Mr Purcell, under section 28, so that the matter can appropriately be dealt with in a timely and efficient way. -- 5 of 6 -- 6 [19] For those reasons, I am satisfied it is appropriate to make the order that has been sought, namely, that pursuant to section 30(1) of the Act, the decision made by Douglas J on 22 September 2017, that the respondent, Howard William Purcell, is a serious danger to the community in the absence of a division 3 order, be affirmed; and two, that pursuant to section 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 22 September 2017. -- 6 of 6 --