Attorney-General for the State of Queensland v Hynds [2019] QSC 59

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Gregory Alan Hynds [2019] QSC 59 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v GREGORY ALAN HYNDS (respondent) FILE NO/S: BS No 7584 of 2007 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 25 February 2019 DELIVERED AT: Brisbane HEARING DATE: 25 February 2019 JUDGE: Jackson J ORDER: The order of the court is that: 1. Pursuant to section 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) the decision, made on 7 December 2007, that the respondent, Gregory Alan Hynds, 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, it is ordered that the respondent continue to be subject to the continuing detention order made on 15 December 2017. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was subject to examination by psychiatrists for the purposes of the application – whether the respondent, pursuant to s 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) remains a serious danger to the community – whether adequate protection of the community can only be ensured at -- 1 of 9 -- 2 this time by the making of a continuing detention order under s 30(3)(a) of the Act Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 30 COUNSEL: J Rolls for the applicant D Caruana for the respondent SOLICITORS: Crown Law for the applicant Guest Lawyers for the respondent JACKSON J: [1] This is a review of a continuing detention order. [2] On 7 December 2007, Fryberg J ordered that the respondent be detained in custody for an indefinite term for control, which I will call the first continuing detention order. See Attorney-General for the State of Queensland v Hynds [2007] QSC 374. [3] On 19 October 2012, Fryberg J made an order to rescind the first continuing detention order and ordered that the respondent be released from custody subject to the requirements of a 10-year supervision order. See Attorney-General for the State of Queensland v Hynds & Anor (No 3) [2012] QSC 318. [4] On 15 December 2017, Brown J made an order that the supervision order be rescinded and the respondent be detained in custody for an indefinite term for care control or treatment, which I will call the second continuing detention order. See Attorney-General for the State of Queensland v Hynds [2017] QSC 313. [5] Accordingly, this application is for the review of Brown J’s order. [6] As recorded in Fryberg J’s reasons for judgment for making the first continuing detention order, the offences for which the respondent was in prison were the only offences he has ever committed outside the navy. They occurred on two separate occasions. [7] On the first occasion the respondent had befriended the wife of one of his navy colleagues. He called at her home on two occasions whilst she was alone with her baby and, according to her, nothing occurred on those occasions other than a casual chat over a cup of coffee after which he left. [8] On the evening of 3 April 1988 he again arrived without prior arrangement at her home. On this occasion his colleague was at home with his wife. They went out, leaving the colleague’s wife at home with the baby. They attended a number of clubs before the respondent told the colleague he was going to the toilet. In fact, the respondent departed from the club and returned to the colleague’s residence. He gained entry by pretext, produced a knife and threatened the wife with the knife, procured her to have vaginal and oral intercourse, each on two occasions. He attempted anal penetration but was unable to do so. After that, he attempted to strangle her both manually and with a telephone cord. She suffered subconjunctival haemorrhage. He was kneeling over the victim, threatening -- 2 of 9 -- 3 her with a knife, when the husband came in and rescued her. I will call this the first episode of offending. [9] He was charged and granted bail in relation to those offences. Whilst on bail eight months later he enticed the wife of another navy colleague to an isolated spot and committed sexual offences upon her. On that occasion he arranged for someone to ring the victim and tell her that her husband had been involved in a motor vehicle accident and that the navy was arranging for her to be flown to Sydney. Shortly afterwards the respondent arrived in a navy truck, picked the victim up and drove her to an isolated airfield. He produced a knife, which he used to subdue the victim to have sexual intercourse without consent. I will call this the second episode of offending. [10] On 1 December 1989, for the first episode of offending, the respondent was convicted of attempted murder; threatening to inflict actual bodily harm with intent, by means of weapon, to have sexual intercourse; sexual intercourse without sex x 4, and attempted sexual intercourse without consent. [11] On 15 December 1989, for the second episode of offending, the respondent was convicted of enticing away for abduction; sexual intercourse without consent x 2, and threatening to inflict bodily harm by means of weapon. [12] The sentences commenced on 19 August 1988 and continued for a term of almost 19 years and six months. [13] In 1996 he was transferred from New South Wales to Queensland under the Prisoners (Interstate Transfer) Act 1982 (NSW), on welfare grounds. [14] On 7 December 2007, Fryberg J made the first continuing detention order on the ground that he could not be satisfied that the protection of the community could be adequately ensured by making a supervision order, notwithstanding the respondent’s productive behaviour in prison; other courses he had completed, and the assistance he had given to younger prisoners. There was also a question about whether the respondent had work and accommodation available if he were released, that was inadequate in the circumstances. But, more importantly, Fryberg J was concerned that the respondent’s account of what had happened on both the first and second episodes of offending amounted to continuing changes of story that were either irrational or deliberately obstructive, and that he did not believe the respondent honestly believed in his own innocence. [15] In circumstances where all of the reporting psychiatrists who gave evidence on that occasion were concerned with whether the respondent could be relied upon to comply with the conditions of a supervision order, Fryberg J found that he was unable to assess the extent of the seriousness of respondent’s attitude to rehabilitation and of his intention to adhere to the conditions of a supervision order, so that he could not really rely on the respondent to comply with the conditions proposed and there was a real risk that he would not comply, so that the paramount consideration of the need to ensure adequate protection of the community was not satisfied. [16] On 19 October 2012, Fryberg J gave detailed reasons for rescinding the first continuing detention order. Those reasons also recorded the outcome of a review of that order on 9 December 2009. On that first review the judge recorded that it had been recommended that the respondent undertake a High Intensity Treatment Sexual Offenders Program, -- 3 of 9 -- 4 abbreviated to HISOP, but had not done so. The reason was that he refused to go to the Wolston Correction Centre for that program because the majority of the prisoners who undertake the course there are child sex offenders, with whom he was not willing to associate. He expressed preparedness to undertake HISOP at Lotus Glen, but that facility was intended for indigenous offenders. For present purposes, it is relevant to note that the judge on that occasion was not prepared to draw an inference against the respondent that he was not, in truth, prepared to undergo such a program, but that in view of the fact that he had not done so, and in the light of the two psychiatrists’ opinions on that occasion, it was ordered that the respondent continue to be subject to the first continuing detention order. [17] Fryberg J’s reasons for rescinding the first continuing detention order also dealt with the second review of that order on 11 October 2010. Again the issue was whether there should be a supervision order or continuing detention order. On that occasion, the judge held that the considerable uncertainty that existed about the respondent’s motivation in committing his crimes and, accordingly, what may prompt him to behave in the same or similar way if released into the community under a supervision order, among other things, warranted him remaining in custody under the first continuing detention order. Again, a significant factor was the respondent’s reluctance to undertake a HISOP with other members of a group who were child sex offenders, with whom he did not want to associate or reside. [18] However, on that occasion the judge was not prepared to be critical of the respondent’s attitude toward taking the program. Relevantly, the judge described the matter as a troubling case and held that it was a very serious matter to continue the respondent’s detention in custody in circumstances in which he had undertaken a large number of measures directed towards his rehabilitation; had well-developed and realistic plans for his release; had family and financial support upon release, and had advanced legitimate reasons not to participate in a HISOP at Wolston. Nonetheless, the judge continued the first continuing detention order. [19] On the third review of the first continuing detention order Fryberg J made the order rescinding it and made a supervision order. Leading up to the decision, there had been a conflict of psychiatric evidence as to the most appropriate treatment of the respondent. Correctional Services Queensland had begun the implementation of one of the proposals. The respondent was dissatisfied as to whether it complied with the orders made on the second review of the first continuing detention order. Perhaps not surprisingly, the respondent reiterated his refusal to transfer to Wolston to be amongst paedophiles in order to attend the HISOP. [20] The third review hearing was conducted over four days. The respondent’s lawyers withdrew on the fourth day. At the end of the fourth day it was still not completed. It then continued into not only a fifth but a sixth day of hearing. [21] Notwithstanding that he considered the respondent to be extremely evasive when questioned about episodes of offending, and made further trenchant findings that the respondent had fabricated significant parts of his explanations or story, as the product of fantasising, Fryberg J did not accept the opinion of one of the psychiatrists that the respondent ought to undertake a program described as “Cognitive Self Changes: Making Choices” before his release. Fryberg J held that the department had no intention of providing psychotherapy in accordance with the court’s reasons and order made on the -- 4 of 9 -- 5 second review of the first continuing detention order, and concluded that he was satisfied that the adequate protection of the community could be ensured, and could be reasonably and practicably managed, by a supervision order. [22] Paragraphs 17 and 19 of the supervision order provided that the respondent was required to respond truthfully to inquiries by a Corrective Services Officer about his activities, whereabouts, and movements generally and to disclose to a Corrective Services Officer, upon request, the name of each person with whom he associated and respond truthfully to requests for information from a Corrective Services Officer about the nature of the association, address of the associate known, and activities undertaken, and whether the associate had knowledge of his prior offending behaviour. [23] At several case management meetings between 22 April 2015 and 7 July 2015, the respondent failed to respond truthfully and to provide information requested by not disclosing his ongoing relationship and contact with his female neighbour, Ms EY, when questioned by his case worker. [24] The applicant brought a proceeding in relation to the contraventions entailed of paragraphs 17 and 19 of the supervision order. The respondent conceded that there was a contravention on 3 June 2015. He conceded a contravention of paragraph 7 on 22 April 2015, subject to one question, and similarly on 5 May 2015. The qualifications do not presently matter. The alleged contraventions were based on the contacts, activities and messages that were exchanged between the respondent and Ms EY. [25] On 16 July 2015, the respondent was arrested and taken into custody. [26] On 28 July 2015, a laptop computer, that was held to be the respondent’s, was removed from his room and given to the police. A forensic examination of the laptop was undertaken. It revealed several Google searches relating to “Eritrea”, “what happens if I take 20 milligrams of Rohypnol’’, “the position of main body organs”, “buy 20 milligrams of Rohypnol”, “the protocol in marrying an Eritrean woman”, “learn about Eritrean culture”, “how do I get close to an Eritrean woman” and other searches related to PC cleaner and relating to pornography, including child exploitation material and bestiality. [27] The examination also revealed 30 images of Ms EY; 29 child exploitation images, including those depicting bondage, rape and inflicting injury; 9 pornographic images, including sexual activity involving nuns; 12 pornographic images depicting African women engaged in sexual activity with Caucasian men; five images depicting rape, sexual bondage and strangulation of women by men; three images on a pornographic website entitled “cruel family, father’s daughters” and “grandpas fuck teens”; 18 images depicting major organs or their positions in the body; and 242 images of prescription drugs, the majority being sedatives or having a sedative-like function. Brown J found that the applicant had satisfied her that the contraventions alleged had occurred and it was for the respondent to discharge the onus to demonstrate that the adequate protection of the community was able to be ensured by his continued release on a supervision order. The respondent conceded at the hearing that he had not discharged that onus. Accordingly, the supervision order was rescinded and a second continuing detention order was made. -- 5 of 9 -- 6 [28] Brown J went on to hold that she accepted the opinions of two psychiatrists who considered that the respondent should undertake a HISOP in custody before consideration is given to his further release under a supervision order as that will provide considerable information as to the nature of the risk of the respondent’s reoffending by committing a serious sexual offence and the triggers to his behaviour, which will feed into the appropriate terms of any supervision order and to those supervising him to manage his supervision. [29] At the time of Brown J’s judgment on 15 December 2017, the respondent had agreed to participate in a sexual offenders’ program, or HISOP. However, in the intervening period, he has not done so. [30] On 9 October 2017, the respondent requested an interview and was prepared to participate in a program, but voiced concerned that he might be required to do so with child sex offenders. As the history I have recounted shows, this was not a new concern. [31] On 5 June 2018, he was seen by a senior psychologist. He was offered a place in the “Getting Started” program. He declined the offer. But the Getting Started program is not a sex offenders’ program per se and is certainly not the HISOP. [32] On 6 June 2018, the day after, the respondent was seen again. He was again offered the Getting Started program. He said he wanted to place the offer on the backburner as he had already completed that program around 2007. The respondent was concerned that he was unable to immediately commence the HISOP because of a lack of space in the program. The applicant does not deny that was true. [33] Further interviews or meetings reiterated that position apparently. The respondent was again offered a position in the Getting Started program on 7 September 2018 and 11 January 2019. The applicant’s position is that, although the respondent had completed the Getting Started program in 2007 or around then, it would appear that, due to the passage of time, he would need to undertake this program again. That view was supported by each of the reporting psychiatrists who gave evidence today. The respondent’s position is that the applicant may be using a requirement that he complete the Getting Started program as a way of avoiding the fact that no HISOP has been available to him since 15 December 2017. [34] Pursuant to s 29 of the Act, the applicant has filed and served a report of Dr Andrew Aboud dated 30 January 2019 and a report of Dr Rob Moyle dated 15 January 2019. Dr Aboud was one of those who gave a report for the purposes of the hearing before Brown J on the contravention application leading to the judgment on 15 December 2017. In his January 2019 report, he reiterates the previously expressed view that the respondent should successfully undertake a HISOP. That, together with careful management, subject to a supervision order, would reduce the respondent’s risk of recidivism to below moderate. [35] On reflection, Dr Aboud expressed the opinion to qualify that view by saying that there will need to be a careful reassessment with regard to the HISOP completion report as it is not automatic that the risk of reoffending would reduce to below moderate, but would depend upon information obtained as a result of the respondent’s participation in the HISOP. The respondent views such an approach as setting up completion of the HISOP as a pre-condition to the respondent’s release on a supervision order. -- 6 of 9 -- 7 [36] Dr Moyle’s report was provided and prepared late. In general terms, Dr Moyle’s opinions are similar to those of Dr Aboud. He opines that the respondent’s risk on a supervision order is moderately high as he had shown that, even with close observation, he can try to evade detection of developing friendships with adult females. He says that once the respondent has completed a program in custody to explain his motives and developing strategies to minimise that risk, he will be suitable for another try at his supervision order. Again, the tenor is that completion of a HISOP should be something of a pre-condition, in Dr Moyle’s view, to the respondent’s release on a supervision order. [37] Both Dr Aboud and Dr Moyle consider or touch on the question as to whether the respondent might warrant a diagnosis of paraphilia or sexual sadism or deviance. Dr Aboud concludes that he is unable to make a diagnosis of any paraphilia at this point, while Dr Moyle seems more inclined to do so. However, otherwise, their psychiatric opinions of the respondent generally coincide. Both diagnosed him as having mixed personality disorders with narcissistic, antisocial, paranoid and some schizoid features, as well as some psychopathic features. Both identified the respondent as having alcohol use disorder in remission. [38] The first question on an application of review of a continuing detention order is whether the court affirms the decision that the prisoner is a serious danger to the community in the absence of a Division 3 order. The court may affirm the decision only if it is satisfied by acceptable cogent evidence to a high degree of probability that the evidence is of sufficient weight to affirm the decision. See Dangerous Prisoners (Sexual Offenders) Act 2003 s 30(1) (“the Act”). The underlying question is considered having regard to the matters identified in section 13(4) of the Act. [39] In the respondent’s case, there has not previously been a serious dispute and the court has, on the occasions previously identified, found on each occasion that he is a serious danger to the community in the absence of a Division 3 order. There is nothing in the more recent opinions of Drs Aboud and Moyle that would suggest a contrary conclusion and nothing in the circumstances that have come into being since 15 December 2017 that would suggest a contrary conclusion. I am well satisfied that, in the absence of a Division 3 order, the respondent is a serious danger to the community and I have no doubt that satisfaction is informed by both acceptable cogent evidence and that the evidence is of sufficient weight to affirm the decision to a high degree of probability. [40] The live question for determination on the hearing of this application might have been whether, having affirmed the decision, the respondent is in a position where the court should order that he continue to be subject to the second continuing detention or, instead, be released from custody subject to a supervision order. In making that decision, the paramount consideration is the need to ensure adequate protection of the community. See s 30(4) of the Act. [41] Many cases have sought to explicate the relevant considerations and limits of the balancing exercise required to be made in making the decision having regard to that paramount consideration. For my part, it is probably better not to attempt to qualify the statutory language one way or another. It is better to apply it directly having regard to the circumstances that have informed previous decisions and the evidence in this case. [42] The applicant notes the equivocation of the evidence of the psychiatrists as to whether or not the respondent suffers from paraphilia or sexual sadism. The applicant submits that -- 7 of 9 -- 8 the respondent has been offered places in treatment programs, but refused. I note, as previously set out, that he has not been offered a place in a HISOP. And there has been no suggestion that he has been offered a place in any other sexual offenders’ treatment program, except the Getting Started program, which is, as I have previously stated, not a sexual offenders’ treatment program per se. [43] The psychiatrists opine that his participation in and completion of a HISOP might be expected to better inform the respondent’s circumstances for the decision as to whether he might be released on a supervision order. However, it is not entirely clear in what way they may do so, or in what way it would be useful to a decision on whether the respondent should be released on a supervision order as opposed to remaining on the second continuing detention order. I accept that there must be a significant possibility that the respondent suffers from paraphilia. I also accept that neither of the psychiatrists has opined that the respondent’s release would be able to be addressed by a supervision order. That is a question for the court, not the psychiatrists as such. What weight, therefore, should be given to the psychiatrists’ opinions that the respondent should not be considered for a supervision order until he takes a HISOP? [44] I do not accept that the question under s 30(4) is whether a supervision order would be efficacious in restraining the respondent’s behaviour by preventing the opportunity of the commission of sexual offences. It is inaccurate, in my view, to describe a supervision order as preventing the opportunity of the commission of serious sexual offences. A supervision order can reduce the risks and it can limit the opportunities, if observed, but it is the observance of the order and the measures that are in place that see to compliance with the order, that are the keys to its operation. [45] It would be wrong, however, in my view, to downplay the seriousness of the potential risk of further serious sexual offending by the respondent. That is signalled by the circumstances surrounding his contravention of the first supervision order between April and July 2015, even now, although that contravention took place more than three and a- half years ago and it must always be remembered that it was not, in itself, a serious sexual offence or any offence except an offence of contravening the order. It also must be remembered that the supervision order by Fryberg J on 19 October 2012 was in operation for two and a-half years without the respondent otherwise committing a further offence. [46] Notwithstanding those concerns, in the circumstances of the present application by way of review and having regard to the evidence and submissions made by the applicant and the submissions made by the respondent, in my view, the correct conclusion is that the second continuing detention order should continue. [47] Specifically, the summary of the respondent’s submission is as follows. Ultimately, the respondent remains willing to participate in the HISOP. Despite his concerns and reluctances, he has consistently expressed that he is still willing to engage in the program. He accepts that, without his participation in the HISOP, the court would deem him to be an unacceptable risk of committing further sexual offences and would be minded to make a continuing detention order to ensure the safety of the community. He reiterates his frustration at the slow progress, but submits his frustration finds some explanation in the delays regarding his treatment. Regardless of his attitude to date, the earliest he would have been able to complete the HISOP was June of 2019. As matters presently stand, no programs are available to him until November of 2019. -- 8 of 9 -- 9 [48] The respondent submits that the court would not find he is an untreatable sex offender, an expression used by Dr Moyle in his opinion. I accept that submission. I would not, on the evidence, as it presently stands, make such a finding. As the respondent submits, in my view, nevertheless, he currently poses a significant risk of reoffending and does require treatment. A continuing detention order should be made or continued, although I endorse the submission that the respondent should continue to be offered placement on the HISOP so that his risk can be further assessed on the next review and the question whether he might then be placed on a supervision order seriously addressed. [49] The order is as follows: (1) Pursuant to section 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the decision made on 7 December 2007 that the respondent, Gregory Alan Hynds, is a serious danger to the community, in the absence of a Division 3 order, is affirmed. (2) Pursuant to section 30(3)(a) of the Act, it is ordered that the respondent continue to be subject to the continuing detention order made on 15 December 2017. -- 9 of 9 --