Attorney-General v Cain [2018] QSC 132

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Cain [2018] QSC 132 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v RYAN THOMAS CAIN (respondent) FILE NO: BS 13531 of 2017 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 28 May 2018, ex tempore DELIVERED AT: Brisbane HEARING DATE: 28 May 2018 JUDGE: Bowskill J ORDER: Supervision order made, as per the schedule to these reasons. 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 a supervision order under s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent was convicted of the violent rape of an adult woman, committed one day after his release from custody after serving a sentence for earlier offences involving violence – whether the respondent is a serious danger to the community if released in the absence of a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) COUNSEL: A Meisenhelter for the applicant C R Smith for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent -- 1 of 12 -- 2 [1] In May 2008, the respondent Ryan Cain was convicted following a trial of the violent rape of a woman known to him. He had been released from prison the day before the rape. On his release, he was collected by a friend he had met as a young man and brought back to the friend’s home to stay with him. The victim of the rape was his friend’s wife. He was sentenced to 11 years’ imprisonment. He is due to be released, having served the whole of that sentence, on 7 June 2018. The Attorney-General applies for an order under section 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent be released from custody subject to a supervision order made under the Act. [2] Although the application as filed also sought an order for indefinite detention, that was not pressed on the hearing, it being accepted by the Attorney-General that release subject to a supervision order could provide the requisite adequate protection for the community. The respondent does not contest the making of a supervision order and the parties agree on the terms of the proposed supervision order. Having considered the material on which the Attorney-General relies, for the following reasons, I am satisfied it is appropriate to make a supervision order for a duration of five years. [3] An order may only be made under section 13(5) of the Act if the court is satisfied the prisoner is a serious danger to the community in the absence of such an order. A prisoner is a serious danger to the community under section 13(2): “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.” [4] As defined in the Act, a “serious sexual offence” includes an offence of a sexual nature involving violence or against a child. In this case, the relevant part of the definition is an offence of a sexual nature involving violence. There is no history of offending against a child. [5] I am satisfied to the requisite high degree of probability, based on the evidence which has been placed before the court, that the respondent is a serious danger to the community for the purposes of section 13(1). [6] In forming that view, I have had regard to the following matters. [7] Firstly, in terms of the respondent’s antecedents and criminal history. The respondent is 36 years old. His family and developmental history is described by Dr Grant as disrupted and dysfunctional. Sadly, he has spent almost all of his -- 2 of 12 -- 3 adult life to date in custody. As Dr Grant says, he has only had about five weeks out of prison since the age of 19. His previous longest period out of prison was from age 17 to 19. [8] His parents separated when he was aged two. He initially remained with his mother, who repartnered with a man who was a heavy drinker and at times violent, although not towards the respondent. The respondent describes misbehaving and getting into serious trouble from about the age of 11, which resulted in him being placed in detention for the first time at age 13, also removed from his mother and placed into foster care at some stage, and also moving to stay in Switzerland with his father for a time. His longest period of juvenile detention was 11 months when he was 15 years old. His schooling was disrupted and limited to year 9. [9] The respondent continues to have the support of his mother, who lives in Adelaide but with whom he has had regular telephone contact, and also a sister who lives in north Queensland. He has little or no contact with his father and with his other sister and half-siblings. [10] The respondent does not have much in the way of work history, having only had brief jobs whilst not in custody. However, whilst he has been in custody, he has acted as a carer for a paraplegic inmate and also helped out with other inmates who require assistance. [11] He has been involved in some incidents while he has been in custody, but there have been none since 2015 and, according to the applicant’s submissions, he is now described as quiet, polite and positive towards staff and other inmates. [12] The respondent’s behavioural issues during his childhood are said to be related to a conduct disorder which Dr Grant says has evolved into an antisocial personality disorder. During his adolescence, he used various illicit drugs and, at the age of 16 or 17, was hospitalised for a drug-induced psychosis. However, as noted by Dr Grant, there was no further indication of any mental disorder until some months after the rape offence when, in custody, he developed a psychotic disorder. He was subsequently diagnosed with schizophrenia and placed on anti-psychotic medication. [13] In summary, the respondent has been diagnosed with schizophrenia (post the rape offence, currently in remission on treatment), antisocial personality disorder, with Dr Harden describing this as severe, and, in addition, past polysubstance abuse. As specifically recorded by Dr McVie but also consistent with the reports of Drs Harden and Grant, the respondent does not present as having any paraphilia. Although there have been some relapses, his schizophrenia has been in remission for the last five years with medication and -- 3 of 12 -- 4 treatment. He has been seeing his psychiatrist, Dr Tie, every six weeks and he is on anti-psychotic medication. The respondent told Dr Grant that he knows he needs his medication and that it would be foolish for him to stop it and that he is happy to take it as a voluntary patient. [14] The evidence includes a letter dated 24 May 2018 from Dr Tie, which records that the respondent has sustained stability in his mental state since late 2012 and would require ongoing mental health monitoring, support and treatment to maintain the stability in his mental state, especially during the transition from the structured custodial setting into the community and that he would also benefit from formal substance use counselling, with Dr Tie stating that: “The disinhibiting effects of any relapsing mental illness and/or substance abuse would serve to escalate his chronic risk profile.” [15] The letter from Dr Tie says that if the respondent is released, he will be referred to the local mental health service to receive ongoing specialist multi-disciplinary input from an assigned treating psychiatrist, case manager and mental health forensic liaison officer. [16] Once released, the respondent will initially be accommodated at the Precinct, as he does not have any other accommodation options. There is mention of his mother planning to come up from Adelaide to visit him if he is released and staying in Queensland and also of his sister visiting him when she travels down to Brisbane, both of which are positive as family support will, of course, be beneficial for him. [17] The respondent has a lengthy criminal history, including convictions as a juvenile. Prior to 2008, there were no convictions for sexual offences, but numerous convictions for property and dishonesty offences as well as offences involving violence. A more detailed summary appears in Dr Harden’s report at page 15 and in Dr McVie’s report at pages 4 to 5. [18] In December 2004, the respondent was convicted of offences including assault occasioning bodily harm, robbery with actual violence, escape from lawful custody, common assault and going armed to cause fear. He was sentenced to two and a half years’ imprisonment. He had just been released from this sentence when he committed the rape offence. [19] The conviction which has resulted in this application being made was in May 2008 for offences committed on 9 June 2007. As I have just noted, the respondent had just been released from prison on 8 June 2007. His friend, A, had gone to pick him up to stay at his house where he lived with his wife, E, and their two young children. A and his wife E had offered to assist the respondent -- 4 of 12 -- 5 after his release from prison. On the evening and night of 8 June, the respondent and A had been out to a tavern and then to a club and had been drinking. At some point in the early hours of the following morning, the respondent and A were separated and the respondent made his way back home. When back at the house, he went to A and E’s bedroom, where E was asleep. She woke up to find the respondent in her bedroom. She telephoned A, and arranged to go and pick him up from the city, but at the end of the phone call, the respondent started trying to kiss her. She rejected his advances. He then assaulted her, dragging her by her neck down the hallway to the bedroom where he proceeded to violently rape her. He told her he had a knife and threatened to kill her if she did not do what he asked. He ripped her pants and underpants off and threw her onto the bed, proceeding to have vaginal intercourse with her as she fought and struggled against him. He put his hands around her neck and choked her, causing her to pass out. When she regained consciousness, he was still raping her. She was continually telling him “no” and “stop”. He threatened her, telling her to shut up or he would kill her. It was alleged he also raped her anally, but he was acquitted on that count. There was also a separate count of digital rape of which he was convicted. It was a violent and prolonged sexual attack upon E which caused her physical pain and bruising. [20] At some point during the attack, A came home. The respondent barricaded the bedroom door to prevent A from getting in. A used a decorative sword and shovel to try to break through the door and get to his wife. He was also injured in the course of this with one of his fingers being almost severed. The respondent was also charged with grievous bodily harm in that regard, but was acquitted. The victim E managed to escape out the window. The respondent also escaped through the window and ran away. [21] As described by Dr Grant, the offence was associated with distortions in the respondent’s thinking and attitudes to the victim, as he saw her as “easy” because of her previous occupation as an exotic dancer. [22] The respondent was separately charged with entering a dwelling with intent to commit an indictable offence, because after he left A and E’s home, he had broken into another person’s home, where he was found the next morning asleep in the homeowner’s bed. [23] The respondent appealed against his conviction, but this was largely in relation to the question of whether he had been fit for trial as the result of the subsequent diagnosis of schizophrenia. The conviction was dismissed: see R v Cain [2010] QCA 373. [24] While in custody, the respondent participated in the getting started preparatory program, which he completed in August 2013. He was described as -- 5 of 12 -- 6 demonstrating limited insight into his sexual offending, although also as demonstrating a commitment to change and a willingness to participate in future sexual offending programs. It was noted that he did not minimise the offending or attempt to justify his actions. In 2015 to 2016, he participated in the inclusion sexual offending program. A summary report indicated he had engaged well with the program and that he had gained a greater understanding of his offending pathway and the consequences of his behaviour. More recently, he completed the sexual offending maintenance program, receiving a positive report, including that he appeared to have a good understanding of his high-risk factors and had identified a number of strategies to use to manage them. [25] The court has had the benefit of reports from three psychiatrists: Dr Harden, whose report was prepared prior to the application being made, and Dr Grant and Dr McVie, whose reports were prepared by order of the court under section 8 of the Act. [26] The opinions expressed are consistent, with all three psychiatrists expressing their opinion, based on their clinical assessment of the respondent and their application of the various risk assessment instruments, that he presents with a moderate to high (above average) risk of sexual violence offending in the future in the absence of a supervision order, but that the risk would be reduced to low with supervision. It is noted that his risk of returning to general offending, including violent offending, is much higher than the risk of returning to sexual offending, with Dr Harden, for example, saying the respondent is not predominantly a sexual offender. [27] The doctors identify a degree of institutionalisation of the respondent as a result of the amount of time he has spent in custody, possibly exacerbated by the effects of his mental illness. Dr Harden notes (at page 18) that the respondent has few protective factors and strengths, although he describes a willingness to be involved in ongoing mental health and other psychological and social intervention in the community and displays some insight in this regard. [28] I refer to the summary of Dr Grant’s opinion, which is reflective of the opinions expressed by each of Dr Harden and Dr McVie, at pages 26 to 27 of Dr Grant’s report as follows: “… in my opinion the risk for a future sexual offence in Mr Cain’s case would be a moderate to high (above average) level. The risk of non-sexual offending would be higher than that for sexual offending. The sexual offending risk is most associated with his antisocial personality disorder traits, his tendency to impulsivity, the influence of alcohol as a disinhibiting factor and some negative or entitled attitudes to women. Mr Cain’s Schizophrenia does not appear to have been a risk factor in terms of his -- 6 of 12 -- 7 index sexual offence as there were no evident symptoms at that time. However, they did become evident in the months after the offence and required treatment. If his Schizophrenia was not well treated and actively symptomatic it could increase the risk of disturbed behaviour and possible sexual offending. However, undergoing treatment for Schizophrenia will be of possible benefit in lowering risk of sexual offending because of the effects of his medication on reducing aggression, impulsivity and sexual drive. In my opinion the risk for sexual offending would be reduced to low by the application of a Supervision Order in the community. That Supervision Order should involve abstinence from alcohol and drugs, social supports, psychological therapy and maintenance of psychiatric treatment for his Schizophrenia. He will require lifelong treatment and follow-up for his Schizophrenic illness. In my opinion a Supervision Order should be in place for five years.” [29] In deciding whether a person is a serious danger to the community, in the absence of a supervision order, the court is required to have regard to the matters set out in section 13(4) and I have done so. The material does not indicate that there is a propensity on the part of the respondent to commit serious sexual offences, nor does it identify a pattern of offending behaviour in that regard, and there are indications that the respondent’s participation in rehabilitation programs has had a positive effect. However, the respondent’s antecedents and criminal history, particularly the fact that he committed a violent sexual offence one day after his release from custody, taken with the other matters addressed in the psychiatrists’ reports, in terms of his mental illness challenges and the absence of protective features and strengths, all support the conclusion that he is a serious danger to the community in the absence of supervision. [30] The assessments undertaken by and the opinions expressed by the psychiatrists consistently support a finding to the requisite high degree of probability that the respondent is a serious danger to the community if released without the benefit of a supervision order. On the basis of the opinion evidence of the psychiatrists, I am satisfied that there is an unacceptable risk that the respondent will commit a serious sexual offence, being a sexual offence involving violence, if released unsupervised. On the evidence before the court, I am satisfied that the risk that the respondent will commit another serious sexual offence if released into the community unsupervised is moderate to high and that there is a need to protect members of the community from that risk. -- 7 of 12 -- 8 [31] In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community. The court also needs to consider whether adequate protection of the community can be reasonably and practically managed by a supervision order and whether the requirements of such an order can be reasonably and practicably managed by Corrective Services officers. [32] The parties are agreed on the terms of an appropriate order, including as to the duration of it. The order contains the matters as required by section 16 and there is no suggestion that the order cannot be reasonably and practically managed by Corrective Services officers. [33] In all the circumstances and noting the cooperative approach that has been taken by the respondent in this matter, I am satisfied it is appropriate to, and therefore propose to make an order in terms of the draft which was handed up by counsel for the Attorney-General at the commencement of this hearing and which will be initialled by me and placed on the file. -- 8 of 12 -- 9 SCHEDULE SUPERVISION ORDER Before: Justice Bowskill Date: 28 May 2018 Initiating document: Originating Application filed 20 December 2017 (CFI No. 1) THE COURT, being satisfied to the requisite standard that the respondent, Ryan Thomas Cain, is a serious danger to the community in the absence of a Division 3 Order, ORDERS THAT: 1. Upon release from custody, the respondent be subject to the following requirements until 7 June 2023: The respondent must: General terms (1) be under the supervision of a Corrective Services officer for the duration of the order; (2) report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of his release from custody and at that time advise the officer of his current name and address; (3) report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services; (4) notify and obtain the approval of a Corrective Services officer for every change of his name, place of residence or employment at least two (2) business days before the change occurs; (5) comply with a curfew direction or monitoring direction; (6) comply with any reasonable direction under section 16B of the Act given to him; (7) comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order; (8) not commit an offence of a sexual nature during the period of the order; (9) not commit an indictable offence involving violence during the period of the order; (10) not have any direct or indirect contact with a victim of his sexual offences; -- 9 of 12 -- 10 Employment (11) seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; (12) notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two (2) business days prior to commencement or any change; Residence (13) not leave or stay out of Queensland without the permission of a Corrective Services officer; (14) reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence; (15) if this accommodation is of a temporary or contingency nature, comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services; (16) not reside at a place by way of short term accommodation, including overnight stays, without the permission of a Corrective Services officer; Disclosure of weekly plans and associates (17) respond truthfully to enquiries by a Corrective Services officer about his activities, whereabouts and movements generally; (18) submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed; (19) disclose to a Corrective Services officer the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour; (20) if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred; -- 10 of 12 -- 11 Motor vehicles (21) notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use; Alcohol and other Substances (22) abstain from the consumption of alcohol and illicit drugs for the duration of the order; (23) submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer; (24) disclose to a Corrective Services officer all prescription and over the counter medication that he obtains; (25) take prescribed drugs as directed by a medical practitioner; (26) not visit hotels, pubs or nightclubs licensed to supply or serve alcohol, without the prior written permission of a Corrective Services officer; Treatment (27) attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist; (28) permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of attendance and compliance with treatment and provide opinions relating to level of risk of re-offending to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order; (29) attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate; Access to Information Technology and Phones (30) notify a Corrective Services officer of any computer or other device connected to the internet that he regularly uses or has used; (31) supply to a Corrective Services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device and allow any device where the internet is accessible to be randomly examined using a -- 11 of 12 -- 12 data exploitation tool to extract digital information or any other recognised forensic examination process; (32) supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords; (33) advise a Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use, including reporting any changes to mobile phone details; (34) allow any other device including a telephone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer. -- 12 of 12 --