Attorney-General for the State of Queensland v Larry [2012] QSC 25

1 SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Larry [2012] QSC 25 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v THOMAS ANDREW LARRY (respondent) FILE NO: BS396 of 2011 DIVISION: Trial Division PROCEEDING: Application for contravention of supervision order DELIVERED ON: 14 February 2012 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 14 February 2012 JUDGE: Mullins J ORDER: The court being satisfied to the requisite standard that the respondent Thomas Andrew Larry, has contravened requirements of the supervision order made by Boddice J on 19 May 2011 orders that: 1. The respondent Thomas Andrew Larry continues to be subject to the supervision order made by Boddice J on 19 May 2011. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER MATTERS – where the respondent released under a supervision order made under Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent started a relationship with a woman – where the respondent did not disclose this relationship to the supervising Corrective Services officer on four occasions when asked about persons with whom he was associating – where after the respondent was directed by the supervising officer to cease contact with the woman the respondent called the woman’s telephone number – whether order the respondent contravened the supervision order in failing to disclose the relationship and disobeying the direction not to contact the woman – whether the respondent should be released on the suspension order Dangerous Prisoners (Sexual Offenders) Act 2003, s 22 -- 1 of 11 -- 2 ORDER 1 10 20 30 40 50 60 COUNSEL: DR MacKenzie the applicant LC Falcongreen for the respondent SOLICITORS: G R Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent -- 2 of 11 -- 3 ORDER 1 10 20 30 40 50 60 HER HONOUR: This is an application under section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) for the rescission of the supervision order made by Justice Boddice on 19 May 2011 and an order providing for the respondent's continuing detention or, alternatively, for the release of the respondent on the supervision order. I am satisfied that the respondent contravened the supervision order in the respects identified by the applicant in this proceeding. The respondent had met a woman, who is referred to in the material as C, through an internet dating service. On 18 August 2011 the respondent told the supervising Corrective Services officer that he had been seeing this woman for three to four weeks. He had been asked on at least four prior occasions about the identity of people he was associating with and whether he had any romantic relationships and he had failed to identify that he had met and commenced a relationship with C. His supervising Corrective Services officer then gave him a direction to cease all contact with C and that he was not to make any direct or indirect contact with her. The supervising Corrective Services officer inspected the respondent's mobile telephone three days later on 22 August 2011 and found that the respondent had attempted to make five telephone calls to C on that day that were unanswered. That was blatant defiance of the reasonable direction of the Corrective Services officer in the circumstances. -- 3 of 11 -- 4 ORDER 1 10 20 30 40 50 60 The respondent was arrested under a warrant issued under the Act that was executed on 29 August 2011 and he has remained in custody pending the hearing of this contravention proceeding since that time, a period of five and one-half months. For the purpose of this proceeding, the respondent was examined by two psychiatrists, Dr Grant and Dr Beech, whose written reports were before me and both of whom were cross- examined during the hearing today. In addition, the treating psychologist who saw the respondent on regular occasions during the period of approximately three months that he was under the supervision order, Ms Sky, also produced a report and gave further oral evidence today. In order to put the contravention proceeding in context, it is necessary to refer to the respondent's criminal history and the circumstances that persuaded Justice Boddice to order that the respondent be released under the supervision order for 10 years. The reasons of Justice Boddice are found in Attorney- General for the State of Queensland v Larry [2011] QSC 120. The respondent is a Torres Strait Islander who is presently 35 years old. He has spent most of his adult life in prison. His criminal history is set out in paragraphs 4 to 10 of the reasons. The respondent has an antisocial personality disorder, but does not score on the tests applied by the psychiatrists as a psychopath. His excessive use of alcohol and illicit substances underpinned much of his criminal offending. His intellect is described as borderline. His -- 4 of 11 -- 5 ORDER 1 10 20 30 40 50 60 literacy and numeracy is poor. The witnesses who gave evidence, however, described him as personable and with potential, if he could overcome the problems that have contributed to the contraventions that resulted in this proceeding. The problem that looms large for the respondent is his dishonesty. It has been a way of life for him since he was a boy. It is consistent with the diagnosis of antisocial personality disorder that when someone in authority asks the respondent a question, it is easier for the respondent to lie than to take the trouble to tell the truth. This regime of a supervision order with numerous conditions that require regular reporting by the respondent of his activities assumes that the respondent will be honest with those who are supervising him and providing him with treatment. As Mr MacKenzie of counsel who appeared for the Attorney- General pointed out, there are two matters (the respondent’s dishonesty and the two incidents with women) arising from the evidence about the contraventions that need to be considered on whether or not the release of the respondent on a supervision order can be done in a way that will ensure the adequate protection of the community from further sexual reoffending by the respondent. The evidence given by the treating psychologist was very helpful. Ms Sky highlighted the positive steps that the -- 5 of 11 -- 6 ORDER 1 10 20 30 40 50 60 respondent had taken whilst under the supervision order. It is commendable that the respondent has been abstinent from alcohol and illicit substances. He managed to comply with the supervision order in this important respect which is directly related to the circumstances in which he has committed a serious sexual offence in the past. Because of his lack of identification documents and desire to undertake a literacy course, he had not taken any steps under the supervision order to obtain employment, before he was returned to custody. He instructs his counsel that he wants to gain employment if he is released again under the supervision order. He sees that as something that will assist him to remain free of sexual offending. It would be an advantage for the respondent, if the supervising Corrective Services staff were able to assist the respondent in seeking appropriate employment when he is released under the supervision order. Ms Sky had been giving the respondent psychotherapeutic intervention to address the issues such as avoiding negative influences on his behaviour from negative peers and negative associations. She acknowledged that there is much further work to do with the respondent in modifying his behaviour when it comes to responding to questions asked of him by people in authority. Ms Sky does think that she can work with the respondent to address his honesty problem. In order to do so, however, she needs to be armed with information from Corrective Services about his activities so that she can -- 6 of 11 -- 7 ORDER 1 10 20 30 40 50 60 challenge him in his reporting to her of what he has been doing. To the extent that the respondent will need to authorise Corrective Services to provide that information to Ms Sky, consideration should be given by the supervising Corrective Services officer to obtaining that authority from the respondent. It is to the respondent's credit that Ms Sky is prepared to continue with treatment. She clearly conveyed that she did not consider that it was a waste of time in providing psychotherapy to the respondent. Both psychiatrists ultimately were supportive of the respondent’s release again on the supervision order and both recommended that GPS monitoring would be a useful adjunct to check that the respondent was being honest with his account to the supervising Corrective Services officer. It was suggested by both psychiatrists that, if the respondent knew that Corrective Services already had the information from the GPS monitoring as to the places he was visiting, he would be more likely to give an honest account of what he was doing during his day. The respondent has been under electronic monitoring that has a limited purpose when he was on release under the supervision order previously. The GPS monitoring in conjunction with the existing conditions will assist in keeping the risk of reoffending to an acceptable minimum. It is of concern that there were two incidents whilst the respondent was on release last year that did not result in any -- 7 of 11 -- 8 ORDER 1 10 20 30 40 50 60 criminal proceeding, but in both instances involved the respondent behaving towards a woman in a way that resulted in a complaint. One was an incident involving the respondent at a train station where he accepts that he at least brushed against a woman. That woman did not pursue a complaint with the police. The other incident involved the relationship with C which upon its ending resulted in C obtaining a protection order under the Domestic and Family Violence Protection Act 1989. C did not wish to provide evidence in this proceeding. Her account of events was not before the Court in a way that could be tested. The respondent did, however, give an account of the breakup to Dr Grant when he was interviewed by Dr Grant for the purpose of the proceeding and, even on that account, there are concerning aspects about the respondent's persistence in contacting C after she had communicated to him that she no longer wished to see him. Dr Beech suggested that as the respondent met C through an internet dating service it may be prudent that the supervising Corrective Services officer ensure that the respondent understand that he should not meet any woman with whom he has made contact through an internet dating service or any other chat room or the like without notifying the supervising Corrective Services officer of the name of the woman and the place where the first meeting will take place. Counsel for the applicant suggested that it was not necessary to amend the conditions to deal specifically with that matter, as that was the type of matter that could easily be dealt with by a direction from the supervising Corrective Services officer. -- 8 of 11 -- 9 ORDER 1 10 20 30 40 50 60 Both psychiatrists remain of the view that the respondent is a high risk of sexually reoffending if released into the community without the assistance and control that is exercised by supervision under a supervision order under the Act. Both psychiatrists considered it was a real positive factor in the respondent's favour that he remained abstinent from alcohol and illicit substances during his last release, because use of alcohol or illicit substances increases his risk of reoffending to a significant degree. Regular urine analysis, as was undertaken during the last release of the respondent under supervision, will continue to ensure that the abstinence remains. Both psychiatrists consider that the respondent should, if possible, and within the constraints of any employment opportunities that he is able to obtain, undertake an alcohol and substance abuse course where the aim of the course is complete abstinence. Both psychiatrists also consider that, even though the respondent has done the Indigenous HISOP and a Sexual Offender Maintenance Program whilst in custody, he should undergo the Sexual Offender Maintenance Program that is available in the community. Dr Beech suggested, having regard to the respondent’s history and his antisocial personality disorder, that doing such a program every three years is important to maintain the learned behaviours that the program has assisted the respondent to attain. Both psychiatrists emphasise that there are likely to be continuing difficulties with the respondent's honesty in -- 9 of 11 -- 10 ORDER 1 10 20 30 40 50 60 complying with the supervision order, but in conjunction with future treatment that addresses that problem and with the supervising Corrective Services officer emphasising the importance for the respondent himself (as well as for the protection of the community), for the respondent to be completely frank with the supervising Corrective Services officer about his activities, there is optimism for the respondent's ability to continue under supervision. The point was made that the respondent has had five and one- half months in custody since he was arrested in August last year. This regime is not intended to be punitive, but intended for the protection of the community. The practical response, however, is that the respondent who has indicated through his lawyers that he is keen to return to the community and to endeavour to gain employment has had the five and one- half months in custody as an incentive to fully comply with the supervision order in the future. Because I was satisfied on the evidence that the respondent had contravened the two conditions of the supervision order in the respects that were identified by the applicant, it was for the respondent to satisfy the Court on the balance of probabilities that adequate protection of the community from further sexual reoffending by the respondent could be ensured by the existing supervision order. -- 10 of 11 -- 11 ORDER 1 10 20 30 40 50 60 In light of both the psychiatric and psychological evidence that was put before me, I am satisfied that, despite the contraventions, the supervision order that was made on 19 May 2011 will continue to ensure the adequate protection of the community. There is no suggestion that the additional requirements of Corrective Services as foreshadowed during this proceeding, such as GPS monitoring and closer supervision in relation to the contacts that the respondent makes with any woman through the internet, cannot be reasonably and practicably managed by Corrective Services officers. In fact, it was conveyed through counsel for the applicant that these matters could be attended to by the Corrective Services officers. In the light of that, I make an order in terms of the draft, initialled by me and placed with the file. ----- -- 11 of 11 --