Attorney-General (Qld) v Wilson [2009] QSC 36

SUPREME COURT OF QUEENSLAND CITATION: Attorney General (Qld) v Wilson [2009] QSC 36 PARTIES: ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v ALLAN CHARLES WILSON (Respondent) FILE NO/S: SC No 2379 of 2008 DIVISION: Trial Division PROCEEDING: Dangerous prisoner application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 6 March 2009 DELIVERED AT: Brisbane HEARING DATE: 4 March 2009 JUDGE: de Jersey CJ ORDER: 1. Pursuant to s 13(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the court is satisfied that the respondent, Allan Charles Wilson, is a serious danger to the community in the absence of a Division 3 order. 2. Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the respondent, Allan Charles Wilson, is to be detained in custody for an indefinite term for control, care or treatment. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – where both parties applied for the indefinite detention of the prisoner pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act (Qld) – where it was likely the prisoner would re-offend – where the prisoner wished to remain incarcerated – whether the prisoner was a serious danger to the community in the absence of a Division 3 order pursuant to s 13(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 -- 1 of 7 -- 2 COUNSEL: Mr J Rolls and with him Mr D Chesterman for the applicant Mr C Reid for the respondent SOLICITORS: G R Cooper Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] de JERSEY CJ: The Honourable the Attorney-General seeks an order, under s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), that the prisoner Allan Charles Wilson be detained in custody for an indefinite term for control, care or treatment. On 8 February 2001, Mr Wilson was imprisoned for nine years for the offence of maintaining an unlawful relationship with a child, a seven year old girl, with a circumstance of aggravation in that she was in his care. When sentenced, he had already served 285 days in custody. His full-time release date is 28 April 2009. [2] The offence for which Mr Wilson is presently imprisoned took place over the period 1 August 1998 to 11 March 1999. He was caring for the child at the request of her mother. He lived with the child in a boarding house. The child would come into his bed at night time. He would remove the child’s pyjamas and rub his erect penis against her vagina. Sometimes the child would rub his penis, and on one occasion kissed it. There was no evidence of penetration. Mr Wilson pleaded guilty to that offence. [3] Earlier, on 19 April 1994, Mr Wilson had been convicted of three offences: enticing a child away for an immoral purpose, indecent dealing with a child under the age of 12 years, and attempting to procure the child to commit an indecent act. He was imprisoned for six months, to be followed by three years probation. The sentencing Judge noted that Mr Wilson had significant substance abuse problems and ordered, as a term of the probation, that he undertake alcohol and drug rehabilitation programs as directed. [4] Mr Wilson had accosted his victim as she rode her bicycle by a creek, and invited her to look at a fish in the creek. He took the child to the creek bed and made her lie in the mud. Then he lay on top of her and simulated sexual intercourse. They both remained fully clothed. When the girl started to cry, he told her to be quiet, and threatened that she would not see her mother again if she continued crying. He then rubbed his genitals on the outside of her clothing near her genitals, and touched her vagina on the outside of the clothing. The complainant ran home and informed her mother who contacted the police, leading to his arrest. He pleaded guilty to that offence. [5] When Mr Wilson committed the instant offence, he was on parole, and thereby also breached the conditions of the probation order. [6] Mr Wilson, who is presently 48 years old, was born into a dysfunctional family. His parents were chronic alcoholics. They are both now dead. He was sexually abused by his father and a brother over a substantial period. At the age of 13 years -- 2 of 7 -- 3 he was hospitalized for depression. He substantially lacks any support from his siblings. He has suffered from poly-substance abuse since he was a teenager. By the age of 16, he was smoking up to six joints of marijuana a day, and by the age of 20 he was addicted to alcohol. For the seven months over which he committed the instant offence, he was habitually drunk. [7] I have had regard to psychological and psychiatric reports from a number of specialists and other health professionals: Dr Kay Redman, Psychiatric Registrar at the John Oxley Memorial Hospital, in her discharge summary of 19 April 1994; Dr Ian Atkinson, Psychiatrist, in his pre-sentence report of 18 November 2000; Ms Megan Barry, Psychologist, in relation to the referral of Mr Wilson to the Sex Offenders’ Treatment Program on 11 February 2002; Mr John Glanville’s clinical assessment of 6 April 2005; Mr Gene Davies, psychologist’s administration of a Kaufman Brief Intelligence Test of 12 July 2007; the report of the Psychiatrist Professor Basil James of 17 March 2008; and the reports prepared pursuant to the order of Byrne J of 12 December 2008, being the report dated 16 February 2009 from Dr Scott Harden, Psychiatrist, and the psychiatric report of Dr Josie Sundin dated 7 February 2009. [8] The specialist reports are at one in concluding that if at large, Mr Wilson would be at moderate to high risk of committing a sexual offence, probably upon a seven to eight year old girl; that he would be at risk if released, because of substance and alcohol dependence, his borderline personality, and incapacity to live independently. A further theme is that although while in custody Mr Wilson has undertaken a sexual offenders’ treatment program, he has not undertaken other therapeutic programs such as would, for example, facilitate a smooth transition from custody into the community, or ameliorate the risks which arise upon his consumption of alcohol. [9] The case is unusual for Mr Wilson’s personal wish to remain in custody. His Counsel did not oppose the court’s making an indefinite detention order, and tendered no evidence. There was no challenge to any of the material proffered for the applicant, or to any aspect of the applicant’s submissions. Those considerations, while relevant, are obviously not determinative. [10] I refer to the report of Professor Basil James, dated 17 March 2008, prepared on the instructions of Crown Law for the purpose of risk assessment and possible application under the legislation. Professor James considered Mr Wilson highly vulnerable to recidivism. On Professor James’ testing, Mr Wilson belongs to a group of offenders of whom 58 per cent will re-offend sexually within seven years and 80 per cent within 10 years; and on another test, to a group of offenders of whom 44 per cent will re-offend violently within seven years and 58 per cent within 10 years. [11] Professor James said this of Mr Wilson’s wish to remain in prison, a wish he even went to the lengths of expressing in writing to an officer of the Crown Solicitor’s office: -- 3 of 7 -- 4 “Mr Wilson appeared to have several reasons for his wish to remain in prison. Firstly, he said that he felt that he would not be able to control his paedophilic impulses; and that in that respect he felt very much safer in prison, being thus assured that he could not do anyone any harm. He felt that this was the only way that he could be certain. Secondly, it was clear that he had felt greatly helped by the structure of life in prison, and the opportunities it offered him. He said that he had worked most of his time in jail…He said that he felt not only safe, but that he was actually ‘doing more’ in jail than ‘on the outside’… He also spoke with some animation with respect to his success in the literacy classes…he said that he is now able to print and ‘do running writing’; and he said that he could without difficulty write a letter. He also said that he can sit down and read most of the newspaper… It could be said that Mr Wilson is thoroughly institutionalised; but I think that that adjective should be used with caution. It is an adjective usually used in a pejorative sense, to imply that life under institutional conditions has deprived an individual of initiative, a capacity for decision-making etc. In Mr Wilson’s case, however, the institution (prison) has provided him with a sense of stability, of safety, of structure and of purpose that has not been available to him previously. Taking a wider and systemic view, it could be said that in Mr Wilson’s case, the prison system is fulfilling an ‘asylum’ function previously provided by the larger psychiatric hospitals. I have noted in the body of the report…that Mr Wilson is quite emphatic that he does not wish to leave prison; that he will be very likely to commit a crime in order to return to prison; and I have noted Dr Atkinson’s report of 18/11/2000, who quotes Mr Wilson as saying that he would even commit murder to this end. While I believe this latter statement is likely to be something of an exaggeration, it does, in my opinion, emphasize Mr Wilson’s own view of his incompetence to cope in the wider community. I think it likely that he will remain at high risk of re-offending at the time of his full-time release…” [12] I turn to the reports prepared pursuant to the order of Byrne J. [13] In his report of 16 February 2009, Dr Harden said that the risk of his offending sexually in the future is high. He said: -- 4 of 7 -- 5 “If he were to re-offend based on his past behaviour it would most likely be in the context of substance intoxication and it would be against girls who were approximately 7 or 8 years of age. It is my opinion that this risk would be increased if he were to be released from custody. The risk would be further increased if he were to be released from custody without a stringent supervision order being made.” Following his formal assessment, Dr Harden concluded that Mr Wilson was at high risk of committing another sexual offence. On the sexual offenders’ risk appraisal guide, he was at 75 per cent risk of violent re-offending at seven years and 89 per cent at 10 years. [14] Doctor Harden reported as follows: “He (Mr Wilson) has participated in a sexual offender treatment program. He maintains that he has a strong desire not to re-offend again but despite his well-reported and enthusiastic participation in the sex offenders’ program, his planning around managing this risk that he could explore on interview with me was only to remain incarcerated. He is therefore correct not to trust himself with regard to the possibility that he may return to alcohol abuse and commit further sex offences against prepubertal girls if released unsupervised. He has no significant social supports that I am aware of. He has admitted that he had a long history of alcoholism and that intoxication by his own admission increases his risk of sexual offence. He reported an ongoing strong desire to drink. He reported symptoms consistent with some alcohol withdrawal at times in the past. He reported loss of relationships, loss of employment and violent behaviour as a result of alcohol intoxication in the past.” [15] In her report dated 7 February 2009, Dr Sundin graded the risk of his sexual re- offending at moderate to high. [16] She said: “I note with concern that Mr Wilson has thus far not participated in an alcohol rehabilitation program. This is of special concern when one considers the profound contribution of alcohol to his multiple offences. It would seem to me that this would be a prerequisite to any release from detention. Mr Wilson himself admits that as things currently stand, he could not guarantee not to start drinking again immediately upon release even if he were to be subject to a DPSOA order. I also note that he appears quite unprepared for managing independently within the community and has no clearly set out -- 5 of 7 -- 6 relapse prevention plan. I acknowledge that Corrective Services staff have made multiple attempts over the years to engage Mr Wilson in a range of therapeutic programs but note that he has effectively avoided these using the excuse of his limited literacy as the reason for non-participation…I am of the opinion that without participation in an alcohol education and rehabilitation program that Mr Wilson’s risk of recidivism upon release is moderate to high….I would therefore recommend that Mr Wilson’s release from prison be deferred until he has completed an alcohol relapse prevention program and a community transitions program.” [17] Acceptable, cogent and sufficiently weighty evidence satisfies me, to a high degree of probability, that Mr Wilson is a serious danger to the community, absent an order made under Division 3 of the Act. That is because there is an unacceptable risk that if released, he would commit a serious sexual offence. [18] Addressing the considerations set out in s 13(4), I should confirm that I have had regard to the reports prepared by the psychiatrists and the extent of Mr Wilson’s cooperation in the examinations; the other medical and psychological and psychiatric assessments referred to above; the information bearing upon Mr Wilson’s propensity to commit serious sexual offences in the future, put at the moderate to high level; the pattern in his past offending behaviour, reflected by his criminal history; his efforts to address the causes of his offending behaviour, significantly not directed towards the control of alcohol and substance abuse and capacity for independent living; the positive effect on Mr Wilson of his incarceration, but not rehabilitation such as would, without more, equip him for independent living in the community; the disfunctionality of his upbringing, and significantly, his lack of family support throughout his incarceration; the expert assessment of the level of risk that Mr Wilson would commit another serious sexual offence if released into the community; the predominant need to protect the community from that risk; and finally, as another “relevant matter” (though not determinative), his own adamant wish to remain incarcerated. [19] Because I am satisfied that Mr Wilson would create serious danger for the community in the absence of an order under Division 3 of the Act, I need to address whether he should be detained indefinitely, or released subject to a supervision order (s 13(5)). I am satisfied that he should be detained indefinitely. On the material before me, I could not be satisfied that subjecting Mr Wilson to a supervision order, even a stringently conditional one, would adequately moderate or accommodate the risk of his committing a serious sexual offence if released. The references to the expert assessments, and the opinions extracted above, constitute the rationale for my taking that approach. [20] I therefore order and declare as follows: 1. I declare that I am satisfied, pursuant to s 13(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), that the respondent, Allan Charles Wilson, is a serious danger to the community in the absence of a Division 3 order. -- 6 of 7 -- 7 2. I order, pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), that the respondent, Allan Charles Wilson, be detained in custody for an indefinite term for control, care or treatment. -- 7 of 7 --