Attorney-General v Friend [2008] QSC 27

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General v Friend [2008] QSC 27 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v FRIEND FILE NO: BS4096/06 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 27 February 2008 DELIVERED AT: Brisbane HEARING DATE: 18 February 2008 JUDGE: Acting Justice Skoien ORDER: Supervision order dated 2 June 2006 rescinded; continuing detention order substituted CATCHWORDS: CONTRAVENTION OF SUPERVISION ORDER; WHETHER RESPONDENT A RISK TO COMMUNITY WHILE RECOMMENDED PSYCHIATRIC TREATMENT CARRIED OUT; SHOULD TREATMENT BE ADMINISTERED IN PRISON OR IN THE COMMUNITY? Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22 R v Francis [2006] QCA 324, cited COUNSEL: Mr J M Horton, for the applicant Mr T A Ryan for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] This application is made under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The basis of the application is that the respondent, Mr Friend, contravened requirements of the supervision order imposed by Moynihan SJA on 2 June 2006: see Attorney-General v Friend [2006] QSC 131. Background [2] Mr Friend (who is now aged 55) was released from prison on 10 July 2006 under the supervision requirements Moynihan SJA had imposed. Those requirements included that he not: -- 1 of 9 -- 2 (s) ... have any unsupervised contact with male children under 16 years of age except with the supervising corrective services officer’s prior written approval; (t) ... establish and maintain contact with non-related children under 16 years of age [3] The offences which provided the basis for that decision are as follows. [4] First, Mr Friend was convicted in 1991 at Townsville of the offences of indecent dealing with a boy under 17 (5 charges) and indecent assault (16 charges). The offences occurred in 1987 and 1988. He was sentenced to 2 years’ imprisonment. [5] The second set of offences was for possession of child abuse photographs in August 1997. Mr Friend was convicted and sentenced to 6 months imprisonment (suspended for three years). [6] The third set of offences concerned indecent treatment of a boy under 16. They were committed while Mr Friend was in the company of another child sex offender. In December 1997 they took the boy for a drive. The other man began sexually abusing the boy and insisted that Mr Friend do so also. Mr Friend briefly touched the boy twice on the genitals. The sentence imposed was 12 months imprisonment which was reduced on appeal to 3 months imprisonment. The sentencing Judge (Wall DCJ) recommended that Mr Friend undertake psychiatric and psychological treatment as considered appropriate and that he participate in the sexual offenders treatment program. [7] The fourth set of offences in April 2003 concerned indecent treatment of a boy under 16 (13 charges) and indecent treatment of a boy under 12 (2 charges). They occurred after Mr Friend had become acquainted with boys, generally between the ages of 14 and 16. He met and befriended them as part of his employment. His behaviour would normally involve brushing up against the boys and touching their genitals through their clothes, but pretending the contact was accidental. Later, he took some of the boys home and showed them pornographic videos and masturbated himself in their presence. He touched the penis of the boy under 12 by putting his hands inside the boy’s pants. [8] There were other offences of limited relevance, possession of a pipe used in connection with smoking marijuana (in 1997) and false pretences (in 1982). The contravention [9] Mr Friend has not been convicted of any offence which would constitute a contravention of the supervision order. A number of facts are alleged against him (many by hearsay evidence) which are not proven. However, he has made admissions to psychiatrists who have examined him and his counsel accepts that those admissions amount to admissions of breaches of conditions (s) and (t) above. His account to Dr Beech – 18 January 2007 [10] He told Dr Beech that in November 2007 he spoke to a young male person at his place of work. He did not know if the boy was under age. He spoke to this boy about going to the beach, being naked and showering. Next day he went to the -- 2 of 9 -- 3 neighbouring shop and saw the boy again but realised he (the boy) was not comfortable with him. The boy was in fact aged 16. [11] He told Dr Beech that he was not sexually interested in the boy and did not intend to meet him clandestinely. He said he approached him as a ruse to get the police involved so that he could kill himself and to this intent he sharpened knives which he placed handily about his accommodation unit, and over the next two days he carried a knife to use on himself should the police approach him. He actually tried to cut his throat in a watch house, after being taken there by police. The injury required surgery under anaesthetic. [12] Mr Friend had what he took to be stressful episodes during the sexual offender treatment program in gaol. He began to recall sexual abuse he had suffered in the past, and developed suicidal ideations. In July 2007 he tried to gas himself to death in his car. This worsened in September 2007 as memory of his sexual abuse heightened. All told, there seem to have been three suicide attempts. When Dr Beech saw him in January 2008 he was depressed and had continued suicidal thoughts. [13] The sexual abuse which he detailed involved frequent, regular, abuse of a particularly degrading, sadistic and violent nature, perpetrated by a detective. It made him fear that he would be shot. He was then aged between 7 and 10. There is no reason to doubt his account of these events. [14] He told Dr Beech he would prefer to have a heterosexual relationship but felt too anxious and naïve. He has not had adult homosexual relationships. He feels more comfortable with younger males and becomes sexually aroused by young boys if he sits and thinks about it. However, while he used to masturbate while picturing young boys he now does so to images of a woman with whom he had a brief sexual liaison and no longer fantasises about boys (which seems rather to contradict his admission set out in the preceding sentence). [15] Mr Friend told Dr Beech he did not wish to be released from prison until he has had counselling. He said he wished to be seen by someone who would understand him and help him manage his own emotional disturbances. He believes that he was not adequately professionally prepared to cope with the stresses of the returned recollection of the trauma from his own abuse. He said that if he was not properly prepared and had not received enough counselling he did not think that he would be able to deal with the stress on release. He thought that he would fail if he were to be released at this time and would return to offending or become suicidal. [16] He said he hoped in particular to be able to deal with the trauma of his own sexual abuse. He continued to feel negative, hopeless and helpless and wished to have these matters dealt with. [17] He said that once able to deal with those stresses he hoped to be released. He said that he would liaise with his brother about accommodation and work in the Sunshine Coast area. He would like to return to employment in order to gain money to plan for his future. He had considered returning to working as a butcher but was afraid that the presence of knives would be too much of a temptation given his state of mind and his propensity for deliberate self harm. He has considered working in the mines. -- 3 of 9 -- 4 Dr Beech’s opinion [18] Against the background of an established history of sexual offences by Mr Friend against male children and young adolescents and the several convictions for these, in Dr Beech’s opinion he meets the criteria for the disorder of Paedophilia. He describes sexual fantasy regarding young males but this is in the context of significant anxiety in the presence of females. By his account his preferred sexual orientation is heterosexual, so he could be considered to be a non-exclusive paedophile although there is limited evidence to support this. [19] His sexual deviance arises in the context of severe childhood sexual abuse aggravated by anxiety in the presence of women. He relates sexually and emotionally to young males to whom he has returned in the past when stressed and isolated. [20] Dr Beech believes that as the result of his own abuse Mr Friend has developed a severe Post-Traumatic Stress Disorder (PTSD) which has affected his personality development. This disorder presents with the symptoms of intrusive re- experiencing of the abuse and associated emotional disturbance including shame and disgust. It is quite likely that the sexual offender treatment program (SOTP) which he underwent in prison triggered a recrudescence and worsening of his symptoms. It is also likely that there was a deterioration last year possibly triggered by a range of incidents including psychological sessions, sexually laden encounters and other stresses. [21] It is also Dr Beech’s opinion that he suffers from a mixed personality disorder. Dr Beech agrees with Professor James that it lies in the realm of a Borderline Personality Disorder with affective instability, self-harming ideation and poor identity development. There are also traits of avoidance and passivity. This could be seen to have arisen from his prejudicial childhood and aggravated by the development of PTSD. [22] Less clear to Dr Beech is whether he suffers from a primary mood disorder but it is likely that he has suffered significant depressive episodes in the past and currently he probably has a Major Depressive Episode although Dr Beech considers that further observations would be needed to confirm this. [23] In Dr Beech’s opinion Mr Friend is at high risk of re-offending now if he were to be released into the community. He has serious factors of sexual deviance, emotional interests relating to adolescents and an entrenched and recurrent pattern of sexual offending together with a history of breaches. Mitigating factors are his lack of psychopathy and general anti-social traits, his completion of the SOTP, and his generally good institutional behaviour. [24] Dr Beech believes his acute risk relates to his current mood, the continuing PTSD phenomena, and his perceived lack of support. This places him at risk for both re- offending and suicide. In his current state he is likely to resort to contact with young males to meet his emotional needs, or to resort to suicide attempts in the face of his hopelessness. [25] Dr Beech was unsure of his actual intentions in regard to the current breach of his order. He stated it was a ruse designed to bring about a situation where he could commit suicide and the doctor concedes that there is some credibility to this. -- 4 of 9 -- 5 Another possibility, given the admittedly unsubstantiated allegations of work colleagues and what Mr Friend told him of encounters with men on the beach and in the shower, is that having initially approached the boy, Mr Friend realised he had breached the order or had offended and this led to his suicidal ideation. Indeed the doctor says it is possible that the incident was multiply determined. Nonetheless Dr Beech believes that it has increased his risk of re-offending. It highlights his emotional disturbance, his severe PTSD and his perception of limited support. [26] In Dr Beech’s opinion he requires substantial psychological support and treatment of his own sexual abuse and its effects. Dr Beech believes that his emotional disturbance from this cannot be easily separated from his risk of re-offending and it should be seen as a significant part of his management. He agrees with other professionals that Mr Friend requires continuing skilled individual counselling and it would be prudent for his care to be monitored by a psychiatrist. [27] Dr Beech believes that this should be instituted in detention and Mr Friend would have to receive treatment for his current difficulties before his risk of either offending or suicide is sufficiently reduced. At that stage he expects that Mr Friend’s risk of these activities could be reduced by treatment to moderate. Professor James [28] Mr Friend also told Professor James that his approach to the boy referred to in para [10] was a device to have himself arrested (about which Professors James is somewhat sceptical). [29] It is Professor James’ opinion that Mr Friend has two separate but inter-related conditions, Paedophilia and Borderline Personality Disorder. The latter would need at least 2 years treatment by a suitably qualified therapist. He considers that the treatment would be likely to be very stressful and it is difficult to predict Mr Friend’s reaction to it. If he were released without further treatment the likelihood is great that he would carry out activity very like that which led to his return to prison. Suicide could be a possibility. For that reason it is his opinion that the preferable course is to detain Mr Friend in prison; that he be re-evaluated in prison for needed specific treatment; that he be provided with that treatment within the resources available within Queensland Corrective Services (“QCS”), to be reviewed in 12 months time. Professor James was of the view that the prison environment would provide the stability and structure which Mr Friend needs and that it is unlikely that family and friends would be able to devote the requisite time and attention to him to provide that support. Professor Morris [30] Professor Morris also detected some inconsistencies in Mr Friend’s claim that his approaches to the boy in November 2007 were simply a device to involve the police. He suspects that it involved paedophilic behaviour. He diagnoses partial PTSD and a depressive disorder. [31] Professor Morris diagnosed continuing mental health problems of PTSD, episodic depressive illness and significant personality problems, which are a substantial risk factor and would need to be addressed very carefully in any subsequent release back to the community. He considers Mr Friend to be very vulnerable to interpersonal stressors and both actual and feared rejection experiences; things that re-surface his -- 5 of 9 -- 6 traumatic experiences in his childhood are also likely to destabilise him. At this stage of his life Professor Morris considers that active discovery or uncovering therapy related to his childhood abuse would be unproductive and that he requires a treatment approach that emphasises rehabilitation and practical management of stress, anxiety and the frustrations of living in the community under supervision orders. [32] One of the concerns Professor Morris expressed is for Mr Friend’s plans, as expressed to him, for the future if re-released from jail. Although some of his plans recognised his need for more intensive psychiatric treatment, he did not indicate how he plans to avoid sexually re-offending and the situations that might tempt him to do this. He had few plans about developing social contacts and activities that would re-integrate him with his community and provide additional social supports. In this regard he showed a lack of awareness of some of the basic problems that he has encountered in the past. Of considerable concern to Professor Morris is that although Mr Friend was given the opportunity for release under supervision orders he deliberately breached these orders. His attitude as expressed to the Professor was to deflect responsibility for his actions because he blames the government and QCS for lack of provision of services and support for his special needs which he claims led to his frustration prior to the breach episode. Professor Morris considers that these attitudes are largely dependent on his personality characteristics and are likely to be consistent features of his future clinical situation unless addressed in therapy. The legislation [33] The applicable provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 are: 22 (1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order). (2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must – (a) if the existing order is a supervision order, rescind it and make a continuing detention order; or (b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order. (3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following – (a) act on any evidence before it or that was before the court when the existing order was made; -- 6 of 9 -- 7 (b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including an order in the nature of a risk assessment order. … (7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court- (a) must amend the existing order to include the requirements mentioned in section 16(1)(da) and (db), if the existing order does not already include the requirements; and (b) may otherwise amend the existing order in a way the court considers appropriate- (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment.” Discussion [34] Following on the incident referred to in paragraph [10], Mr Friend was taken into custody and has been in prison since 11 November 2007. In the conduct of his case before me it was accepted that in November 2007 he approached a young male teenager and engaged in inappropriate talk that on the face of it was in the nature of a sexual proposition. The fact that he did not know how old the teenager was (he was 16) is accepted by me as an indication that such inappropriate behaviour could equally have been directed to a boy under the age of sixteen. [35] All three psychiatrists regard Mr Friend in his current state as a risk of re-offending. Professor James said it was “great”. Dr Beech said it was “high”; Professor Morris said it was “moderate”. All agree that a proper course of psychiatric treatment and psychological therapy could reduce this to enable, in the opinions of Professor James and Dr Beech (and subject, no doubt, to re-evaluation in a year or so) his supervised release from prison. Professor Morris considered him to be suitable for that supervised release now. Each of them is of the opinion that Mr Friend presents as a very complicated clinical case. [36] Professor Morris has produced a management plan for the required treatment of Mr Friend. He does not suggest that it is the only plan, merely a general guide. No-one knows what psychiatrist will treat him and naturally each psychiatrist is likely to have opinions which differ, one from the other. The real point of difference between the three psychiatrists who gave evidence is whether it should be carried out in prison or in the outside world. [37] The treatment suggested by Professor Morris (or similar treatment) which all three psychiatrists accept in principle, satisfied all of the alternative requirements of s 13(5)(a) of the Act, (as to which see R v Francis [2006] QCA 324 at para [28]), that is, control of Mr Friend, care for him and treatment of him. [38] I have read the affidavits of Mr Friend and of his brother. They set out what is planned for Mr Friend should he be released from prison. Mr Friend indicates -- 7 of 9 -- 8 commendable willingness to undertake treatment and puts forward structured plans for his life outside prison. However he is not qualified, nor sufficiently detached, to challenge the professional opinions of the psychiatrists either on the degree of risk his freedom would pose, nor where the treatment he needs should occur. While his brother would no doubt do his best to be supportive, he clearly cannot devote much time to that. [39] The doubts that I have about the desirability of Mr Friend’s release from prison relate to: the justifiable suspicion that all three psychiatrists retain about Mr Friend’s frankness about the motive behind the events of November 2007; the real possibility that the events displayed continued sexual interest in boys; the further real danger of his exposure to the stresses of life outside prison, including possibly, the effect of his continued unlawful sexual interests, leading to further suicidal thoughts, and perhaps even attempts; the fact that life outside prison will assuredly expose him to contact (either unsupervised or effectively unsupervised) with boys; the fact that a curfew would be of no practical assistance. To cloister him so as to remove the obvious stresses would necessitate, virtually, house arrest which would be tantamount to prison. [40] There is some doubt, as there must always be, of the efficiency of the treatment if administered in prison. In Francis the response of QCS left much to be desired. However the affidavit of Joel Smith, Principal Advisor, Sexual Offender and Dangerous Offender Unit, Probation and Parole Directorate is before me in which the assurance is given that proper therapeutic treatment can be given and will be made available. I cannot reject that evidence and I must accept that a private psychiatrist of dedication and ability would be assigned to provide treatment of the proper type, using proper skills and in proper quantity. I expect that psychological treatment, if required, will be given by Dr Whittington, with whom Mr Friend has seemingly built up a good rapport or by someone of equal competence. Equally, I accept that the same resources would be applied by QCS to meet appropriate conditions should Mr Friend be released under supervision. [41] Mr Ryan of counsel, for Mr Friend, did not submit that the psychiatrists’ suspicions about his client’s frankness in relation to the events of November 2007 were unfounded. If they were unfounded then I should reject their opinions of the likelihood that Mr Friend retains a sexual interest in boys. But what he told Dr Beech (that he is sexually aroused by boys if he sits and thinks about it) is highly relevant to this. I consider that he does retain a sexual interest in boys so I can not hold that he does not represent a risk to the community and of course that he does represent a present risk was the evidence of all three psychiatrists. The debate about the place of treatment partly, but importantly, relates to whether the protection of the community can be adequately ensured during the treatment. [42] In Francis, at [39], this was said by the court: “… The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no -- 8 of 9 -- 9 greater extent than is warranted by the statute which authorised such constraint.” [43] As Mr Horton of counsel, for the Attorney, submitted, the first question is what is the risk to the community while the treatment is being undertaken? Accepting, as I do, the evidence of Dr Beech and Professor James (which is actually supported to some extent by that of Professor Morris) I am of the opinion that there is a real risk that the treatment will actually cause, in its early stages especially, an increased chance that his thoughts will turn, sexually, to boys and an increased chance that he will actually put them into effect. As Mr Horton submitted, the events of November 2007 actually took place against the background of apparently successful treatment from his psychologist Dr Whittington, while Mr Friend was in an apparently stable relationship or friendship with a mature woman, had a stable residential arrangement and held a steady job. Despite all of that stability, and without any warning, the contravention of the order occurred. Is not, asked Mr Horton rhetorically, the risk of contravention greater during the course of the temporary, but likely, destabilising psychiatric treatment? To that question, I think I must answer “Yes”. [44] That question having been answered, it seems to me that the second question, the one most intensely debated in the application “where should the treatment take place?” admits of only one answer – in prison. I accept Dr Beech and Professor James on the point. Indeed, did not Mr Friend in his discussion with Dr Beech (see paras [15]-[17]) express that very preference? In this connection I do not forget the evidence that he may very well be suicidally inclined during treatment. So for his own safety, treatment in prison is preferable. Conclusion [45] Mr Friend has not satisfied the onus imposed on him by s 22(2) so I am bound to act under subsection (2)(a), to rescind the supervision order and make a continuing detention order in the form tendered by Horton, which I initial and place with the papers. Recommendation [46] I recommend that these be forwarded by the applicant to Queensland Corrective Services: (a) a copy of these reasons; (b) a copy of the affidavit of Joel Smith; (c) a copy of the order; (d) a copy of the affidavit of Professor Morris (it being clearly understood that the management plan he suggests is not intended by me to be followed chapter and verse, but for the information of the treating psychiatrist and psychologist. -- 9 of 9 --