Attorney-General for the State of Queensland v Deverill [2008] QSC 5

[2008] QSC 005 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J No 9146 of 2007 ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND Applicant and ROGER MARK DEVERILL Respondent BRISBANE ..DATE 29/01/2008 JUDGMENT 1 -- 1 of 8 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: The Honourable the Attorney-General seeks, and the respondent does not oppose, a finding that, in the absence of an order under division 3 of part 1 of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent is a "serious danger to the community" within the meaning of that expression in section 13(2) of that Act. The evidence amply supports such a finding to the requisite degree: see section 13 (3). The respondent co-operated satisfactorily (see section 13(4)(a)) in the reports prepared by the two psychiatrists appointed under section 11 of the Act, Dr Beech and Dr Sundin. Those reports demonstrate that there is at least a moderate degree of risk that, in the absence of an appropriate supervision order, the respondent would commit sexual offences against children, principally males. The respondent was born in April 1965. He was released from prison a few days ago. He has a significant criminal history. It includes a range of non-sexual offences. For present purposes, the only criminal history of significance involves offences committed over many years of a sexual nature with children: mainly, rape, attempted rape and indecent dealing. The respondent's childhood was difficult. Before his teen years he was involved in inappropriate sexual activity with males. By about the age of 15, he commenced drug use. The -- 2 of 8 -- 3 JUDGMENT 1 10 20 30 40 50 60 drug of choice was cannabis. And at about that age, he committed the first of his many sexual offences. He was sentenced in the Victorian County Court to 11 and a- half years' imprisonment, to serve a minimum of 8 and a-half years, on convictions for more than 20 offences. He had pleaded guilty to six counts of rape, one of attempted rape, three of indecent assault on a male under the age of 16, 11 of indecent assault and one of sexual penetration of a person under the age of 16 as well as to possession of cannabis. The sexual offences had been committed over a period of about 10 years between ages 15 and 25. His victims were aged between nine and 16. Most were male. One was a 13 year old girl who had suffered vaginal penetration in an episode involving violence. In 1995, the respondent was extradited to South Australia. There he pleaded guilty to offences committed between mid-1998 and January 1990. Four involved a 13 year old male. These were counts of unlawful sexual intercourse and indecent assault. One offence involved sodomy of a 14 year old boy. He was sentenced to two years' imprisonment to be served cumulatively with the unserved part of the Victorian sentence. In June 2003, the respondent was sentenced to five years' imprisonment in respect of indecent dealing, and unlawful exposure to a child under 16. The male victim was aged 14; the respondent at the time was 37. The victim was known to -- 3 of 8 -- 4 JUDGMENT 1 10 20 30 40 50 60 him through a friendship with the boy's mother. The respondent took him camping and motor-bike riding at a national park. He had been drinking alcohol and had smoked marijuana when the offences occurred. They involved the respondent inserting his finger into his victim's anus, and other sexual offending. Dr Beech expresses the opinion that the respondent is a non- exclusive homosexual paedophile with a versatile history of offending indicative of anti-social personality disorder with some psychopathic traits. He considers, however, that the respondent has matured with time and appears to have gained insight from a high-intensive sexual offender program in which he participated whilst in custody. This participation, Dr Beech considered, is likely to have reduced the respondent's risk of relevant re-offending, but it is necessary to put in place a regime which would "maintain the strategies" which the respondent has learned in the program. Dr Beech considers the respondent to be at moderately high risk of re-offending, if released into the community at present without supervision. He considers that the respondent remains vulnerable, has an entrenched pattern of behaviour which was repeated despite earlier imprisonment, and that the respondent has limited supports within the wider community. He considers that the respondent is at risk of developing a depressed or despondent emotional state in future which would exacerbate the risk of re-offending. -- 4 of 8 -- 5 JUDGMENT 1 10 20 30 40 50 60 Dr Beech considers that the risk of re-offending would be reduced to moderate by the imposition of a number of conditions and the provision of supports within the community. Dr Sundin's view is to substantially the same effect. There is other psychiatric evidence dealing with the questions (see section 13(4)(b)), principally the view of Professor James. Professor James thinks that the respondent has a moderately high risk of re-offending without further treatment and that were the respondent successfully to complete the high intensity sex offenders treatment program prior to discharge (which has happened), the risk of re-offending would be low to moderate and that ongoing psycho-therapeutic treatment of a dynamic nature following discharge from prison could reduce the risk of re-offending to low. I prefer the view of Dr Beech: It was not urged that I ought to do so; and his report is prepared more recently and is certainly no less comprehensive than the report of Professor James. The Act, (see section 13(4)(c)), also makes it necessary to consider information indicating whether there is a propensity on the part of the prisoner to commit serious sexual offences in future. He has such a propensity. His criminal history sufficiently establishes that. -- 5 of 8 -- 6 JUDGMENT 1 10 20 30 40 50 60 Whether there is a pattern of offending behaviour on the part of the prisoner is another pertinent matter. There is such a pattern; it involves sexual offences, largely with young males. There were efforts by the respondent to address the cause or causes of his offending behaviour, including participation in the sexual offender treatment program to which I have referred. That program has had a positive effect: see section 13(4)(e)(f). The respondent's antecedents and criminal history have already been mentioned. I have already discussed the level of risk that the respondent will commit another serious sexual offence if released into the community. A substantial number of proposed requirements of the supervision order have been the subject of consideration by the psychiatrists and argument. Two issues remain for decision. One is whether the respondent should be subjected to a requirement of supervision that he not commit any indictable offence. His criminal history includes non-sexual offences, such as theft. However, there is nothing in the evidence to suggest -- 6 of 8 -- 7 JUDGMENT 1 10 20 30 40 50 60 that the non-sexual offences may have contributed to the commission of the sexual. Against this background, Mr Hunter contends that the proposed condition is not shown to be reasonably required for the protection of the community against the risk of recidivism in respect of a "serious sexual offence", as that expression is defined in the dictionary in the schedule to the Act, defining the range of offences against which the legislation aims to protect the community. I accept this submission. There being no demonstrable connection between other indictable offences and sexual offences, the proposed requirement is unreasonably extensive in its potential operation. In other words, it is not a requirement appropriate to ensuring either the adequate protection of the community against the risk of commission by the respondent of a "serious sexual offence" or the respondent's "rehabilitation or care or treatment" - the two bases which, under section 16(2) of the Act, may justify the imposition of non-standard supervision requirements. The other issue concerns the duration of the order. Dr Beech and Dr Sundin consider that the order should be for at least 10 and preferably for 15 years. Their reasons for preferring 15 years include that: 1. 13 years passed between the first and second set of offences; -- 7 of 8 -- 8 JUDGMENT 1 10 20 30 40 50 60 2. The respondent is only 42, and in view of his age, it is only to be expected that his desire for sexual gratification with a male child may endure for many years; 3. His re-offending shows him to be a paedophile seeking as his victims adolescents beyond his own family; and offending of that nature commonly occurs for many years, even into old age. This evidence, which I accept, supports the selection of 15 years as the duration of the operation of the supervision order; for the testimony indicates, as the respondent's age and criminal history would in any event have indicated, that no shorter term provides adequate protection to the community against the pertinent risks. There will therefore be a supervision order in accordance with the draft which has been prepared, and paragraph 2 will be amended to insert a 15 year period. ... ----- -- 8 of 8 --