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[2008] QSC 180
General information, not legal advice.
Supreme Court of Queensland
2008-08-19
Douglas J
Original judgment source is linked above.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - SEXUAL OFFENDERS - where the respondent completed a term of imprisonment for the commission of numerous serious sexual offences - where an application by the Attorney-General for an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 - whether the respondent is a serious danger to the community under s.13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 - whether respondent should be subject to a supervision order.
Attorney-General (Qld) v Francis [2006] QCA 324, applied
[1] Douglas J: In this application by the Attorney-General for the respondent, Mr Thumm's, indefinite detention or, alternatively, his release subject to a supervision order pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003, it is accepted by the applicant that the evidence, particularly the psychiatric evidence, favours the continuation of supervision arrangements rather than the imposition of detention. It is also conceded for the respondent that there is acceptable, cogent evidence of sufficient weight to satisfy me that Mr Thumm is a serious danger to the community in the absence of an order made pursuant to Division 3 of the Act.
[2] Mr Thumm is 53 years old and has recently completed a term of imprisonment for more than four and a half years for the commission of a number of serious sexual offences between 1984 and 2001. Many of the complainants were boys of about 15 or 16, the same age as Mr Thumm when he was first interfered with himself by another man in circumstances which appear to be relevant to his pattern of offending. It was regarded as significant by the psychiatrists, however, that the two most recent offences for which he was convicted involved younger boys, one of 12 and one of six or seven. The pattern of offending extended, therefore, over a period of approximately 17 years involving the commission of numerous offences in respect of seven different complainants where Mr Thumm was also able, as Dr Sundin said, to "go under the radar" without being detected for the whole of that period.[1]
His pattern of offending included a significant number of occasions where Mr Thumm either forced himself upon a complainant or interfered with him while asleep. The offences were described by one of the sentencing judges as calculated, reflecting predatory behaviour on his part, not opportunistic but rather ones where his conduct was deliberate including him gaining the trust of the families of the complainants. He was described as someone who befriended the parents of the boys whom he attacked such that he was in a position of trust so far as those boys were concerned.
The psychiatric evidence obtained since an interim supervision order was made on 22 May 2008 is that he poses a "moderate" risk of reoffending sexually in the opinion of Dr Harden and Dr Sundin while Professor James had earlier, before the interim supervision order was made, assessed his risk of recidivism as moderate to low, a view that he maintained in his oral evidence. Even on that more favourable assessment for Mr Thumm, Professor James also said:
"...Given the long history of Mr Thumm's offending, it would in my opinion be important to reinforce his good intentions by externally imposed requirements, the goal of which should be the minimisation of the opportunities for Mr Thumm again to develop significant relationships with males under the age of 16 years."[2]
[5] Professor James's view, which he confirmed at this hearing, was that Mr Thumm had achieved more emotional insight into his offending than either Dr Harden or Dr Sundin thought was the case.
[6] In the circumstances, therefore, it seems to me that the threshold test for the making of final orders under the Act, satisfaction that Mr Thumm is a serious danger to the community in the absence of a Division 3 order, has been met in the sense that there is an unacceptable risk that he will commit a serious sexual offence if he is released from custody without such an order being made. The diagnosis of all three psychiatrists of paedophilia and their view that he has a propensity to commit sexual offences against boys coupled with his history of the commission of such offences justifies the conclusion that an order should be made.
[7] That it should be an order for his supervision rather than his continuing detention is reinforced by the fact that while he has been subject to an interim supervision order his compliance with that order has been good, leading to the reduction of some curfew and monitoring conditions. He also has available to him accommodation which has been assessed as suitable by Queensland Corrective Services and has an offer of employment with a business which, if it were accepted as desirable by Queensland Corrective Services, would be advantageous to his reintegration into the community. The psychiatric evidence is all one way also as to the preferability of supervision arrangements rather than detention.
[8] The parties, therefore, agreed on a significant number of conditions appropriate to an order to be made by me but differed in respect of several of them which I shall deal with in the sequence in which they appear in the proposed draft order prepared for the applicant Attorney-General.
Commission of an indictable offence during the period of the order
[9] Mr Shepherd, for Mr Thumm, submitted that there was no demonstrated need to include a condition that he not commit an indictable offence during the period of the order. He did not oppose an earlier proposed condition that the respondent not commit an offence of a sexual nature during that period.
[10] The psychiatric evidence was that there was a statistical correlation between reoffending generally and the commission of further sexual offences but Dr Sundin and Professor James, in particular, conceded that there was nothing in Mr Thumm's general criminal history to suggest that he was at risk of reoffending other than in respect of the types of matters for which he had been convicted.[3] He had no other relevant criminal history. It seems reasonably clear on the evidence, also, that his pattern of offending was very specific and that his behaviour otherwise did not suggest any significant risk that he would commit further indictable offences other than those of a sexual nature. Mr Shepherd also submitted that a later condition sought that he submit to assessment or treatment by a psychiatrist or other mental health professional as directed by a Corrective Services Officer would be likely to help deal with any behaviour of concern that might be demonstrated by the commission of other indictable offences.
[11] As the Court of Appeal said in Attorney-General (Qld) v Francis [2006] QCA 324 at [39], the question is whether the protection of the community is adequately ensured and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorises the constraint. Applying that approach, I have concluded that, in this case, where it is agreed that a condition should be included that he not commit an offence of a sexual nature during the period of the order, there is no need shown to include a further condition that he not commit an indictable offence during that period.
Response to enquiries and disclosure to authorised Corrective Services officers
[12] The orders sought by the applicant include the following:
"respond truthfully to enquiries by authorised Corrective Services officers about his whereabouts and movements generally;
disclose to a Corrective Services officer upon request 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."
[13] A condition to which no objection is taken is that he comply with every reasonable direction of a Corrective Services officer and Mr Shepherd submitted that was sufficient to cope with the problems to which the other two conditions were directed. In that context he pointed out that the conditions to which he objected were not qualified by any requirement of reasonableness in respect of the inquiries or disclosure to be made.
[14] Prima facie, inquiries by an authorised Corrective Services officer about Mr Thumm's whereabouts and movements and about the names and other details of his associates are likely of their nature to be reasonable inquiries directed towards serving the ends of the imposition of these conditions, namely the adequate protection of the community and the continuing control, care or treatment of Mr Thumm to facilitate his rehabilitation; see s. 3 of the Act. I find it difficult to conceive of a situation where the obligation imposed by such a requirement would be likely to be abused but, if it were, there is scope under s. 19 of the Act to amend a supervision order.
[15] One condition sought for the Attorney-General was that Mr Thumm not visit premises licensed to supply or serve alcohol, without the prior written permission of a Corrective Services officer. The variety of such premises is likely to make inadvertent breach of such an order relatively easy. The parties agreed, therefore, that a more appropriate condition would be that he not visit hotels, taverns or nightclubs without the prior written permission of a Corrective Services officer. That seems to me to be an appropriate addition to the other accepted condition that he abstain from consumption of alcohol for the duration of the order, one regarded by the psychiatrists as important because of his use of alcohol previously to relieve anxiety from which he suffered and to assist him to disinhibit himself.
Submission to psychiatric and other such treatment
[16] The Attorney-General also submitted that it was appropriate that one of the requirements of the order be that he "attend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer as is recommended by such treating intervention specialist, the expense of which is to be met by Queensland Corrective Services".
[17] This and the next proposed requirement that Mr Thumm undergo medical testing or treatment were objected to on the basis that Mr Thumm should not be forced to undergo invasive treatment, in particular, without his informed consent. The second proposed requirement read as follows:
"Agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by such treating psychiatrist and supervising Corrective Services officer, and permit the release of the results and details of the testing to Queensland Corrective Services, if such a request is made for the purposes of updating or amending the supervision order or for ensuring compliance with this order, the expense of which is to be met by Queensland Corrective Services."
[18] The former condition in respect of psychiatric assessment and/or treatment seems to me to be both useful and non-invasive in the sense that such treatment would normally require not only the informed consent of the respondent but also his cooperation. It is also a requirement responsive to the psychiatric condition from which he suffers as a paedophile and may allow him to be treated if symptoms occur suggesting that he is at risk of committing further such offences or he misbehaves in other forms.
[19] There seems to me to be a problem with imposing the further requirement in respect of medical testing or treatment even though one would not expect it to be given ethically without the respondent's informed consent. There is no demonstrated need for such medical testing or treatment including the testing of testosterone levels at this stage as there is no indication that his offences are related to any problem of hypersexuality. Mr Shepherd was concerned that this requirement could be used to require Mr Thumm to undergo anti-androgen treatment in the future, something not authorised by the Act in particular terms. The psychiatrists were of the view that it was not likely that he would be prescribed such treatment and believed that it would not be prescribed for him in any event without his informed consent.
[20] In those circumstances it again seems to me to be a case where the adequate protection of the community does not require this constraint on the liberty of the subject, which would require Mr Thumm's agreement in advance to treatment that is not specified and is not presently thought to be necessary. Again, if a problem arises in the future in respect of this issue and the facts then warrant some amendment to the order a further application may be made. At present I see no need to include such a requirement.
[21] The Attorney-General initially submitted that there be a condition that the respondent not visit public parks without prior written permission from a Corrective Services officer. The possible employment of Mr Thumm may include work such as tree felling which would take him to public parks in that occupation. A suggested reformulation of the order is as follows:
"not visit public parks without prior written permission from a Corrective Services officer or in the course of his employment and in the company of an adult approved in writing by a Corrective Services officer."
[22] That form seemed likely to meet the concerns of both parties.
[23] The Attorney-General's submission was that the requirement be that he "not establish and maintain contact with children under 16 years of age without prior approval by a Corrective Services officer". Mr Shepherd was originally inclined to argue that it could be limited simply to male children because of his previous pattern of offending but the psychiatric evidence indicated that contact with younger female children by the respondent could also be problematical because he may be able to use access to girls to allow him to meet young men. There was also concern that the change in his pattern of offending indicated by the later offences against younger complainants could suggest that female children may also be at risk.
[24] One analysis of his pattern of offending was that he drew satisfaction from feelings of power associated with his offending which could also affect his relationships with girls. His history included many occasions, during extended periods, where he had apparently normal sexual relationships with women during the period that he was also offending against male children.
[25] Conditions were proposed for the Attorney-General that he not join, affiliate with or attend on the premises of any club, organisation or group without permission from a Corrective Services officer. It was also sought that he not join, affiliate with or attend on the premises of or attend at activities carried on by such a club or organisation in respect of which there were reasonable grounds for believing there was either child membership or child participation. The latter condition was expressed originally in absolute terms not able to be varied by permission from a Corrective Services officer.
[26] When, for example, it was pointed out to Dr Sundin that such a condition could prevent the respondent from joining a library even with the consent of a Corrective Services officer and she conceded that there were practical difficulties with such an approach,[4] the parties agreed that an appropriate condition would simply be as follows:
"seek written permission from a Corrective Services officer prior to joining, affiliating with or attending on the premises or engaging in the activities of any club, organisation or group."
[27] That seems to me to be an appropriate order.
Contact with a parent of a child under the age of 16
"Advise a Corrective Services officer of any repeated contact with a person who, the respondent knows or ought to know, is a parent of a child under the age of 16. The offender shall, if directed by his supervising officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any such person as nominated by the supervising officer who may contact such persons to verify that full disclosure has occurred."
[29] Mr Shepherd's concern was with the imprecision of the word "repeated" in the first line of that proposed requirement. He did not otherwise object to it but acknowledged the difficulty of defining the type of conduct sought to be controlled with any greater degree of precision. One might, for example, use the word "regular" instead of "repeated" but it still gives rise to similar problems. It seems to me that the object of the requirement is sufficiently clear in its current form.
[30] A requirement not the subject of dispute is that Mr Thumm not access pornographic images that display photographs or images of children on a computer or on the internet or in any other formats. A more contentious condition sought was that he "obtain the prior written approval of a Corrective Services officer before accessing a computer or the internet."
[31] Because of the ubiquity of computers and the internet and often the necessity that individual citizens have access to them for banking and similar mundane activities, it was argued that this condition was impractical. An alternative formulation as follows was regarded as acceptable by both parties:
"make available to a Corrective Services officer all necessary passwords and access codes to permit the respondent's use of any computer to which he has had access to be examined from time to time and not to delete or erase any content from such a computer without the prior written approval of a Corrective Services officer."
[32] The last significant issue in debate was the length of the order. Dr Harden was of the view that it should extend for between 10 and 15 years. Dr Sundin took the view that it should extend for 15 years and Professor James expressed the view that a 10 year term would be adequate.
[33] Dr Sundin's reasons for her opinion that a 15 year term was more appropriate were the most fully expressed. She said:[5].
"It is based on two things. It's based upon the issues to do
with his personality and the issues to do with his libido.
Taking the libido issue first, when hyposexuality (sic[6]) is one of
the drivers in sexual offending behaviour, you have the
benefit that age can diminish sexual drive, so in a gentleman
of this age you can sometimes look at it and say, well, as he
starts getting into his sixties or seventies, you can count on
that actually dropping down the risk of recidivism to some
hypersexuality as one of the motivating factors, we can't say
Yes?-- From a personality perspective, what we have in this
gentleman is a pattern where the offending behaviour seems to
have been linked to anxiety and as a response to stress and as
a response to - as a regression back to a time of a feeling of
comfort. The potential for that occurring isn't going to
remit with time. In fact, as we get older, the chances of
becoming isolated and reacting to that isolation and seeking
comfort potentially actually can increase, so in my opinion,
keeping the order going longer provides a greater protection
to the community, and also a greater protection to Mr Thumm."
[34] She was also concerned about the 17 year period of his previous offending and the fact that it went undetected for that period in spite of its regularity. She also expressed the view that it was desirable to be cautious in respect of his management in the community because he presented as intelligent, affable and apparently well-meaning.[7] Her reasoning and approach to the problem of assessing the likely length of the period during which there will remain an unacceptable risk that Mr Thumm would commit a serious sexual offence seem persuasive to me. The term of the order should be 15 years.
Accordingly I shall make an order in the following terms:
A-G for the State of Qld
Thumm