//
[2022] QSC 304
General information, not legal advice.
Supreme Court of Queensland
2022-12-23
Davis J
Original judgment source is linked above.
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY - where the respondent has been detained on a continuing detention order - where the Attorney-General applied for a review of the continuing detention order - where it was not contested that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 - whether the adequate protection of the community can be ensured by the release of the respondent on a supervision order
Attorney-General for the State of Queensland v Currie [2020] QSC 128, related
Attorney-General for the State of Queensland v Currie [2021] QSC 197, related
Attorney-General for the State of Queensland v Fardon [2011] QCA 111, followed
Attorney-General v Fardon [2011] QCA 155, followed
Attorney-General (Qld) v Fardon [2018] QSC 193, followed
Attorney-General for the State of Queensland v Fardon [2019] QSC 2, cited
Attorney-General v Fardon [2018] QCA 251; [2019] 2 Qd R 487, cited
Attorney-General v Fisher [2018] QSC 74, cited
Attorney-General v Francis [2006] QCA 324; [2007] 1 Qd R 396, followed
Attorney-General for the State of Queensland v Travers [2018] QSC 73, cited
Attorney-General (Qld) v Valence [2022] QSC 261, cited
The respondent appeared on his own behalf on 9 December 2022 and 23 December 2022
Hannay Lawyers for the respondent on 1 November 2022
The respondent appeared on his own behalf on 9 December 2022 and 23 December 2022
[1] Joel George Currie is the subject of a continuing detention order, which I will call "the CDO", made under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003, which I will refer to as "the Act". An application has been made by the Attorney-General to review the CDO.[1]
[2] Mr Currie was born on 7 January 1984. He is presently 38 years of age and is about to turn 39. He has an extensive criminal history which began when he was 11 years old. Mr Currie's criminal history has been outlined in previous judgments[2] and it is unnecessary to descend into any real detail about that now.
[3] Significantly though, Mr Currie committed a serious sexual offence on 29 March 2006 and was sentenced to eight years' imprisonment. He was subsequently sentenced to other terms of imprisonment. The CDO was made by Byrne SJA on 11 March 2016. It has been reviewed on four earlier occasions. This is the fifth review.
[4] The Act sets up a scheme of preventative detention. Critical to the scheme is s 13. That enlivens the jurisdiction of the court to make either a supervision order or a continuing detention order where an offender is a "serious danger to the community".
[5] A prisoner is a "serious danger to the community" where there is an unacceptable risk that the prisoner will commit a serious sexual offence if not subject to an order under the Act.[3] A serious sexual offence is one of a sexual nature either involving violence or being one against a child.[4] It is well established that the aim of the scheme is to protect the community from the risk of commission of a serious sexual offence, not from the risk of offending generally.[5] As previously mentioned, once it is found that a respondent is a serious danger to the community, a discretion is enlivened to make either a CDO or a supervision order.
[7] By s 13(6)(b) of the Act, when considering whether to make a supervision order, the court must consider whether the requirements of a supervision order prescribed by s 16 can be reasonably and practicably managed by Corrective Services officers.
[8] By s 27 of the Act, there must be periodic reviews of a CDO. By s 30, the court must firstly consider whether to affirm the decision that the prisoner is a serious danger to the community in the absence of an order under the Act. Here, that is not really a live issue. The psychiatric evidence is overwhelmingly to the effect that Mr Currie is an unacceptable risk of committing a serious sexual offence if released without supervision. Mr Currie does not seek unsupervised release.
[9] The second question posed by s 30 is the real one here, namely, whether the court should order Mr Currie to continue to be subject to the CDO or whether he should be released from custody, subject to a supervision order. That decision on a review of a CDO is made on the same bases as that decision is made under s 13.[7]
[10] Mr Currie has been consistently diagnosed as suffering an antisocial personality disorder with psychopathic personality traits. He also suffers from polysubstance dependence, but that is currently in remission.
[11] It is widely recognised by forensic psychiatrists examining serious sex offenders that generally the most effective treatment is participation in group sex offender treatment programs. For Mr Currie, that would ideally be the High Intensity Sexual Offender Program known as the HISOP. For various reasons, Mr Currie has not undertaken the HISOP, even though he has now been in custody for over 16 years. He is under treatment on a one-on-one situation with a psychologist Mr Nick Smith, who is very experienced in the treatment of serious sex offenders. It is accepted by the psychiatrists who have examined Mr Currie for the purposes of proceedings under the Act that he is progressing under the treatment of Mr Smith.
[12] On Mr Currie's third review of the CDO in 2020,[8] he was examined by Doctors Harden and Aboud. Both recommended continuing treatment with Mr Smith. It was recognised that the treatment could be undertaken either in custody or in the community. Dr Harden observed:
"My preference would be to continue for a further 12 months in the structured environment of custody to consolidate his current gains."
[13] Dr Aboud, on the same occasion, observed this:
"Further, it is my view that the true test of his readiness for safe release to the community is that he is first able to manage his emotions to the extent that he is able to appropriately control his behaviour in the custodial environment. It is my consideration that successful demonstration of such behavioural control would be evidenced by a reduction in his prison record of 'violations/incidents/breaches', such that he has not, for a period of a year engaged in sexually violent behaviour; engaged in sexually inappropriate behaviour, such as indecent exposure; engaged in a violent behaviour towards others as the aggressor; issued threats of physical violence or of sexual violence against others, be it verbally or in writing; return a positive urine test for an illicit substance.
Until he is able to demonstrate this, I believe that he would be very - he would very likely contravene the conditions of a supervision order, present as unmanageable, and quickly escalate to untenable risk of sexually reoffending, given that his risk of sexual offending is underpinned by an opportunistic, impulsive, predatory, and antisocial disposition."
[14] By the force of the doctors' opinions, Mr Currie then, as at 2020, had a pathway to release. His goal was to maintain stable behaviour for a period of 12 months, and if so, he could be released on a supervision order.
[15] Mr Currie's fourth review of the CDO came before Justice Bowskill (as the Chief Justice then was) in July 2021.[9] Unusually, for reviews of CDOs, her Honour was faced with significant factual disputes. The Attorney-General alleged that Mr Currie had been involved in a series of incidents while in custody since his third review. These were significant, given the evidence of the psychiatrists, that a period of stability should be maintained before he could be released on a supervision order.
[16] Her Honour found against Mr Currie, and then observed, while maintaining the CDO:
"[88] Whilst the primary purpose of the Act is community protection, it is also a purpose of the DPSOA regime to facilitate the rehabilitation of prisoners who are regarded as not having reached an appropriate level of rehabilitation, at the end of their term of relevant imprisonment, such that they continue to pose a risk to the community. That necessarily means that while a prisoner is subject to a continuing detention order, they should be afforded every reasonable and available means of care and treatment to assist them to become rehabilitated, because that is the main point of the order.
[89] The respondent has a significant role to play in that regard - he has to show that he is willing, as Dr Aboud put it, to take a chance on someone, put his trust in a treating psychologist (or psychiatrist) and demonstrate not only that he is 'going through the motions', but that he is internalising the benefits of that treatment - that is, learning from it and demonstrating that learning by adapting his behaviour. There is also of course a responsibility on QCS, who have the respondent in their custody for 'control, care and treatment', to make concentrated and comprehensive efforts to facilitate the provision of such care and treatment to the respondent - including in terms of the decision as to where he is placed, as well as by ensuring the respondent has regular access to appointments for the psychological therapy that is required.
[90] If I can summarise the way forward for the respondent, on the present evidence it seems to me to involve four things: choice, effort, improvement and stability. For a future review the respondent should be looking to show evidence that he:
(a) has started to make better choices about how he behaves, as well as to engage in psychological treatment to assist him to self-manage his behaviour and emotions;
(b) is putting in the effort, to engage in that psychological treatment, to contain his behaviour and emotions and to try to interact more cooperatively with others around him;
(c) has improved his behavioural and emotional control; and
(d) has demonstrated that he has actually made changes reflecting that he has learned from those things by a period of stability - as Dr Harden put it, 'a long enough period of relatively settled, not even perfect, but relatively settled behaviour', not involving problematic incidents (such as threats, sexualised behaviours, violent, threatening or aggressive behaviours).
[91] With evidence of that kind, the court would be in a better position determine the respondent's progress in these things and, with the benefit of expert psychiatric opinion, to assess whether in fact release on a supervision order would be effective to adequately manage the risk posed by the respondent, on the basis that the respondent would be able to abide by, and would abide by, the conditions of such a supervision order."
[17] What can be seen is that the court, through its judgments, indicated strongly to Mr Currie that if he sought release on supervision, he must continue his treatment with Mr Smith, and he must behave in prison. That latter requirement is necessary, so the psychiatrists opine, because that would suggest that he has prospects of success in complying with a supervision order and his risk of committing a serious sexual offence would then be reduced. In my view, Mr Currie has done both, but there is a complication.
[18] While in custody, Mr Currie has been assaulted. That has led to prison authorities isolating him for his own protection. The psychiatrists are concerned that Mr Currie's emotional state may be heightened when he is again faced with the challenges of mixing with other prisoners, and that may adversely affect his ability to maintain stable behaviour. That aspect is a consideration under the Act at least hypothetically, for two reasons. Firstly, it is relevant to the risk of committing a serious sexual offence. Secondly, it is relevant to his manageability under a supervision order which is a consideration under s 16.
[19] Dr Aboud and Dr Harden considered that Mr Currie's risk of future serious sexual offending, if unsupervised, remains high. Dr Aboud then observed this in his latest report:
"However, since his last annual review in the Supreme Court, he does seem to have made progress. He has clearly made a sustained effort to control his emotions and his behaviour, and to a large extent, appears to have succeeded. It is difficult to be confident that this apparent improvement is a true reflection of genuine improvement because he has arguably not been properly tested, being confined to restricted circumstances where he does not interact with other prisoners. Nevertheless, to the extent that he has been tested, he certainly appears to have demonstrated that he may have met the standard that was set for him by Justice Bowskill in terms of choice, effort, improvement, and stability."
"The court has a difficult decision to make because ideally, he would be stepped down into a less restricted prison environment so that his apparent improvement could be more robustly tested. Instead, it is unlikely that this would be a safe prospect, as he certainly presents as a man who is at considerable risk of being assaulted by peers. If it was viable to more thoroughly but safely test him within the prison environment, then this would probably appeal as the best next step. However, failing this, the court is faced with having to decide whether the progress he has made to date in the course of the past year is sufficient. It is my opinion - in assuming his recent improvement in emotional and behavioural control to be both true and sustainable, that his risk for sexual and violent reoffending, as modified by a supervision order, would be reduced to moderate and will be potentially manageable in a community setting."
[20] Dr Harden observed that Mr Currie required ongoing treatment and then observed this:
"There appears to have been some progress in the period since the last review, in terms of institutional compliance. This is the first such positive movement seen since I first reviewed him in 2015. This may reflect early improvement in his severe personality disorder, associated with increased age.
"If he were released from custody on a supervision order, his risk of sexual reoffending would now be reduced to moderate, given his somewhat improved institutional compliance. A supervision order will now result in some more substantial diminution of his risk, despite his likely compliance issues."
[21] Under cross-examination, both doctors maintained concern about whether Mr Currie's demonstrated stability in custody since the fourth review of the CDO, could be maintained if he were not in isolation. It is anticipated that upon release on a supervision order, he would be housed in the precinct.
[22] The current application was heard on two days. On the first day,[10] the doctors were called and cross-examined and were then excused. There was then tendered into evidence by Mr Currie's counsel, a letter written by Mr Currie which explained his plans for the future.
[23] In that letter, Mr Currie identified a place in the country owned by a relative to which he wished to be released. That property was remote and Mr Currie explained his perceptions of how that would decrease risk. Unfortunately, that letter had not been shown to the doctors and they did not give evidence about it. The hearing was adjourned so that could be facilitated. The doctors returned to give evidence on the second day.[11] Their opinions were that the letter did not much change their views. Between the first and second days of the hearing, it unfortunately became apparent that the country residence was not available to Mr Currie, in any event. On the second day of the hearing, Mr Currie represented himself. He attempted to cross-examine the doctors, and he addressed me.
[24] As Dr Aboud observed, the question for the court is a difficult one. Mr Currie has been in custody for some 16 years. He has been subject to the CDO for over six years.
[25] The appropriate orders, in my view, are to reaffirm the finding that Mr Currie is a serious danger to the community in the absence of a Division 3 order under the Act, but then to rescind the CDO and to release Mr Currie on a supervision order. I do that because I have concluded that the supervision order reduces Mr Currie's risk of committing a serious sexual offence to an acceptable level, or in other words, the supervision order will ensure the adequate protection of the community against the commission by Mr Currie of a serious sexual offence.
[26] I have reached that conclusion for the following reasons: Mr Currie clearly understood, at least from the fourth review of the CDO, that his release was dependent upon him making progress in his treatment with Mr Smith, and also by improving his institutional behaviour. He has done both those things.
[27] Mr Currie has, in my view, developed some insight into his position, and the letter which he wrote and was tendered shows Mr Currie's understanding that his risk must be managed. Both psychiatrists accept that a supervision order will reduce risk. The real issue is whether Mr Currie is manageable on a supervision order, and whether he will comply with it. However, it is well established that the question is not whether the supervision order will be complied with, but whether the supervision order will reduce risk to an acceptable level.[12]
[28] Mr Currie's risk is that his behaviour in custody will deteriorate, he will become unmanageable, and his risk of committing a serious sexual offence will rise. I do note Dr Aboud's opinion that Mr Currie's behaviour could escalate quickly. However, Mr Currie will be supervised at The Precinct, and it seems to me, highly likely that if Mr Currie is going off the rails, so to speak, that will be evident to those supervising him and appropriate action can be taken.
[29] Therefore, the supervision order will do its job and protect the community from the relevant risk. A draft supervision order was tendered on the hearing, and I am satisfied that the conditions are appropriate to manage risk.
[30] It is presently the last business day before Christmas. One of Mr Currie's issues is, as I have explained, stability or lack thereof. This is a constant theme through the opinions of the psychiatrists over the years. Releasing him into The Precinct at this time is undesirable. He ought to transition to The Precinct in a calm way in the new year, after Corrective Services have an opportunity to make the appropriate arrangements. His date for release on supervision should be 9 January 2023, and I so order.
[31] The supervision order ought to be for a period of 10 years, because Mr Currie's issues are well entrenched. They have affected his life since he was very young, and on balance, it seems to me that the adequate protection of the community requires that he be placed on supervision for a period of 10 years.
[32] I order in terms which appear in Schedule 1.
Initiating document: Application filed 9 August 2022 (CFI No. 140)
THE COURT, being satisfied that Joel George Currie, the respondent, is a serious danger to the community in the absence of a Division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) affirms the finding made to that effect on 11 March 2016.
To "report" means to visit a corrective services officer and talk to them face to face.
a) Where you are allowed to live; and > > b) Rehabilitation, care or treatment programs; and > > c) Using drugs and alcohol; and > > d) Who you may or may not have contact with; and > > e) Anything else, except for instructions that mean you will break the rules in this supervision order.
A "reasonable direction" is an instruction about what you must do, or what you must not do, that is reasonable in that situation.
If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it.
A "business day" is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday.
This also means you must get written permission from a corrective services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place.
a) Wear a device that tracks your location; and > > b) Let them install a device or equipment at the place you live. This will monitor if you are there.
This is called a monitoring direction. You must obey a monitoring direction.
a) What the job is; > > b) Who you will work for; > > c) What hours you will work each day; > > d) The place or places where you will work; and > > e) (if it is study) where you want to study and what you want to study.
"Contact" means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.
Speaking to corrective services about what you plan to do
This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly.
"Contact" means any type of communication, including things like talking with them face to face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way.
"Supervised" means having contact with the child while another person is with you and the child.
"Unsupervised" means having contact with the child while there is no other person with you and the child.
a) tell the person(s) about this supervision order; and > > b) tell a corrective services officer the details of the person(s).
You must do this immediately. This means you have to tell the person, and tell a corrective services officer, on the same day you have contact with the person.
a) be within 100 metres of any school or childcare centre; > > b) be in a place where there is a children's play area or child minding area; > > c) go to a public park; > > d) go to a shopping centre; > > e) join any club or organisation in which children are involved; > > f) participate in any club or organisation in which children are involved.
If you want to do any of these things, you must first get written permission from a corrective services officer. If you do not get written permission, you cannot do any of these things.
[2] Attorney-General for the State of Queensland v Currie [2020] QSC 128.
[3] Dangerous Prisoners (Sexual Offenders) Act 2003,s 13(2).
[4] Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, Schedule 1, Dictionary.
[5] Attorney-General for the State of Queensland v Travers [2018] QSC 73 at [30], followed in Attorney-General v Fisher [2018] QSC 74 at [16]- [28] and Attorney-General for the State of Queensland v Fardon [2019] QSC 2.
[6] Attorney-General v Francis [2006] QCA 324; [2007] 1 Qd R 396 at [39].
[7] Attorney-General (Qld) v Valence [2022] QSC 261 at [23] and [24].
[8] Attorney-General for the State of Queensland v Currie [2020] QSC 128.
[9] Attorney-General for the State of Queensland v Currie [2021] QSC 197.
[12] Attorney-General (Qld) v Fardon [2018] QSC 193 at [76], on appeal on another point Attorney-General v Fardon [2018] QCA 251; [2019] 2 Qd R 487, Attorney-General v Fardon [2011] QCA 155 at [28] and Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at [29].
Attorney-General for the State of Queensland
Currie [2022] QSC 304