Supreme Court of Queensland|2005-02-10|Before: Byrne J

The applicant seeks an order which would have the effect of seeing the respondent remain in custody.

I have already said that, in Professor Nurcombe's assessment, there is no rehabilitative potential in continued incarceration. That view seems plainly correct. The only point which would be served by his continued incarceration is the protection of the community; see section 13(6).

Although the protection of the community is the "paramount" consideration, it is not the only consideration. The other, the significance of which scarcely needs elaboration in this Court, relates to liberty of the citizen.

The question comes essentially to this: whether, on a consideration of the interests at stake, the continued incarceration of the respondent is necessary or else whether the interests of the community and the respondent might be sufficiently accommodated by the making of a continuing supervision order. A decision about that is necessarily influenced by the conditions which might attach to such an order were it to be made.

A draft set of conditions has been presented for consideration in case a supervision order were made. One remains (slightly) contentious. The others, were a supervision order to be made, are that:

1. within 48 hours of release he would report to a Corrective Services Officer at the area office of Community Corrections closer to his residence.

2. he would be under the supervision of a senior Corrective Services officer who has experience in the supervision of sexual offenders for the duration of the order. The proposed duration is until 31st December 2015.

3. he would report to and receive visits from the supervising Corrective Services officer on a twice weekly basis until August 2005 and thereafter at such frequency as determined necessary by the supervising Corrective Services officer.

4. he would obey the lawful and reasonable directions of the supervising Corrective Services officer.

5. he would respond truthfully to enquiries by the supervising Corrective Services officer about his whereabouts and movements generally.

6. he would notify the supervising Corrective Services officer of any affiliation with any club or organisation that has child membership or child participation in its activities.

7. he would only reside at accommodation that has been given prior approval by the Department of Corrective Services.

8. he would notify the supervising Corrective Services officer of the make, model, colour and registration number of any motor vehicle owned by or generally driven by him.

9. he would notify the supervising Corrective Services officer of the nature of his employment, the hours of work each day, the name of his employer and the address of the premises where he is employed.

10. he would notify a Corrective Services officer of every change of his name, place of residence or employment at least two business days before the change happens.

11. he would not leave or stay out of Queensland without the permission of the supervising Corrective Services officer.

12. he would not commit an offence of a sexual nature during the period for which these orders operate.

13. he not be in the area within 100 metres directly outside a school between 8.00 a.m. to 9.30 a.m. and 2.30 p.m. to 16.30 p.m. on school days without reasonable excuse.

14. he not establish and maintain contact with children under 16 years of age. This is slightly contentious. The respondent seeks to attach an exception in respect of his own children, while subject to supervised contact within an office of the Department of Families.

15. he not access pornographic images containing photographs or images of children on a computer or on the Internet.

16. he abstain from alcohol and illicit drugs for the duration of the order, only take prescribed drugs as directed by a medical practitioner, and submit to alcohol and drug testing as directed by a Corrective Services officer.

17. he disclose details of any treating psychiatrist, psychologist or counsellor to the supervising Corrective Services officer and permit any treating psychiatrist, psychologist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of offending and compliance with this order to the Department of Corrective Services if such request is made in writing.

These conditions address the conditions the psychiatrists consider ought to be imposed were there to be a supervision order. Plainly, they involve significant and continuing supervision and other measures designed to protect the community against the risk of his re-offending.

No supervision order can be risk-free. However, the conditions proposed to be imposed afford reasonable protection to the community. Given the interests to be weighed in the balance, and recognising that the paramount of them is the need to ensure adequate protection of the community, the appropriate form of order is a supervision order to take effect at the end of the respondent's period of imprisonment.

The respondent ought to be allowed to see his three young children, but only if his contact with them is supervised and takes place at an office of the Department of Families. Mr O'Sullivan has helpfully informed me that there are offices where that can take place.

The applicant is opposed to this upon the basis that the respondent ought not to be allowed near any children. But the risk to his children is reduced to acceptable levels if the contact takes place under the supervision of an officer of the State Government department: someone who will be present in the room where any such meeting between the respondent and his children may take place, and for the duration of it.

HIS HONOUR: Not establishing and maintaining contact with children under 16 years of age, subject to the respondent's being permitted by the Department of Child Safety, under the supervision of an officer of that Department, to meet with his children at an office of that Department.

Prisoners (Sexual Offenders) Act 2003

Attorney-General for the State of Queensland v. Downs [2005] QSC 16 (10 February 2005)

Attorney-General for the State of Queensland v. Downs [2005] QSC 16 (10 February 2005)

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Attorney-General for the State of Queensland v. Downs [2005] QSC 16 (10 February 2005)