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[2009] QSC 404
General information, not legal advice.
Supreme Court of Queensland
2009-12-14
Douglas J
Original judgment source is linked above.
[1] Douglas J: The Attorney-General seeks orders pursuant to s. 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003. The respondent, Mr Marama, is currently serving a seven year sentence for rape, having been sentenced on 17 June 2003. His custodial end date is 15 January 2009.
[2] Mr Marama is a tribal, Torres Strait Islander whose English is poor, who is illiterate and innumerate and who has either borderline or moderately retarded intellectual capacity in the opinion of Professor Nurcombe, one of the psychiatrists who gave evidence before me.
[3] He has a significant criminal history which includes a number of convictions involving assault or rape of women including the offence for which he has currently been sentenced. One offence for which he was convicted on 18 August 1987 was for an attempted rape on 24 March 1987 of a three year old girl. His offending has normally been associated with abuse of alcohol. He began heavy drinking at the age of 17 and has regularly participated in binge drinking.
[4] He has successfully completed a number of programs aimed at addressing his offending behaviour while he has been in prison since 17 June 2003 for his last rape conviction. He has attempted a number of other programs relating to agricultural conservation but was unable to complete them because of his lack of literacy. His participation in the programs generally speaking has been positive in spite of his low literacy skills.
[5] His behaviour while in prison on this sentence has also been satisfactory with no breaches recorded although he has sometimes engaged in inappropriate conduct towards female staff members which has lead to his recommencing the "Ending Offending Program". He has been refused parole through not having completed a robust relapse prevention plan.
[6] I have heard evidence from three psychiatrists, Professor James, Dr Harden and Professor Nurcombe. Each of them identified that the main risk associated with the release of Mr Marama into the community related to his abuse of alcohol and other intoxicants. They also believe that he would have difficulty in maintaining abstinence if not for the proposed supervision order.
[7] For example, Professor Nurcombe said that if the respondent remained abstinent from alcohol his risk of recidivism would be low but if he could not control his use of alcohol the risk would be moderate to high. He also suggested that he needed assisted accommodation, assistance with gaining employment and counselling with regard to his two daughters, one of whom is physically and mentally disabled. He did not consider that there was a need for a curfew or electronic monitoring but considered he needed to maintain his distance from schools, malls, parks or other places where children congregated because of the evidence about the offence involving the three year old child to which I referred earlier.
[8] He believed that his alcohol use should be very closely monitored initially with random testing more than once a week in the first several months. Professor Nurcombe also believed that he needs at least weekly visits to a corrective services officer or supervisor or counsellor and regular drug and alcohol testing. Dr Harden's view was also along the same lines on these issues as those of Professor Nurcombe and Professor James. Each of the psychiatrists, was of the view that there was no purpose in extending Mr Marama's incarceration and that he should be released on the conditions proposed.
[9] Professor Nurcombe and Professor James thought that the supervision order should last for five years. Professor James' view was that if he responded to supervision during that period, given his age, which is probably now about fifty four, he would thereafter be able to control himself. Professor Nurcombe agreed that a five year term for the supervision order would be appropriate because he would be about sixty in five years time and the risk of rape by a man aged sixty was virtually non-existent.
[10] Dr Harden, however, believed that a lengthier period for the supervision order would be appropriate because of Mr Marama's very long history of alcohol abuse. He believed that the risk would not suddenly decrease and also said that a high level of supervision and monitoring was required.
[11] It seems to me that, if an appropriate level of supervision and monitoring of the condition that he abstain from the use of alcohol is maintained, then a five year term for the order would be appropriate, having regard to the evidence from Professor Nurcombe and Professor James that he would be unlikely to be a risk at the end of such a five year period.
[12] The other main area of discussion related to where the respondent should reside. Professor Nurcombe believed that the respondent needed regular supervision by a correctional officer and drug and alcohol counselling from an indigenous counsellor, preferably one who spoke his language from the western Torres Strait, Kalau Kawau Ya.
[13] Similarly Professor James said that it was appropriate for him to live somewhere he could occupy his time properly with appropriate living and working conditions. He said that he would need assistance with the organisation of his life and that he should regulate his life to help him not mix with companions who would encourage him to abuse alcohol again. Dr Harden also agreed that his identification with his culture was important.
[14] The evidence about the availability of appropriate counselling in the Torres Strait was limited. A clinical psychologist, Ms Jo Chibnall, thought that serious consideration should be given to him returning to Boigu Island or Thursday Island on one of which he was born and where he grew up. He would have access to counselling and other support programs on Thursday Island but not on Boigu Island.
[15] The evidence from Ms Lynas was that a permanent district office existed on Thursday Island. It was open between Monday and Friday between the hours of 9am and 4pm, approximately, and was serviced by up to three staff. That office operated a reporting centre on Horn Island and visited that island periodically. It did not provide any case management or supervision services on Boigu Island. A psychologist visited Thursday Island every couple of months and a social worker was available to assist the victims of sex offenders but not the offenders themselves. There were up to three staff from the Queensland Corrective Services department who could act as case managers and supervisors so the respondent would be able to meet his reporting obligations. Breath testing could be done on Thursday Island but not urine analysis. There were no permanent surveillance officers attached to that office and no support for supervision of a curfew or any monitoring directions.
[16] Support was also available in the Cairns region although the issue there would be the availability of suitable accommodation. There was also contingency accommodation available at the Townsville Prison Reserve.
[17] The respondent is required to nominate two current addresses to be assessed by departmental officers. He has nominated addresses neither of which are on Thursday Island or Boigu. The process of assessment takes into account cultural and familial needs and available personal support for the respondent.
[18] The proposed condition for the applicant is that he reside at a place within the State of Queensland as approved by an authorised corrective services officer by way of a suitability assessment. The psychiatrists generally thought, as I have said, that it would be useful for him to live in an area where he could derive support from a familiar cultural background but also emphasised that supervision of him was necessary.
[19] Mr Lynch for the respondent proposed that the condition prescribe that the residence be not south of Ingham and that the suitability assessment take into account "his filial and cultural connections referred to in the evidence given" before me by the three psychiatrists. I believe that such an order would be too uncertain to be enforced effectively. Ingham is also north of Townsville where contingency accommodation is available that may need to be used at least in the short term.
[20] I do not believe that it is appropriate that the Court descend too far into the administrative detail associated with the identification of an appropriate residence for the respondent. It is clear from the evidence of Ms Lynas that the intention of those assessing where the respondent should reside is to take into account his available personal supports, whether they be cultural, familial or other services.[1] It is also clear that they do not intend presently that he be placed, for example, at Wacol.[2] In my view those matters should be dealt with administratively as is envisaged in the condition proposed by the applicant.
[21] It is also appropriate to point out, however, that the evidence establishes that the respondent's identification with his culture is an important relevant consideration in his rehabilitation and thus in any determination about where he should live.
Conditions (xxxi) and (xxxii) - contact with the respondent's daughters
[22] There was also an issue about his access to his disabled daughter in particular. His relationship with his daughters was regarded as important by the psychiatrists and the proposed order envisages supervised contact with them. I understand that some such contact by telephone has occurred while he has been in prison. The draft order contemplates that such contact should occur if agreed between the respondent and the mother of the child or approved by order of a court under the Family Law Act 1975. The children's mother died a little while ago and part of the draft order was criticised as less flexible than appropriate in prescribing that all access to his daughters be supervised.
[23] It seems to me that the reference to the mother of the child should be removed, and that contact could be arranged as agreed between the custodian or guardian of the child and the respondent. There is no suggested risk that the respondent would attack his children and it seemed to me to be sufficient to leave it to the custodian or guardian of the children to decide whether the access should be supervised.
Condition (xxi) - planning the respondent's activities
[24] There was also some debate about proposed condition (xxi) which requires the respondent to "submit to and discuss with an authorised corrective services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed".
[25] The argument in respect of that condition was that his literacy and intellectual skills were too low to permit him to engage in such an activity. Each of the psychiatrists, however, expressed the view that he would be able to plan to some extent in the short term and that it would be advantageous to him to get into the practice of exercising some forethought about his life. The condition does not require, for example, that he prepare the schedule in writing and it seems to me that it is desirable to encourage the respondent to plan his life more than he has in the past as many of his previous problems have arisen from his difficulties in organising his life.
[26] Mr Lynch proposed initially that the condition be deleted which I do not think is justifiable. Alternatively he submitted it should be varied to read: "discuss with an authorised corrective services officer his planned and proposed activities on a weekly basis or as otherwise directed". The applicant did not oppose that variation and it seems to me to be an appropriate condition that also takes account of his limited literacy skills.
[27] Accordingly I shall make orders in the form attached.
Initiating document: Originating Application filed 25 September 2009.
Signed: . . . . . . . . . . . . . . . . . . . . . . . . . .
[1] Evidence of Ms Lynas at T.1-35 ll.28-34.
Attorney-General for the State of Queensland
Marama [2009] QSC 404