CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND
DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR
DANGEROUS SEXUAL
OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS ANDDECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS ORDANGEROUS SEXUALOFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where therespondent is the subject of a supervisionorder made under the DangerousPrisoners (Sexual Offenders) Act 2003 (the DPSOA) on 15 December 2014 –where the respondent contravened the supervision order – where theapplicant seeksorders under s 22 of the DPSOA to extend the period of thesupervision order for a further five years – where the respondent hascontravenedthe supervision order on previous occasions – where theevidence of both psychiatrists is that it would be preferable for therespondentto be engaged in a rewards-based behaviour management program – whetherthe period of the supervision order oughtto be extendedDangerousPrisoners (Sexual Offenders) Act 2003 s 2, 13(5), s16B, 22(1), 22(7),
43AA
Judgment (9 paragraphs)
[1]
[1] The Attorney-General applied for a further order under section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) in respect of an alleged contravention by the respondent, Mr Aaron Daniel Mow (Mr Mow), of a supervision order (the supervision order) first made on 15 December 2014 pursuant to s 13(5)(b) of the Act.
[2] Mr Mow had been detained in custody since 25 November 2023, when he was arrested on a warrant charging him with having breached requirements stated in the supervision order. On 24 January 2024, in the Richlands Magistrates Court, Mr Mow pleaded guilty to two charges of contravening a requirement of the supervision order without a reasonable excuse. He was convicted and sentenced to nine months' imprisonment on each charge, to be served concurrently. The 60 days he had spent in presentence custody was declared as time already served in respect of those sentences.
[3] It was not contested that Mr Mow contravened a requirement of the supervision order. Accepting this and taking into account the evidence given by two psychiatrists, Dr Timmins and Dr Wolfenden, I was satisfied that Mr Mow had discharged the onus imposed by section 22(7) of the Act that, despite the contraventions, adequate protection of the community could be ensured by a supervision order.
[4] Accordingly, I made an order that Mr Mow be released from custody and continue to be subject to the supervision order. I also made an order to the effect that the supervision order be amended pursuant to s 22(7)(b) of the Act and be extended by five years from the date of the hearing.
[5] These are the reasons those orders were made.
[2]
[6] On 1 January 1997, at 16 years of age, Mr Mow became intoxicated at a party. A 44-year-old woman walked past him and made some comment. Mr Mow did not know her. He attacked her. He left her close to death. On 9 December 1997, he pleaded guilty and was convicted of attempted murder. The learned sentencing judge, Justice Jones, described the attack as particularly violent and noted a sexual overtone in the offending. Mr Mow was sentenced to ten years' imprisonment. The Court declared the 281 days he had spent in pre-sentence custody (between 1 January and 9 December 1997) as time already served under this sentence. The Court ordered he be eligible for release on a parole order after serving one half of the sentence. It may be assumed he was released on parole about 31 December 2001. Mr Mow would then have been aged 21.
[7] Between 8 July 2003 and 24 March 2009, Mr Mow committed about a dozen offences, mainly vagrancy and public nuisance offences. For these, he was variously fined and sentenced to probation in the Innisfail Magistrates Court.
[8] On 4 November 2009, at 29 years of age, Mr Mow was charged with attempted rape, deprivation of liberty and assault with the intent to commit rape, all allegedly committed the day before. On 8 June 2010, he pleaded guilty to attempted rape in the District Court at Innisfail. He was convicted and sentenced to three and a half years' imprisonment. The Court declared the 216 days he had spent in pre-sentence custody as time already served under this sentence. The Court ordered that he be eligible to apply for release on parole on 3 January 2011, after serving one third of the sentence in custody.
[3]
[9] The Attorney applied to the Court for an order under Division 3 of the Act. Mr Mow was not released on parole, pending the Attorney's application.
[10] On 15 April 2013, more than 11 years ago, Justice Martin was satisfied to a high degree of probability by acceptable, cogent evidence of sufficient weight, that Mr Mow was a serious danger to the community in the absence of an order made under Division 3 of the Act. The evidence included the opinions of two psychiatrists who had examined Mr Mow and assessed the risk that Mr Mow would commit another serious sexual offence. His Honour also found that adequate protection of the community could not be reasonably and practically managed by a supervision order.
[11] The Court made an order that Mr Mow be detained in custody for an indefinite term for control, care or treatment pursuant to s 13(5)(a) of the Act (the continuing detention order).
[12] On 15 December 2014, the Court ordered that Mr Mow be released under the supervision order. After a hearing, Justice Flanagan was satisfied to a high degree of probability by acceptable, cogent evidence, that Mr Mow had demonstrated a significant change in attitude since appearing before Justice Martin and was motivated to abide by the supervision order.
[13] The evidence before Justice Flanagan included the opinions of two psychiatrists, Dr Harden and Dr Beech. Both were of a view that Mr Mow's future risk of committing a violent sexual offence was high or moderately high. Each associated his risk of reoffending with intoxication. Dr Harden's view was that the monitoring and supports associated with a supervision order would reduce the risk that Mr Mow might commit such an offence from high to moderate. Dr Harden considered that if Mr Mow was to integrate well into the community and remain abstinent from substances for a five year period this would be sufficient to ascertain his progress. Dr Harden also recommended that Mr Mow participate in an ongoing individual therapy program for sexual offenders and a program for managing substance abuse.
[14] Dr Beech expressed the view that Mr Mow's performance in custody indicated that he would be helped by a return to work and engagement with community groups. In Dr Beech's view, a supervision order would reduce the risk of Mr Mow committing a violent sexual offence to below moderate. In Dr Beech's view, Mr Mow's supervision should focus on abstinence, ongoing therapy, and a maintenance program in the community.
[4]
[17] On 24 January 2024, Mr Mow pleaded guilty to two offences under section 43AA of the Act. He was sentenced to three months' imprisonment on each count, to be served concurrently. The Court declared the 60 days Mr Mow had spent in pre-sentence custody were deemed to be time already served. The judgment and verdict record were tendered. Mr Mow's counsel conceded that the Court would be satisfied on the balance of probabilities that Mr Mow had contravened a requirement of the supervision order for the purposes of section 22(1) of the Act.
[18] In seeking to satisfy the Court that if released from detention the protection of the community could be ensured by the continuation of a supervision order, Mr Mow's counsel relied upon evidence given in reports and in oral testimony by Dr Timmins and Dr Wolfenden.
[19] In a written report, Dr Timmins expressed the view that the existing supervision order had acted to reduce the risk of Mr Mow committing a sexual offence to low because he has not committed any further sexual offence in the nine years he had been in the community under the supervision order. In Dr Timmins' view, the supervision order "seems to be serving to contain the risk of sexual reoffending." If Mr Mow were released into the community without a supervision order, then Dr Timmins' view was that Mr Mow would be at a high risk of reoffending in a sexual manner.
[20] In her report, Dr Wolfenden expressed the view that if Mr Mow were to be released under the current supervision order, then his risk of a serious sexual and non-sexual violent offending would be reduced to below moderate. Dr Wolfenden recommended the supervision order require Mr Mow to "remain abstinent from drugs and alcohol" including any use of medicinal cannabis. That recommendation could be given effect through an amendment to the existing supervision order. This was done by the orders made on 23 July 2024.
[21] Both Dr Timmins and Dr Wolfenden expressed a view that a five year extension of the supervision would strike the appropriate balance between community protection and Mr Mow's reintegration to the community and rehabilitation.
[5]
(a) condition 6 requires Mr Mow to comply with any reasonable direction of a corrective services officer under section 16B of the Act;
(b) condition 7 requires Mr Mow to comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and,
(c) condition 19 requires Mr Mow to submit and discuss with an authorised corrective services officer a schedule of his planned and proposed activities on a weekly basis or other as otherwise directed.
[6]
[25] Dr Wolfden expressed the view that a positive rewards-based system was more likely to be effective than a negative punitive approach to Mr Mow's rehabilitation. Faced with the conditions imposed by the supervision order, Mr Mow would act in contravention of various conditions as a way of, to use the words of Dr Wolfden, "fighting against" the order rather than seeing the conditions as for his benefit. Dr Timmins agreed.
[26] Dr Wolfden explained. Under an incentive-based support program, Mr Mow could have a goal that he would work towards. His behaviour would determine whether or not he achieved the goal. Dr Wolfden gave the example of Mr Mow's desire to go fishing. Dr Wolfden suggested that to be able to go fishing, Mr Mow would need to, for example, refrain from any use of cannabis, or engaging in other behaviours of concern.
[27] Counsel for Mr Mow raised whether the terms of the order could be amended to give effect to the development of a support plan, following consultation with Mr Mow, his treating psychologists and the Corrective Services.
[28] The terms of the order bind Mr Mow. They do not bind the chief executive of Corrective Services or any corrective services officers appointed by the chief executive. They do not bind the relevant Minister, who may direct the chief executive, or the State. In the hearings of the Attorney's applications under the Act, the corrective services officers participate only as witnesses. In any event, there is nothing in the supervision order that would compel an authorised corrective services officer to adhere to or follow the recommendations of the psychiatrists.
[29] The Act permits the Court to amend a pre-existing supervision order "in a way the court considers appropriate to ensure adequate protection of the community" or "for the prisoner's rehabilitation or care or treatment." The evidence from the psychiatrists is to the effect that the reduction of the risk to the community posed by Mr Mow may have been hampered by the directions given by the authorised corrective services officers pursuant to conditions in the supervision order. The psychiatrists' opinions are that additional initiatives would aid in Mr Mow's rehabilitation and so in the reduction of the relevant risk and the protection of the community. It follows that the terms of the supervision order should attract careful scrutiny.
[7]
(a) Dr Timmins' report dated 23 May 2024 and the addendum report dated 11 July 2024;
(b) Dr Wolfden's report dated 22 May 2024 and the addendum report dated 11 July 2024; and
(c) The transcript of the evidence given at the hearing on 23 July 2024.
[8]
[32] I will also direct that those persons be provided with a copy of these reasons.
[33] The supervision order must include conditions 6 and 7.[1] Condition 19 is not mandatory in its present terms. If corrective services officers give Mr Mow directions under condition 7 or 19 that are shown to be likely to adversely affect the protection of the community from the relevant risk, then the court might alter the range of such directions by the inclusion of other requirements in the supervision order, with which the officer's condition 7 directions could not be inconsistent or by the modification of condition 19. Additional conditions might be included for Mr Mow's rehabilitation. Sensible consideration of the above reports and appropriate action by Corrective Services and the treating medical professionals following that consideration should remove the need to consider such a course.
[15] With the benefit of this evidence, Justice Flanagan formed the view that protection of the community could be reasonably and practically managed by the proposed supervision order.
[16] In the near nine-year period between his release on the supervision order and 25 November 2023, Mr Mow has contravened provisions of his supervision order on nine occasions. Each contravention has related to Mr Mow's use of cannabis or alcohol. None has involved any sexual offence.
[22] The existing supervision order has been in place for over 10 years. Concerns have been raised about the effect of the terms of the order on Mr Mow's rehabilitation and whether there are terms of the order that should be varied to better provide for his rehabilitation, because they may have been impeding on Mr Mow's ability to make progress.
[23] Dr Timmins and Dr Wolfden were of the view that Mr Mow would benefit from a rewards-based behaviour management program implemented and enforced by Corrective Services. In their view, there had been less benefit from the agency's historical approach to supervision of Mr Mow. This suggestion was made by Dr Wolfden after considering how Mr Mow responded to the significant number of conditions imposed on him by the supervision order. The psychiatrists were unsure if this could be mandated through any amendment to the existing supervision order. Neither proposed any amendments to the existing supervision order in this respect.
[24] The general terms contained in the schedule to the supervision order have given a corrective services officer broad powers to dictate the day-to-day movements of Mr Mow. In particular:
[30] Both Counsel agreed that the concerns raised by the psychiatrists would be best addressed through a direction that certain material be provided to the relevant people involved in Mr Mow's supervision and rehabilitation.
[31] With the consent of Mr Mow, the court directed that copies of the following material be provided to Corrective Services and any psychologists and psychiatrists engaged to treat Mr Mow: