Attorney-General for the State of Queensland v Sybenga [2009] QSC 161

Supreme Court of Queensland|2009-06-19|Before: Martin J

[1] The applicant seeks the following order pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 ("the Act"): That the respondent be detained in custody indefinitely for care, control or treatment; alternatively, that the respondent be released on conditions thought appropriate by the court under a supervision order.

[2] This matter first came before the court on 28 May 2008 when an interim supervision order was imposed upon the respondent. The matter was adjourned to enable therapy to be provided and to prepare the respondent for assessment and, if time permitted, treatment. For various reasons, the matter did not come back on for hearing until 13 May this year.

[3] Since the making of the interim supervision order the respondent has lived at the "Wacol precinct". He has been under a strict 24 hour curfew in accordance with the conditions of the interim order. While he has been living at the precinct he has received individual therapy treatment from Dr Arthur, a psychiatrist, and group therapy treatment from Dr White, another psychiatrist. The latter treatment did not continue during the supervision order as the respondent withdrew from participation in it.

[4] The matters to which the court must turn its attention are set out in s 13 of the Act. It provides:

(1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).

(2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence -

(b) if the prisoner is released from custody without a supervision order being made.

(3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied -

that the evidence is of sufficient weight to justify the decision.

(4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following -

(a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

(b) any other medical, psychiatric, psychological or other assessment relating to the prisoner;

(c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the prisoner;

(e) efforts by the prisoner to address the cause or causes of the prisoner's offending behaviour, including whether the prisoner participated in rehabilitation programs;

(f) whether or not the prisoner's participation in rehabilitation programs has had a positive effect on the prisoner;

(g) the prisoner's antecedents and criminal history;

(h) the risk that the prisoner will commit another serious sexual offence if released into the community;

(i) the need to protect members of the community from that risk;

(5) If the court is satisfied as required under subsection (1), the court may order -

(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

(b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).

(6) In deciding whether to make an order under subsection (5)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

(7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1)."

[5] The correct approach to be taken by the court in considering an application under this section has been considered on a number of occasions. I respectfully agree with the analysis set out in the reasons of P D McMurdo J in Attorney-General for the Queensland v Sutherland [2006] QSC 268 where his Honour said:

"[26] No order can be made unless the court is satisfied that the prisoner is a serious danger to the community. But if the court is satisfied of that matter, the court may make a continuing detention order, a supervision order or no order (Fardon v Attorney-General (Qld) [2004] HCA 46 at [19], [34]; [2004] HCA 46; (2004) 78 ALJR 1519 at 1524, 1527; cf in relation to s 30 Attorney-General (Qld) v Francis [2006] QCA 324 at [31]). There is no submission here that if the prisoner is a serious danger to the community, nevertheless no order should be made. As already mentioned, it is conceded on behalf of the prisoner that I could be satisfied in terms of s 13(1) and that a supervision order would be appropriate.

[27] The court can be satisfied as required under s 13(1) only upon the basis of acceptable, cogent evidence and if satisfied 'to a high degree of probability that the evidence is of sufficient weight to justify the decision.' Those requirements are expressed within s 13(3) by reference to the decision which must be made under s 13(1). They are not made expressly referable to the discretionary decision under s 13(5). The paramount consideration under s 13(5) is the need to ensure adequate protection of the community. Subsection 13(7) provides that the Attorney-General has the onus of proving the matter mentioned in s 13(1). There is no express requirement that the Attorney-General prove any matter for the making of a continuing detention order, beyond the proof required by s 13(1). So s 13 does not expressly require, precedent to a continuing detention order, that the Attorney-General prove that a supervision order would still result in the prisoner being a serious danger to the community, in the sense of an unacceptable risk that he would commit a serious sexual offence. However in my view, such a requirement is implicit within s 13.

[28] The paramount consideration is the need to ensure adequate protection of the community. But where the Attorney-General seeks a continuing detention order, the Attorney-General must prove that adequate protection of the community can be ensured only by such an order, or in other words, that a supervision order would not suffice. The existence of such an onus in relation to s 13(5) appears from Attorney-General v Francis ([2006] QCA 324) where the Court allowed an appeal from a judgment which had made a continuing detention order upon the primary judge's view that the Department of Corrective Services would not provide sufficient resources to provide effective supervision of the prisoner upon his release. The Court found an error in that reasoning because of the absence of evidence that the resources would not be provided ([2006] QCA 324 at [37]). The Court observed ([2006] QCA 324 at [39]):

'The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principal, be preferred to a continuing detention order on the basis that the intrusions of the act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.'

Thus the absence of evidence of the inadequacy of resources was important because that matter had to be proved, as a step in persuading the court that only continuing detention would suffice.

[29] The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made.([2006] QCA 324 at [39]) What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression 'unacceptable risk' within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.

[30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person's liberty."

[6] The respondent was sentenced on 2 July 2004 with respect to a number of charges. He received a sentence of four years imprisonment with a recommendation for parole after serving 16 months. An application for leave to appeal against the sentence was refused.

[7] There were then two indictments before the court. The first indictment contained 10 counts. Nine of the offences occurred in shops at large shopping centres and one at a Council library. Each of them involved young children up to the age of about 5 or 6 and consisted of his pulling his pants down and masturbating in front of them. In two of the charges he also placed his hand down the underpants of the children and touched their private parts.

[8] On the second indictment there were six charges. These all involved one young girl who was aged 3 and 4 years at the time of the offences. She was the daughter of the pastor whose church the respondent attended. The respondent disclosed to the police that on two occasions he exposed himself to her and prevailed upon her to masturbate him. On other occasions he rubbed his hand against her private parts on the outside of her underpants; on another he grabbed her buttocks and showed her some pornographic magazines.

[9] He admitted to police that he generally went to shopping centres with his parents and grandmother, usually to busy stores, where he could find young girls who had been left alone by their parents. He looked for girls in areas where there were no security cameras and he picked young girls, generally no older than 5 years, because he thought they would not understand what was going on and would be unlikely to remember what he looked like. Prior to his being sentenced, he was assessed by Dr Fama as suffering a schizoid personality disorder and paedophilia.

[10] One of the disturbing aspects of the respondent's behaviour emerged in prison. He was unwilling to undertake recommended programs. He remained resistant to undertaking a full assessment of his criminogenic needs and demonstrated a lack of motivation to address issues associated with his offending behaviours. He told counsellors that he saw no benefit in attending sessions of the cognitive skills program and further advised them that he liked the structured life in prison and did not want to be released. This attitude was continued by his refusal to make any application for release on parole.

[11] Psychiatric reports were obtained for the earlier hearing before this court but new reports and addendum reports were obtained for the purposes of the current application. I will deal, briefly, with the evidence provided by those experts.

[12] Dr Michael Beech, psychiatrist, assessed the respondent's risk of offending sexually to be in that group of people who are at a moderate/high risk of reoffending. Dr Beech referred, in particular, to the statements that the respondent has made about his intentions. He said:

"He has said to Dr Arthur I think in Dr Arthur's report that he has distorted beliefs that there might be some children that could consent. So that attitudes that he presents, I think, indicate that his risk is higher than you would normally think just based on actuarial measurements. The other thing is that this type of offending is of paedophilic nature and his victims have been outside the family, and so those offenders in general are at higher risk of offending than the general sex offender population."

[13] Questions were asked of Dr Beech about the high intensity sex offender program that is offered in prison. His view was that it would be of benefit to Mr Sybenga to enrol in and complete that program. The caveat he expressed was that as the respondent had quite steadfastly refused to participate in that program while he was in prison it was probable that he would continue that behaviour in the future.

[14] One of the major problems in this case is the respondent's refusal to undertake treatment and to avoid treatment or making change. The respondent, himself, says that he would not trust himself with a child if unsupervised and that he thought that if someone might catch him or that he might be seen by someone, "it was a rush". Dr Beech was of the view that these comments by the respondent should be taken at face value because he has been open in the past about his offending. He thought that the respondent, if unsupervised, would be at high risk of reoffending in the next five years.

"So sometimes I think he makes these statements to gather and contain more control of him or more supervision, or to get more care, if he likes. ... My worry is that in the community unsupervised he will actually feel anxious or he will want to return to prison or some form of custody or care and that he will escalate his behaviour by an overdose or by harming himself or going on a hunger strike or simply breaching the order in order that he will be taken into higher supervision, and I could foresee as the worst case scenario one option that he will consider that if he reoffends this would be the ultimate breach of his order and that would bring him back into custody."

[16] It became clear during Dr Beech's evidence that when he was referring to the respondent's being unsupervised he was referring, not just to a supervision order, but to actual personal supervision in the form of an escort. He noted that the current supervision order places the respondent in an area where he cannot offend, where he is subject to a curfew and where he is subject to escorted leave from that place. He could not foresee in the immediate future a circumstance where that level of escort or supervision could be reduced.

[17] Dr Beech was of the view that the current supervision order can adequately protect the community but it only does that by effectively imposing house arrest on the respondent.

[18] Dr Josephine Sundin, a psychiatrist, also gave evidence. She agreed that there were three possibilities in the way in which the respondent might reoffend sexually in the future. They are:

1. One should take at face value his comments that he has difficult or uncontrollable urges to sexually interfere with children.

2. He may reoffend in a way designed to return him to some sort of stricter environment such as imprisonment.

3. He may sexually reoffend simply as part of impulsive risk taking behaviour.

[19] One of the propositions that was agitated during the hearing was a change in the supervision order to allow for members of the respondent's family to supervise him. Dr Sundin's view was that that was an onerous task for them to undertake and that it continued to reiterate the message of the last period of the supervision order that the respondent did not have to be responsible. In that way it increased his risk of reoffending. It also had the potential to alienate him from his family and thus alienate him from his most important primary support. Dr Sundin was very clear on the topic of supervision. She thought it was obvious that the respondent will comply with the supervision order so long as he is under the "eyeball" supervision of another adult, but that unless he is under such supervision then there can be no guarantee that he will not reoffend. Dr Sundin was asked:

"Without him being escorted under a supervision order, without him being escorted everywhere that he went, what is the risk of him reoffending on supervision? - - Extraordinarily high.

And in what way in particular would you see that the risk of his reoffending would be most likely, what type of victim would be targeted as most likely? - - Unfortunately at this stage most likely it would be an opportunistic victim, a stranger child, and the victim would be chosen most probably by Daniel in order to gain access to being re-interned so that he could once again have his dependency needs met."

[20] In cross-examination Dr Sundin also expressed a view that the supervision that had been in place for the last 11 months had effectively created a mini prison - he does not leave the precinct unsupervised and he is, whenever away from that area, under the eyeball supervision of somebody. Dr Sundin was also asked about the respondent's failure to complete particular programs and she expressed the view that his likelihood of completing a program does improve the chances of his entering into a high intensity sexual offender's program. She said: "I grant you, you know, there is a good chance he may not complete a HISOP, but I don't think that we should let therapeutic nihilism prevent us from trying".

[21] Dr Sundin was also cross-examined about the prospects of a HISOP being conducted in the precinct. Her opinion was consistent with that of officers of the Department of Corrective Services, namely, that it could not be done. Her view was that you need to have "a contained safe environment to run something like a HISOP". I accept that it cannot be run within the prison precinct.

[22] Dr Joan Lawrence, another psychiatrist, was the final expert called. She assessed his level of risk of sexually reoffending as moderate to high. When asked about the respondent's comments that he could not trust himself with a child if unsupervised, she said that they had to be taken at face value and that this is a statement that he has made about himself. It indicated the risk was very considerable. From his statements, he is a high risk for reoffending. Dr Lawrence agreed, in cross-examination, that the supervision order in place had protected the community but they had not achieved anything in terms of making any progress in the respondent's ability to be an active member of the community. She also shared the view of other witnesses that if he was to commence a HISOP she had grave doubts about whether he would complete it.

[23] It became clear during the application that one of the significant issues was the capacity for the respondent to obtain appropriate treatment outside the prison. Officers of the Department of Corrective Services were called. They gave evidence, which I accept, that it would be impossible for a HISOP program to be conducted outside a prison. There were a number of reasons for that. Apart from the reasons identified by Dr Sundin, there is also the need for a minimum number of persons to take part in the program and they could not be adequately or easily obtained in the general community.

[24] The other problem is that the precinct is not intended for long-term accommodation. The purpose of the precinct is as a halfway house for persons to integrate into the community. This cannot occur if persons continue to live there on an indefinite basis. The other problems which arise with the respondent's current supervision order and the circumstances at the precinct is that he cannot leave the precinct except in the company of a supervisor. He is, according to one of the witnesses, the only person who is subject to having an ongoing escort program in place. That, though, is not the purpose of the precinct nor is it provided for generally within Corrective Services.

[25] The respondent presents as a person who is unwilling to take steps to reduce or eradicate his offending behaviour. His history discloses that he is unlikely to commence a program. If he does commence a program, he is unlikely to finish it. His behaviour and remarks are consistent with a person who wishes to be in a controlled environment and does not wish to take responsibility for his actions. It was suggested on his behalf that provision should be made for him in the precinct and that he should be the subject of continued supervision, that is, "eyeball" supervision when he leaves the precinct. The alternative was that he be under similar control by his parents. I accept the evidence that to do the latter would be likely to lead to the destruction of one of the most important relationships in his life.

[26] The statements by the respondent have to be taken seriously and must be taken as indications that he will, if the circumstances permit, commit another offence. Section 13(6) provides that the paramount consideration in deciding whether to make an order under s 13 is the need to ensure adequate protection of the community. What has occurred in this case is that adequate protection has been afforded simply by shifting the respondent from an actual prison to a virtual prison in the form of the precinct where he is subject to substantial control.

[27] A matter which assists to persuade me in this case is that there is no prospect of his obtaining appropriate treatment or participating in appropriate programs within the general community. While the prospects of his doing that within a prison are slim, there is at least a possibility that he might participate and thus might be better able to control himself. Mor compelling though is the unanimous expert opinion that the risk that he would commit another serious sexual offence is too great for him to be released into the community. The precinct should not be regarded as simply another jail; it has a purpose quite different from that of a prison. The facilities at the precinct are limited and are not intended to be used as a form of indeterminate incarceration. I have considered the evidence of the psychiatrists and those of the officers of the Corrective Services Department and I consider it to be acceptable and cogent. Had the material which was presented to me been available when this matter was first heard I have no doubt that an order for continuing detention would have been made. I am satisfied to a high degree of probability that the evidence is of sufficient weight to justify an order that the respondent be detained in custody for an indefinite term for control, care or treatment and I make that order.

Prisoners (Sexual Offenders) Act 2003

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