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[2017] QSC 261
Supreme Court of Queensland
2017-11-13
A Lyons SJA
Original judgment source is linked above.
[1] On 10 October 2013 the respondent was sentenced to a period of five years imprisonment for attempted rape with 318 days were declared as pre-sentence custody. His full-time discharge date is 25 November 2017.
[2] The applicant, the Attorney-General for the State of Queensland seeks orders pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the Act"). The applicant seeks orders either that the respondent be detained in custody for an indefinite term for care, treatment or control or alternatively, that he be released from custody subject to a supervision order on conditions which the court considers appropriate.
[3] The respondent's criminal history is as follows:
Indecent treatment of children under 16 (under 12 years) between 1/10/98 and 3/11/98.
Imprisonment 12 months wholly suspended for a period of 5 years.
Indecent treatment of children under 16 (under 12 years) on or about 17 October 1998.
[4] The respondent is currently 51 years of age. As the criminal history notes, he has previous convictions for offences of a sexual nature. In 1999 he was convicted after a trial of indecently dealing with a child. The complainant was a 10 year old boy and the respondent had placed the child on his lap and touched him on his penis in an attempt to masturbate him.
[5] In 2001, the respondent was convicted after a plea of another sexual offence which occurred around the same time as the offence in 1999. The offending occurred when the complainant child, a boy, was sleeping at the respondent's home. The child was 11 years old. The respondent told the child to come into a bedroom and he would put some cream on the child's testicles. The respondent put cream on the child's genitals and pulled on his foreskin three times.
[6] The current offences for which the respondent is serving a period of imprisonment occurred in 2012. He was convicted of attempted anal rape of a complainant child. The child was six years of age at the time. The complainant's mother was friends with the respondent. They were away on a weekend camping in a caravan the complainant and another child stayed with the respondent in his caravan. The complainant child went to bed in the same bed as the defendant and whilst the child was playing on a computer game, the respondent rubbed his penis on the outside of his leg and tried to penetrate him.
[7] The respondent has been interviewed by a number of psychiatrists for the purposes of this application. The respondent is a divorced man with four children.
[8] Dr Ken Arthur, psychiatrist, in a report dated 3 February 2017 notes that the respondent maintains his innocence in relation to all of the sexual offences for which he has been convicted and denies any sexual interest in children.
[9] In his interview with Dr Arthur, the respondent denied the use of illicit substances, but accepted that he would drink occasionally in a social setting. Dr Arthur considers that based on the respondent's history of convictions he would consider there is a diagnosis of a paedophilic disorder, non-exclusive attracted to males. Dr Arthur conducted a number of risk assessments using the risk assessment tools. On the Static-99R he scored 3, placing him at the average risk level. On the Hare Psychopathy Checklist he scored 11 out of 40, indicating few psychopathic traits and well below the cut-off for psychopathy.
[10] In relation to the Risk for Sexual Violence Protocol (RSVP), Dr Arthur considers that the respondent's offending is infrequent and that it occurred in episodes 14 years apart. He does not consider there is evidence of increasing physical coercion but rather that it involved the abuse of his position of authority and responsibility. He also noted that he engages in minimisation and denial.
[11] Dr Arthur overall considered that the respondent's risk of further sexual offending to be low to moderate. He noted however that there were factors that may increase his risk of future offending and they included his lack of social supports in the community and the likelihood of sourcing employment upon release, as well as his high possibility of returning to an itinerant lifestyle considering he intends to purchase another caravan and live in it. Dr Arthur stated that there are also concerns that the respondent continues to maintain his innocence and has not engaged in treatment or rehabilitation.
[12] Dr Arthur considers the risk of re-offending could be managed by limiting supervised access to pre-pubescent boys and conditions which required that any future partner should be made aware of his offending history. Dr Arthur considered that a risk assessment of his accommodation choices would be useful and that psychological therapy would be of benefit in assisting him to improve the quality of his future relationships.
[13] Dr Karen Brown, psychiatrist, also prepared a report dated 29 September 2017. Dr Brown's report notes that the respondent denies experiencing sexual attraction to children of any sex and that he denies responsibility for any of the sexual offences for which he has been convicted and provides different factual explanations for each of the offences. Dr Brown noted that the respondent indicated he would comply with the supervision order in order to be released from custody as long as he did not have to admit his guilt. He also agreed he would wear a GPS tracker and live at Wacol if required.
[14] Dr Brown also diagnosed a paedophilic disorder non-exclusive type, and a major depressive disorder currently in remission. She also considered that the respondent's ability to manage his anxiety was limited and that he uses avoidance denial and minimisation to manage his own unwanted thoughts and emotions. She was of the view that this was evidenced by his denial of various sexual offences for which he has been convicted, along with a denial of his sexual attraction to children. Dr Brown also noted that he also makes claims of incompetence of his legal representatives and flawed court processes.
[15] Dr Brown also utilised the number of risk assessment tools. On the Static 99 the respondent scored 3, placing him in the average risk. The PCL-R which was used to diagnose psychopathy resulted in a score of 10 out of 40 which was well below the cut-off. In relation to the RSVP, that tool indicated that the likelihood of future sexual violence is increased due to the presence of sexual deviance as well as a denial of incidents and difficulties with self-awareness.
[16] Overall, Dr Brown considered the respondent's risk of future sexual offending without a supervision order to be moderate. She considered that although the respondent was an opportunistic offender, there were elements of grooming behaviour as well.
[17] Dr Brown considered that the respondent's five years in custody could not be relied on as a deterrent to prevent future offending, particularly in the absence of participation in a sexual offender treatment program, as well as his limited capacity to understand his emotions. She considers the respondent has not developed an understanding of his offence cycle, or shown any responsibility for his actions. She considers the management of risk will need to rely on procedural measures.
[19] Dr Jane Phillips, psychiatrist, prepared a report dated 24 October 2017. Dr Phillips also obtained an account from the respondent of his offending in which he denied all of the offending. Whilst she noted that the respondent had engaged in a preparatory program in the beginning, he had maintained his stance of innocence and was therefore deemed unsuitable for future programs due to his denial of the offending. Dr Phillips also noted the denial of offending and the externalisation of his blame onto his mother. He also denied any sexual interest in children.
[20] Dr Phillips considered that he has very little understanding of risk management interventions and that he did not see the need for a supervision order, and he did not think this would add anything because he was already on a Register and had to report his movements.
[21] Dr Phillips noted that his plans included making applications to boarding houses but he acknowledged he would probably end up at the Wacol precinct. He had previously planned to live with his son but is currently unable to contact him. Whilst the respondent told Dr Phillips he did not want to be on a detention or supervision order, he indicated he would comply with the supervision conditions. Dr Phillips also scored the respondent with a 3 on the Static 99-R and that the RSVP indicated a moderate risk of offending. He also scored a score of 10 on the psychopathy checklist, and the Historical Clinical Risk (HCR) indicated his future risk of physical violence was in the low range.
[22] Overall, Dr Phillips opined that the risk of future sexual re-offending was moderate if the respondent was released without a supervision order and that the risk of physical violence was low. Dr Phillips considers that a supervision order would assist in reducing the risk of re-offending by offering assertive monitoring and intervention to target dynamic risk factors for sexual offending. Dr Phillips considered that with psychological intervention and robust supervision, the risk of sexual re-offending would be relatively low.
[23] Dr Phillips recommended individual therapy with a forensic psychologist and that the order should preclude unsupervised contact with children and be a 4 to 5 year duration.
[24] The objects of the Act, as stated in s 3, are:
- (a) To provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and
- (b) To provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.
[25] The Act establishes a scheme for the continued detention in custody or supervised release of prisoners who are deemed to be at risk of committing serious sexual offences if released at all, or if released without appropriate supervision. The Act makes provision for the Supreme Court to hear applications for orders under the Act.
[26] The primary orders which may be granted under the act are "Division 3 Orders", which are provided for in s 13 of the Act.
[27] Pursuant to this section, the first enquiry the court must make is whether or not the respondent is a serious danger to the community in the absence of a Division 3 Order.
Is the respondent a serious danger to the community in the absence of a Division 3 Order?
[28] A prisoner or a respondent will be a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence, if released from custody, or if released from custody without a supervision order being made.[1] The expression "unacceptable risk" is undefined by the Act. It is incapable of precise definition but is an expression which requires the striking of a balance.[2] The relevant risk is the risk of the commission of a serious sexual offence i.e. an offence of a sexual nature involving violence or against children. Risk means the possibility, chance or likelihood of the commission of such an offence. An unacceptable risk is a risk which does not ensure adequate protection of the community.
[29] In Attorney-General for the State of Queensland v Waghorn,[3] McMurdo J observed:
"[24] In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community: s 13(6). The purpose of orders under s 13 is not punishment but the protection of the community: Fardon v Attorney-General (Qld). The existence of some risk of re-offending is not sufficient: the risk must be of an unacceptable order. Each of the psychiatrists is of the view that the risk is high and in my conclusion it is unacceptably high even under a supervision regime as is proposed. Of course the drastic consequences of a continuing detention order must be considered. And the objects of the Act include the provision of control, care or treatment to facilitate the rehabilitation of the prisoner: s 3(b)."
[30] It must be necessary to conclude, on all the evidence, that a supervision order would be, "efficacious in constraining the respondent's behaviour by preventing the opportunity for the commission of sexual offences"[4] or to put it another way, "...the likely effect of a supervision order in terms of reducing the opportunity to the appellant to engage in acts of seduction of children to an acceptably low level".
[31] After a consideration of all of the matters I am required to take into account pursuant to s 13(4) of the Act, I am satisfied, to a high degree of probability, that there is sufficient cogent evidence that if released without a Division 3 Order under the Act, the respondent presents an unacceptable risk of committing a serious sexual offence as defined by the Act. In this case, it is a risk of sexual offending against children.
[32] The evidence of Dr Arthur, Dr Phillips and Dr Brown indicates that the unmodified risk of sexually re-offending is low to moderate in the long-term, given the respondent has ongoing themes of minimisation and denial, not only in relation to his offending, but with respect to his sexual attraction to children. He continues to externalise blame, has no insight and has not engaged with treatment programs given his denials of offending.
[33] There is therefore sufficient evidence to conclude that an order under the Act is necessary to ensure the adequate protection of the community. The reports together with the respondent's criminal history, his pattern of offending and his lack of participation in programs satisfies me that the evidence indicates without a Division 3 Order, the respondent would pose and serious danger to the community.
[34] I am then required to determine the appropriate order in accordance with s 13(5) and s 6 of the Act. The paramount consideration is of course the need to ensure the adequate protection of the community and the court needs to consider whether the adequate protection of the community can be reasonably and practically managed by a supervision order. The psychiatrists are clearly of the view that the risk is managed primarily by restricting access to young boys and that the risk would be reduced to a manageable level on a supervision order.
[35] There is also evidence to indicate that psychological intervention and robust supervision would also reduce the risk to low. I am satisfied that the conditions proposed will adequately address any risk, particularly given that they include a prohibition of unsupervised access to children as well as individual psychological therapy and a requirement that he inform new partners of his offending history. There is also a requirement that he be monitored by electronic devices.
[36] I am satisfied there should be orders in the terms of the draft initialled by me and placed with the file. The terms of those orders are set out in Schedule 1 to these reasons.
THE COURT, being satisfied to the requisite standard that the respondent, Gregory Ernest Bugler, 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 (the Act), ORDERS THAT:
allow any other device including a mobile telephone to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of an authorised corrective services officer.
[2] See Fardon v Attorney-General (Qld) (2004) ALJR 1519 at [22], [60] and [225].
[4] See Attorney-General for the State of Queensland v Fardon [2011] QCA 111 per Chesterman JA at [29].
Attorney-General
Bugler [2017] QSC 261
[18] Dr Brown considers that a supervision order would reduce the risk to a manageable level. She recommends that there be a number of conditions put in place including restricting access to children, informing new partners of his history, monitoring by electronic devices and the engagement in sexual offender therapy.