LAB v A-G

SUPREME COURT OF QUEENSLAND

CITATION: LAB v A-G (Qld) [2011] QCA 230

PARTIES: LAB (appellant) v ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (respondent)

FILE NO/S: Appeal No 12862 of 2010 SC No 1027 of 2009

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 13 September 2011

DELIVERED AT: Brisbane

HEARING DATE: 19 May 2011

JUDGES: Muir, Chesterman and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the appellant appealed against a decision rescinding a supervision order and subjecting him to a continuing detention order – where the appellant breached the previous supervision order by failing to abstain from the consumption of alcohol – where the appellant’s attitude towards the use of alcohol and other prohibited substances as a factor in his risk profile changed – whether the supervision order should be reinstated / Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 13(4), s 21(2)(a), s 22(2), s 43B / Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, considered R v L [1999] QCA 423, cited

COUNSEL: J J Allen for the appellant J M Sharp for the respondent

SOLICITORS: Legal Aid Queensland for the appellant Crown Law for the respondent

1. MUIR JA: I agree that the appeal should be dismissed for the reasons given by White JA.

2. CHESTERMAN JA: I agree with White JA, that the appeal should be dismissed, for the reasons given by her Honour.

3. WHITE JA: On 29 October 2010 an order was made under the provisions of the Dangerous**Prisoners (Sexual Offenders) Act 2003 (Qld) in the Trial Division rescinding a supervision order made on 18 June 2009 concerning the appellant and subjecting him to a continuing detention order. The appellant appeals that rescission and seeks the re-instatement of the supervision order.

4. Condition (xxii) of the supervision order required the appellant to “abstain from the consumption of alcohol for the duration” of the supervision order.¹ On 21 August 2009 the appellant was breath tested and returned a reading of BAC 0.079 per cent. On 14 October 2009 he was sentenced to two months imprisonment in the Brisbane Magistrates Court wholly suspended for the offence of contravention of a supervision order pursuant to s 43B of the Dangerous**Prisoners (Sexual Offenders) Act (“the Act”). He was given a warning by Corrections.On 27 November 2009 the appellant was again breath tested and returned a BAC reading of 0.077 per cent. On 30 November 2009 the appellant was ordered to be detained pursuant to s 21(2)(a) of the Act. On 1 December 2009 the Magistrates Court at Richlands sentenced the appellant to three months imprisonment for contravening a supervision order pursuant to s 43B and activated the period of suspended imprisonment imposed on 14 October 2009.

5. The appellant did not dispute that he had contravened condition (xxii) of the supervision order. In that circumstance s 22(2) of the Act requires a person in the position of the appellant to satisfy the court on the balance of probabilities:

“… that the adequate protection of the community can, despite the contravention … of the existing order, be ensured by the existing order …”.

If such a person does not satisfy the court to the requisite standard the court is required to make a continuing detention order after rescinding an existing supervision order.² In deciding whether to make a continuing detention order a court may act on any evidence before it, or that was before the court when the supervision order was made or make orders to enable evidence of the kind mentioned in s 13(4) to be obtained.

6. The court below had the benefit of the reasons for making the order of Daubney J on 18 June 2009; the Integrated Offender Management System entries from 6 July 2009 (the date the appellant was released from custody on the supervision order) until 30 November 2009 concerning electronic monitoring and other surveillance and substance testing of the appellant; an affidavit and psychiatric risk assessment report by Dr Josephine Sundin; an affidavit and psychiatric risk assessment report by Dr Michael Beech; a report of the proceedings in the Richlands Magistrates Court; updated documents from the appellant’s prison file; and a report from Ms Sarah Clatworthy, a correctional counsellor. Doctors Beech and Sundin had prepared risk assessment reports for the hearing on 18 June 2009 and expressly incorporated them into their supplementary reports for the breach proceedings.

Background

7. The appellant’s criminal history is derived from the report of the appellant’s sentence appeal in 1999.³ The appellant was born on 9 August 1964. He is thus now aged 47 years. He identifies closely with Torres Strait Islander culture. On 3 December 1985 he was convicted of two counts of rape and three counts of indecent assault for which he was sentenced to an effective term of 10 years imprisonment. He escaped from custody in 1991 and was sentenced for that offence to six months imprisonment cumulative on his previous sentence. On 24 October 1997 he was convicted of serious assault on a police officer, going armed, wilful damage, assault and resisting police for which he was sentenced to an effective term of 12 months imprisonment suspended after three months for an operational period of 18 months.

8. The appellant pleaded guilty in the District Court at Townsville on 27 October 1998 to one count that between 1 January 1996 and 8 July 1998 he maintained an unlawful relationship with his stepson with two circumstances of aggravation - the first, that during the relationship, he had carnal knowledge by anal intercourse with the child who was then under 16; the second that the child was under his care. There were nine acts of anal intercourse which occurred over a period of two and a half years whilst the child was aged between nine and a half and 12. At the relevant time the appellant was separated from his wife, the child’s mother. There were other acts of indecency. The short term of imprisonment imposed on 24 October 1997 interrupted that offending conduct but continued during the period of the suspended sentence. The child had made no earlier complaint because the appellant had threatened to harm him or his mother if he did so but, eventually, he did tell his mother who contacted police.

9. Daubney J noted⁴ that the appellant had other offences recorded in his criminal history including for breaches of domestic violence orders, assault, wilful damage to property and public order offences. The sentence of 13 years imposed in the District Court at Townsville for the maintaining offence was reduced to one of 11 years on appeal. His full time release date was 6 July 2009. On 18 June 2009 Daubney J heard an application by the Attorney-General for an order that the appellant be detained in custody indefinitely for care, control or treatment or, alternatively, for an order that he be released on conditions under a supervision order pursuant to s 13 of the Act. On that application it was conceded before his Honour on behalf of the appellant that he was a serious danger to the community in the absence of a Div 3 order. His Honour had the benefit of expert evidence from three psychiatrists, Dr Basil James, Dr Michael Beech and Dr Josephine Sundin. He also had a number of reports from programs in which the appellant had engaged whilst in custody including the Indigenous High Intensive Sexual Offender’s Program (“IHISOP”) which was completed by him in March 2009.

“Notwithstanding the serious concerns expressed by Professor James, I am satisfied on the preponderance of the evidence before me, and also having regard to the very strict and comprehensive supervision conditions contained in Exhibit 1 [the supervision order], that adequate protection of the community can be achieved and ensured by releasing the respondent under a supervision order of the nature proposed in Exhibit 1, noting also in that regard that the close terms of the supervision order will undoubtedly provide a high degree of supervision, particularly while the respondent is undertaking and completing the further Sexual Offenders’ Maintenance Programme and otherwise being rehabilitated for further ongoing exposure to the wider community.”⁸

The hearing below

13. Doctors Beech and Sundin gave oral evidence in the hearing below. The appellant did not call, nor give, evidence. It was submitted on behalf of the appellant that the breaches should be considered globally and in the context of the many conditions imposed upon him and with which he had complied. The focus of the cross-examination by Mr Allen, who appeared for the appellant below and on this appeal, was to seek to demonstrate that the breaches did not suggest that the appellant’s attitude had deteriorated but, if it had, any increased risk would be adequately monitored.

14. The primary judge concluded:

“On the evidence it appears to me clear that the opinion of both Dr Sundin and Dr Beech is that there has been a change in the attitude of the respondent to, amongst other things, the consumption of alcohol, that he no longer accepts that alcohol is a factor in his risk profile…

On the material in both the reports and the oral evidence there is sufficient for me to be satisfied that that onus has not been discharged.”⁹

It will be necessary to consider in more detail the reports of Doctors Beech and Sundin and their oral evidence in considering the complaint made by the appellant that the primary judge erroneously concluded that the mere fact of breaches had led to an increased risk for the community.

Grounds of appeal

15. The appellant contends that:

(a)the primary judge failed to give any or any adequate weight to the evidence that the breaches by the appellant of abstinence from alcohol did not, in fact, lead to an increase risk of the appellant committing a serious sexual offence;

(b)the primary judge failed to give any or any adequate weight to the evidence that any future breach of the condition:

● would not result in an immediate increased risk of the appellant committing a serious sexual offence;

● would be likely to be detected and acted upon by Corrective Services before the appellant presented an increased risk of committing a serious sexual offence;

(c)the primary judge failed to give any or add any adequate weight to the principle in Francis;

(d)the primary judge should have been satisfied on the balance of probabilities that the adequate protection of the community could, despite the contravention of the supervision order, be ensured by the supervision order.

The evidence below

16. The key issue identified at the hearing on the application was why,

“… notwithstanding that the breach appears on its face to be reasonably trivial in the sense of having consumed a couple of beers, why that increases the risk of his sexual re-offending to the point where the opinion … of both psychiatrists, is that [the appellant] should be further detained.”¹⁰

Dr Beech’s report and oral evidence

17. Dr M Beech, a specialist psychiatrist who is regularly retained by Crown Law to conduct risk assessments of prisoners under the provisions of the Act, provided reports on the appellant dated 8 May 2009, 2 June 2009 (both evidence before Daubney J) and 27 April 2010 (described by Dr Beech as supplementary to his earlier reports). At interview on 26 February 2010 the appellant explained to Dr Beech the circumstances of the second breach in November 2009. He said he asked a friend to bring a large bottle of VB beer, meet him and go to a boat ramp at a Brisbane Bayside suburb to commemorate his deceased father’s birthday. At the boat ramp they sang two cultural songs. He told Dr Beech he tipped half the beer into the water for his father and drank the other half himself, and then returned to the Wacol precinct where he lived. He also explained the earlier breach six weeks after his release - he had bought a meal which came with a complementary drink; he drank the beer (about a schooner and a half) and returned to his accommodation where he was breathalysed. The appellant gave different accounts to Dr Sundin on 8 January 2010 which are discussed below.

18. The appellant told Dr Beech he was aware that abstinence from alcohol was part of the supervision order but he did not regard it as a fair condition. He believed that he had committed his sexual offences while he was sober and that alcohol and drugs did not relate to his offending. He did not believe that alcohol use increased his risk of re-offending and the reference that he had made to alcohol to the IHISOP facilitators and the psychiatrists had been misinterpreted. He denied he had a drinking problem and his alcohol consumption was controlled. When Dr Beech questioned him about the earlier offences of rape he could not tell whether he was drunk or not. He acknowledged that he had told “someone” that he had been intoxicated at the time of the rapes but did not feel that it had any bearing on those offences or his other offending even though in the case of the serious assault against the police and the domestic violence orders, he was, on his own statement, drunk. The appellant told Dr Beech that his offending against his stepson was because he had been “cursed” to find the boy attractive.

19. The appellant told Dr Beech that he would seek to have the alcohol restriction removed from his supervision order. Dr Beech wrote:

“When specifically questioned about whether he would continue to drink alcohol if he were released, [the appellant] demurred. He said that he would ‘for the right reason’ drink alcohol but he did not believe that he would get intoxicated.¹¹

While staying abstinent would be difficult, the appellant told Dr Beech that he thought he could desist from alcohol while he was awaiting appeal to the court about having this condition removed from his supervision order. The appellant emphasised that alcohol was part of his way of life and not a risk factor for further offending.

20. Dr Beech summarised his earlier assessment in 2009 in which he had placed the appellant in the high risk category for sexual re-offending within five years of release. Testing had indicated that the appellant had strong psychopathic traits. While Dr Beech thought that the appellant was a deceptive man, prone to giving inconsistent and variable accounts of his past including his drug and alcohol use, his offending and its antecedents, he did think that he had matured in prison and was “probably not as impulsive or irresponsible as he had been earlier”.¹² He noted that the appellant continued to project responsibility for his offending and had limited insight into his personality, alcohol abuse and its consequences. Dr Beech noted in his supplementary report that the appellant had completed the IHISOP and, although he minimised his responsibility for his offending, was able to identify a number of triggers which included excessive use of alcohol. He had, apparently, met the goals of the course. Dr Beech recommended that on release he participate in a sexual offender maintenance program and remain abstinent from drugs and alcohol.

21. Dr Beech noted in his recent report that the file material indicated that the appellant, in general, had been compliant with the supervision order and was not markedly oppositional, defiant or resistant. Notable exceptions had been his ambivalence about attending for drug and alcohol counselling and “… he had seen little benefit really in attending for psychological therapy”.¹³ He concluded:

“The presence of Paedophilia, the past conviction for rape, the presence of an Antisocial Personality Disorder and his high Psychopathy score combine to indicate that he is a man who is at high risk of reoffending sexually within the community. As I reported earlier, as was revealed in the sexual offender course, and as others have noted, alcohol use and intoxication is a significant factor that would increase his risk of sexual offending. I agree with earlier assessments that intoxication would indicate an imminent risk of reoffending.

Unfortunately any earlier insights that [the appellant] may have gained in this regard seem to have dissipated with the passage of time following his release. Of concern is that he also now seems to even project responsibility for any sexual offending with children onto his belief in curses.”¹⁴

Dr Beech then concluded:

“Under the circumstances I consider that [the appellant] is at high risk of reoffending within five years of release into the community. It arises from the range of factors noted above. Unfortunately I do not believe that it can be managed at present in the community because of his attitude to alcohol use. The risk simply is that on release he will continue to drink alcohol and become intoxicated. In that state his sense of entitlement, his beliefs about women, and his recklessness will come to the fore and he will assault another in the pursuit of sexual gratification.”¹⁵

22. In oral evidence Dr Beech said the appellant’s attitude to alcohol had changed. He had identified alcohol as a factor in his offending during his participation in the IHISOP and had agreed to be abstinent. But he had recanted from that position both as to alcohol being a trigger in his offending and his commitment to abstinence and expressed an ambivalent attitude to further counselling in relation to drug and alcohol use. Dr Beech was asked if the intensive supervision by Corrective Services under the order would be an adequate protective measure. Dr Beech answered in a passage that the appellant relies upon:

“Yes, in the sense that it monitors him and he gets tested regularly and if he’s found to have drunk alcohol he would have breached and returned again to custody … I believe it would be more desirable that he complete some form of drug and alcohol counselling and then commit to abstinence rather than it would be relied upon frequent detection of his alcohol use.”¹⁶

Dr Beech agreed that substance abuse treatment programs were available both in custody and in the community but opined that it was more desirable to have the appellant complete such a program in prison. This was because he seemed to have “a highly ambivalent attitude, if not negative attitude towards that intervention …” and might not complete the program in the community.¹⁷

23. In cross-examination Dr Beech accepted that his concern was not that the appellant would “simply consume a couple of beers as he did to constitute the breach”¹⁸ but return to excessive alcohol consumption and binge drinking. This would return him to earlier patterns of thinking which could be a trigger for a different mental state which would then heighten the risk. Dr Beech emphasised that he would prefer a program which was more than just detecting when the appellant was drinking but would address his continuing abstinence. In re-examination Dr Beech noted that while drug and alcohol treatment was recommended prior to the appellant’s release, he had not undertaken that treatment because he had an ambivalent attitude to taking it up. Dr Beech said:

“It just didn’t occur while he was in the community, so I think it’s something that needs to be done regardless of the breach, but now that he has breached it seems to me even more salient.”¹⁹

Dr Sundin’s report and oral evidence

24. Dr Josephine Sundin is a consultant psychiatrist who has regularly been engaged by Crown Law to conduct risk assessments of prisoners under consideration for an application pursuant to the Act. She has also been engaged in the past by Legal Aid to conduct independent assessments. In her interview with the appellant on 8 January 2010 Dr Sundin reported that the appellant “struggled to understand” why he had to keep away from children because he did not believe he was a risk to children; his explanation for his sexual assaults against his stepson revolved around Torres Strait Island cultural cursings which she found internally inconsistent; he denied he was a risk to women; he specifically denied that alcohol or marijuana contributed to his past patterns of offending.

25. The appellant’s explanation to Dr Sundin of the circumstances of the breaches of his supervision order were not the same as those he gave later to Dr Beech. He told her that he had promised himself a night out after being released from custody and had bought an expensive dinner and “two pots of VB somewhere in the valley”.²⁰ The second breach arose from a desire to toast his father’s birthday. He had purchased the beer and had sat on a boat ramp in a very different place to that described to Dr Beech “and drank a tallie of heavy beer”.²¹ He knew that if he were tested it would be probable that he would return to gaol but he was prepared to take the risk.

26. Dr Sundin confirmed her earlier diagnosis of an antisocial personality disorder and that the appellant met the diagnostic criteria for alcohol and cannabis abuse. Dr Sundin expressed concern that the appellant “appears to have gone backwards with regards to his personal insights since leaving prison”.²² She observed:

“On this presentation, his arrogance and narcissism were to the fore. He presents as a spinner of yarns, telling a tale which suits him; because in this tale he is both hero and victim, acting to protect his family from a curse whilst at the same time taking no personal responsibility for his actions. He minimizes his history of violence to women, denies that he could pose a risk to children, sees no need to accept restrictions on his consumption of disinhibiting substances and resents the limitations to which he is subject … He expresses quite negative attitudes towards treatment interventions and expresses reluctance to participate. His two breaches with regard to alcohol occurred when he considered it appropriate to put his own opinion above that of a Supreme Court order, despite being well aware of the consequences.²³

Dr Sundin considered the appellant’s risk of recidivism remained moderate to high. She opined that his recalcitrant attitude towards alcohol abstinence and his lack of appreciation as to the manner in which it had contributed to his past offending was “particularly concerning”²⁴, and that he should complete a further alcohol treatment and rehabilitation program whilst in custody.

27. In oral evidence Dr Sundin explained her changed attitude:

“… I was concerned by his apparently changed attitude towards his offending history and particularly towards his child victim between the time when I assessed him in 2009 and the time when I assessed him in 2010. There appeared to be a degree of regression and recanting … in that time period. There was a shift and a blaming of the child victim in the second report. Additionally there was at the time of the second report an increased – increased negative attitude towards intervention and acceptance of the restrictions of the supervision order which left me concerned about the likelihood of his ongoing compliance with a supervision order within the community. It seemed to me that [the appellant] had lost a number of the gains that had been previously made.”²⁵

The changed attitude was relevant to the risk of sexual recidivism because the appellant was minimising his history of violence to women, denying that he could pose a risk to children and could see no need to accept restrictions on his consumption of disinhibiting substances and resented that he should be subject to limitations.

28. Dr Sundin explained the relevance of the two contraventions:

“The relevance is twofold. [The appellant] denies that alcohol is an issue in the context of his offending behaviour, but we know that alcohol has been significant in the past. For example, alcohol was relevant to the 1985 rape. We know that he has said previously in an interview … that both alcohol and narcotics increased his libido, and the other concern that I have is that for someone who had been so clearly directed with a supervision order made by Justice Daubney that he was to abstain and that that was part of his release into the community, the refusal to comply with such a serious order on two separate occasions seemed to me to be reflective of a general anti-authoritarian, anti-supervision order attitude.”²⁶

Dr Sundin accepted that alcohol and illicit substance rehabilitation programs were available in the community but because the appellant had continued to deny that alcohol was a problem and to underestimate the contribution of other substances the difficulty would be his willingness to undertake such a program in the community.

29. In cross-examination Dr Sundin was pressed that it was not known if alcohol was the cause of the 1985 rapes nor whether the offence might have occurred had he been sober. She posited that alcohol was a contributive factor. Dr Sundin considered that the appellant should participate again in the IHISOP should he be returned to custody because, although a substance abuse program dealt with his immediate treatment needs, he needed to gain insight into the effect of disinhibiting substances and their contribution to his offending pattern.

Discussion

30. The primary judge described the onus which s 22(2) imposed upon the appellant:

“It is not an easy task for a respondent to demonstrate, even on the balance of probabilities, that adequate protection of the community is ensured. That is a high mark to reach.”²⁷

Mr Allen submitted that observation overstated the appellant’s task referring to Attorney-General v Francis:²⁸

“The Act does not contemplate that arrangements to prevent such a risk [in that case of absconding] must be “watertight”; otherwise orders under s 13(5)(b)²⁹ would never be made. 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 principle, 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.”

31. In the passage quoted the primary judge was doing no more than reflect the words of s 22(2) that a prisoner must satisfy the court (on the balance of probabilities) that the adequate protection of the community can, notwithstanding the contravention, be ensured by the existing order. “Ensure” means to make safe against risk.³⁰ As the passage from Francis makes clear, what the court must do is have regard to the risk to the community posed by the prisoner and decide if the supervision order is apt to ensure the community’s adequate protection. That is, to make the community safe against the risks which have been identified, consistently with Francis, that no release can ever be entirely risk free.

32. The appellant made much of Dr Beech’s apparent concession that the appellant’s consumption of alcohol, should he be minded to breach condition (xxii), would be a step by step process and the close monitoring by Corrective Services would, to that extent, be an adequate protective measure. But emphasising that part of Dr Beech’s evidence only discounts the other body of evidence of Dr Beech and Dr Sundin, referred to by the primary judge, that there had been a concerning change in the attitude of the appellant to the consumption of alcohol and his rejection of alcohol as a factor in his risk profile. The appellant complains that his Honour misstated the evidence when he said he accepted the opinion of Dr Beech that the appellant would “breach a supervision order, that he [would] drink alcohol and that he [would] be disinhibited in doing so”.³¹ It may be accepted that that passage in the reasons is a contraction of the effect of the evidence that the descent to disinhibiting intoxication would likely be a “step by step” process. But it does seem clear, in light of all that had gone before, that his Honour understood this in the context of the changed attitude towards alcohol and the appellant’s rejection of it as a condition of a supervision order. Earlier his Honour had said of Dr Beech’s opinion: “… drinking could be a trigger for a change in mental approach and his sense of entitlement”.³²

33. It was the appellant’s attitude towards the consumption of alcohol (and other chemical substances); his strong lack of interest in addressing the role that it played in his offending conduct; his rejection of participation in substance abuse programs in the community; and the expectation that he would breach the supervision order into the future because of these attitudes that persuaded the primary judge that the appellant had not discharged the onus. It was in that context the apparently mild breaches needed to be viewed not whether those events, of themselves, led to an increased risk of the appellant committing a serious sexual offence, which is the complaint in ground 2(a) and the matters raised in ground 2(b)(i) and (ii) of the appellant’s grounds of appeal.

Footnotes

1. AR 24. ↩

2. Section 22(2)(a). ↩

3. Reported as R v L [1999] QCA 423. ↩

4. AR 27. ↩

5. AR 186. ↩

6. AR 35 as per Dr Beech. ↩

7. [2007] 1 Qd R 396 at [39]; [2006] QCA 324. ↩

8. Transcript 1-21, supplementary material handed up at the appeal hearing. ↩

9. AR 257-258. ↩

10. AR 3. ↩

11. AR 184. ↩

12. AR 187. ↩

13. AR 187. ↩

14. AR 188. ↩

15. AR 188. ↩