A judge has criticised two decades of Queensland Government “policy failure” to provide adequate secure post-prison housing for dangerous sexual offenders by describing the state’s Supreme Court as a “very expensive accommodation agency”.
Brisbane-based Supreme Court Justice Peter Applegarth last week raised the topic as he ordered the ongoing imprisonment of 69-year-old Edwin Arthur Guy during a review of his detention, despite having already served his sentence, under Queensland’s Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSO).
Guy, who has Parkinson’s disease, is of low intelligence and needs full-time care, was jailed for 10 years in 1998 for 34 sexual offences against children.
Justice Applegarth, in the decision published last Thursday, voiced his serious concerns about the current validity of the state’s DPSO laws – saying: “The government fails to adequately manage and effectively resource a system of its own making.
“The Supreme Court of Queensland has become a very expensive accommodation agency.
“The financial cost of the government not arranging suitable, secure accommodation for individuals who are or might be subject to supervision orders must be enormous.
“It is borne by the public. The public pays for psychiatrists to opine, for barristers to appear and for judges to observe a system that operates like a revolving door. (Mr Guy) has been in such a revolving door for several years.”
In June 2003, the Queensland Government enacted the DPSO Act to allow the state’s Attorney-General to apply to the Supreme Court for indefinite detention orders for prisoners convicted of serious sexual offences, and who may pose a risk to community safety.
The laws were brought about after months of intense public debate triggered by news reports of the impending release of now-deceased notorious child sex offender Dennis Ferguson from prison on 9 January 2003. Ferguson had been serving 14 years in jail for the kidnap and sexual assault of three children at a Brisbane hotel.
While the DPSO laws came into effect after Ferguson’s release, Robert John Fardon became the first person ordered into indefinite detention after an application by the Attorney-General to the Supreme Court in November 2003.
Justice Applegarth, in his 12-page decision in relation to Guy, gives a potted history of how the courts have been compelled to apply the law under the DPSO Act over many years alongside government policy which, he says, has failed to keep pace to provide secure accommodation for dangerous offenders outside of a prison setting.
“Almost 20 years ago, the (DPSO Act) was passed,” he said. “It targeted what were expected to be a dozen or so of the very worst sexual offenders.
“Since then, the number of persons who are subject to continuing detention orders and supervision orders under the Act has grown far beyond original expectations.
“The facilities to accommodate them have not developed to meet a constantly-increasing demand.
“The few ‘precinct’ houses near prisons that are intended to provide temporary accommodation for individuals released under supervision orders are overcrowded.”
Justice Applegarth said current housing alongside prisons such as Wacol Correctional Centre was not suitable for young Indigenous men from Far North Queensland, or many middle-aged men with significant mental health problems, or whose institutionalisation had made it practically impossible for them to undertake many daily activities without support and guidance.
“The precinct accommodation certainly is not suitable for elderly men whose physical and mental health requires secure, nursing home care,” he said. “But what nursing home would prefer to accommodate a released sex offender rather than someone without such a terrible history?
“The absence of suitable, secure accommodation in the community means that people like (Guy) are detained in prison years after they have completed their full-time sentences. This is despite expert evidence and the acknowledgement of the Attorney-General that they might be released under strict supervision orders if suitable accommodation were available.
“Government policies make the search for suitable accommodation for someone like (Guy) akin to an impossible mission.”
It is not the first time Supreme Court judges have raised similar concerns during mandatory annual reviews of Guy’s case as required under the DPSO legislation.
In March 2017, Queensland’s then Chief Justice Catherine Holmes ordered Mr Guy’s ongoing indefinite detention, but not before noting a lack of appropriate accommodation and support services made it almost impossible for any judge to construct an appropriate supervised release order.
Chief Justice Holmes said: “It seems to me that a time will come when there are enough offenders in the respondent’s category of age and debility falling within the compass of the (DPSO Act) to require the setting up of supported accommodation for them.
“It is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option.”
In 2018, Justice Peter Davis again refused Guy’s release, but also noted a lack of appropriate facilities in which to house and care for people like Mr Guy.
“Ultimately, (Mr Guy) requires placement in a facility which can meet his medical and emotional dependency needs, whilst also restricting victim access.” Justice Davis said.
“There is no facility outside of prison which can provide the medical care which the respondent requires but at the same time providing the security necessary to ensure adequate protection of the community against the commission by the respondent of serious sexual offences.”
In 2019, Justice Ann Lyons also extended the detention order, saying: “(Guy) needs semi-supported accommodation … and no such supported accommodation outside custody has been identified.”
Justice France Williams, during Mr Guy’s September 2020 review, said little had changed and that, despite Mr Guy’s desire to move out of a prison setting, there was no suitable accommodations to house him.
On 6 September 2021, Justice Jean Dalton simply affirmed Mr Guy’s continued detention order originally made on 27 March 2017.
Justice Applegarth said the Government’s failure to provide suitable accommodation meant numerous individuals who should be released on supervision orders outside of prison were being detained for many years after their full-term sentence release date.
“The position has been reached, I regret to say, where corrective services authorities seek to continue to detain people because of the executive government’s policy of not providing suitable accommodation for persons who could be managed and rendered relatively risk-free with appropriate support and accommodation,” he said.
“The need for suitable accommodation has been apparent for years.
“Far from involving the courts as an independent source of supervision of the law, suggestions about how the practical operation of the Act could be improved are ignored by the executive government.
“This is to the detriment of individuals, the greater good and the public purse.”
Read the decision.