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  •   Notable Unreported Decision

Attorney-General v Anderson

 

[2018] QSC 166

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General v Anderson [2018] QSC 166

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

JEFFREY TERRENCE ANDERSON

(respondent)

FILE NO/S:

No 13482 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

30 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 July 2018

JUDGE:

Jackson J

ORDER:

The Court, being satisfied to the requisite standard that the respondent, Jeffrey Terrence Anderson, 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 (Qld) (“the Act”), orders that pursuant to s 13(5)(a) of the Act, the respondent be detained in custody for an indefinite term for control, care or treatment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – POST-CUSTODIAL ORDERS – OTHER TYPES OF POST-CUSTODIAL ORDERS – OTHER MATTERS – Dangerous Prisoners (Sexual Offenders) Act 2003 – where conceded the respondent is a serious danger to the community in the absence of an order – where respondent undergoing treatment for gender dysphoria – where treatment causes reduction in testosterone levels – where diagnosis of gender dysphoria is unstable – where evidence of ongoing sexual interest in children – whether continuing detention order or supervision order should be made

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

Attorney-General v Lawrence [2017] 2 Qd R 754, cited

COUNSEL:

J Tate for the applicant

K Bryson for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    The Attorney-General applies for an order that Jeffrey Terrence Anderson be detained in custody for an indefinite term for control, care or treatment or released from custody subject to the requirements the court considers appropriate that are stated in the order.[1]  The condition precedent to either order is that the court is satisfied that the respondent prisoner is a serious danger to the community in the absence of such an order.[2]  A prisoner is a serious danger to the community if there is an unacceptable risk that they will commit a serious sexual offence if released from custody without a supervision order being made.[3] 
  2. [2]
    The parties agree that the respondent is a serious danger to the community in that sense.  Nevertheless, the court may decide that it is satisfied of that matter only if it is satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision.[4]
  3. [3]
    In reaching that decision, the Court must have regard to the matters specified in s 13(4) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act).  Eleven matters are specified in paragraphs (aa) to (j) of that subsection.  They begin with any report produced under s 8A[5] and the reports prepared by the psychiatrist under s 11[6] but extend to all other efforts to address the cause of offending including participation in rehabilitation programs, the prisoner’s antecedents and any other relevant matter.  The range of subjects is very wide. 
  4. [4]
    Perhaps for that reason, upon applications of this kind a river of information is included in the affidavits.  In this case that includes nine hundred pages of each of the Director of Public Prosecutions files relating to each of the index offences and another sexual offence[7] committed whilst in prison, together with submissions made to the sentencing Judges and the Judges’ sentencing remarks in those matters, over one thousand three hundred pages of the Department of Queensland Corrective Services files and two hundred pages of the Queensland Parole Board’s files, most of which is irrelevant. 
  5. [5]
    There are problems with this manner of proceeding, in my view.  Over a period of many years in prison, there will be many occasions, major and minor, in the management of a prisoner that result in file entries.  None of those matters is proved by what would be admissible evidence ordinarily in a court of law in a criminal proceeding.  If an application under the Act is a civil proceeding, evidence of such records may become admissible, if relevant.[8]  In any event, the absence of objection to such evidence may make it admissible by consent.  However, problems remain. The significance of nearly all of the entries is not identified and its quality is not able to be assessed, where it is significant.  But the stream of information of those doubtful qualities flows inexorably, like lava, without any effort being made, short of the Judge’s intervention to sort it out, to determine what is material and whether better proof of any matter is required.  For reasons that are not clear to me, this is the way in which applications of this kind proceed routinely.
  6. [6]
    Added to that, I note that by s 7(1) of the Act, an affidavit to be relied on the Attorney-General for the purpose of seeking an order must be confined to the evidence the person making it could give, if giving evidence orally, except in the case of an affidavit for use in a preliminary hearing.  Although s 7 does not repel the application of other statutory provisions that would permit records of particular kinds to be admitted into evidence without affidavits proving statements that form part of an admissible record, nevertheless there is nothing in the provisions of the Act, or their context, in my view, that favours a more relaxed attitude to the admissibility of material that is irrelevant to the decision to be made. 
  7. [7]
    Perhaps no great harm is done by this method of proceeding.  The inclusion of too much avoids the risk of error by proving too little.[9]  However, the statutory requirement under s 17(1) of the Act is that the Court must give detailed reasons for continuing a detention order or a supervision order, inter alia.  The task of reading the (mostly irrelevant) material that was filed in the present case occupied me for more than one and a half days, much of which was wasted.  At the risk of being a lone voice, I protest that this is the correct method by which to proceed.  Applications of this kind are often listed on the footing that more than one will be dealt with by one judge per day.  Just to read the river of information tendered as being potentially relevant or relevant took more than the time allocated to hear the case.  The likelihood becomes that cases will proceed and be decided upon material tendered as “evidence” in the proceeding which has never been actually read or considered by the Judge.  Proceeding by such method has the potential to bring the court into disrepute.  The court that is required to give detailed reasons for a discretionary decision should at least be able to proceed on the footing of evidence that is directed to the issues and that does not contain a large volume of distracting and irrelevant material. 

The respondent

  1. [8]
    The respondent was born on 23 February 1986.  He had a highly prejudicial childhood.  He says he was sexually abused by his father at a young age, although that was not supported by his mother when she was interviewed in 2010.  His father had no contact from an early age.  His mother formed other relationships and he has four half-siblings.
  2. [9]
    He went into foster care at an early age, at about 7 or 8 years of age.  He returned to his mother’s care at approximately 11 years of age, but behavioural problems persisted.  From the beginning, his schooling was a negative experience.  He attended a number of schools and was expelled from them. He was referred to a special education facility in teenage years but did not attend.  His educational achievements were negligible. 
  3. [10]
    He does not appear to have lived at home consistently, from his early teenage years.  He was “ejected” from his mother’s house at 15 years.
  4. [11]
    He had casual employment at the fruit markets from the age of 14 years, perhaps for a period of a year.  But the respondent said at one point that he went to prostitution because regular employment was too much, although he has given other inconsistent accounts as to this.  He relied on Centrelink payments otherwise. 
  5. [12]
    During his teenage years, the respondent is said to have had a number of relationships with adult women that resulted in children.  The information as to the number of children and those relationships is conflicting, from the respondent’s own accounts, but none seems to have been stable or on foot at the time of the index offences.
  6. [13]
    The respondent appears to have engaged in regular use of illegal drugs during his teenage years, escalating to regular heroin use while 18 and 19.
  7. [14]
    Between about 11 to 15 years, the respondent was referred to the Logan Central Child and Youth Mental Health Service. He had contact with the service over about three years.  At age 15 years, he was referred to the Adult Mental Health Service for ongoing management.  However, he did not contact the service.
  8. [15]
    At almost 24 years of age, the respondent’s Full Scale IQ was measured at 74.   As assessed by a clinical psychologist in 2010, he suffered significant intellectual impairments and was functionally illiterate or near to it.  That does not appear to have been addressed in any significant way despite his now ten years in prison. 
  9. [16]
    Although more recent writings exhibited to some of the affidavits suggest what may be some improvement in the respondent’s literacy skills, some of the documents were written for the respondent by another prisoner or other prisoners. Otherwise irrelevant entries included in the Integrated Offender Management System Offender Case File in 2017 refer to him regularly playing Scrabble with other prisoners, which might suggest improvement in literacy.
  10. [17]
    However, in April 2018, Dr Nelson, a clinical psychologist, performed a number of tests directed to the respondent’s intellectual abilities and impairments and his literacy skills, and again found him to be functionally illiterate.

The index offences

  1. [18]
    The respondent’s adult history of offending for non-sexual offences begins at age 17.  However, the first group of the index offences occurred between 9 and 13 August 2005, when aged 19.  He was convicted[10] of two offences of carnal knowledge of a child under 16 years occurring between those dates.  He was sentenced to terms of 2 years and 6 months imprisonment for both offences.  The victim was aged 12 years.  She and the respondent went to an area underneath the Carindale shopping centre and had sexual intercourse.  After that they returned to where the respondent was living or staying and again had intercourse.  The respondent said that he believed that the victim was 16 years old, but pleaded guilty to the offences. 
  2. [19]
    The second group of the index offences occurred on 11 August 2007, when the respondent was aged 21 years.  He was convicted[11] on his pleas of guilty of five offences of indecent treatment of a child under 16 years, a further offence of indecent treatment of a child under 16 years by performing oral sex on the child and an offence of unlawful sodomy of a person under 18 years, being a child under 12 years.  He was sentenced to a term of imprisonment of 7 years and 6 months for the sodomy offence and to terms of imprisonment of 3 years for each of the other offences.
  3. [20]
    On this occasion, the respondent was staying at the house of a relative or friend of a relative.  On one night, he had the short term care of twin 6 year old boys, while their mother was away for the weekend and their grandfather was at work for an evening shift.  The respondent sexually abused the boys, including by exposing himself and masturbating in front of them, performing oral sex on one of them and sodomising the other. 
  4. [21]
    The third occasion of the index offences occurred between 4 November 2007 and 11 December 2007, when the respondent was also aged 21 years.  He was convicted[12] on his plea of guilty of an offence of indecent treatment of a child under 16 years, who was under 12 years and who was under his care.  He was sentenced to a term of imprisonment of 18 months, wholly suspended[13] for a period of three years. 
  5. [22]
    On this occasion the respondent and a woman with whom he had a relationship had moved into a house where her relatives lived for a short period.   The respondent was left at home with two girls who were sisters, aged 7 and 4 years.  The respondent placed his exposed penis at or near the 4 year old’s vagina, although she was wearing pants and he did not penetrate her vagina.
  6. [23]
    The effect of the charges for the offences and sentences is that the respondent has been in prison since 21 January 2008.  His full time release date on the longest of the terms of imprisonment was 29 May 2018.[14]

Further sexual offence in prison

  1. [24]
    In May 2014, the respondent was imprisoned at the Maryborough Correctional Centre and was subject to an Intensive Management Plan that restricted his entitlement to access or possess some materials.  That was because he was trying to source images or photographs of children.  A history relating to that question includes that:
    1. (a)
      on 18 December 2010, the respondent handed a picture of a naked child to Queensland Corrective Services Officers;
    2. (b)
      on 19 December 2010, a search of the respondent’s cell (“cell search”) revealed two naked pictures of children;
    3. (c)
      on 29 April 2011, a cell search revealed a photo of another prisoner and a baby, a number of other photographs of other babies and pre-teen children and a book entitled Human Anatomy and Physiology;
    4. (d)
      on 16 September 2011, a cell search revealed a newspaper pages containing photos of children, a magazine containing “explicit” material and a photo of “explicit porn” material;
    5. (e)
      on 8 November 2013, a cell search revealed a newspaper clipping of a baby photos or photos;
    6. (f)
      on 24 July 2013, a cell search revealed two black and white drawings of depicting a “young girl” in a dress and bare legs and a “young female adult” with “exposed cleavage posing as a child blowing bubble-gum”;
    7. (g)
      on 12 May 2014, a cell search revealed two photographs of young children and pictures of children from newspapers; and
    8. (h)
      on 18 May 2014, a cell search revealed photocopied pages from learn to sketch book depicting child images.
  2. [25]
    On 20 May 2014 another cell search revealed an exercise book that contained a three page paedophilic pornographic story handwritten by the respondent,[15] telling of an encounter between the respondent and a three year old girl, including sexual intercourse, and describing in detail his own sexual excitement.  The story is a vivid insight into the nature and extent of the respondent’s sexual deviance.
  3. [26]
    On 18 March 2015, the respondent was convicted on his plea of guilty of making child exploitation material and sentenced to a term of imprisonment of 6 months.[16]
  4. [27]
    Another telling point about this offence is that both at the time and subsequently the respondent has told lies in an attempt to cover up or minimise his culpability for it.  First, he claimed that it was written by him as part of his involvement in or preparation for one of the sex offenders’ programs conducted and made available for prisoners.  That was false, both because the respondent was not part of and had not agreed to participate in such a program, and because prisoners in such programs are not required or encouraged to write such accounts of their offending, for the obvious reason that they might be used for sexual gratification.  Second, later the respondent claimed that he had told police he had written the story for and at the request of another prisoner who was participating in such a program, and that police had falsely said that he had written it for himself.  That was false, as shown by the transcript of the record of interview between the respondent and police on 29 May 2014 of what the respondent said to police and the accounts given by the respondent to Queensland Corrections Services staff that were to the same effect.

A complication – the respondent is undergoing gender change

  1. [28]
    On 20 November 2014, the respondent asked to go onto the transgender program. 
  2. [29]
    On 27 November 2014, he made a similar request to have “transgender” put on his medical file.
  3. [30]
    On 10 January 2015, the respondent asked for an assessment for his “mental issues”, such as gender issues and gender dysphoria and suffering depression.
  4. [31]
    On 13 February 2015, the respondent was referred to the prison Mental Health Service for assessment of transgender issues and depression.  He reported that his offending was due to pure excitement and attraction to children but he no longer felt that.  He said that he had tried to cut his penis off when he was three years old.  He wanted to be like his step-sister and he had worn girl’s clothes on some occasions and gone to the girls’ toilets at school. He had purchased bras as well and reported he thought he was a woman.
  5. [32]
    On 2 April 2015, the respondent presented again to the prison Mental Health Service. A psychologist diagnosed a sexual paraphilia, noting that the respondent no longer had a sexual preference for children and, rather, he wanted to have a sex change to be with a man and was seeking gender reassignment therapy.
  6. [33]
    On 25 August 2015, a health referral reported that the respondent identifies as transgender.
  7. [34]
    On 10 September 2015, the respondent requested to see mental health about transgender issues.
  8. [35]
    In 2016, there were several incidents of self-harm by the respondent. He was transferred from Wolston Correctional Centre to the Lotus Glen Correctional Centre so as to access the Cairns Sexual Health Clinic and transgender support services.
  9. [36]
    On 17 August 2016, the respondent was reviewed by the Cairns Sexual Health Clinic.  Medication for gender reassignment by hormone treatment was commenced and has continued.
  10. [37]
    On 16 October 2016, the respondent’s blood testosterone was reduced to 1.2 nmol/L, when normal levels are 9.0 to 35.
  11. [38]
    On 11 April 2018, the respondent consulted Cairns Sexual Health Clinic and a referral to a psychologist was recommended following release from prison.  That release has not occurred as yet.
  12. [39]
    On 9 May 2018, a plan was made to increase the respondent’s medication dose.
  13. [40]
    A remarkable feature of those facts is that the respondent’s identification as a female does not appear to have come to light in any assessment or objective evidence before 20 November 2014.

Sexual offender programs

  1. [41]
    Queensland Corrective Services provides a number of sexual offender group programs to prisoners for the treatment and rehabilitation of prisoners and management of the risk of reoffending in the community.
  2. [42]
    There is no particular evidence that any of the programs works or is likely to work in reducing that risk, either generally or in any particular case.  However, the efforts by a prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs and whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner are specific factors to be taken into account when assessing whether the prisoner is a danger to the community.[17]
  3. [43]
    The respondent has either not participated in or not completed[18] any such program.  Until 2016, that was because he chose not to do so, notwithstanding that he had been offered a relevant program on several occasions.  On some occasions, he expressed an interest in possibly doing so, but declined eventually for one reason or another.  It is a reasonable inference that he did not really intend to do so if he could avoid it.  That may be consistent with his repeated denials of most of the offending or the particulars of that offending.
  4. [44]
    However, from 2016, the respondent has become ineligible, in effect, to participate in the group programs, because of his gender transition.
  5. [45]
    In part, that may not mean as much in this case as it would in another case.  Due to his functional illiteracy or near illiteracy, the respondent is considered less suitable or not suitable for a number of the group programs offered.
  6. [46]
    In any event, to date the treatment received by the respondent has been confined to 21 sessions with Dr Brendan Nelson between 30 March 2017 and 30 November.  There are four reports from Dr Nelson in evidence.  However, he does not opine that the respondent has completed any treatment, in effect, for his sexual offending.  The reporting psychiatrists are unanimous in the view that the respondent is to be considered as an untreated serious sexual offender.

The psychiatrists' reports

  1. [47]
    Reports under s 11 of the Act from two psychiatrists, Dr Donald Grant and Dr Michael Beech, have been obtained and tendered.  As well, Dr Scott Harden gave an earlier report in the proceeding brought under s 8 of the Act and, for the final hearing, gave an updated report.  Further, each of the psychiatrists gave a supplementary report addressing questions relating to updated medical histories for the respondent and the respondent’s gender change.  Each also gave oral evidence.
  2. [48]
    Each of the psychiatrists records a history given to them by the respondent of the respondent’s childhood and the index offences.  The histories are not consistent in a number of significant respects.  However, that does not appear to have had the effect of causing significant differences in the psychiatrists’ opinions, with the possible exception that each of them considers the respondent to be a distinctly unreliable historian.  In my view, a real question raised by the history differences is whether the respondent alters the history to suit his purposes in order to manipulate or attempt to manipulate the person to whom he is speaking and their view of the respondent.
  3. [49]
    Dr Beech records that the respondent says that he became a heavy drinker from the age of 18 years and used heroin at the age of 19 years, continuing with an intravenous use for 12 months.  He used volatile inhalants at times. 
  4. [50]
    Dr Beech further records he has no contact with his mother or his father or any of his four half siblings.  He has a number of children to different mothers but does not have contact with them now.  He has no contact with people outside prison. 
  5. [51]
    During interview, the respondent:
    1. (a)
      denied the August 2007 offences against the twin 6 year old boys; and
    2. (b)
      denied the particulars of the November or December 2007 offence against the 4 year old girl.  He said he had not touched the girl or simulated sexual intercourse with her.
  6. [52]
    The detailed statements contained in the Director of Public Prosecutions files for those matters and the respondent's pleas of guilty, as well as the sentencing submissions placed before the sentencing Judges on his behalf, contradict those statements.
  7. [53]
    The respondent also related to Dr Beech the circumstances of his offence of making child exploitation material in May 2014 whilst in prison.  He said that he had told the investigating officer that he had written the story for another man’s court matters, but that police had unfairly alleged that he had said that he had written it down for his own sexual offenders’ program purposes.  He denied that he had told anyone that he had written the material to be used in a program for himself.  He denied that there had been any fantasy on his part or that he had any (sexual) interest in children. 
  8. [54]
    As previously stated, in my view, all those statements were untrue. 
  9. [55]
    Dr Beech asked the respondent about accounts in the material that whilst in prison he had been found in possession of pictures of children.  He said this occurred once.  He had cut pictures out of books to give to others in exchange for tobacco and he did not have an interest in children.
  10. [56]
    Having regard to the events in prison previously set out as between 2010 and May 2014, I find that those statements were untrue.   Not only that, but the history after May 2014 and the respondent being charged with producing child exploitation material gives further insight:
    1. (a)
      on 18 August 2015, a cell search revealed several loose pages interleaved in a witness statement that had a variety of explicit descriptions of sexual acts towards children;
    2. (b)
      on 23 November 2015, a cell search revealed 13 photographs of a child and a list of unofficial nudist beaches;
    3. (c)
      on 29 February 2016, a cell search of another prisoner's cell revealed an envelope addressed to the respondent containing several photographs of children;
    4. (d)
      on 17 March 2016, a cell search revealed a movie advertising poster of a small child holding a Teddy bear;
    5. (e)
      on 2 June 2016, the respondent wrote to the State Library of Queensland requesting 50 coloured pages of articles on paediatric skin rashes;
    6. (f)
      on 12 September 2016, the respondent requested photos of his children and a book with anime photos of children;
    7. (g)
      on 1 October 2016, a cell search revealed two pairs of underwear for 4 to 5 years old children, among other underwear items including a g-string and crotchless underpants;
    8. (h)
      on 23 June 2017, a cell search revealed several drawings of small children and two printed pictures of children;
    9. (i)
      on 17 November 2017, a cell search revealed images depicting young or small children among legal documents in a zip lock bag of documents;
    10. (j)
      on 25 May 2018, a cell search revealed a child fairy picture and a list of child pornography movies.
  11. [57]
    The last entry illustrates one of the difficulties of the river of information tendered upon the application.  In an affidavit filed on the day of the hearing, the respondent tendered what he says were the relevant image and list of movies and says that the list is the same list identified in other unspecified entries in the offender case file of him having prohibited material.  The list he tendered is innocuous enough, but whether it was the list the subject of any of the entries was not investigated and could not be verified having regard to the lateness of the tender.
  12. [58]
    Whether or not the list found on 25 May 2018 was innocuous, in my view, it should not be accepted that the respondent does not have an ongoing sexual interest in children.
  13. [59]
    Dr Beech asked the respondent why he had not done a sexual offender treatment program in prison.  The respondent said it was because he was told he could not do it.  As the facts previously mentioned demonstrate, that was only partially true.  He expressed a preference for one on one treatment and said that he considered that he had completed treatment with Dr Nelson that was individualised for him. 
  14. [60]
    In substance, however, he did not retreat from his denials of the August 2007 offences against the twin 6 years old boys or the November or December 2007 offence against the 4 years old girl.
  15. [61]
    Dr Beech sets out or refers to most of the facts set out above and other facts and information he identified from the files he was given (for example, including the opinions from facts in the pre-sentence report of Dr Luke Hatzipetrou obtained on 26 January 2010 and the report of Dr Josephine Sundin obtained on 14 July 2017) or obtained from the respondent on interview.
  16. [62]
    In Dr Beech's opinion, the respondent has paedophilia, a mixed personality disorder with narcissistic, borderline and histrionic features, a polysubstance use disorder in remission in custody, a borderline intellectual functioning and a psychopathic personality.[19] He continued that the respondent has many issues in the two domains associated with re-offending: anti-social or dissocial attitudes and psychopathy, and sexual deviance. 
  17. [63]
    In Dr Beech's opinion, the respondent has not addressed these to any significant degree and the unmodified risk of re-offending in the community without supervision is high, subject to a caveat arising from the respondent's transition to the female gender by commencement of hormone treatment and associated diagnosis of gender dysphoria.
  18. [64]
    Dr Beech nevertheless does not think that the risk mitigation effects of hormone treatment have been properly evaluated for the respondent, referring to the November 2017 finding of images depicting young or small children among legal documents in a zip lock bag of documents as indicating an ongoing pre-occupation with children.
  19. [65]
    Thus Dr Beech opines that although a supervision order would lessen the risk if the respondent were to continue hormone treatment, that treatment would need to be seen as part of the risk reduction strategy in a formal way (with a commitment from the respondent to continue hormone treatment) and would need to be appropriately addressed and monitored and occur in conjunction with formal individual therapy specifically designed to look at risk reduction strategies and should commence prior to release to develop a relapse prevention plan before release.
  20. [66]
    Dr Beech's two supplementary reports do not depart from that view, nor does his oral evidence.
  21. [67]
    Dr Grant's report details similar observations and information in relation to the respondent's offending and antecedents, although as previously mentioned the respondent provided some differing information from his accounts to Dr Beech.
  22. [68]
    Dr Grant’s assessment includes that the issues presented by the respondent are complicated by the circumstances that his accounts are very different from reality.  He presents as being reasonably intelligent but his claims of abilities are belied by his functional illiteracy so that he could not possible be carrying out the literacy tasks and interests that he claims. It may be that his gender dysphoria is not a true and stable identification but rather a fantasised and induced identity arising from a number of factors.
  23. [69]
    In Dr Grant’s opinion, the respondent has the diagnoses of a severe personality disorder with antisocial, histrionic, borderline and dependent traits and satisfies the criteria for a psychopathic personality disorder.  He also has a history of polysubstance abuse (largely in remission in custody), a borderline level of intelligence with severe problems with reading and writing and understanding of complex matters.  He has a sexual paraphilia, manifest as paedophilia that involves male and females and is non-exclusive having regard to his multiple relationships with adult women.  And he has a reported gender dysphoria and current identification as a transgender female.
  24. [70]
    Dr Grant is of the opinion that the respondent represents a high risk for future sexual offending.  That risk would involve mainly children of either gender and a wide range of ages. The risk would be higher in the context of alcohol and drug abuse, social instability and lack of supports.
  25. [71]
    Unlike the other psychiatrists. Dr Grant considers that the respondent should undergo a group sexual offender treatment program.  He considers that the Inclusion Sexual Offender Program is the only program that would be suitable.
  26. [72]
    In Dr Grant’s opinion a supervision order would be unlikely to significantly lower the risk of re-offending.  The respondent’s poor insight, untruthfulness and inconsistency, along with his emotional instability would make it very difficult to manage him in the community in a safe manner.
  27. [73]
    In Dr Grant’s opinion, the relationship between the risk of sexual reoffending and the gender transition issue is complex.  If the respondent continues to take anti-androgen drugs and oestrogen, the lowering of his libido would reduce the risk of paedophilic re-offending.  However, that depends on the gender identity and treatment remaining stable.
  28. [74]
    Dr Grant’s supplementary report does not depart from those views, nor does his oral evidence.
  29. [75]
    Dr Harden’s report was carried out earlier than the other reporting psychiatrists, because it was done for the s 8 procedure.  His diagnoses were that the respondent has a personality disorder that is mixed with antisocial, narcissistic and borderline features that is severe, a polysubstance abuse disorder that is in remission in custody, a paedophilia that is non-exclusive and attracted to males and females and a possible gender dysphoria that might instead be an identity diffusion and psychosexual dysfunction associated with early childhood sexual abuse and emotional deprivation.
  30. [76]
    In Dr Harden’s opinion the respondent’s unmodified risk of sexual re-offence if released into the community is high, with the greatest risk factors being his severe personality disorder and sexual attraction to pre-pubertal children and level of denial regarding managing offending risk.  Resumption of substance abuse would also be of concern.
  31. [77]
    On a supervision order, Dr Harden was of the opinion that the risk of sexual recidivism would be reduced to moderate, based on the reduction of victim access.  The respondent is effectively untreated from the point of view of sexual re-offending and no reliance can be placed on internal controls or his own stated desire not to offend again.
  32. [78]
    In his supplementary report, Dr Harden recognised that oestrogen treatment and antiandrogen treatment are likely to decrease the risk of sexual re-offending in biologically male humans as long as the antiandrogen treatment reduces testosterone to a level below half of the figure when not on treatment.
  33. [79]
    That point led Dr Harden to attribute the reduction of the risk of sexual re-offending on a supervision order as associated with hormonal treatment and reduction of testosterone level as well as reduction of victim access with strict supervision.
  34. [80]
    Dr Harden also accepts in his supplementary report that the respondent was unsuitable for group programs but opined that attempting to meet the respondent’s treatment needs via individual therapy will require a very substantial period of therapy and a high level of correlation of collateral information.[20]  Among other things, if released into the community, the respondent needs to be monitored for his testosterone levels and for destabilisation of his personality disorder.
  35. [81]
    All the reporting psychiatrists recommended that any supervision order should be for a period of 10 years.

Serious danger to the community

  1. [82]
    On the basis of the findings I have made and the evidence of the psychiatrists, which I accept, there is no doubt that the respondent’s concession of a serious danger to the community of committing a serious sexual offence in the absence of a supervision order is rightly made.
  2. [83]
    I am satisfied, by acceptable cogent evidence, to a high degree of probability that the evidence is of sufficient weight to justify the decision that there is an unacceptable risk that the respondent will commit a serious sexual offence if the respondent is released from custody without a supervision order being made and is, therefore, a serious danger to the community.

A continuing detention order or supervision order

  1. [84]
    The court is empowered to make either a continuing detention order or a supervision order under s 13(5) of the Act.  The paramount consideration is whether adequate protection of the community can be reasonably protected and practicably managed by a supervision order.
  2. [85]
    In part, that question depends on the conditions of such an order.  Apart from any unusual conditions, the conditions of a supervision order, as commonly imposed, strictly control movement of a prisoner under the order.  Where the risk of a serious sexual offence is the non-violent abuse of children by a paedophile, there is or may be some opportunity to detect a prisoner’s preparatory steps to offending in that way by any grooming or similar process that itself involves prohibited contact with children and attendance at prohibited places where the prisoner may come into contact with children.  This is the point made by Dr Harden’s reliance on the reduction of victim access.
  3. [86]
    As to the reduction of risk by androgen treatment reducing testosterone to a level below half of the figure when not on treatment, the point of both Dr Beech’s and Dr Harden’s views is that unless continuation upon the treatment is a condition of the supervision order, there cannot be sufficient confidence in this factor as a reduction of risk, given the real possibility of future instability in the respondent’s gender dysphoria and gender transition.
  4. [87]
    The matter for judicial determination under s 13(5) of the Act requires a value judgment as to what risk should be accepted by the community against the serious alternative of the deprivation of a person’s liberty, and is informed by the express requirements that the paramount consideration is the need to ensure adequate protection of the community (under s 13(6)(a)) and the court must consider whether that adequate protection can be reasonably and practicably managed by a supervision order (under s 13(6)(b)(i)).[21]
  5. [88]
    If the respondent were released upon a supervision order, he could self-refer or be referred by the Cairns Sexual Health Service to the Townsville Sexual Health Service and the Townsville Sexual Health Service would be able to address any clinical or treatment needs for the respondent.  The Townsville Sexual Health Service has an on-site psychologist who facilitates a transgender support group for which the respondent could be eligible.  Similar arrangements could be made if the respondent were released on a supervision order in Brisbane.[22]
  6. [89]
    If a supervision order were to be made, the parties have agreed upon the form of the appropriate conditions.  Among them, proposed condition 49 includes that the respondent must take medication as prescribed by a medical practitioner and proposed condition 28 provides that the respondent must submit to treatment by a medical psychiatrist or other mental health professional as directed by a corrective services officer.  Perhaps these conditions would authorise a requirement that the respondent continue with the androgen treatment that has the effect of lowering the risk of serious sexual reoffending that the respondent otherwise presents.
  7. [90]
    However, in my view, the better view of the respondent’s transgender status, shared by all the psychiatrists, is that it may not be stable.  In my view, it would be inappropriate for a supervision order to be framed or deployed so as to compel its continuation, even if that were permissible as proper professional practice for a health professional.  This is not a case where the respondent has proposed a “voluntary” condition of androgen treatment to lower his risk of sexual re-offending.
  8. [91]
    Once that point is reached, the risk presented by the respondent is not as clearly modified by his transgender status as it would be if that status were accepted as being stable.  As well, the suggestion that the respondent, in his present transgender status, has no ongoing sexual interest in children is belied by his continuing to gather and possess images of them in prison, despite the prohibition against him doing so.
  9. [92]
    The result, in my view, is that the adequate protection of the community is not ensured by the proposed conditions of the supervision order.  The respondent’s condition as an untreated sexual offender, coupled with the diagnoses of the three reporting psychiatrists, should be recognised as a significant factor in assessing whether the adequate protection of the community can be reasonably and practicably managed by a supervision order at this point in time.
  10. [93]
    In my view, there should be a continuing detention order.

Footnotes

[1] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 5(1), 8(1) and 13(5).

[2] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(1).

[3] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(2)(b).

[4] Attorney-General v Lawrence [2017] 2 Qd R 754, [13]-[14]; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 13(3) and 30

[5]  There is no such report in this case.

[6]  There are three such reports in this case.

[7]  Although not a “serious sexual offence” as defined in the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 2 and Schedule.

[8] Evidence Act 1977 (Qld), s 92.

[9]  One stated concern is that the reporting psychiatrists have access to all the material, but that does not mean that every matter in it is relevant to the expert opinion or opinions that are received in evidence.

[10]  On 5 March 2009.

[11]  On 20 February 2009.

[12]  On 30 November 2010.

[13]  The suspended sentence is explained by the circumstance that although the offence was last in the chronological order of the index offences, it was the first that was dealt with by a court.

[14]  Since then, the respondent has been subject to an interim detention order made under the Act.

[15]  When questioned about it, the respondent said it had taken him days or weeks to write.

[16]  That term expired before he was eligible for full term release on the conviction for sodomy on 29 May 2018.

[17] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(4)(e) and (f).

[18]  In June 2009, the respondent attended five sessions of the Getting Smart: Moderate Intensity Abuse Program but then withdrew.  In November 2009, he was again offered a place in that program but failed to participate.  In April 2012, he was to do a Getting Started: Preparatory Program but withdrew at the start. In September 2013, he declined a further opportunity to do that program.

[19] He scored 30 on the Hare Psychopathy Checklist – Revised.

[20]  Although the question was not explicitly asked, I had the impression that the therapy envisioned was more in the nature of individual psychotherapy than some of the other therapies sometimes deployed in this field of discourse.

[21]  In this case, there is no suggestion that the requirements under s 16 cannot be reasonably and practicably managed by corrective services officers.

[22]  If the respondent were detained in custody, individual treatment would be conducted at the Townsville Correctional Centre due to the availability of an appropriately skilled forensic psychologist.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General (Qld) v Anderson

  • Shortened Case Name:

    Attorney-General v Anderson

  • MNC:

    [2018] QSC 166

  • Court:

    QSC

  • Judge(s):

    Jackson J

  • Date:

    30 Jul 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 166 30 Jul 2018 Respondent a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); respondent to be detained in custody for an indefinite term for control, care or treatment: Jackson J.

Appeal Status

No Status