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  • Unreported Judgment

Attorney-General v Corben

 

[2018] QSC 264

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General (Qld) v Corben [2018] QSC 264

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

MARK JOHN CORBEN

(respondent)

FILE NO:

No 7785 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

16 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

12 November 2018

JUDGE:

Davis J

ORDER:

I order the respondent be released from custody subject to the requirements set out in the Schedule to these reasons for a period of 10 years.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant has applied for a Division 3 – where the respondent is serving a sentence for multiple sexual offences committed against a child – where the respondent concedes that the Court would be satisfied he is a serious danger to the community in the absence of a Division 3 order – whether a Division 3 order should be made – whether adequate protection of the community can be managed by a supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3, s 5, s 8, s 11, s 12, s 13, s 16

A-G (Qld) v Beattie [2007] QCA 96, cited

A-G (Qld) v Lawrence [2011] QCA 347, cited

Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited

Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited

Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, cited

COUNSEL:

J Tate for the applicant

C Reid for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    The respondent is presently in custody serving sentences for various sexual offences committed against a 4 year-old child and an offence of possessing child exploitation material.  The respondent’s full time release date is 21 November 2018.  The Attorney-General has applied for orders against the respondent under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act).

Statutory scheme

  1. [2]
    Section 3 of the Act prescribes the objects of the legislation as follows:

3 Objects of this Act

The objects of this Act are—

  1. (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
  1. (b)
    to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”
  1. [3]
    The objects of the Act are fulfilled by a scheme providing for the detention of prisoners beyond the expiry of their sentences or alternatively their release upon supervision.
  2. [4]
    By s 5, the Attorney-General may apply for both an order under s 8 of the Act and also an order under Division 3 of Part 2.  Division 3 of Part 2 provides for final orders.  Applications can only be brought under s 5 against a “prisoner”.
  3. [5]
    Section 5, which authorises the application for orders and which contains the definition of “prisoner”, is as follows:

5 Attorney-General may apply for orders

  1. (1)
    The Attorney-General may apply to the court for an order or orders under section 8 and a division 3 order in relation to a prisoner.
  1. (2)
    The application must—
  1. (a)
    state the orders sought; and
  1. (b)
    be accompanied by any affidavits to be relied on by the Attorney-General for the purpose of seeking an order or orders under section 8; and
  1. (c)
    be made during the last 6 months of the prisoner’s period of imprisonment.
  1. (3)
    On the filing of the application, the registrar must record a return date for the matter to come before the court for a hearing (preliminary hearing) to decide whether the court is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order.
  1. (4)
    The return date for the preliminary hearing must be within 28 business days after the filing.
  1. (5)
    A copy of the application and any affidavit to be relied on by the Attorney-General must be given to the prisoner within 2 business days after the filing.
  1. (6)
    In this section—

prisoner means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or serving a period of imprisonment that includes a term of imprisonment for a serous sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section.”

  1. [6]
    The definition of “prisoner” in s 5(6) introduces the concept of a “serious sexual offence”.  That term is defined as follows:

serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—

  1. (a)
    involving violence; or
  1. (b)
    against a child; or
  1. (c)
    against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”
  1. [7]
    Section 8 provides for a preliminary hearing.  It is in terms:

8 Preliminary hearing

  1. (1)
    If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order.
  1. (2)
    If the court is satisfied as required under subsection (1), it may make—
  1. (a)
    an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports; and
  1. (b)
    if the court is satisfied the application may not be finally decided until after the prisoner’s release day—
  1. (i)
    an order that the prisoner’s release from custody be supervised; or
  1. (ii)
    an order that the prisoner be detained in custody for the period stated in the order.”
  1. [8]
    The term “prisoner”, as used in s 8 is defined differently to the definition in s 5(6).  In s 8, the term “prisoner” has the same meaning as that defined for the purposes of the Corrective Services Act 2006.[1]   The distinction is, though, not relevant here.[2]
  2. [9]
    Section 8 introduces the notion of “serious danger to the community”.  That term is defined in s 13 which is the pivotal section in Division 3 of Part 2.  Section 13 is in these terms:

13 Division 3 orders

  1. (1)
    This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).
  1. (2)
    A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—
  1. (a)
    if the prisoner is released from custody; or
  1. (b)
    if the prisoner is released from custody without a supervision order being made.
  1. (3)
    On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—
  1. (a)
    by acceptable, cogent evidence; and 
  1. (b)
    to a high degree of probability;

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

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

(aa) any report produced under section 8A;

  1. (a)
    the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
  1. (b)
    any other medical, psychiatric, psychological or other assessment relating to the prisoner;
  1. (c)
    information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offence sin the future;
  1. (d)
    whether or not there is any pattern of offending behaviour on the part of the prisoner;
  1. (e)
    efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
  1. (f)
    whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
  1. (g)
    the prisoner’s antecedents and criminal history;
  1. (h)
    the risk that the prisoner will commit another serious sexual offence if released into the community;
  1. (i)
    the need to protect members of the community from that risk;
  1. (j)
    any other relevant matter.
  1. (5)
    If the court is satisfied as required under subsection (1), the court may order—
  1. (a)
    that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
  1. (b)
    that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
  1. (6)
    In deciding whether to make an order under subsection (5)(a) or (b)—
  1. (a)
    the paramount consideration is to be the need to ensure adequate protection of the community; and
  1. (b)
    the court must consider whether—
  1. (i)
    adequate protection of the community can be reasonably and practicably managed by a supervision order; and
  1. (ii)
    requirements under section 16 can be reasonably and practicably managed by corrective services officers.
  1. (7)
    The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
  1. [10]
    Orders which can be made under s 8 include orders that a prisoner undergo psychiatric examination.  The evidence so obtained is then relied upon by the Attorney-General on the application brought under s 13.  Relevant to examinations ordered under s 8, are ss 11 and 12 which are in these terms:

11 Preparation of psychiatric report

  1. (1)
    Each psychiatrist examining the prisoner must prepare a report under this section.
  1. (2)
    The report must indicate—
  1. (a)
    the psychiatrist’s assessment of the level of risk that the prisoner will commit another serious sexual offence—
  1. (i)
    if released from custody; or
  1. (ii)
    if released from custody without a supervision order being made; and
  1. (b)
    the reasons for the psychiatrist’s assessment.
  1. (3)
    For the purposes of preparing the report, the chief executive must give each psychiatrist any medical, psychiatric, prison or other relevant report or information in relation to the prisoner in the chief executive’s possession or to which the chief executive has, or may be given, access.
  1. (4)
    A person in possession of a report or information mentioned in subsection (3) must give a copy of the report or the information to the chief executive if asked by the chief executive.
  1. (5)
    Subsection (4) authorises and requires the person to give the report or information despite any other law to the contrary or any duty of confidentiality attaching to the report.
  1. (6)
    If a person required to give a report or information under subsection (4) refuses to give the report or information, the chief executive may apply to the court for an order requiring the person to give the report or information to the chief executive.
  1. (7)
    A person giving a report or information under subsection (4) or (6) is not liable, civilly, criminally or under an administrative process, for giving the report or information.
  1. (8)
    Each psychiatrist must have regard to each report or the information given to the psychiatrists under subsection (3).
  1. (9)
    Each psychiatrist must prepare a report even if the prisoner does not cooperate; or does not cooperate fully, in the examination.

12 Psychiatric reports to be given to the Attorney-General and the prisoner

  1. (1)
    Each psychiatrist must give a copy of the psychiatrist’s report to the Attorney-General within 7 days after finalising the report.
  1. (2)
    The Attorney-General must give a copy of each report to the prisoner on the next business day after the Attorney-General receives the report.”
  1. [11]
    Section 16 deals with the content of supervision orders.[3]  Section 16 provides as follows:

16  Requirements for orders

  1. (1)
    If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner—
  1. (a)
    report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and
  1. (b)
    report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and
  1. (c)
    notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and
  1. (d)
    be under the supervision of a corrective services officer; and

(da)  comply with a curfew direction or monitoring direction; and

(daa)  comply with any reasonable direction under section 16B given to the prisoner; and

(db)  comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and

Examples of direct inconsistency—

If the only requirement under subsection (2) contained in a particular order is that the released prisoner must live at least 1km from any school—

1  A proposed direction to the prisoner would be directly inconsistent if it requires the released prisoner to live at least 2km from any school. 

2  A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner to live at least a stated distance from something else, including, for example, children’s playgrounds, public parks, education and care service premises or QEC service premises. 

3  A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner not to live anywhere unless that place has been approved by a corrective services officer.

  1. (e)
    not leave or stay out of Queensland without the permission of a corrective services officer; and
  1. (f)
    not commit an offence of a sexual nature during the period of the order.
  1. (2)
    The order may contain any other requirement the court or a relevant appeal court considers appropriate—
  1. (a)
    to ensure adequate protection of the community; or

Examples for paragraph (a)—

 a requirement that the prisoner must not knowingly reside with a convicted sexual offender

 a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school

  a requirement that the prisoner must wear a device for monitoring the prisoner’s location

  1. (b)
    for the prisoner’s rehabilitation or care or treatment.”

History

  1. [12]
    The respondent was born on 16 July 1976.  He is presently 42 years of age.
  2. [13]
    On 22 August 2013, the respondent was convicted of, and sentenced in respect of, the following in the Maroochydore District Court:
  1. (i)
    maintaining an unlawful sexual relationship with a child;[4] 4 and a half years imprisonment;
  2. (ii)
    rape;[5] 4 years imprisonment; and
  3. (iii)
    possessing child exploitation material;[6] 9 months imprisonment.
  1. [14]
    The sentences for maintaining an unlawful sexual relationship with a child and rape were ordered to be served concurrently with each other but cumulative upon the sentence imposed for possessing child exploitation material.  A parole eligibility date of 21 April 2015 was set.
  2. [15]
    The offences of maintaining an unlawful sexual relationship with a child and rape involved the one victim, a girl aged 4.  The offending occurred over a period of 6 months between 31 October 2010 and 2 May 2011.  An agreed statement of facts was tendered to the District Court on sentence and formed the basis upon which the respondent was sentenced.  Relevantly, that stated as follows:

“Corben was an acquaintance of the victim’s mother and lived in a granny flat at the back of their unit.  He set up a photography studio in the flat and asked if the victim would model for him so that he could gain experience photographing children.  The victim’s mother agreed as she intended to use the photos in the victim’s portfolio to break into modelling.  She was concerned about some of the photos which involved the victim looking over her shoulder with her shirt pulled down but Corben told her that these types of photos would be taken if she went into modelling. 

The victim’s mother worked Sunday mornings so an arrangement developed in which Corben would look after the victim during this time.  Corben offended against the victim while alone with her during these mornings.  The particulars of the offending are based on Corben’s interview with Police after arrest. 

On various occasions the victim sat on Corben’s lap while they watched movies.  He put her hand on his underwear on top of his penis.  He got an erection and moved around so that he could enjoy it.  He ejaculated on some occasions and hid this from her as he did not want to “weird her out.”

Corben often kissed the victim in a way he described as “passionately”.  They also “pecked” lips as though “making out”.  He tried to put his tongue in her mouth on one occasion.  Further, at times they played a kissing game in which she named a body part and he kissed it.  He kissed her nipples, breasts, feet, hands, toes and nose.  He would also name a body part which she would then kiss, although she never kissed his penis.

Corben licked or kissed her vagina directly or through her underwear.  He would lick between the folds of her vagina and sometimes rubbed around or directly on her vagina with his fingers.  He said he was thrilled when he felt the crease and smoothness of her vagina. 

The offence of rape took place on one occasion when Corben was kissing the victim on the vagina, opened her legs and used his tongue to lick up and down the crease for a few minutes.  He penetrated her vulva but did not enter her vagina.

Corben would sometimes rub his penis through his underwear when engaging in sexual contact with the victim.  He said that he loved the victim and felt “drunk, intoxicated and infatuated” with her.  He described being around her as nice and the rest of it was “gravy.”

The offending ended when Corben and the victim’s mother argued about an unrelated incident.  The victim’s mother then stopped letting him look after the victim. 

As he was no longer allowed to see the victim, Corben began to download child exploitation material (CEM) which was stored on his hard drive.  The CEM consisted of children aged between 4 and 8 engaged in sexual acts.  The total number of accessible images was 82 536, although some may have been duplicate.  The accessible material was categorised by Police; however, 241 of the 912 accessible images and 524 accessible movies were not categorised due to the volume of material.

A number of Category 5 images were found which depicted girls aged 4-8 who were tied up and in distress.  For example, a girl performing oral sex on a dog and another on a horse, an adult having sex with a girl aged about 4 who appeared to be screaming and holding her face, a girl wearing a dog collar and performing oral sex on a male, a knife holding open the vagina of an 8 year old girl, a young girl strapped or bound open and another young girl performing fellatio on her, and a man holding a knife to a naked young girl on a bed with the words ‘cut me’, ‘slut’ and ‘hurt me’ written on her stomach.

A number of Category 5 images were also found which were mostly of girls aged 4-8, infants and young children performing oral sex on adult males.  There were also images of digital penetration (including infants and very young children) and intercourse (including girls aged 3-4 with ejaculation to the face or mouth of the girls).  An image depicting anal intercourse was also found.

Corben used a technical means of downloading the CEM using a mash to hide his information including location.  This system made it appear that the material was being downloaded in another country.  Corben would look at the material and masturbate.  He also had five pairs of girls’ underwear, including two of the victims.

The offending came to light when the victim’s grandfather was rubbing medicated cream on her bottom and she commented that it felt like he was licking her bottom.  He asked who had been licking her bottom.  She said she wasn’t allowed to tell anyone and then disclosed that it was Corben.  Her grandfather told her mother who spoke with her about it and then took her to the local police station where a formal complaint was made and the victim was interviewed. 

Some months later, Police searched Corben’s premises and seized his computer and items of clothing including underwear which belonged to the victim.  Corben said he had taken some inappropriate photos of the victim showing her underwear which he had kept as it made him feel good.  He was taken to the police station where he was interviewed and charged.”

  1. [16]
    While in prison, the respondent undertook treatment programs to address his offending behaviour.  On 21 March 2014, he completed the Getting Started Program.  That is a preliminary course designed to lead to further treatment.  Upon completing the Getting Started Program, the respondent undertook the Medium Intensity Sexual Offending Program (MISOP) which he completed on 9 July 2015.  In April 2015, the respondent made application for parole.  The Parole Board sought further information from the respondent who made various submissions, but in the end the application did not progress. 
  2. [17]
    Dr Grant, a consultant psychiatrist, was retained by the applicant to assess the respondent’s risk of sexual reoffending so the applicant could consider whether to make an application under the Act.  In due course, a report was prepared.  I’ll deal with Dr Grant’s findings and opinions later. 
  3. [18]
    Based on Dr Grant’s report, an application was filed under s 5 of the Act on 23 July 2018 seeking orders for a preliminary hearing and seeking final orders. 
  4. [19]
    On 7 August 2018, the Court heard the preliminary hearing pursuant to s 8 of the Act and orders were made:
    1. appointing Dr Kenneth Arthur and Dr Evelyn Timmins, both consultant psychiatrists, to prepare risk assessments concerning the respondent for the purposes of the application for final orders under s 13 of the Act; and
    2. setting 12 November 2018 as the hearing date for the application for final orders.

The psychiatric evidence

  1. [20]
    The psychiatric evidence before me came from Dr Grant, Dr Arthur and Dr Timmins.  The respondent did not file or read material.
  2. [21]
    Dr Grant diagnosed the respondent as suffering from:
  1. (i)
    Paedophilia (heterosexual type with attraction to latency-aged females aged between four and eight);
  2. (ii)
    Personality Disorder (with Anxious, Avoidant and some Schizoid traits);
  3. (iii)
    Anxiety Disorder (with a history of Panic Attacks); and
  4. (iv)
    Past periods of Depression (largely in remission on medication).
  1. [22]
    Dr Arthur diagnosed the respondent as suffering from:
  1. (i)
    Paedophilic Disorder (likely exclusive, sexually attracted to females aged 4 to 8 years);
  1. (ii)
    Features of Fetishistic Disorder (involving female children’s underwear);
  2. (iii)
    Mixed Cluster B and C Personality Disorder with features of Narcissism (grandiose sense of self-importance/arrogant haughty behaviours and attitudes/sense of entitlement) and Avoidance (avoids interpersonal contact, preoccupied with being criticised or rejected in social situations, views self as socially inept): and
  3. (iv)
    Anxiety Disorder (features of social anxiety and panic).
  1. [23]
    Dr Timmins diagnosed the respondent as suffering from:
  1. (i)
    Paedophilia, exclusive, pre-pubescent females;
  2. (ii)
    Mixed Personality Disorder (with Antisocial, Narcissistic and Avoidant personality traits); and
  3. (iii)
    Substance Use Disorder (mainly Alcohol, in sustained remission in custody).
  1. [24]
    Each of the three psychiatrists utilised the risk assessment tools Static 99-R, the Hare Psychopathy checklist and the Risk of Sexual Violence Protocol. It is unnecessary to record the various scores achieved by application of those tools. The psychiatrists, relying upon the results of the application of those tools, clinical assessments and consideration of other materials each provided a detailed opinion on the question of risk. Dr Grant opined:

“Overall, taking everything into consideration, I would see the risk of sexual re-offending falling in to two categories. In terms of the risk for accessing child exploitation material the risk would in my opinion be moderate to high. In terms of the risk for hands-on sexual offending against young females, I consider that the risk would be moderate (average). That risk does not involve any psychopathic personality traits. Future offending would be associated with his strong paedophilic urges, exacerbated by life stressors and depression. The static risk assessment on instruments is no more than average/moderate, but in my opinion the presence of his strong paedophilic urges and other personality factors render the risk for hands-on sexual offending as being at least moderate and moderate-to-high for accessing CEM.”[7]

  1. [25]
    Dr Arthur expressed his views as follows:

“260. In relation to child exploitation material, prisoner Corben is likely to access pornography when feeling emotionally stressed, bored, lonely or if he has been sexually aroused by seeing a child he finds attractive (typically aged 4 to 8 with blond hair and blue eyes). He will access pornography via the internet, avoiding detection by using techniques to mask his IP address. His typical pattern is to collect large amounts of material which he will filter through and then hold onto for a period of time before deleting.

  1. In relation to contact offences, his potential victims are likely to be female children known to prisoner Corben with whom he will form a relationship over time. He will befriend the child’s parents and employ grooming behaviours. Once started, the contact offences may escalate in severity over time and persist until he is discovered. It is unlikely that he will employ physical coercion in any future offending although this cannot be ruled out. There is a risk of significant psychological harm to his victims.
  1. The main drivers for prisoner Corben’s sexual offending are his deviant sexual interests, unmet intimacy needs and using sex as coping.
  1. Prisoner Corben was able to identify a number of risk indicators such as experiencing stress, social isolation and a lack of intimate relationships.  However, due to his poor self-awareness, he is yet to understand why he employs avoidant and narcissistic defence mechanisms and hence, is likely to utilise these in the future to cope with emotional distress.
  1. Prisoner Corben’s denial of his sexual needs and avoidance of all forms of sexual arousal is unlikely to be an effective strategy to manage his risk. Although he talks about engaging in adult relationships, he has had limited experience. His one long-term sexual relationship with K was described as ‘normal’ and sexually satisfying, but he has previously reported a lack of sexual interested [sic] in K and fantasised about children during their time together. He has also admitted to feeling physically nauseous when considering sex with adults.
  1. Prisoner Corben’s personality vulnerabilities are longstanding and may take many years to address with psychological therapy. He is sensitive to rejection, socially anxious and easily offended. As such, it is likely he will find adult relationships challenging and stressful, increasing the risk he will return to avoidant behaviours.
  1. Indicators of increasing risk would include prisoner Corben isolating himself from friends or family, engaging in an itinerant lifestyle or employment which requires him to live in remote locations, the presence of interpersonal stress and signs of increasing sexual preoccupation with more frequent masturbation and accessing pornographic material.
  1. There are some protective factors.  Prisoner Corben has openly acknowledged his deviant sexual interests, has indicated that he is eager to engage in psychological therapy to address this issue and has been able to reflect on his life and develop some intellectual insight into his offending behaviour.  It appears that he still has the support of his parents and expresses a willingness to comply with community-based supervision.
  1. However, I believe prisoner Corben will be a challenging person to engage in psychological therapy.  Whilst he reports a willingness to address his sexual deviancy, he did not engage well in the MISOP, externalised responsibility for his problems (searching for a ‘cure’ rather than self-regulation) and when challenged resorts to narcissistic defences as a way of maintaining self-eseteem.
  1. Although he acknowledges the wrongness of his actions, at interview he did not show much of a shift in his underlying attitudes. He tended to minimise the effects of viewing child exploitation material, referring to it as a: ‘bad habit’ and a coping strategy to manage stress whilst not fully acknowledging its role in fuelling and maintaining deviant sexual preoccupations. He still speaks about his victim in a romantic and idealised manner, referring to her as his ‘princess’, indicative of ongoing cognitive distortions.
  1. Overall, there are a number of dynamic risk factors which are likely to take many years to modify. I estimate prisoner Corben’s unmodified risk of reoffending as high in regard to accessing child exploitation material and moderate for further contact offences.”[8]
  1. [26]
    Dr Timmins’ view was:

“In summary, I am of the opinion that Mr Corben’s risk of sexual reoffending against an under-age female child is MODERATE if released into the community without a supervision order in place.

His risk of accessing child exploitation material is greater, potentially falling into the HIGH range when compared to his risk of contact offences against female children.

Managing Mr Corben in the community is likely to be difficult due to his personality structure in addition to his knowledge and use of computer technology to access whatever he wants on the Internet without being detected.

If Mr Corben does offend it is likely to be via child exploitation material initially. This will occur during times of stress, loneliness or boredom. He is able to conceal his Internet activities and his use of child exploitation material is a long-standing coping strategy he has used when stressed. It may prove difficult for him to learn and develop other more appropriate coping strategies.

He may go on to develop a relationship with a female child in his age preference. It is more likely this child will be known to him. He is likely to harbour sexual interest in the potential victim for many months before acting on his desires. There would be psychological coercion involved in the offending and a high degree of harm to the victim who could be very young. His offending will involve touching, masturbation, teaching the child sexual acts, oral sex and could extend to penetrative acts depending on the relationship he develops with the child.”[9]

  1. [27]
    All three psychiatrists expressed views as to the likely effect of a supervision order in the event that the respondent was released.  Dr Grant expressed his opinion as follows:

“If Mr Corben undergoes further treatment and close supervision, in my opinion the risk for any kind of sexual re-offending could be reduced to low to moderate. Such treatment is likely to include antiandrogen therapy. In the absence of treatment there would be less likelihood of modification of the risk. Close supervision would assist in reducing risk, however, through the strict application of clauses that prevent his unsupervised access to children and monitor his access to the Internet to avoid his access to CEM.

I would recommend that Mr Corben be referred to a psychiatrist and possibly also a treating forensic psychologist to apply the various aspects of treatment that are required. I note that he has already received some benefit from SSRI antidepressant medication in terms of reducing his libido and sexual ideation. He would need to be assessed by a psychiatrist as to whether the application of antiandrogen therapy is also necessary, and in my opinion it is likely to be so. It would be up to the psychiatrist whether he could also apply necessary psychotherapy or whether it would be preferable for him to have dual therapy from psychiatrist and a psychologist to apply the different aspects of therapy.

In my opinion, if Mr Corben were released from custody without coming under the DPSOA[10] and having a Supervision Order the risk would be potentially unmodified and would rely on him seeking out appropriate treatments on a voluntary basis.  He may well wish to do this but there would be no guarantee that the treatment would continue.  There would also be no external restrictions on him accessing high-risk situations such as access to children or accessing the Internet.  In my opinion, a Supervision Order would be required to ensure safe management in the community, at least for a period of time until it was clear that treatment was effective in reducing risk.

Mr Corben would, I believe, see a Supervision Order as a beneficial feature of management in the community because it would assist him in efforts to control the main risk factors, that being his paedophilic drives and his past access to Internet pornography. A Supervision Order would also assist him with having appropriate supervision and therapy.

Any Supervision Order would need to have clauses indicating that he must not have unsupervised access to children, particularly underage females, and that he must not use the Internet for inappropriate access to CEM. He should not be allowed to go to places in the community where children might be congregating in numbers. It does not seem that alcohol and drug clauses are particularly necessary in any Supervision Order.

Mr Corben seems to have reasonable support from his parents and it may be that placement with them for the immediate period after his release from custody would be the most suitable. Appropriate safeguards could be put in place so that he does not have any unsupervised access to his niece, who may visit occasionally.

From my interview with Mr Corben it appears that he is very motivated to undertake appropriate treatment and to receive support and supervision.

If a Supervision Order is made, I believe it would probably be best to make it for a period of five years. It may be that within a shorter period of two years or so Mr Corben would be well established on treatment and the risk might well be significantly reduced, but the risk is likely to be long term and it would be best if the Supervision Order is in place for a sufficient length of time for him to achieve significant gains and stability in the community. Once he has achieved appropriate treatment and benefit from that treatment he would likely be willing to continue such management on a voluntary basis into the future.”[11]

  1. [28]
    On the same topic, Dr Arthur said:

“271. A supervision order would reduce prisoner Corben’s risk of sexual reoffending.

  1. Restricting his access to the internet would reduce his capacity to access and collect child exploitation material. Given his high level of IT expertise, particular care would have to be taken in this regard with diligent monitoring of all online activity, along with restricting the use of storage devices (both physical and cloud-based).
  1. Prisoner Corben should not have any supervised or unsupervised contact with female children under the age of 16. Restrictions should be placed on his movements in the community to reduce incidental contact with children.
  1. Given prisoner Corben’s high level of sexual preoccupation and intense deviant sexual interests, the use of anti-androgen medication should be seriously considered as an adjuvant to psychological therapy. Newer agents such as gonadotropin releasing hormone agonists should be considered due to their more favourable side effect profile.
  1. Prisoner Corben requires offence-specific psychological therapy to address both his deviant sexual interests and underlying personality pathology/maladaptive coping strategies. Given his limited response to the MISOP, it may be beneficial for him to repeat this program in the community. He would also benefit from ongoing psychiatric treatment of his anxiety symptoms.
  1. Due to the combination of his entrenched paraphilia and personality pathology, prisoner Corben will require many years of psychological treatment. Due to the chronic nature of his risk I would recommend a supervision order of between 5 and 10 years.”[12]
  1. [29]
    Dr Timmins said:

“If the court is of a mind to release Mr Corben he will need to continue with engagement with both a psychiatrist and a forensic psychologist. The psychiatrist can monitor his mood and anxiety, prescribe anti-depressant medications and consider a trial of anti-libidinal agents to lower Mr Corben’s sex drive and potential to act out in a sexual manner against children.

The forensic psychologist can engage him in psychological treatment aimed at assisting him in understanding his sexual deviance thus he can manage his risk to the community better. He can also engage in strategies around managing his stress levels, emotional regulation and propensity to engage in destructive behaviours such as alcohol use, online gambling, computer gaming, and downloading child exploitation material to manage his emotions.

He would need to engage in appropriate work that does not involve access to the Internet. I would be very careful with allowing him to have a mobile phone with Internet capabilities as he is adept at accessing whatever he wants from the Internet without being detected.

He will need appropriate accommodation, GPS monitoring, friendships and appropriate social activities. He needs to maintain absences from any substances, whether it is home-made or bought. His relationship will need to be monitored for any access to a young female child will increase his risk of contact offences.

His risk may be modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003. He would most likely fall into a LOW to MODERATE risk category.

The duration of a community order would need to be at least 10 years for adequate protection of the community. Mr Corben’s personality structure is likely to cause him a number of issues and it is likely to take a considerable amount of time to learn enough about himself such that he is able to consistently and appropriately manage his risk to the community.”[13]

The position taken by the respective parties

  1. [30]
    The application filed by the applicant seeks a continuing detention order, or in the alternative, a supervision order. In his written submissions, Mr Tate of Counsel, who appeared for the applicant, said this:

“54. In this case, while the application in the alternative is maintained, it is acknowledged the evidence supports the finding that the Respondent is a serious danger to the community in the absence of a Part 2 Division 3 order, and that the adequate protection of the community can be ensured by the making of a Supervision Order under section 13(5) (b).

  1.  The term of a Division 3 Supervision Order should be for ten years.”
  1. [31]
    Mr Reid of Counsel, who appeared for the respondent, said this in his written submissions:

“1. The Respondent accepts that pursuant to s13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 the Court would be satisfied that he is a serious danger to the community in the absence of a division 3 order.

  1. The Respondent does not oppose he be released from custody subject to a supervision order conditioned as the Court considers appropriate for a period of between 5 to 10 years.”

Discussion

  1. [32]
    The applicant does not submit that the child exploitation material conviction is one for a “serious sexual offence” as defined by the Act.  However, the offences of maintaining an unlawful sexual relationship with a child and rape, for which the respondent is presently serving terms of imprisonment, are “serious sexual offences” as they are offences of a sexual nature committed against a child.  The respondent is therefore clearly a “prisoner” for the purposes of s 13.
  2. [33]
    The first question then is whether the respondent is a serious danger to the community in the absence of a Division 3 order, bearing in mind that a prisoner is a “serious danger to the community” where there is “unacceptable risk that the prisoner will commit a serious sexual offence” in the absence of a Division 3 order.
  3. [34]
    In order to determine that issue, I must have regard to the considerations prescribed by s 13(4) and only be satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order upon acceptable cogent evidence and to a high degree of probability.
  4. [35]
    None of the evidence before me is challenged. In particular, there is no doubt that the respondent committed the serious sexual offences against the child, and the particulars of that offending are not in contest. The three psychiatrists are all doctors who are very experienced in the field of forensic psychiatry. There is no challenge to their expertise. The factual bases of their opinions are not contentious and are proven and they all opine that the respondent is a serious danger to the community in the absence of a Division 3 order.
  5. [36]
    Whether that is so, of course, is ultimately a matter for the Court having regard to the considerations prescribed by s 13(4).
  6. [37]
    Having regard to all the evidence and turning my mind to the considerations in s 13(4), I find to a high degree of probability that the respondent is a serious danger to the community in the absence of a Division 3 order. The offences which were committed against the child are very serious and there is a need to protect children from that risk.[14]  While the respondent has made efforts to address his offending behaviour and has participated in rehabilitation programs,[15] the reports produced by Dr Arthur and Dr Timmins[16] and the report produced by Dr Grant[17] contain opinions as to the level of risk which I judge as “unacceptable”.  Dr Grant has the risk of re-offending on unsupervised release as “at least moderate”, Dr Arthur as “moderate” and Dr Timmins as “moderate”. When assessing whether risk is “unacceptable” regard must be had not only to the likelihood of offending but the consequences of any offending.[18]  Here, the consequences of possible re-offending are very serious as the likely victim will be a child.
  7. [38]
    Having determined that the respondent is a serious danger to the community in the absence of a Division 3, the discretion arises:
    1. to make a continuing detention order;[19] or
    2. to make a supervision order;[20] or
    3. to make no order.[21]
  8. [39]
    Here, there is no basis upon which to exercise the discretion to make no order.
  9. [40]
    By force of s 13(6), once it is determined that the discretion to make either a continuing detention order or a supervision order had arisen, the paramount consideration is “the need to ensure adequate protection of the community”[22] and the Court must consider whether “adequate protection of the community can be reasonably and practicably managed by a supervision order”,[23] and whether the requirements of a supervision order “can be reasonably and practicably managed by Corrective Services Officers”.[24]  However, where the prisoner can be reasonably and practicably managed under a supervision order and where adequate protection of the community can be ensured by a supervision order then the making of a supervision order ought to be preferred over the making of a continuing detention order.[25]
  10. [41]
    In this case, the three psychiatrists all opined that the respondent’s risk would be lowered markedly if supervised when released.
  11. [42]
    I find that adequate protection of the community can be managed by releasing the respondent on a supervision order.
  12. [43]
    The psychiatrists differ as to the length of the supervision order.  Dr Grant initially thought it should be a period of 5 years, Dr Arthur thought a period “between 5 and 10 years” and Dr Timmins “at least 10 years”.  Dr Grant reviewed his opinion and thought that a term of 10 years was required.  The offending was serious.  The respondent has been diagnosed with Paedophilia and Personality Disorder.  Extensive treatment is recommended by the psychiatrists.  The supervision order should be for a period of 10 years.
  13. [44]
    A draft supervision order was provided, the terms of which were settled and agreed by the parties.  The conditions properly reflect the various matters of concern raised by the psychiatrists. The draft supervision order is appropriate.
  14. [45]
    I order the respondent be released from custody subject to the requirements set out in the Schedule to these reasons for a period of 10 years.

SUPREME COURT OF QUEENSLAND

SCHEDULE TO:

Attorney-General (Qld) v Corben [2018] QSC 

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

MARK JOHN CORBEN

(respondent)

 

SCHEDULE

THE COURT, being satisfied that there are reasonable grounds for believing that the respondent, Mark John Corben, is a serious danger to the community in the absence of an Order made under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:

  1. The respondent be subject to the following requirements until 21 November 2028:

The respondent must:

General terms

  1. report to a corrective services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of his current name and address;
  1. report to, and receive visits from, a corrective services officer at such times and at such frequency as determined by Queensland Corrective Services;
  1. notify a corrective services officer of every change of his name, place of residence or employment at least two business days before the change happens;
  1. be under the supervision of a corrective services officer for the duration of this order;
  1. comply with a curfew direction or monitoring direction;
  1. comply with any reasonable direction under section 16B of the Act given to him;
  1. comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of this order;
  1. not commit an offence of a sexual nature during the period of this order;
  1. not commit an indictable offence during the period of this order;

Education / Employment

  1. seek permission and obtain written approval from a corrective services officer prior to enrolling in or commencing any vocational, training or educational course, or tertiary studies;
  1. seek permission and obtain written approval from a corrective services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;
  1. notify a corrective services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two days prior to commencement or any change;

Residence

  1. not leave or stay out of Queensland, without the written approval of a corrective services officer;
  1. reside at a place within the State of Queensland as approved by a corrective services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
  1. comply with any regulations or rules in place at the accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services, if such accommodation is of a temporary or contingency nature;
  1. not reside at a place by way of short term accommodation including overnight stays without the permission of a corrective services officer;

Contact with victim

  1. not to have any direct or indirect contact with the victim of his sexual offences;

Requests for information

  1. respond truthfully to enquiries by a corrective services officer about his activities, whereabouts and movements generally;

Disclosure of plans and associates

  1. disclose to a corrective services officer the name of each person with whom he associates and respond truthfully to requests for information from a corrective services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
  1. provide to and discuss with a corrective services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
  1. if directed by a corrective services officer, make complete disclosure of the terms of this order and the nature of his past offences to any person as nominated by the corrective services officer, who may contact such persons to verify that full disclosure has occurred;
  1. not establish or maintain any supervised or unsupervised contact with children under 16 years of age including undertaking any care of children under 16 years of age without the prior written approval of a corrective services officer;
  1. disclose the terms of this order and nature of his past offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the respondent to guardians or caregivers and external agencies (i.e. the department responsible for child safety services) in the interests of ensuring the safety of the children;
  1. advise a corrective services officer of any repeated contact with an adult that he knows has care of a child under 16 years of age;
  1. notify a corrective services officer of all personal relationships entered into by him;

Motor vehicles

  1. notify a corrective services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;

Alcohol and other substances

  1. not consume alcohol for the duration of this order, without the prior approval of a corrective services officer;
  1. not use illicit drugs for the duration of this order;
  1. submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a corrective services officer;
  1. take prescribed drugs as directed by a medical practitioner and disclose to a corrective services officer details of all prescription and over the counter medication that he obtains;
  1. not visit hotels, clubs and/or nightclubs licensed to supply or serve alcohol, without the prior written approval of a corrective services officer;

Treatment and counselling

  1. attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a corrective services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
  1. permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if a request is made for the purpose of updating or amending this order and/or ensuring compliance with this order;
  1. attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a corrective services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
  1. develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it, as directed, with a corrective services officer;

Attendance at places

  1. not be, without reasonable excuse, within 100 metres of schools or child care centres, without the prior written approval of a corrective services officer;
  1. not visit or attend on the premises of any establishment where there is a dedicated children's play area or child minding area, without the prior written approval of a corrective services officer;
  1. not visit public parks without the prior written approval of a corrective services officer;
  1. obtain the prior written approval of a corrective services officer before attending the premises of any shopping centre;
  1. not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there are children who are members or children who are participants, without the prior written approval of a corrective services officer;

Mobile phones and other devices

  1. advise a corrective services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use and includes reporting any changes to mobile phone details;
  1. not own, possess or regularly utilise more than one mobile phone, without the prior written approval from a corrective services officer;
  1. allow any other device including a telephone or camera to be randomly examined.  If applicable, the respondent must provide to a corrective services officer his account details or phone bills, upon request;
  1. obtain the prior written approval of a corrective services officer before accessing a computer or the internet;
  1. supply to a corrective services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device and allow any device where the internet is accessible to be randomly examined ;
  1. supply to a corrective services officer the details of any email address, instant messaging service, chat rooms, or social networking sites, which he uses, including user names and passwords;
  1. not access or collect child exploitation material, or images of children on a computer, or on the internet, or in any other format, or collect any material containing images of children, and dispose of such material if directed by a corrective services officer;
  1. not own, possess, or use a mobile phone or any other device that is capable of accessing the internet, without the prior written approval of a corrective services officer;
  1. not possess any equipment that enables him to take photographs or record moving images, without the prior written approval of a corrective services officer;
  1. not access pornographic images on a computer or on the internet, or purchase or obtain pornographic material in any other format, without the prior written approval of a corrective services officer in consultation with the treating psychiatrist or psychologist.

Footnotes

[1] Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) s 2 and the dictionary which is the Schedule to the Act.

[2]  See Attorney-General for the State of Queensland v Newman [2018] QSC 156.

[3]  As do ss 16A–16D, to which it is not necessary to specifically refer.

[4] Criminal Code (Qld) s 299B(1).

[5]  Section 349(1).

[6]  Section 228D.

[7]  Affidavit of Dr Grant, sworn 18 June 2018, CFI 8, exhibit DAG-2 at 36.

[8]  Report of Dr Arthur, dated 13 September 2018, CFI 15 at 35–6.

[9]  Report of Dr Timmins, dated 26 October 2015, filed by leave, at 45-6.

[10]  A commonly used abbreviation for the Act.

[11]  Affidavit of Dr Grant, sworn 18 June 2018, CFI 8, exhibit DAG-2 at 36–7.

[12]  Report of Dr Arthur, dated 13 September 2018, CFI 15 at 37.

[13]  Report of Dr Timmins, dated 26 October 2015, filed by leave, at 46-7.

[14]  Section 13(4)(i).

[15]  Section 13(4)(e).

[16]  Section 13(4)(a).

[17]  Section 13(4)(b).

[18] A-G (Qld) v Beattie [2007] QCA 96; A-G (Qld) v Lawrence [2011] QCA 347 at [90].

[19]  Section 13(5)(a).

[20]  Section 13(5)(b).

[21] Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at 592, 597; Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [26].

[22]  Section 13(6).

[23]  Section 13(6)(b)(i).

[24]  Section 13(6)(b)(ii).

[25] Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [31], [39]; Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [28], [29].

Close

Editorial Notes

  • Published Case Name:

    Attorney-General (Qld) v Corben

  • Shortened Case Name:

    Attorney-General v Corben

  • MNC:

    [2018] QSC 264

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    16 Nov 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 264 16 Nov 2018 Attorney-General's application for an order under section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 granted; respondent ordered to be released from custody subject to a supervision order for ten years: Davis J.

Appeal Status

No Status