- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v TBP  QSC 41
ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND
No 11254 of 2018
1 March 2019
18 February 2019
The respondent be released subject to the requirements set out in the Schedule to these reasons until 8 March 2029.
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was subject to examination by psychiatrists for the purposes of the application – where the applicant conceded that adequate protection of the community could be ensured by a supervision order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSOA) – where the respondent conceded the need for a supervision order under Division 3 of Part 2 of the DPSOA – whether the applicant presents a serious danger to the community in the absence of a supervision order under Division 3 of Part 2 of the DPSOA – whether such an order should be made
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 5, s 8, s 11, s 12, s 13
J Tate for the applicant
S G Bain for the respondent
Crown Solicitor for the applicant
Legal Aid Queensland for the respondent
The respondent is presently serving a term of imprisonment for serious sexual offences committed against his biological son and his biological daughter. The Attorney-General applied for orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSOA). For the purposes of the proceedings, the respondent was initially examined by a consultant psychiatrist, Dr Josephine Sundin.
On 30 October 2018 Bowskill J, on the hearing pursuant to s 8 of the DPSOA held that there were reasonable grounds for believing that the respondent is a serious danger to the community in the absence of an order under the DPSOA and:
appointed consultant psychiatrists, Dr Karen Brown and Dr Evelyn Timmins to prepare risk assessment reports concerning the respondent; and
set the hearing date for the application for final orders for 18 February 2019.
The current application by the Attorney-General is then for orders under s 13 of the DPSOA.
Section 3 of the DPSOA prescribes the objects of the legislation as follows:
“3 Objects of this Act
The objects of this Act are—
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
to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”
The objects of the DPSOA are fulfilled by a scheme providing for the detention of prisoners beyond the expiry of their sentences, or alternatively their release upon supervision.
By s 5, the Attorney-General may apply for both an order under s 8 of the DPSOA and also an order under Division 3 of Part 2. Division 3 of Part 2 provides for the making of final orders. Applications can only be brought under s 5 against a “prisoner”.
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
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.
The application must—
state the orders sought; and
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
be made during the last 6 months of the prisoner’s period of imprisonment.
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.
The return date for the preliminary hearing must be within 28 business days after the filing.
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.
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.”
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—
involving violence; or
against a child; or
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.”
Section 8 provides for a preliminary hearing. It is in terms:
“8 Preliminary hearing
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.
If the court is satisfied as required under subsection (1), it may make—
an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports; and
if the court is satisfied the application may not be finally decided until after the prisoner’s release day –
an order that the prisoner’s release from custody be supervised; or
an order that the prisoner be detained in custody for the period stated in the order.”
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
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).
A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner commit a serious sexual offence—
- if the prisoner is released from custody; or
- if the prisoner is released from custody without a supervision order being made.
On hearing the application, the court may decide that it is satisfied as required under subsection (1) 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.
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—
any report produced under section 8A;
- the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
- any other medical, psychiatric, psychological or other assessment relating to the prisoner;
- information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
- whether or not there is any pattern of offending behaviour on the part of the prisoner;
- efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
- whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
- the prisoner’s antecedents and criminal history;
- the risk that the prisoner will commit another serious sexual offence if released into the community;
- the need to protect members of the community from that risk;
- any other relevant matter.
If the court is satisfied as required under subsection (1), the court may order—
- that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
- that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
In deciding whether to make an order under subsection (5)(a) or (b)—
- the paramount consideration is to be the need to ensure adequate protection of the community; and
- the court must consider whether –
- adequate protection of the community can be reasonably and practicably managed by a supervision order; and
- requirements under section 16 can be reasonably and practicably managed by corrective services officers.
The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
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
Each psychiatrist examining the prisoner must prepare a report under this section.
The report must indicate—
the psychiatrist’s assessment of the level of risk that the prisoner will commit another serious sexual offence—
if released from custody; or
if released from custody without a supervision order being made; and
the reasons for the psychiatrist’s assessment.
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.
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.
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.
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.
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.
Each psychiatrist must have regard to each report or the information given to the psychiatrists under subsection (3).
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
Each psychiatrist must give a copy of the psychiatrist’s report to the Attorney-General within 7 days after finalising the report.
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.”
The respondent was born on 18 August 1970. He is presently 48 years of age. At the time of the sexual offending he was aged between 27 and 38 and he was 39 years when sentenced.
Apart from the serious sexual offences which form the basis of the application under the DPSOA, the respondent has no criminal history.
On 4 June 2010, the respondent was convicted on his own plea in the District Court of two counts of maintaining an unlawful sexual relationship with a child, one count of unlawful sodomy with circumstances of aggravation that the child was under twelve years and was a lineal descendant of the respondent, three counts of indecent treatment of a child with circumstances of aggravation that the child was under the age of twelve years and was a lineal descendant of the respondent, three counts of rape, one count of indecent treatment of a child under the age of twelve with circumstances of aggravation that the child was under the age of twelve and was a lineal descendant of the respondent and he procured the child to commit an offence. Various terms of imprisonment were imposed. The effective head sentence was nine years imprisonment. A parole eligibility date of 3 September 2014 was set by the Court.
The various offences were committed over a period of about eleven years.
The respondent’s offending against his son commenced when his son was a few months old and persisted over a period of about five years. The offending usually occurred while the respondent showered with his son. It is unnecessary to further describe the particulars of the offending but it included one incident of penile penetration of the boy’s anus although, that was said to have been unintentional.
The respondent’s offending against his daughter commenced when she was a few weeks old and persisted for some nine and a half years. It included various acts of digital penetration. On one occasion, the respondent noticed that his son had an erection. The boy was about four years old at this time and he procured him to penetrate his younger sister. That was the subject of an individual count.
The Psychiatrists’ report
Dr Sundin diagnosed the respondent with Paedophilic Disorder (non-exclusive type sexually attracted to males and females limited to incest) and a Personality Disorder with Avoidant and Compulsive Personality Traits with a possible Cluster C Personality Disorder. Dr Timmins diagnosed Paedophilia, Non-Exclusive Sexually Attracted to Both Males and Females and a Mixed Personality Disorder with Narcissistic, Obsessive and Avoidant Traits. Dr Brown diagnosed a Paedophilic Disorder (non-exclusive type) and Personality Disorder, not otherwise specified (mixture of Disorder Cluster C Personality Traits).
Dr Sundin said the following in relation to risk:
“In considering potential risk scenarios, the future likely victims are children who would be accessed through bonds of trust or intimate partner relationships. The children could be as young as infants. Young children are more likely to be at risk. Older children who could protest are slightly less at risk, although this risk would increase with grooming. The risk of psychological harm would be profound. There is a risk of physical harm given [the respondent’s] convictions for rape and sodomy.”
“If he had the opportunity to establish an intimate partner relationship or friendship with a carer of young children, the risk for frequent sexual assaults on an accessible vulnerable child would be high.
Based on his risk scenarios, I consider it essential that he be monitored with a high level of supervision, required to engage in treatment with a suitably qualified and experienced forensic psychologist, be required to make disclosure to any adults with whom he has regular contact in the future and not be permitted to have any unsupervised access to a child.”
“Taking all of these factors globally, I consider that [the respondent’s] represents an unacceptable, unmodified risk for future sexual offending. I do not consider that he needs to continue to be detained but do recommend that when he is released into the community, that he should be managed under a high level of supervision with case management, curfew, GPS monitoring, disclosure requirements, exclusion zones and an order for engagement in treatment with a forensic psychologist. His access to the internet will need to be monitored for resumption of access to pornography.”
“If at some stage in the future [the respondent] is placed on a supervision order, I would recommend that it would need to be in place for 10 years. This opinion is based on the extent of his sexual offending and his capacity to keep this hidden for an 11-period. He has demonstrated a capacity for deceptiveness both of others and of self. He should be required to have no access to pornography in any form.”
As to risk Dr Timmins opined:
“In summary, I am of the opinion that [the respondent] will be at a MODERATE risk of re-offending in a sexual manner if released into the community at this time.
[The respondent] is likely to re-offend against young children, both male and females starting from an early age, even as young as a few months old. His most serious risk lies within a family home which despite his beliefs that he will not be exposed in this situation, cannot be discounted given his age. He is likely to want an intimate relationship at some point in the future. Vasectomies can be reversed and women are likely to have other children from previous relationships. He does appear to be relatively aware of the risk he poses in this situation.
Given that his offending behaviour has been towards very young children they will become imprinted that this behaviour from a parent is normal.
I am of the opinion that his offending is driven by a sexual deviance, namely Paedophilia. Factors that will increase the likelihood that he will offend include periods of stress, anger and resentment, entitlement, sexual preoccupation and a return to use of pornography.
His offending is likely to be contact offending and he will plan his offending such that his behaviour may remain undetected for many years. The potential harm to the victim is high given he could engage in penetrative sexual intercourse with the victim.
He has poor insight into his sexual behaviour despite having attended sexual offending programs.
If the court is of a mind to release [the respondent], he will require treatment from a forensic psychologist to treat his sexual offending behaviour. 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 interpersonal relationships, low self-esteem, and his personality problems, avoidant and compulsive tendencies and his propensity to engage in resentful and harmful ruminations about others.
If he were to be referred to a psychiatrist, he could consider ongoing anti-depressant medication and/or anti-libidinal medication in addition to monitoring these medications.
He will need appropriate accommodation, GPS monitoring, suitable work, appropriate friendships and social activities. He needs to maintain absence from any substances. His relationships will need to be monitored for any access to children in addition to his online Internet activities being monitored as this 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 the adequate protection of the community. [The respondent] is still relatively young and although he has engaged in sex offender treatment continues to have limited insight into and acceptance of his own sexual behaviours.”
Dr Brown on the question of risk said:
“Overall there are a number of risk factors that elevate [the respondent’s] risk of recidivism to at least moderate to high. These include chronically and relative diversity of offending, the presence of sexual deviance, poor self-awareness, sexual identity confusion, and disordered personality traits. He has limited personal supports and may struggle to establish himself socially and professionally in the community upon release.
Scenarios that would increase the risk of offending would include stress at home or work, professional, social or romantic rejection and the opportunity to have contact with a child, such as through a female partner or friends with children, or as a facilitator of a children’s group or club.
I note the absence of psychopathy, absence of substance use and likely ability to engage well with treatment. In addition, to completion of sex offender treatment he has already attempted to source individual treatment for sexual deviancy and has also started SSRI medication which has lowered his sexual drive (according to his self-report). He is therefore likely to respond well to supervision in the community.
It is my view that should [the respondent] be returned to the community without supervision risk of sexual recidivism would be at least moderate to high. There are a number of modified risk factors that can be addressed to reduce this risk.
A return to the community with restrictions, appropriate monitoring and offender treatment would reduce [the respondent’s] risk to a low-moderate and manageable level.
Given [the respondent’s] relatively young age, the length of his offending and the presence of sexual deviancy, I recommend that, if the Court orders release to supervision, this should be for a ten year period.”
None of the psychiatrists were called for cross-examination.
The positions of the parties
Ms Bain for the respondent properly conceded that the respondent was a serious danger to the community in the absence of a Division 3 order. Mr Tate for the applicant properly conceded that the adequate protection of the community could be ensured by releasing the respondent on a supervision order on suitable terms.
The parties agreed on the terms of the supervision order and I agree that the terms are appropriate. The psychiatric evidence supports the setting of the period of supervision at ten years.
Final findings and orders
I find that:
the respondent is a serious danger to the community if released from custody without a supervision order being made;
the requirements of s 16 can be reasonably and practicably managed by Corrective Services officers.
The Court orders that:
The respondent be released subject to the requirements set out in the Schedule to these reasons until 8 March 2029.
SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v TBP  QSC 41
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
THE COURT, being satisfied to the requisite standard that the respondent, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:
The respondent be subject to the following requirements until 8 March 2029:
The respondent must:
- report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence on the day of release from custody and, at that time, advise the officer of his current name and address;
- report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;
- 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;
- be under the supervision of a Corrective Services officer;
- comply with a curfew direction or monitoring direction;
- comply with any reasonable direction under section 16B of the Act given to him;
- comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;
- not leave or stay out of Queensland without the permission of a Corrective Services officer;
- not commit an offence of a sexual nature during the period of the order;
- seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;
- 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 (2) days prior to commencement or any change;
- 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;
- if this accommodation is of a temporary or contingency nature, you must comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
- not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer;
- not commit an indictable offence during the period of the order;
- not to have any direct or indirect contact with a victim of his sexual offences without the prior approval of a Corrective Services officer and in consultation the treating psychiatrist or psychologist;
Activities and associates
- respond truthfully to enquiries by a Corrective Services officer about his activities, whereabouts and movements generally;
- 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;
- 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;
- submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
- if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred;
- notify the supervising Corrective Services officer of all personal relationships entered into by him;
Alcohol and drugs
- abstain from the consumption of alcohol for a period of 12 months and, thereafter not to exceed a blood alcohol concentration (BAC) of 0.05 for the duration of this order;
- submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer;
- disclose to a Corrective Services officer all prescription and over the counter medication that he obtains;
- take prescribed drugs as directed by a medical practitioner and disclose details of all prescribed medication as requested to a Corrective Services officer;
Treatment and Intervention
- 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 and approved by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
- 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 such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;
- 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;
Contact with children
- not establish or maintain any supervised or unsupervised contact including undertaking any care of children under 16 years of age except with prior written approval of a Corrective Services officer. If directed to do so by a Corrective Services officer, fully disclose the terms of the order and nature of 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 offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children;
- advise a Corrective Services officer of any repeated contact with a parent, guardian or caregiver of a child under the age of 16 and, if directed by a Corrective Services officer, make complete disclosure of the terms of the supervision order and the nature of the offences to the parent, guardian or caregiver and permit a Corrective Services officer who may contact such persons to verify that full disclosure has occurred;
- not to access school or child care centre at any time without the prior written approval of a Corrective Services officer;
- not to 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;
- you must notify a Corrective Services officer before attending public parks, including the times in which you wish to attend;
- you must notify a Corrective Services officer as part of the weekly plan before attending on the premises of any shopping centre, including the times in which you wish to attend;
- 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 is either child membership or child participation without the prior written approval of a Corrective Services officer;
- not collect any material that contains images of children, and dispose of such material if directed to do so by a Corrective Services officer;
Technology, telephones and devices
- obtain the prior written approval of a Corrective Services officer before accessing a computer or the internet;
- 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 using a data exploitation tool to extract digital information or any other recognised forensic examination process;
- supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords;
- not access child exploitation material or images of children on a computer or on the internet or in any other format;
- 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;
- notify a Corrective Services officer before possessing any equipment that enables him to take photographs or record moving images;
- allow any other device including a telephone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer;
- advise a Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by you within 24 hours of connection or commencement of use and includes reporting any changes to mobile phone details;
- except with prior written approval from a corrective services officer, you are not to own, possess or regularly utilise more than one mobile phone;
 Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) the Schedule (Dictionary).
 sections 2 and the Schedule (Dictionary).
 See Attorney-General for the State of Queensland v Newman  QSC 156.
 Completed between November 2013 and October 2014.
 Completed on 20 September 2018.
 Affidavit of Dr Josephine Sundin sworn 3 October 2018, Exhibit JJS-2, 32-4.
 Report Dr Timmins dated 31 December 2018, 40-41.
 Dr Brown’s report dated 2 February 2018, 24-25.
- Published Case Name:
Attorney-General for the State of Queensland v TBP
- Shortened Case Name:
Attorney-General v TBP
 QSC 41
01 Mar 2019
No Litigation History