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  • Unreported Judgment

Attorney-General v Musso

 

[2019] QSC 310

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Musso [2019] QSC310

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

FILIPPO JAMES MUSSO

(respondent)

FILE NO/S:

SC No 2583 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

17 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2019

JUDGE:

Brown J

ORDER:

The order of the Court is that:

  1. The decision made on 24 August 2018 that Filippo James Musso is a serious danger to the community in the absence of a Division 3 order is affirmed.
  2. Filippo James Musso is ordered to continue to be subject to the continuing detention order.

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 respondent is detained pursuant to a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant applies for the continuing detention order to be affirmed under section 30 of the Act – where the respondent submits that the respondent should be released subject to a supervision order – whether the respondent is a serious danger to the community in the absence of a Division 3 order under the Act – whether the adequate protection of the community could be ensured by the release of the respondent on a supervision order – whether the relevant risk could be reasonably and practicably managed by the conditions of a supervision order – whether the respondent should remain subject to the continuing detention order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27, s 30

Attorney-General (Qld) v Kennedy [2016] QSC 287, cited

Attorney-General (Qld) v Musso[2018] QSC 191, cited

Attorney-General for the State of Queensland v Francis [2006] QCA 324, cited

Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 223 CLR 575, cited

Turnbull v Attorney-General for the State of Qld [2015] QCA 54, cited

COUNSEL:

J Tate for the applicant

T Ryan for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Cridland & Hua Lawyers for the respondent

CITATION:

Attorney-General for the State of Queensland v Musso [2019] QSC310

BROWN J:

  1. [1]
    This is an application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for a review of the continuing detention of the respondent. The applicant seeks to have the Court affirm the decision of Davis J made on 24 August 2018[1] that the respondent presents a serious danger to the community in the absence of a Division 3 order under the Act. The applicant further seeks an order that the respondent continue to be subject to a continuing detention order.
  2. [2]
    This is the first review of the continuing detention order.
  3. [3]
    Mr Musso was 20 years old at the time he committed the index offences, which included one count of torture, one count of assault occasioning bodily harm, one count of extortion, one count of sexual assault and one count of attempted fraud. Prior to that offending, he had a criminal history dating back to 2010, the most serious offence being armed robbery. The index offences include the only sexual offending in which Mr Musso has engaged. Mr Musso is now 26 years of age.
  4. [4]
    The circumstances surrounding the index offences were described by Davis J in his decision of 24 August 2018,[2] which also set out the sentencing remarks of the sentencing judge.
  5. [5]
    In reaching his decision to make an order under s 13(1) of the Act, Davis J stated that:

“Here, the respondent has been diagnosed by all three psychiatrists as having a personality disorder with anti-social and narcissistic traits. All psychiatrists assessed his risk of violently, sexually offending without supervision as high. All three saw the risk of violent offending as a primary concern, but saw that offending as likely to have a sexual element where the victim of the violence is female. There is evidence of violent behaviour in prison and non-compliance with authority.”

  1. [6]
    Having been satisfied that Mr Musso was a serious danger to the community in the absence of a Division 3 order, and that the adequate protection of the community could only be ensured by a continuing detention order, Davis J made a continuing detention order.  His Honour stated that:

[104]…All three psychiatrists expressed concern as to whether the respondent’s current state of mind was such that he could comply with a supervision order. Concerns were also expressed that he might flee. If at large without supervision, the risk of the respondent committing a further serious sexual offence is high.

[105] All psychiatrists thought that either the MISOP or HISOP should be completed by the respondent, with preference to the HISOP which is not available in the community. The psychiatrists were of the view that any courses should be completed in custody. Views were expressed that the treatment might destabilise the respondent initially and thereby increase risk of reoffending. I accept that evidence.

[106] Turning my mind then to s 13(6)(b)(ii), there is the evidence of Mr Bear and Mr Tannock that Corrective Services could not manage the respondent in the community, which I accept. I have considered whether conditions could be imposed to enable the respondent to be managed within the community. I cannot imagine conditions which could be imposed which could ensure adequate protection of the public against the risk which the respondent poses of committing a serious sexual offence.

[107] I am not satisfied that adequate protection of the community can be ensured by the release of the respondent on supervision. The respondent is an unacceptable risk of committing a serious sexual offence unless he is detained…”

  1. [7]
    The Attorney-General submits that the psychiatric opinions obtained for the purposes of this review both support the fact that the unmodified risk of the respondent committing a  serious sexual offence is high, such that the decision he is a serious danger to the community should be affirmed. It further contends that the respondent should remain in custody under a continuing detention order for control, care and treatment, on the basis that the respondent’s limited ability to demonstrate emotional self-regulation in a structured environment has manifested in multiple breaches of prison discipline and episodes of self-harm. The Attorney-General contends that conduct demonstrates that the respondent could not be reasonably and practicably managed under a supervision order in the community, so as to ensure the adequate protection of the community.
  2. [8]
    The respondent does not contest that, for the purposes of section 30(1) of the Act, the evidence before the Court supports the fact that it is open for the Court to affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order. The respondent however submits that he should be released subject to a supervision order.

Matters to be determined under the Act

  1. [9]
    For the Court to affirm a decision under s 30 that the prisoner is a serious danger to the community in the absence of a Division 3 order, it must be satisfied by acceptable, cogent evidence to a high degree of probability that the evidence is of sufficient weight to affirm the decision. Section 13(2) of the Act defines “serious danger to the community”. There must be an unacceptable risk that the prisoner will commit a serious sexual offence if released at all, or if released without a supervision order. A serious sexual offence is an offence “of a sexual nature”, with the added requirements that it either involve violence or be an offence against a child.[3]
  2. [10]
    The expression “unacceptable risk” is not defined by the Act. It is incapable of precise definition but is an expression which requires the striking of a balance.[4] The relevant risk is the risk of commission of a serious sexual offence.  Risk means the possibility, chance or likelihood of commission of such an offence. An unacceptable risk is a risk which does not ensure adequate protection of the community.[5]
  3. [11]
    In determining whether the decision ought to be affirmed under s 30 of the Act, the matters mentioned in section 13(4) of the Act must be considered. 
  4. [12]
    If the Court determines the decision that the prisoner is a serious danger to the community in the absence of a Division 3 order, it then falls to the Court to determine whether under s 30(3) of the Act, the prisoner should be subject to a continuing detention order or should be released from custody subject to a supervision order.[6]
  5. [13]
    In determining the appropriate order, “the paramount consideration is to be the need to ensure adequate protection of the community”.[7] The Court is also required to consider whether “adequate protection of the community can be reasonably and practicably managed by a supervision order”[8] and whether the mandatory requirements under s 16 of the Act “can be reasonably and practicably managed by corrective service officers”.[9]
  6. [14]
    The onus is on the applicant to establish that the adequate protection of the community can only be ensured by a continuing detention order.
  7. [15]
    In the context of s 13(5) of the Act, the Court of Appeal observed in Attorney-General for the State of Queensland v Francis:[10]

[39] Insofar as his Honour was concerned that, if the appellant began to use alcohol or drugs, he might abscond, the risk of a prisoner absconding is involved in every order under s 13(5)(b). The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”

Personal Circumstances

  1. [16]
    Mr Musso is 26 years of age. Mr Musso’s personal history, which has been extensively addressed in the psychiatric reports, shows a severely disturbed childhood which included his suffering abuse. Tragically, he began self-harming at the age of five in response to his environment.

Conduct in Prison

  1. [17]
    Mr Musso has a history of violating the conditions of his custody, including by self-harming and making threats or being otherwise aggressive towards other inmates and correctional staff. Since May of 2019, there has been an escalation in behavioural incidents on Mr Musso’s part. That period of escalation follows a period of some months in which Mr Musso’s behaviour appeared to have stabilised somewhat.
  2. [18]
    Ms McLean provided an affidavit setting out Mr Musso’s violation history, or his history of incidents of non-compliance with the conditions of his custody.[11] That history shows a decrease in incidents from the period up until 7 May 2108[12] with 35 incidents up until 9 November 2019 a number of which relate to incidents of self-harm but, since June 2019, has also included a physical assault on a prisoner, making threats to staff and a prisoner, covering all viewing windows and cameras in his cell, flooding his cell and breaking a television. The most recent incidents of self-harm recorded by Ms McLean’s affidavit occurred on 31 October 2019, 7 November 2019 and 9 November 2019. The latter two incidents also involved the making of threats to staff. The affidavit also, however, sets out incidents in which Mr Musso engaged in self-harm without making threats to staff and after which he complied with directions given to him. In other interactions with staff, he was polite and compliant.

Psychiatric Evidence

  1. [19]
    Two reports were prepared by Dr Arthur and Dr Harden for the purpose of this review, pursuant to s 29 of the Act. Both had assessed Mr Musso previously.
  2. [20]
    Dr Arthur has provided a report dated 16 July 2019.[13] He assessed Mr Musso on 14 August 2019. His previous diagnosis, namely that Mr Musso suffers from a severe mixed cluster B personality disorder with antisocial, narcissistic and borderline features, a substance misuse disorder and likely chronic post-traumatic stress disorder, remains unchanged. Mr Musso’s score on the Hare Psychopathy checklist was well above the cut off for a formal diagnosis of psychopathy. He noted that, unsurprisingly, the static risk factors remain unchanged from his previous report, but Mr Musso had responded positively to individual psychotherapy with Dr Andrews, which was evident in his discussions with Mr Musso.
  3. [21]
    While Dr Arthur acknowledged a reduction in the frequency and intensity of the violence directed at prison staff and other inmates since the previous assessment, he observed it is nonetheless still present. He noted the possibility that the reduction in violence directed at others may have been due to strict custodial management. He also noted that Mr Musso’s self-harm is, on Mr Musso’s own admission, driven by many factors, including anger and frustration. While he considered that there has been some shift in Mr Musso’s antisocial attitudes and capacity for self-regulation, it is, in his view, only minor and Mr Musso remains an aggressive and emotionally unstable young man with a severely disturbed personality, who continues to use violence as a means of controlling his environment and regulating his affect. Dr Arthur did however acknowledge Mr Musso’s considerable progress with Dr Andrews, particularly given the complexity of his condition and trust issues.
  4. [22]
    Dr Arthur’s opinion is that:[14]

“[143] It is my opinion that prisoner Musso’s level of risk of sexual recidivism on release from custody remains high.

[144] Were he to reoffend, it would most likely be in the context of an intimate relationship although potential victims would also include other women within his sphere of influence. When triggered by conflict or feeling rejected, he is likely to become emotionally aroused and aggressive. If the conflict has sexual undertones, he may become sexually violent as a way of establishing his control over the victim or as a form of retribution. Another trigger may be experiencing conflicting emotions about a woman, particularly if there is ambiguity in the relationship. If his sexual advances are not reciprocated, he may react violently out of shame or anger.

[145] Any future sexual offending is likely to involve physical and psychological coercion.”

  1. [23]
    Dr Arthur considered that there is a chance that Mr Musso’s previous sexual offending, which was associated with significant violence, might escalate to being serious or life-threatening in nature.
  2. [24]
    Dr Arthur considered that Mr Musso should continue with his individual intensive therapy program. Dr Arthur did not consider that Mr Musso could be safely be managed in the community on a supervision order because, in his view:[15]
  1. (a)
    He has not yet developed sufficient coping strategies to manage the challenges of being released from a highly structured environment to one such as the Precinct;
  2. (b)
    There is a significant risk that he would engage with HROMU staff in a minimally cooperative, hostile manner and engage in threatening behaviour to control his environment. It is also likely he would engage in further deliberate self-harm as he would have access to implements such as knives;
  3. (c)
    Due to his severe personality disorder, he would represent a significant management challenge to the local mental health service; and
  4. (d)
    Given his history of noncompliance with community-based orders and more recent behaviour in jail, there is a very high risk that he would not comply with the conditions of a supervision order.
  1. [25]
    In oral evidence, Dr Arthur elaborated on his reasoning for the last point:[16]

“…Mr Musso represents a chronic, high risk of violence, interpersonal violence, and that’s evident from his behaviour in jail over the previous 12 months.  And I think that that would continue in the community.  I think that should he return to substance use, that would increase his risk of violence and sexual violence.  So I think that compliance with the supervision order is vital, really, to maintain his safety in the community.  And I think that if he is placed on a supervision order, there will be some very strict conditions, initially, when he’s released from jail.  I think they will be very frustrating for Mr Musso.  I think that he will – he will struggle – he will struggle with those conditions, and that will increase his risk of maladaptive coping strategies and violent behaviour.”

  1. [26]
    Dr Arthur was not of the view that Mr Musso’s condition is static. He stated that Mr Musso’s engagement with Dr Andrews shows he is able to move forward with counselling and treatment and that treatment regime should continue, particularly in relation to Mr Musso’s ability to regulate his emotions, tolerate frustration and utilise more adaptive coping strategies. Dr Arthur considered that it is Mr Musso’s violence associated with self-harm and the aggression directed at others, including people who are there to provide him with assistance, that need to change prior to his release under a supervision order. He considered that Mr Musso is an intelligent enough man to understand the concept of cause and effect but a significant issue is his ability to regulate his emotions when negative thoughts overcome him. He considered Mr Musso was unable to sufficiently do so at present.
  2. [27]
    Dr Arthur agreed in his cross-examination that a number of factors impact on Mr Musso’s negative thoughts and behaviour, including fear for his safety in light of past abuse experienced while in custody. He agreed that if Mr Musso was removed from custody, some of those factors would dissipate, but stated that it does not follow that his behaviour would be less problematic on release. Dr Arthur pointed to the fact that Mr Musso would still be exposed to people and situations that he may find threatening or distasteful, particularly in the Precinct. Dr Arthur also noted the potential for release to be worse for Mr Musso, because he would not have the security of staff and people on call to immediately attend should he need to ask for help.
  3. [28]
    In his Report of 6 June 2017, Dr Harden diagnosed Mr Musso as suffering from:[17]
  1. (a)
    Psychopathy;[18]
  1. (b)
    Personality Disorder (mixed with antisocial, narcissistic and borderline features-severe); and
  2. (c)
    Polysubstance Abuse (in remission due to the custodial setting).
  1. [29]
    Dr Harden has provided a further report of 7 November 2019,[19] after interviewing Mr Musso on 10 July 2019. His diagnosis of Mr Musso remained unchanged. He stated in his report:[20]

“His ongoing unmodified risk of sexual re-offence if released into the community after considering all the available data is in my opinion in the high (well above average) range compared to the recidivism rate of sexual offenders generally.

While his risk of committing a violent offence is greater than his risk of committing a sexual offence, the various risk instruments used to assist in understanding his level of risk suggest that his risk of sexual recidivism is still in the high range.

His greatest risk factors are his severe personality disorder and his polysubstance abuse.

If he were to be placed on a supervision order in the community, in my opinion the risk of sexual recidivism would be reduced to moderate.”

  1. [30]
    Dr Harden observed that Mr Musso’s rigid maladaptive pattern of interaction with others constitutes a personality disorder and appears to be a pervasive pattern for him. He stated that Mr Musso’s level of dysfunction is such that he struggles to cope with his reactions to his emotions, even in the highly structured environment of a custodial setting, resulting in recurrent admissions to the detention unit and maximum security units for self-harm, disruptive behaviour and aggressive behaviour towards others.[21]
  2. [31]
    Dr Harden noted that Mr Musso appeared to have made some early gains in terms of his engaging in individual psychological therapy, developing insight into his difficulties in coping with negative emotions and managing, to some extent, his aggressive interactions with others and self-harm.
  3. [32]
    Dr Harden considered that, in relation to the prospect of Mr Musso being placed on a supervision order:

“Now that he has had further individual intervention during a further period of custody he seems likely to have a better chance of complying with the strictures of a supervision order in the community.”[22]

  1. [33]
    In his oral evidence, Dr Harden stated that he had based this view on several facts. First, Mr Musso had maintained good quality psychological therapy and was gaining significant benefit from it. Secondly, Mr Musso had presented as being significantly more cooperative and insightful than he had in the previous interview Dr Harden had conducted with him and, further, Mr Musso had done well from the end of December 2018 through to May 2019, such that it appeared as though Mr Musso was stabilising.
  2. [34]
    However, Dr Harden stated in his oral evidence that Mr Musso’s more recent violation history indicated that things had deteriorated since the time he conducted the interview and prepared the report. He stated that Mr Musso’s more recent, emotionally unstable behaviour increased his concerns about how Mr Musso would cope under a supervision order and that he now has concerns as to Mr Musso’s ability to comply with a supervision order, similar to those which he previously expressed in his 2018 report.
  3. [35]
    Dr Harden considered that two positive factors in Mr Musso’s favour are his intellectual problem-solving ability and the fact he had maintained a therapeutic relationship with Dr Andrews. However, in his view, a weakness of Mr Musso’s is that, after having a period in which he was able to contain himself better, he had in more recent times engaged in very uncontained behaviour for some months. Dr Harden did not think that Mr Musso’s recent behaviour could simply be explained by the fact Mr Musso had been in the detention unit, as was suggested to him in cross-examination. He stated that before he would be of the opinion that Mr Musso’s risk could be adequately contained by a supervision order in the community, he would like to see Mr Musso complete six months in detention largely without incident, not in terms of incidents of self-harm, but in terms of behaviours that are dangerous to other people.
  4. [36]
    Dr Harden considered that the prospect of this hearing may have contributed to Mr Musso’s recent behaviour. Dr Harden agreed that Mr Musso wants to be released and in discussions was aware of the restrictions that would be placed upon him and appreciated that he would experience some difficulties, which he thought he would be able to overcome with the assistance of his therapist.
  5. [37]
    While accepting the likelihood that Mr Musso would suffer from post-traumatic stress-type symptoms as a result of a previous assault in custody when he was much younger, Dr Harden did not consider those symptoms would manifest by affecting how safe he felt in custody. In that regard, he stated:

“I think that his issues around that are subsumed by his severe personality disorder.  So what I said before about how he copes and about how [he] responds to structure, both positively and negatively, I think holds…I think his personality disorder is so severe that it – it really trumps everything else at the – at this point in time.  Now, the origin of that disorder lies in, you know, major attachment issues as a child and a whole host of adverse experiences, including, you know, abuse.”[23]

  1. [38]
    Dr Harden stated he could not predict with any certainty whether Mr Musso would be able to better control his emotional responses towards other people, including persons in positions of authority, in the community than in prison. However, he stated that recent behaviour is usually the strongest predictor of future behaviour, notwithstanding its limitations. Dr Arthur shared that view.
  2. [39]
    Dr Harden did not consider that Mr Musso’s development was sufficient for him to have acquired insight into the fact that behaviours such as those in which he had been engaging prior to the hearing might detrimentally affect his position. Dr Arthur shared that view.
  3. [40]
    Affidavit evidence was also provided by Dr Andrews, who has been conducting individual therapy with Mr Musso since September 2017. As she has a therapeutic professional relationship with Mr Musso she quite properly did not comment on the matters to be determined, but on Mr Musso’s response to therapy.
  4. [41]
    Having worked with Mr Musso and developed a strong therapeutic relationship with him, Dr Andrews has gained considerable insight into his personality and the consequences of the abuse and trauma he suffered as a child. She has observed his positive progress in therapy since 2017. She noted that she and Mr Musso have been engaging in sessions directed to violent and sexual offending intervention on a weekly basis and he had progressed well in these sessions. However, she did not consider that he would be able to deal with a group-based format due to difficulties with emotional regulation and unresolved trauma. Specifically, she advised against him participating in a group program such as the High Intensity Sexual Offenders Program (HISOP) or Medium Intensity Sexual Offenders Program (MISOP) due to his difficulties regulating his emotions, levels of physiological arousal, risk of self-harm, difficulties with interpersonal functioning and his potential to be disruptive to other members of the group.[24] She considered that he continues to require ongoing, individual intervention on a weekly basis. That view has been accepted by both Dr Arthur and Dr Harden.
  5. [42]
    Dr Andrews observed that because of his personality structure and underdeveloped emotional and behavioural regulation skills, which she attributed to his abusive upbringing and history of trauma, Mr Musso is likely to continue to engage in some level of problematic behaviour in custody. In particular, Dr Andrews considered that, given he has a history of self-harm dating back to the age of five, which represents a highly ingrained maladaptive coping mechanism, it is unlikely that this behaviour will fully cease in custody. 
  6. [43]
    Both Dr Arthur and Dr Harden agreed with Dr Andrews’ assessment of the likelihood of Mr Musso’s self-harming behaviours continuing. They both considered that Mr Musso’s self-harm does not, of itself, indicate that he could not be reasonably and practicably managed under a supervision order, given his history. Rather, they each considered that it is the accompanying behaviour observed in the last five to six months, of threats to staff and extravagant behaviour which poses much more of a risk to people, that suggests that his emotional regulation and development of coping mechanisms have not reached a point at which he could be reasonably and practicably managed under a supervision order, or at which the relevant risk could be reasonably contained. 

Other considerations

  1. [44]
    Ms Monson gave affidavit[25] and oral evidence on behalf of Queensland Corrective Services (“QCS”). She did not consider that the frequency and intensity of the behaviours in which Mr Musso had engaged could be managed in a secure facility. She stated that QCS shared the concerns of Dr Arthur about the ability of QCS to manage Mr Musso under a supervision order. She agreed in cross-examination that if it were determined that Mr Musso would be required to wear an electronic monitoring bracelet and he went outside the boundaries set by QCS or took off the bracelet, a monitoring room would receive alerts. She also agreed that a person under supervision would progress through curfew arrangements beginning with a 24 hour curfew, which would be dependent on the individual person’s profile. She stated that QCS may also issue reasonable directions to control a prisoner’s behaviour and that there are a number of ways for dealing with non-compliance with a supervision order, including obtaining an arrest warrant as the most extreme step.
  2. [45]
    Ms Monson’s affidavit also confirmed that steps will be taken to tailor a program to meet any supervision order, including by making provision for ongoing psychological care. She pointed out that accommodation in the Precinct, which is where it is envisaged Mr Musso would be placed, is only an interim arrangement under which prisoners are not subject to close supervision and must take care of themselves in many respects.
  3. [46]
    The Crown has also provided evidence of Mr Musso’s longitudinal psychiatric reports and risk assessments from opinions previously given by psychiatrists and psychologists other than for the purpose of this Act. In particular, it submits that the report of Teresa Wood in 2017[26] demonstrates that Dr Harden and Dr Arthur wanting to see a period of behaviour without threats and violence towards others is a matter of longitudinal concern, and is not merely a product of his present environment in the detention unit.
  4. [47]
    Ms Teresa Wood was commissioned by the Parole Board in early 2017 to prepare a psychological report in relation to a parole application made by the Respondent. In her report of May 2017, Ms Wood made these observations concerning intervention strategies and further risk review:[27]

“12.3Following targeted intervention to address criminogenic risk factors (in the form of structured programmes and individual treatment) I would recommend a re-evaluation of Mr Musso’s risk. This should include an evaluation of whether he has sustained any improvements made with regard to behavioural and emotional regulation (through a review of his custodial violation history) and his responsivity to treatment interventions undertaken as well as the re-administration of structured professional judgement tools and psychometric measures salient to his risk to determine if intervention has elicited requisite change. Following this residual treatment needs should be identified and further intervention/management plans tailored around these.”

  1. [48]
    Mr Musso has completed the Getting Started Preparatory Program and the Low Intensity Substance Intervention Program. While he was able to engage in those programs, the consensus is that he is not able to engage in other group programs. Although the psychiatrists’ opinions presented at the previous hearing, which Davis J accepted,[28] indicated that Mr Musso needed to undertake a sexual offending program such as MISOP or HISOP while in custody, Dr Andrews has opined that the group format is not possible for Mr Musso and individual therapy is the more appropriate course. Dr Harden and Dr Arthur accepted her view and recommended the individual therapy with Dr Andrews continue, rather than requiring Mr Musso to undertake one of the available group programs.  Both psychiatrists accepted that he has made positive progress with Dr Andrews.

Consideration

  1. [49]
    The first question is whether Mr Musso is a serious danger to the community in the absence of a Division 3 order under the Act, having regard to the matters I am required to consider under s 13(4), as provided in s 30 of the Act.  Those matters have been largely canvassed above. 
  2. [50]
    I am satisfied to a high degree of probability that there is acceptable, cogent evidence of sufficient weight to affirm the decision that Mr Musso continues to be a serious danger to the community in the absence of a Division 3 order under the Act, particularly the psychiatric evidence, having regard to the matters in s 13(4) of the Act. The psychiatric opinions provided indicate that Mr Musso’s unmodified risk of sexual reoffending with violence without a Division 3 order is high.  The evidence of Dr Arthur and Dr Harden, which I accept, satisfies me that there is unacceptable risk that Mr Musso would commit a serious sexual offence if released without a Division 3 order.  There is a need to protect members of the community from that risk.
  3. [51]
    The question that then falls to be determined is what the appropriate order to be made is.[29]

What order should be made?

  1. [52]
    The paramount consideration in determining what order should be made is to ensure the adequate protection of the community. If the Court is to make a supervision order, it must be satisfied that the adequate protection of the community can be reasonably and practicably managed by such an order.
  2. [53]
    According to Morrison JA in Turnbull v Attorney-General (Qld),[30] the risk which leads to the need to protect the community is because under s 13(1) and (2) there is an unacceptable risk that the respondent will commit a serious sexual offence if released without such an order.  The means of protecting the community and avoiding that risk is a supervision order. When a Court is assessing whether a supervision order can reasonably and practicably manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk.  Before making the order the Court has to reach a positive conclusion that the supervision order will provide the adequate protection.[31]
  3. [54]
    The risk which the Act seeks to protect the community from is the risk of the prisoner committing a serious sexual offence, not the risk of him self-harming or even of him engaging in non-sexual violence.
  4. [55]
    Mr Musso is only a relatively young man who has committed one offence of a sexual nature involving violence. What is at stake is a prisoner’s fundamental legal right to unfettered personal liberty on the expiration of the term of imprisonment; any order should involve the least intrusion into that right.[32]
  5. [56]
    The applicant contends that adequate protection of the community cannot be ensured by a supervision order, given Mr Musso’s present lack of emotional self-regulation, albeit accepting that his ability to self-regulate has improved since he has been working with Dr Andrews. It was submitted on behalf of the Attorney-General that Mr Musso’s inability to regulate his emotions over a significant period is such that he requires a continued period of custody, to adequately contain the relevant risk of reoffending within the meaning of the Act. The Attorney-General submits that proposition is supported by his longitudinal history and the psychiatric evidence, which also support the fact that Mr Musso presently cannot be reasonably and practicably managed under a supervision order. That is also the view of QCS.
  6. [57]
    Mr Musso’s counsel contends that adequate protection of the community can be ensured by placing him on a supervision order with appropriate conditions.   In the event of non-compliance, he submits that action can be taken by QCS and the risks contained.  He places considerable weight on the report of Dr Andrews as well as Dr Harden’s opinion that the relevant risk, namely of Mr Musso committing a serious sexual offence, would be reduced to a moderate level under a supervision order. Mr Musso submits that the psychiatric evidence supports the view that if he were to commit an offence while on the supervision order, it would likely be a violent offence, rather than necessarily being an offence of sexual violence.[33] Similarly, the psychiatric evidence was that he was most likely to breach the supervision order through non-compliance with a direction. Mr Musso submits that his violation history is not decisive when seen against his progress with, and commitment to, the therapy undertaken with Dr Andrews. He also submits that the deterioration in his behaviour since May can be explained by the stress of being in the detention unit, his trauma from a previous assault in custody and anxiety due to this hearing.
  7. [58]
    Dr Arthur indicated that a supervision order would reduce Mr Musso’s risk of recidivism somewhat, primarily by restricting his use of substances, monitoring his relationships and controlling his living circumstances so as to reduce victim access. However, given Mr Musso’s history of non-compliance with community-based orders and his recent behaviour in jail, Dr Arthur did not consider that Mr Musso would comply with the conditions of a supervision order. In his report, Dr Harden indicated that under a supervision order the relevant risk would be reduced to moderate”. While Dr Harden’s opinion in his report was initially more positive, in terms of Mr Musso’s ability to cope and comply with the strictures of a supervision order in the community, his confidence in Mr Musso’s ability to contain conduct of a threatening and violent nature had lessened at the time of the hearing, in light of the deterioration of his conduct in custody since May. Neither psychiatrist, however, accepted that the fact that Mr Musso is in detention and that he may hold concerns for his own safety arising from the trauma of a past assault would have been the causes of such a deterioration and explained his conduct, even though they accepted that they may have been factors therein.
  8. [59]
    Dr Arthur and Dr Harden accepted that, as far as they were aware, Mr Musso had complied with his medication regime and avoided illicit substances. While both doctors agreed that Mr Musso appeared to be generally compliant with his medication regime, they considered that, given the severity of Mr Musso’s personality dysfunction, those medications are of limited effectiveness in constraining his behaviour.
  9. [60]
    Both considered Mr Musso to be intelligent and able to understand the concept of cause and effect. Both psychiatrists acknowledged that he has made very positive steps in his ongoing therapy with Dr Andrews, particularly given the relationship of trust that he has developed with Dr Andrews, which is an area of interpersonal relationships with which Mr Musso has had considerable difficulty.
  10. [61]
    Both Dr Arthur and Dr Harden’s particular concern about the ability to reasonably and practicably manage Mr Musso under a supervision order was heightened by the fact that more recent self-harm incidents of Mr Musso’s have involved violence and threats to others who were trying to assist and manage him and which required both medical intervention and attendance by security.
  11. [62]
    Dr Arthur considered that emotional regulation is a major issue for Mr Musso and that, while his deliberate self-harm is likely to continue, there needs to be a change in those episodes of self-harm and violence that are directed at others, particularly those who assist, before he can be safely released under a supervision order. In that regard, Dr Arthur considered that Dr Andrews is best placed to determine the best treatment program for Mr Musso. He considered that there needs to be a continued focus on Mr Musso’s coping strategies, amongst other things.
  12. [63]
    Mr Musso’s counsel contends that Mr Musso’s negative thoughts, which trigger his inability to contain his emotions and to act out through self-harm, threats and violence, could be linked to past assaults upon him in custody, his time in the detention unit and his anxiety at the prospect of this hearing, all of which would be removed upon his release. However, the evidence does not disclose such a linear relationship between those factors and his conduct, nor is it supported by the psychiatric evidence.  As stated above, while Dr Arthur and Dr Harden considered that the fact of Mr Musso being held in a detention unit and his feelings of vulnerability in custody due to a prior sexual assault may have contributed to his negative thoughts and been factors in his conduct, neither considered they adequately explained his recent conduct, or of themselves were the cause of his conduct.
  13. [64]
    Dr Harden did not think there was necessarily a connection between Mr Musso’s conduct and his being in the detention unit. In that regard, I note that Mr Musso has previously suggested to Dr Harden that in many ways he had liked being held in maximum security, because of the structure of the regime, predictability and timetable. He did not express concerns about being in the detention unit to Dr Harden. More significantly, neither Dr Harden nor Dr Arthur considered that Mr Musso’s release from custody into the Precinct under a supervision order would necessarily remove all triggers for his uncontained conduct and therefore the risks for his reoffending, given there would be different stressors which similarly could act as triggers for his negative thoughts and violent and threatening conduct.
  14. [65]
    Dr Harden considered that Mr Musso’s maladaptive coping mechanisms are subsumed by his personality disorder and cannot just be attributed to his feeling threatened in prison. Dr Harden stated that the stress of this hearing may have contributed to Mr Musso’s conduct, but the stress of the prospect of release may have also done so.  Dr Harden did not believe that Mr Musso has yet developed the insight necessary to understand that by his conduct, he may be acting to his own detriment, such as in relation to this hearing, notwithstanding that he wants to be released.
  15. [66]
    Dr Arthur considered that feelings of unsafety may be a factor in Mr Musso’s self-harming behaviour, and that his post-traumatic stress and personality structure in part explain his problematic behaviour in custody, but do not suggest that if he were released now, his behaviour out of custody would be less problematic. In that regard, he considered that the less structured and regulated environment of the Precinct and the people Mr Musso would have to mix with there may in fact increase the stress upon Mr Musso. He considered that Mr Musso engages in self-harm and makes threats not just because he feels threatened but because of a number of factors, which include anger and his use of intimidating behaviour as a means of controlling his environment.
  16. [67]
    Dr Harden particularly emphasised that, given the complexity of Mr Musso’s personality disorder, it is very difficult to predict whether or not he would be able to contain his violent responses upon release. Although far from perfect, Dr Harden considered that the best indicator for his conduct upon release is his conduct in the immediately preceding period in custody.  Dr Arthur was of a similar view.  Dr Harden considered that for him to feel confident that Mr Musso could be adequately managed on a supervision order, he would like to see Mr Musso complete a period of six months without incident. Dr Arthur considered that a 12 month period without incident, in which Mr Musso also reintegrates with the more general prison environment, would support an opinion that Mr Musso could be practicably and reasonably managed under a supervision order.  Both Dr Arthur and Dr Harden considered that Mr Musso requires further therapy with Dr Andrews before he would be in a position to be released under a supervision order. 
  17. [68]
    It should be emphasised that neither Dr Harden nor Dr Arthur considered that the fact Mr Musso engages in self-harm means that he would not comply with a supervision order.  Their view of “without incident” was without the acts of violence or physical assaults on staff or other inmates.  They accepted Dr Andrews’ opinion that Mr Musso’s self-harm is an ingrained behaviour that began when he was a young boy in response to a traumatic environment and, as such, is unlikely to abate, except in the long term. Their present concern was rather the conduct that accompanied a number of recent incidents, in which he made threats of violence and was belligerent with staff due to his inability to self-regulate in light of his psychiatric conditions. While Mr Musso did have a period of some four or five months in which his conduct seemed to have stabilised, the deterioration in his conduct since May of 2019 indicates that he is still unable to self-regulate his emotions in such a way that his risks can be managed under a supervision order and reduced to an acceptable level. Mr Musso is not someone who is a serial sexual offender due to a paraphilia, but rather someone whose risk of committing further serious sexual offending relates to him being in a situation in which he feels threatened or frustrated and becomes violent.  Without him being able to emotionally self-regulate and given his complex psychiatric issues, I do not consider that any conditions could be imposed that could be reasonably and practicably be managed to ensure the adequate protection of the community. 
  18. [69]
    While Dr Harden described Mr Musso’s greatest risk as being his risk of hurting himself, he stated that Mr Musso’s risk of interpersonal violence is also high, as is his risk of some sort of sexual re-offending associated with violence, although not quite as high as his risk of interpersonal violence.[34] Dr Harden considered that, in terms of managing the risk to the community, the real question is whether the likelihood of Mr Musso not complying with directions would dilute the reduction in risk by the conditions of a supervision order. He stated that while the answer to that is unclear, but the best predictor is Mr Musso’s past behaviour which indicates his non-compliance would not contain his risk of re-offending under a supervision order to ensure the adequate protection of the community. Based on Mr Musso’s conduct since May, he did not consider that QCS’ concerns that they could not manage Mr Musso’s behaviour in the Precinct were surprising.
  19. [70]
    While Mr Musso’s counsel submits that it should not assumed from his violation history in custody that he would not comply with the requirements of the supervision order upon release, the psychiatric evidence supports the fact that it is the most probative evidence of how he would conduct himself upon release. It is also evident that Mr Musso would still be subject to considerable stressors upon his release, including a lack of structure, as was set out in the affidavit material of QCS. There is a reasonably high likelihood those stressors would trigger non-compliance with the supervision order and similar conduct to that seen in the last six months while in custody. The fact non-compliance may result in his return to custody is not likely to be a significant restraint on Mr Musso’s conduct, given that he does not yet have insight into the detriment that his own conduct causes him, despite his intellectual abilities. While the possibility of Mr Musso wearing an ankle bracelet may reduce the risk of him absconding, unless QCS or the police are on hand if he becomes overwhelmed by his environment, angry or threatened, given his lack of emotional self-regulation, there is a high risk that, if the incident involves a woman, his response will be sexually violent.  On the present evidence it is unlikely that Mr Musso would comply with reasonable directions given to him. His risk of committing a further serious sexual offence would only be reduced to moderate if the supervision order were efficacious in containing his behaviour.
  20. [71]
    While a supervision order is not required to be watertight, it must be efficacious in constraining a respondent’s behaviour by sufficiently reducing the risks of the commission of serious sexual offences to ensure the adequate protection of the community.  I am presently not satisfied that any supervision order could be effective in doing so, given the matters outlined above. I am not satisfied, given his violation history in custody and his complex psychiatric conditions, that Mr Musso presently could be reasonably and adequately managed by QCS under the mandatory conditions provided under s 16 of the Act.
  21. [72]
    While I do not consider that Mr Musso can reasonably and practicably be managed by a supervision order at present, the evidence suggests that if he continues to progress with Dr Andrews, there is every reason to consider he will be able to reach a level of emotional self-regulation so the risk of reoffending can be reasonably and practicably managed under a supervision order. It is evident that Mr Musso still requires further individual therapy and a period of conduct without threats or violence towards others before he can be reasonably and practicably managed and the adequate protection of the community can be ensured under a supervision order. This is supported by his long-standing and complex psychiatric problems, evidenced not only in Dr Harden and Dr Arthur’s opinions but also in previous psychiatric and psychological opinions which are referred to in the applicant’s submissions, as well as his history of violations since the previous order.
  22. [73]
    Given the above and taking into account the paramount consideration, which is the need to ensure adequate protection of the community, and the consideration of whether that protection can be reasonably and practicably be managed by a supervision order, I am satisfied that the Attorney-General has established that a supervision order should not be made and that adequate protection of the community can only be ensured by a continuing detention order.

Orders

  1. [74]
    I therefore affirm the decision of this Court of 24 August 2018 that Mr Musso is a serious danger to the community in the absence of a Division 3 order. I order that the respondent continue to be subject to the continuing detention order.

Footnotes

[1]Attorney-General (Qld) v Musso [2018] QSC 191.

[2]Attorney-General (Qld) v Musso [2018] QSC 191 at [14].

[3]Schedule to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In the alternative to being a child, the person offended against may be someone the prisoner believed to be a person under the age of 16 years.

[4]See Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [22], [60] and [225]; Attorney-General (Qld) v Kennedy [2016] QSC 287 at [23], per Burns J.

[5]Attorney-General (Qld) v Kennedy [2016] QSC 287 at [23], per Burns J.

[6]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 30(3)(a) - (b).

[7]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 30(4)(a).

[8]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 30(4)(b)(i).

[9]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 30(4)(b)(ii).

[10][2006] QCA 324. 

[11]Affidavit of A McLean, sworn 11 November 2019.

[12]Affidavit of D Bear sworn 29 June 2018

[13]Affidavit of K Arthur, affirmed 11 October 2019, Exh KA-2.

[14]Affidavit of K Arthur, affirmed 11 October 2019, Exh KA-2, p 26.

[15]Affidavit of K Arthur, affirmed 11 October 2019, Exh KA-2, p 27.

[16]T1-8/15-24.

[17]Affidavit of Dr S Harden, sworn 22 February 2018, Exhibit SH-2, p 20: Affidavit of A McLean, sworn 7 November 2019, Exhibit AM-1, 18.

[18]Bearing in mind there is a question as to whether “psychopathy” is properly characterised as a diagnosis or as a feature of personality. Dr Harden notes Mr Musso’s score on the Hare Psychopathy Checklist is 32, which “is elevated to the level of psychopathy”: Affidavit Dr S Harden, sworn 22 February 2018, Exhibit SH-2, 20: Affidavit of A McLean, sworn 7 November 2019, Exhibit AM-1, 16.

[19]Affidavit of S Harden, sworn 11 November 2019, Exh SH-2.

[20]Affidavit of S Harden, sworn 11 November 2019, Exh SH-2, p 25.

[21]Affidavit of S Harden, sworn 11 November 2019, Exh SH-2, p 25.

[22]Affidavit of S Harden, sworn 11 November 2019, Exh SH-2, p 25.

[23]T1-32/25-31.

[24]Affidavit of M Andrews, sworn 12 November 2019, Exh MA-5, p 32.

[25]Affidavit of J Monson, affirmed 21 November 2019.

[26]Affidavit of D Bear, sworn 29 June 2018, Exh DB-18, 119-149.

[27]Affidavit of D Bear, sworn 29 June 2018, Exh DB-18, 149.

[28]Attorney-General (Qld) v Musso [2018] QSC 191 at [94].

[29]Turnbull v Attorney-General (Qld) [2015] QCA 54.

[30] [2015] QCA 54.

[31]Turnbull v Attorney-General (Qld) [2015] QCA 54 at [35]-[36], per Morrison JA, with whom Philippides JA and Douglas J agreed.

[32]Attorney-General v Van Dessel [2006] QSC 16 at [17], per White J.

[33]Dr Harden’s evidence was that Mr Musso’s sexual offending was born out of his violent offending.

[34]T1-25/25-35.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Musso

  • Shortened Case Name:

    Attorney-General v Musso

  • MNC:

    [2019] QSC 310

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    17 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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