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Attorney-General v Banwell

 

[2019] QSC 312

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Banwell [2019] QSC 312

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

STEPHEN ROBERT BANWELL

(respondent)

FILE NO:

BS 4896 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

18 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2019

JUDGE:

Ryan J

ORDER:

I order that the respondent be detained in custody for an indefinite term for control, care or treatment.

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 nearing the end of a term of nine years imprisonment and is due to be released in December 2019 – where the applicant applied for a continuing detention order pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the respondent is a serious danger to the community – whether the respondent should remain in custody under a continuing detention order or be released from custody under a supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13

Attorney-General for the State of Queensland v Waghorn [2006] QSC 171

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

COUNSEL:

J Tate for the applicant

C Reid for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

Overview

  1. [1]
    This is an application by the Attorney-General for the State of Queensland for an order under Part 2, Division 3 (section 13) of the Dangerous Prisoners (Sexual Offenders) Act 2003 in relation to the respondent prisoner, Stephen Robert Banwell.
  2. [2]
    Mr Banwell has a lengthy history of sexual offences against women.  He has mild intellectual impairment.  He has been on a disability support pension since he was 16 because of his chronic epilepsy and probably also because of his intellectual impairment.  Testing in 2015 revealed a full-scale IQ of 57.[1]  He has been diagnosed with psychopathy, among many other mental health and personality diagnoses.  He has also suffered a brain injury.  He was adopted at birth but his adoptive parents found him uncontrollable and he spent years in “boy’s homes”.  He is a divorced, 59 year old man, who has never worked.
  3. [3]
    He is currently serving a period of nine years’ imprisonment for two counts of rape and one of stupefying in order to commit an indictable offence.  His full time release date is 27 December 2019.  He has not completed a sexual offenders’ treatment program although he has completed a preparatory program.
  4. [4]
    The applicant seeks a finding that the respondent is a serious danger to the community in the absence of a division 3 order.  And she seeks a division 3 order for the respondent’s indefinite detention on the basis that such an order is the only way in which the adequate protection of the community may be ensured – at least at this point in time. 
  5. [5]
    The respondent accepts that, on the evidence before the court, he is a serious danger to the community in the absence of a division 3 order but submits that the adequate protection of the community may be ensured by his release on a supervision order containing the mandatory statutory requirements and any other conditions the court considers appropriate.
  6. [6]
    On the evidence before me on this application, I find that the respondent is a serious danger to the community in the absence of a division 3 order.  On the evidence before me, a division 3 order for his indefinite detention is the only way in which the community may be adequately protected from the risk of serious sexual offending which he poses. 
  7. [7]
    Nothing in the evidence supports the submission that the respondent’s risk could be addressed by a supervision order, certainly of the kind ordinarily imposed, so as to ensure the adequate protection of the community.  The evidence was to the effect that, at present, it was only if the respondent were released to locked accommodation, or was under the constant supervision of male (and only male) carers, that the community could be adequately protected from the risk he posed were he released.  While it may be possible to physically contain the respondent in a locked dementia ward, on the evidence before me, that possibility was nothing more than hypothetical.
  8. [8]
    Notwithstanding the respondent’s several mental health diagnoses, the evidence suggests that he might benefit from individual therapy, with a skilled psychologist, to reduce the risk of his reoffending in a serious sexual way to a level at which his release under supervision might be viable.  At the very least, his suitability for therapy of that kind should be evaluated.  Counsel for the Attorney-General indicated that Queensland Corrective Services would engage a suitably skilled psychologist to assess the suitability of the respondent for individual treatment.  It is hoped that such an assessment will occur early in 2020, so that, assuming suitability, the respondent will have had the benefit of appropriate treatment in time for the first review of the continuing detention order which I will make.
  9. [9]
    I will now explain in more detail my reasons for finding that the respondent is a serious danger to the community in the absence of a division 3 order and for making an order for his indefinite detention.

The respondent a serious danger to the community in the absence of a division 3 order

  1. [10]
    Section 13(4) of the Act sets out the matters to which I must have regard in determining whether the respondent is a serious danger to the community in the absence of a division 3 order. 
  2. [11]
    In addition to the expert psychiatric evidence, matters of particular relevance in this case are the respondent’s criminal history (section 13(4)(g)); whether there is any pattern to his offending behaviour (section 13(4)(d)) and his propensity to commit serious sexual offences in the future (section 13(4)(c)).

Respondent’s criminal history

  1. [12]
    The respondent was born on 28 January 1960.  His adoptive parents found him uncontrollable by the time he was 10 or 11.  He was placed in several institutions, now notorious for the abuse suffered by their residents, although the respondent does not recall any such abuse. 
  2. [13]
    His criminal history began in 1974 when he was aged 14, and continued throughout his life until his current incarceration.  He has previous convictions for stealing, false pretences, break and enter and serious assaults.  He also has a history of serious sexual offending, including rape and indecent assault.
  3. [14]
    His current period of nine years’ imprisonment was imposed, on 19 February 2013, by his Honour Judge Robertson, upon his pleas of guilty to two counts of rape and one count of stupefying in order to commit an indictable offence.  Those offences were committed in breach of a suspended sentence imposed on 30 May 2006 for offences of entering a dwelling with intent and indecent assault.  His Honour required the respondent to serve the whole of the period of suspended imprisonment; he declared the respondent’s 785 days of pre-sentence custody as “time already served” and fixed 28 December 2014 as the date upon which the respondent would be eligible for parole.  The respondent was not released on parole and, as noted above, his full time release date is 27 December 2019.
  4. [15]
    The sexual offences to which the respondent pleaded guilty in 2013 were the most recent in his long history of sexual offending against women, which began when he was only 15 years old.  That history is summarised in the following table:

Date

Description of offence

Sentence

Penrith Children’s Court

06/05/1975

Indecent assault on female

Committed to institution: concluding 28/01/1978

Nowra Children’s Court

29/07/1977

Assault female

Committed to institution

Supreme Court

Rockhampton (sitting at Mackay) 04/09/1987

 

Rape (2 charges)

 

 

On each charge:

 

Convicted and sentenced 7 years imprisonment with hard labour

District Court

Brisbane

30/05/2006

Enter dwelling with intent

 

Indecent assault

 

 

On each charge: Conviction recorded Imprisonment 2 years, suspended 5 years

District Court

Bundaberg

19/02/2013

Rape

 

 

Stupefying in order to commit indictable offence

 

 

Rape

 

 

 

 

 

 

Breach of suspended sentence imposed on 30/05/06

Conviction recorded. Sentenced imprisonment: 9 years

 

Conviction recorded

Sentenced imprisonment: 6 years

 

 

Conviction recorded

Sentenced imprisonment: 4 years

 

Declare that time spent in pre-sentence custody be deemed as time already served under this sentence: 785 days

 

Breaches proven on each charge

Suspended sentence fully invoked

 

All terms of imprisonment to be served concurrently

Parole eligibility date: 28/12/14

  1. [16]
    The details of these offences follow.

Penrith Children’s Court (1975)

  1. [17]
    On 6 May 1975, the respondent was convicted of one count of indecent assault on a female. 
  2. [18]
    The offence was committed at the institution at which he was resident (perhaps a youth detention centre).  He was 15.  The victim was an assistant matron.  At 11.20 am, he followed her into the laundry.  She was alone.  He placed one arm around her neck and threatened to kill her with a piece of jagged glass which he held in his other hand.  They struggled.  In the course of the struggle he lifted her skirt and placed his hand on her pubic area several times.  At sentence, he was committed to an ‘institution’ until 28 January 1978

Nowra Children’s Court (1977)

  1. [19]
    On 29 July 1977, the respondent was convicted of one count of assault on a female.
  2. [20]
    His offending involved his entering a dwelling through a back door, having removed his shoes.  He crept into the lounge room, pulled the telephone out of the wall and jumped on a woman who was sitting in a lounge chair.  The woman tried to leave.  He chased her around a table and knocked her to the floor.  He pulled at the clothes which covered the lower half of her body and tried to bite her around the face and shoulders while trying to get on top of her.  The woman jabbed him in the arm and face with a knitting needle.  He let her go and ran from the house.  He later handed himself in to police.
  3. [21]
    At sentence, the respondent was again committed to an ‘institution’.

Rockhampton Supreme Court (1987)

  1. [22]
    On 4 September 1987, the respondent pleaded guilty to two counts of rape. The victim was a 15 year old girl.  The respondent was 18, and married, with an 18 month old child.
  2. [23]
    The respondent picked up the hitchhiking complainant and her male companion, who were on their way to Bowen, looking for work.  They had a drink together at a hotel in Bowen.  The respondent drove them to various places and then back to the caravan park at Merinda where they were staying with another two males.  The respondent was staying there also.
  3. [24]
    That night, the complainant had an argument with one of her companions.  She told the respondent that she wanted to go back to Brisbane and he said that he would drive her there. They left at about 9 pm.  The complainant fell asleep in the car.  Instead of driving to Brisbane, the respondent drove north.  He committed the first of the two rapes having stopped for a rest break.
  4. [25]
    The respondent tried to kiss the complainant but she resisted.  He held her arms and legs and persisted in his attempts to kiss her.  He grabbed her throat and squeezed it, causing her some difficulty in breathing.
  5. [26]
    At his direction, she took off her jeans and pants.  He removed his shorts and raped her. He tried to kiss her again.  When she refused, he squeezed her throat again.  Then he said: “Sorry, please forgive me”.
  6. [27]
    They continued on their journey.  At another rest stop, he erected a tent and asked her to enter it.  She refused.  He grabbed her, squeezed her throat and forced her into the tent where he raped her again.  He told her that he had a problem: that once he was near a woman, he had to touch them.  He said he was sorry.
  7. [28]
    When they arrived in Townsville, the complainant made a complaint to police.  They located the respondent who initially denied the allegations but ultimately admitted to rape.  He said he had no control of his sexual urges and needed psychiatric help.  He said it all started when he was raped in Long Bay. 
  8. [29]
    The respondent was sentenced to seven years’ imprisonment with hard labour on each count.  The sentencing judge ordered that he receive psychiatric treatment in prison, which was something which the respondent had requested.

District Court, Brisbane (2006)

  1. [30]
    On 30 May 2006, the respondent pleaded guilty to entering a dwelling with intent and unlawful indecent assault.  He was about 42 at the time of the offending and 46 at sentence.  The complainant was a 47 year old woman, with whom the respondent had been in a relationship.
  2. [31]
    The respondent lured her away from work to her home under the pretence that her dogs had been run over.  He was waiting for her there.  He carried her into the bedroom and put her on the bed.  She tried to kick him away and they struggled.  During the struggle, he pulled her underwear down to her knees.  Somehow, she was able to calm him.  She persuaded him to leave. 
  3. [32]
    She contacted the police and made a complaint.  They interviewed the respondent who denied that he assaulted the complainant – but said he entered the house looking for a watch.
  4. [33]
    He was arrested, charged and released on bail.  He failed to appear at his next court date and was at large for 6 years.  The sentence proceeded on the basis that, during that period of time, he developed dementia.  He was sentenced to two years imprisonment, wholly suspended, for a period of five years.

Index Offences

  1. [34]
    On 19 February 2013, the respondent pleaded guilty in the District Court at Bundaberg to two counts of rape and one count of stupefying in order to commit an indictable offence.  The offences were committed in breach of the suspended sentence imposed on 30 May 2006.
  2. [35]
    The respondent was 50 years old when the offences were committed.  He was 53 at sentence.  The complainant was a 30 year old woman, who was visiting her son in Bundaberg.  She responded to an offer of free accommodation with the respondent and his wife, which they offered on Gumtree.  The evidence suggested that the respondent placed the advertisement for the purposes of having a woman in his home for sexual intercourse.
  3. [36]
    The complainant arrived at the respondent’s house on Christmas Eve.  He showed her where she would be sleeping and offered her a coffee.  She then blacked out – waking at about 3.30 am on Christmas Day.  When she woke, she found that all her clothes had been removed, apart from her t-shirt.  She was lying on her side and the respondent was beside her, with his hand on her left breast and his finger in her vagina.   
  4. [37]
    The respondent told her that he had taken advantage of her while she slept.  He made other strange comments to her.  She went to the toilet and noticed semen on the toilet paper that she used.  With the assistance of the respondent’s male housemate, she made a complaint to the police.  The respondent was arrested, but declined to participate in a record of interview.  The complainant was found to have his spermatozoa on her person.  Oxazepam (a drug used for treatment of insomnia and anxiety, which can cause loss of memory, consciousness and unsteady walking) was detected in her blood.
  5. [38]
    In sentencing the respondent, his Honour Judge Robertson said:

…Ordinarily, a person with your neurological disorders and your background problems with intellectual functioning would be regarded by a Court as having less moral responsibility for your offending. The difficulty with that is that this is the third time you’ve been before a Court for offences of a sexual nature and the second time you have pleaded guilty to the offence of rape. It does suggest that for some reason that I don’t understand because there is simply no material before me that would enable me to form an opinion, but for some reason you have something in your makeup that I think does make you a dangerous prospect for women in certain situations.

This offence, despite your frontal lobe damage, obviously was premeditated and involved a degree of planning …

  1. [39]
    It may be seen from those brief descriptions of the sexual offences that the respondent’s victims have varied in age and in their connection to him.  There is no particular pattern to his offending but it has involved increasing deception over time.
  2. [40]
    The persistence of his offending; the fact that it has become less impulsive and more planned; and the fact that his most recent offences were committed in breach of a suspended sentence imposed for sexual offending, suggest his propensity for, and high risk of, future sexual re-offending.
  3. [41]
    The expert evidence was to the effect that the impact of age upon sex drive and, in this context, risk, is very individual.  Whilst the respondent is almost 60, his mature age has not decreased his risk of sexually re-offending.  This was consistent with his psychopathy.  Indeed, the evidence suggested that he was sexually pre-occupied.  There was evidence of his relatively recent, inappropriate comments to female staff.  Dr Beech was uncertain whether his conduct in that regard had worsened (because of his head or brain injury) or whether he was simply insightless, or unable or unwilling to modify his behaviour.  The experts expressed concerns that women in the community would be more vulnerable to sexual offending by the respondent than those who met with the respondent in the custodial setting.  The women who met with him in a custodial setting were trained to be vigilant for their own safety.  Women in the community might be lulled into a false sense of security around the respondent – especially those engaged to provide him with support.  Dr Moyle considered the risk to lie in the way in which the respondent, presently, sees women, particularly women in authority – that is as “both a source of frustration if his care needs are not being met and a source of sexual pleasure if he wants sexual pleasure”.   

Efforts made by the respondent to address his offending

  1. [42]
    By section 13(4)(e) of the Act, I am required to consider the respondent’s efforts to address the causes of his offending behaviour.
  2. [43]
    During an earlier period of incarceration, the respondent declined to participate in sexual offender treatment.  However, between 7 February and 21 March 2014, the respondent participated in the Getting Started: Preparatory Program (GS: PP) at the Capricornia Correctional Centre.
  3. [44]
    In the exit report about his participation in the GS: PP Program, facilitators noted various responsivity issues.  The respondent explained that he suffered a head injury at the Maryborough Correctional Centre, which caused a loss of inhibitions.  He reported that he was born with XYY syndrome and had suffered from seizures all his life.  He said he suffered short term memory loss and had only a limited ability to recall past life experiences.  He was however able to provide an accurate account of the index offending.
  4. [45]
    The program facilitators noted that while he reportedly enjoyed the interactive group work, he expressed an unwillingness to participate in any future treatment programs if he was required to transfer out of the Capricornia Correctional Centre.
  5. [46]
    On 3 September 2014 and 10 September 2015, the respondent accepted an offer of a place in the Inclusions Sexual Offending Program (ISOP) at Wolston Correctional Centre.  He commenced the program on 21 September 2015 but exited it after four sessions (on 1 October 2015).  There were concerns about his suitability for the program.  There were issues around his literacy deficits; concerns about his capacity and cognitive impairment; and concerns about his inappropriate behaviour towards the female facilitators and other staff members.
  6. [47]
    In a letter dated 18 January 2016, the respondent was advised that the decision to remove him from the ISOP was not as a result of poor behaviour on his part, and his failure to complete the ISOP should not have a negative impact on any future application for parole.
  7. [48]
    The evidence from the expert psychiatrists suggested that those facilitating the ISOP were generous in their statement of the reasons for the respondent’s removal from it.  Their evidence was to the effect that, consistent with his personality, he was so disruptive in the group setting that he had to be removed from it.  Dr Harden was of the opinion that the respondent was yet to appreciate the link between his effective collaboration in treatment; the management of his risk; and his ultimate release from custody.  The respondent admitted to Dr Harden that he “acted up” in the program because he felt threatened. 
  8. [49]
    More generally, in other reports about his conduct in custody, the respondent has been described as a “needy” prisoner, who is “possibly manipulative”, requiring “endless attention and reassurance” from staff.  There are several reports of his inappropriate comments to female staff.  There have been several incidents of self-harm between 2012 and 2017 – usually in response to frustrations.
  9. [50]
    The respondent’s efforts to address his offending have been limited.  In brief, he is an untreated sexual offender who has been disruptive in group programs.

Psychiatric reports and risk assessments

  1. [51]
    By section 13(4)(a) and (b), I am to consider the reports prepared by psychiatrists under section 11 of the Act and any other assessment of the prisoners.  By section 13(4)(h) I am to consider the risk that the prisoner will commit another serious sexual offence upon release into the community. 
  2. [52]
    I will refer in these reasons primarily to the reports of the examining psychiatrists although there have been many other assessments of the prisoner which I have considered.  The examining psychiatrists have taken into account the salient features of the other assessments in offering their opinion.  Of those other assessments, I note the opinion of Tracey Richards, Psychologist, that the respondent was “almost void of any insight and/or empathy or remorse for his offending”.  Also, she noted his transition plan was to employ a female carer, whom he would then marry. 
  3. [53]
    More generally, the other assessments report the respondent’s potential for aggression, his negative attitude towards authority and his manipulative approach to any situation.  He was considered to be completely institutionalised.  The other assessments refer to his psychopathy or his psychopathic personality traits.
  4. [54]
    In seeking a continuing detention order, the applicant relies primarily on the opinion of the experienced psychiatrists who have examined the respondent for the purposes of the application.  Each psychiatrist has assessed the respondent’s unmodified risk of sexually re-offending as in the high range.

Dr Scott Harden, Consultant Psychiatrist (28 January 2019)

  1. [55]
    Dr Harden provided the following overview of the respondent:

Stephen BANWELL was a 58-year-old man with a history of epilepsy and mild intellectual impairment who has a 35 year history of sexual offences against women beginning when he was 15 years of age. The most recent sexual offence shows significant planning in drugging the victim without her knowledge. The previous offence also showed a degree of planning when he told the victim that her dog had a problem in order to get her into her house where he assaulted her.

He now claims he has no sexual interests or drive due to age or other factors but he has also claimed this to treating practitioners in the past prior to sexual reoffending.

The victims have all been adult females (the 15-year-old girl counts as an adult female as she is post pubertal).

He was adopted and describes variably a history of abuse prior to, during and after his time in his adoptive family, He developed troublesome behaviour from a very early age, was expelled from school early following learning difficulties and an attempt to burn down part of the school and went on to juvenile detention at around 15 years of age.

He seems to be able to convince others to look after him during his life. He has previously married, on his account, two women both of whom had their own issues but also has persuaded their families to support him at various times. His most recent offence occurred when he was living in a property owned by his wife’s family with the strong support of his wife’s family in everyday life.

His institutional behaviour has generally been poorly controlled, manipulative and dysfunctional, in recent years it is described as being effectively barely acceptable. There is little available history of functioning successfully in the community as an independent adult in recent decades.

There is therefore a paradox in this man in that he is able to premeditate and carry out sexual offences but does not appear to have enough personality stability or adaptive and intellectual function to survive independently in the community.

  1. [56]
    Dr Harden diagnosed the respondent as suffering from:
    • Mixed Personality Disorder (severe with marked antisocial and dependent features);
    • Psychopathy;
    • Mild Intellectual Impairment; and
    • Epilepsy.
  2. [57]
    Dr Harden assessed the respondent on a number of risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the following results:
  • Static 99-R: the respondent scored 6, placing him at the ‘high’ (well above average) risk category;
  • Hare Psychopathy Checklist (PCL-R): scored 32/40, which is above the diagnostic cut-off required for a formal diagnosis of Psychopathy;
  • Stable 2007: on this instrument the respondent scored 20/24 placing him in the ‘high needs’ group in relation to sex offender dynamic risk; and
  • Sexual Violence Risk (SVR-20): scored positively for 10/20 items, placing him in the ‘high’ risk category for sexual violence risk.
  1. [58]
    On the question of risk, Dr Harden said:

The actuarial and structured professional judgement measures I administered would suggest that his future risk of sexual re-offense is high (well above average) in the absence of a supervision order. My assessment of this risk is based on the combined clinical and actuarial assessment.

Supervision and intervention consistent with a supervision order in my opinion will not significantly reduce the risk unless he is placed in a living situation with a high enough level of monitoring and support.  In that case his risk would be reduced to moderate due to the level of monitoring involved.

Dr Michael Beech, Consultant Psychiatrist (25 October 2019)

  1. [59]
    Dr Beech diagnosed the respondent as suffering from:
  • Psychopathy;
  • Antisocial Personality Disorder; and
  • Borderline Intellectual Functioning, flowing from a Frontal Lobe Brain Injury.
  1. [60]
    Dr Beech assessed the respondent on a number of risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the following results:
  • Static 99-R: the respondent scored 7, placing him in the “much above average” risk range;
  • Psychopathy Checklist (PCL-R): scored 30/40, meeting the clinical cut-off for a formal diagnosis of Psychopathy;
  • Risk for Sexual violence Protocol (RSVP): Dr Beech noted the respondent’s heavy dynamic risk load, with the following factors present:
  • The chronicity of the offending
  • The diversity of sexual violence
  • Use of physical coercion (I see the stupefying drug as physical coercion)
  • Extreme minimisation or denial (or avoidance)
  • Possible attitudes that condone sexual violence
  • Problems with self-awareness
  • Psychopathy
  • Major mental illness (intellectual impairment)
  • Violent ideation
  • Problems with intimate relationships (presumed)
  • Problems with non-intimate relationships
  • Problems with employment
  • Problems with non-sexual criminality
  • Problems with planning
  • Problems with treatment
  • Problems with supervision (the extensive failure to appear matters)
  1. [61]
    On the question of risk, Dr Beech said:

In my opinion, this [that is, the risk factors listed above] is a heavy dynamic load.  Mr Banwell has not entered into any rehabilitation to address these dynamic factors and instead he has managed to avoid participation in a sexual offender program.  It is difficult now to know to what extent his removal from the sexual offender program was truly due to his inherent intellectual difficulties rather than a reflection of his avoidance and manipulation.  Be that as it may, he is not engaged in any appropriate rehabilitation or treatment that I can see.  I am uncertain whether individual therapy has commenced or what he has gained from that, if anything.

In my opinion, the risk of re-offending in the community on release is high.  He has a pattern of repeated sexual offending against diverse victims but often in a violent or predatory manner.  He has no insight into this, and he continues to display inappropriate sexualised behaviours, and even his talk of how he might form a relationship with his carers in the community is worrying.

I think on release the risk is that he will find a vulnerable woman, or he will effect a situation where a woman will become vulnerable, and he will sexually assault her.  The woman might suffer psychological or physical harm.  He will be cunning or predatory in his offending and his victim may be lulled by his apparent intellectual impairment and not recognise the guile that he is utilising.

It is difficult to know to what extent this risk could be reduced by supervision.

One of the most important issues is ongoing appropriate accommodation and support, and I think that this would be very problematic given his intellectual impairment, his personality style, and his predatory sexual behaviour.  It would help to see what NDIS support he might get if released and how that would be implemented.  As it stands at the moment, it is difficult to see that the risk would be substantially reduced by a supervision order unless appropriate supervised supported accommodation can be arranged.”

  1. [62]
    In an Addendum Report, after considering further medical and custodial records, Dr Beech said:

This does not alter the opinion in my original report. It confirms certain medical matters, and I think that some of his behaviours now probably reflect impulsivity or disinhibition from a frontal lobe brain injury.  If anything, this make it more difficult to find support and accommodation.  There has been a worrying persistence of sexual comments or behaviours that indicates his lack of insight.

Dr Robert Moyle, Consultant Psychiatrist (30 November 2019)

  1. [63]
    Dr Moyle diagnosed the respondent as suffering from:
  • Severe Personality Disorder (Cluster B, with prominent narcissistic, antisocial and borderline features),
  • Psychopathy,
  • Borderline Intellectual Functioning; and
  • Epilepsy.
  1. [64]
    Dr Moyle assessed the respondent on a number of risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the following results:
  • Psychopathy Checklist (PCL-R): scored 33/40, exceeding the clinical cut-off for a formal diagnosis of Psychopathy;
  • Static 99-R: the Respondent scored 7 or 8, placing him in the highest category, “well above average risk”;
  • Violence Risk Appraisal Guide (VRAG): on this instrument, the respondent rates “at around 2 out of 3 chances in such populations as he, of violent offending over 10 years”;
  • Sex Offender Risk Appraisal Guide (SORAG): indicates nearly a 90% chance of sexually reoffending over 10 years;
  • Historical Clinical Risk Management (HCR-20): the respondent “rates highly on historical factors, moderately high on clinical factors and substantially on other factors giving a high risk of violence”;
  • Sexual violence Risk 20 (SVR-20): the respondent “rates with 9 items somewhat relevant and 8 relevant and only 3 not relevant giving a high risk without intervention for reoffending sexually”;
  • Structured Assessment of Protective Factors (SAPOF): the respondent has low levels of protective factors;
  • Risk for Sexual violence Protocol (RSVP): on this instrument, Dr Moyle provides three risk scenarios ranging from low to high. In the medium scenario, Dr Moyle notes:

The second scenario is that he will seek a woman with resources to allow him to live as he wishes who will also meet his sexual needs and he won't need to look elsewhere.  I am mindful that that has never applied from teens to current age.  He ruins relationships with other adults who may not be carers, and women he forms relationships with, mindful he was married at the time of the index offenses, that occurred in the home shared with his wife, supported by a guardian his father-in-law, and that in jail he tries to dominate others or expresses anger aggressively against himself or others to achieve his wishes.  He is less likely to have inner restraints or to reliably adhere to advice.  The scenario will be safer if the support worker is not female.  In recent years I see little question of his enjoying homosexual partners.  If female he is likely to want that support worker to also be a sexual partner.

  1. [65]
    On the question of risk, Dr Moyle said:

“[148] I therefore have found nothing that can add to the formulation of risk and the risk assessment made prior to the reading of the medical files only an increased sense that custodial care is the only option likely to adequately provide for his felt need for care, while allowing control over his vulnerability to act on his impulsive aggressive and sexual wishes.

[…]

[156] My assessment of the level of risk that Mr Banwell will commit another serious sexual offence if released from custody without a supervision order being made is high.

[157] The reasons for this is that his life history for at least 45 years is of rebellion and antisocial offending and demanding that his wishes are met.  Wishes include sexual urges even when he is in a situation of caring attention but seeking excitement to relieve boredom.  These behaviours have never been addressed in institutions and there are signs suggesting he has organic brain disorder limiting his capacity to change when in a position to act on such urges.  He labels himself as a pathological liar at one time when caught and the history he gives differs in persistence and reliability limiting our capacity to accept his assurances he will not reoffend.  His psychopathic tendencies are of the group of offenders who resist attempts to assist them to change and he has shown in the current and past imprisonment resistance to complying his behaviour to the expectations of authorities, which is likely to persist in the community.  He is vulnerable to feeling affronted and seek to enjoy the pleasures he wants even if there are restrictions.  He felt unable in interview with me to fully assert a willingness to fully adhere to orders if they go counter to his wishes if released on a supervision order.  He distrusts authorities and will try and find ways to bypass the restrictions as he does in prison or will simply refuse to cooperate with those case managers or psychologists he feels fall short in the attributes he requires in helpers, undefined, but allow him to say that therapy has nothing to offer him; his way to not have to address risk factors.  There are not likely to be clear warnings of sexual misbehaviour impending to allow adequate protection of the community as such behaviour as running interstate, or hiding his deceptive plans to offend is likely.  He may behave in self-harming ways to encourage adherence to his wishes in the community or simply become aggressive as he does in custody when upset.  He doesn't readily form trusting friendships. While a NDIS package may allow support for his self-care skills to develop and go some way towards addressing some of the psychosocial needs he has not developed, he is likely to need guardianship if his level of disability has declined to the measured amount as also suggested in my cognitive testing, if he wasn’t faking bad.  The most relevant criminogenic factor is unchanged, psychopathic traits.

[158] He should be only released to a total institution accommodation that met his care needs as well as allowed access for the support worker, (I'd suggest a male, as he would see no reason why a female worker couldn't also be his lover and totally care for his needs placing her at risk if unattended and he was aroused.)  The care worker, if strong and male, could accompany him to access community activities to occupy his time e.g. a sheltered workshop during the day and other prosocial activity to engage him with the community, while also monitoring and supporting adherence to medical and psychological treatment.  Then there is a possibility the extra attention may assist him to lower the risk to moderately high he will rape a vulnerable female over years.  Monitoring of his internet and mobile phone use will allow discovery of attempts he may make to meet with vulnerable women.

  1. [66]
    The examining psychiatrists are consistent in their assessment that there is a high risk that the respondent will commit another serious sexual offence if he is released into the community.  They are also broadly consistent in their diagnoses of the respondent, including a diagnosis of psychopathy.

Other section 13(4) matters

  1. [67]
    For completeness, I note that the respondent’s limited participation in rehabilitation programs has not had a positive effect on him.   

Conclusion

  1. [68]
    The first enquiry the court must make is whether or not the respondent is a serious danger to the community, in the absence of a Division 3 Order.
  2. [69]
    I am satisfied, as required by section 13(3) of the Act, that the respondent is a serious danger to the community, in the sense that there is an unacceptable risk that he will commit a serious sexual offence, in the absence of a division 3 order. 
  3. [70]
    I have reached that conclusion having regard to all of the matters I am required to consider under section 13(4).  I have taken into account in particular the formal assessments undertaken by the psychiatrists, which indicate that the respondent’s unmodified risk of serious sexual offending is high.  I have also taken into account in particular the respondent’s criminal history and that which it reveals of his propensity to commit further offences in the future.  Also, the respondent is an untreated sexual offender, who perhaps insightlessly, makes inappropriate comments to women in the custodial setting.  Whilst he claims to have no sex drive, those comments and his request for Viagra suggest otherwise.  I note that the respondent does not challenge this finding.
  4. [71]
    In my view, unquestionably, the evidence supports the finding that the respondent is a serious danger to the community in the absence of a division 3 order.

The need for an indefinite detention order

  1. [72]
    Having found that the respondent is a serious danger to the community in the absence of a division 3 order, I must consider whether to make a continuing detention order, or a supervision order.
  2. [73]
    The decision between those orders is driven by the paramount statutory consideration to ensure adequate protection of the community.  As McMurdo J observed in Attorney-General for the State of Queensland v Waghorn at [24]:[2]

In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community: s 13(6).  The purpose of orders under s 13 is not punishment but the protection of the community: Fardon v Attorney-General (Qld).  The existence of some risk of re-offending is not sufficient: the risk must be of an unacceptable order … Of course the drastic consequences of a continuing detention order must be considered.  And the objects of the Act include the provision of control, care or treatment to facilitate the rehabilitation of the prisoner: s 3(b).

  1. [74]
    The correct approach to applications of this type was explained in Attorney-General for the State of Queensland v Sutherland by McMurdo J:[3]

[26] No order can be made unless the court is satisfied that the prisoner is a serious danger to the community.  But if the court is satisfied of that matter, the court may make a continuing detention order, a supervision order or no order.  There is no submission here that if the prisoner is a serious danger to the community, nevertheless no order should be made.  As already mentioned, it is conceded on behalf of the prisoner that I could be satisfied in terms of s 13(1) and that a supervision order would be appropriate.

[27] The court can be satisfied as required under s 13(1) only upon the basis of acceptable, cogent evidence and if satisfied “to a high degree of probability that the evidence is of sufficient weight to justify the decision.”  Those requirements are expressed within s 13(3) by reference to the decision which must be made under s 13(1).  They are not made expressly referable to the discretionary decision under s 13(5).  The paramount consideration under s 13(5) is the need to ensure adequate protection of the community.  Subsection 13(7) provides that the Attorney-General has the onus of proving the matter mentioned in s 13(1).  There is no express requirement that the Attorney-General prove any matter for the making of a continuing detention order, beyond the proof required by s 13(1).  So s 13 does not expressly require, precedent to a continuing detention order, that the Attorney-General prove that a supervision order would still result in the prisoner being a serious danger to the community, in the sense of an unacceptable risk that he would commit a serious sexual offence.  However in my view, such a requirement is implicit within s 13.

[28] The paramount consideration is the need to ensure adequate protection of the community.  But where the Attorney-General seeks a continuing detention order, the Attorney-General must prove that adequate protection of the community can be ensured only by such an order, or in other words, that a supervision order would not suffice.  The existence of such an onus in relation to s 13(5) appears from Attorney-General v Francis where the Court allowed an appeal from a judgment which had made a continuing detention order upon the primary judge’s view that the Department of Corrective Services would not provide sufficient resources to provide effective supervision of the prisoner upon his release.  The Court found an error in that reasoning because of the absence of evidence that the resources would not be provided.  The Court observed:

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 principal, 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.

Thus the absence of evidence of the inadequacy of resources was important because that matter had to be proved, as a step in persuading the court that only continuing detention would suffice.

[29] The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order.  As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made.  What must be proved is that the community cannot be adequately protected by a supervision order.  Adequate protection is a relative concept.  It involves the same notion which is within the expression “unacceptable risk” within s 13(2).  In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.

[30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk.  They differ in their descriptions of the extent of that risk.  But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion.  It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.

  1. [75]
    In determining whether to make a continuing detention order or supervision order the paramount consideration is the need to ensure adequate protection of the community.  Ultimately, the purpose of the legislation is protective.  The respondent can be detained under the Act for care, treatment or control.  In seeking a continuing detention order, the applicant bears the onus of demonstrating that a supervision order affords inadequate protection to the community.
  2. [76]
    The applicant points to the evidence of the psychiatrists which was to the effect that a supervision order short of one which physically contained the respondent, or which provided him with supervision (by males only) for 24 hours a day, would not adequately protect the community from the risk posed by the respondent.  Whilst it might be possible to physically contain the respondent in a locked dementia ward, understandably, having regard to the evidence, such a proposal was not seriously raised by the parties. 
  3. [77]
    Having regard particularly to the evidence of the risk posed by the respondent and the circumstances in which he is likely to reoffend, the only real option at this stage, to ensure adequate protection of the community, is to order that the respondent be detained indefinitely for control, care or treatment.  As Dr Harden explained, his detention would be for all three purposes. 

Clinical recommendations

  1. [78]
    The ongoing treatment and management of the respondent was discussed by each of the reporting psychiatrists.
  2. [79]
    Each referred to the respondent’s need for a high level of monitoring and support in the community – perhaps total institution accommodation – to ensure adequate protection of the community, at least at this stage.  The respondent has approved NDIS funding but that funding will not extend to his accommodation.  Nor will it address his criminogenic needs.
  3. [80]
    Overall, though very aware of the hurdles faced by the respondent, the psychiatrists were of the view that he ought to be assessed for his suitability for individual therapy by a skilled forensic psychologist.  If he were to be assessed as suitable, then counselling to address his risk of serious sexual offending ought to commence.  Queensland Corrective Services have indicated that they will have the respondent assessed.  As mentioned above, it is hoped that (assuming he is suitable) treatment will be underway by the time of the first review of the continuing detention order.  Of course, as the psychiatrists indicated, the success of the treatment will depend on the respondent’s willingness to undertake it and preparedness to engage fully with it. 
  4. [81]
    The possibility of anti-libinal medication was discussed.  The view of the experts was that it was something which could be considered, but not outside a therapeutic relationship and not without the respondent being fully aware of its potential side effects and giving his consent to it (either personally, or through a guardian for health matters).  For the moment, it is nothing more than hypothetical. 
  5. [82]
    To assist with the respondent’s future treatment, the recommendations of the psychiatrists follow.
  6. [83]
    Dr Harden:

I recommend a formal assessment by an occupational therapist to examine his level of adaptive function and to make specific comment on his suitability to live in the precinct accommodation for sexual offenders on supervision orders.

An accurate summary of his health care needs from his treating medical practitioners would also be of assistance.

It is unlikely that he is suitable for further sexual offending psychological treatment. Medication treatment could be considered.

  1. [84]
    Dr Beech:

One of the most important issues is ongoing appropriate accommodation and support, and I think that this would be very problematic given his intellectual impairment, his personality style, and his predatory sexual behaviour. It would help to see what NDIS support he might get if released and how that would be implemented. As it stands at the moment, it is difficult to see that the risk would be substantially reduced by a supervision order unless appropriate supervised supported accommodation can be arranged.

  1. [85]
    Dr Moyle:

[157] … His psychopathic tendencies are of the group of offenders who resist attempts to assist them to change and he has shown in the current and past imprisonment resistance to complying his behaviour to the expectations of authorities, which is likely to persist in the community. He is vulnerable to feeling affronted and seek to enjoy the pleasures he wants even if there are restrictions. He felt unable in interview with me to fully assert a willingness to fully adhere to orders if they go counter to his wishes if released on a supervision order. He distrusts authorities and will try and find ways to bypass the restrictions as he does in prison or will simply refuse to cooperate with those case managers or psychologists he feels fall short in the attributes he requires in helpers, undefined, but allow him to say that therapy has nothing to offer him; his way to not have to address risk factors... While a NDIS package may allow support for his self-care skills to develop and go some way towards addressing some of the psychosocial needs he has not developed, he is likely to need guardianship if his level of disability has declined to the measured amount as also suggested in my cognitive testing, if he wasn't faking bad. The most relevant criminogenic factor is unchanged, psychopathic traits.

[158] He should be only released to a total institution accommodation that met his care needs as well as allowed access for the support worker, (I'd suggest a male, as he would see no reason why a female worker couldn't also be his lover and totally care for his needs placing her at risk if unattended and he was aroused.)  The care worker, if strong and male, could accompany him to access community activities to occupy his time e.g. a sheltered workshop during the day and other prosocial activity to engage him with the community, while also monitoring and supporting adherence to medical and psychological treatment. Then there is a possibility the extra attention may assist him to lower the risk to moderately high he will rape a vulnerable female over years. Monitoring of his internet and mobile phone use will allow discovery of attempts he may make to meet with vulnerable women.

Summary

  1. [86]
    The respondent is a serious danger to the community in the absence of a division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003.  An order for his detention for an indefinite term (for control, care or treatment) is required to ensure adequate protection of the community.  He should be assessed for his suitability for individual psychological treatment by a skilled psychologist as soon as possible.  If he is found suitable, treatment should commence thereafter with a view to attempting to reduce the risk he currently poses of committing a serious sexual offence.   

Footnotes

[1]Testing in 1977 revealed a full-scale IQ of 74; testing in 1983 revealed a full-scale IQ of 70 – 79; testing in 2005 revealed a full-scale IQ of 67.

[2][2006] QSC 171.

[3][2006] QSC 268.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Banwell

  • Shortened Case Name:

    Attorney-General v Banwell

  • MNC:

    [2019] QSC 312

  • Court:

    QSC

  • Judge(s):

    Ryan J

  • Date:

    18 Dec 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 312 18 Dec 2019 Attorney-General's application for an order under section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003; respondent determined to be a serious danger to the community in the absence of a division 3 order; respondent ordered to be detained in custody for an indefinite term for control, care or treatment: Ryan J.

Appeal Status

No Status