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Attorney-General v Boulton

 

[2020] QSC 13

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Attorney-General for the State of Queensland v Boulton [2020] QSC 13

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(Applicant)

v

BRANDON JAMES BOULTON

(Respondent)

FILE NO/S:

10872/17

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

17 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2020

JUDGE:

Bowskill J

ORDER:

  1. Pursuant to s 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 the decision, made on 8 March 2018, that the respondent is a serious danger to the community in the absence of an order pursuant to division 3 of the Act, is affirmed.
  2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 8 March 2018.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – first review of a continuing detention order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

COUNSEL:

J Tate for the Applicant

T A Ryan for the Respondent

SOLICITORS:

Crown Law for the      

Legal Aid Queensland for the Respondent

  1. [1]
    On 8 March 2018 the Court made an order that the respondent be detained in custody for an indefinite term for control, care or treatment under s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003: see A-G for the State of Qld v Boulton [2018] QSC 41.  He was aged 22 at that time.   The full time release date for the sentence the respondent was then serving was 10 March 2018.  He has been in custody since March 2015.
  1. [2]
    As required under s 27 of the Act, the Attorney General now applies for a review of the continuing detention order.
  1. [3]
    The respondent’s criminal history is summarised in [2]-[4] of the 2018 decision.   Relevantly, and without replicating the table at [3], those paragraphs record:

“[2] In February 2016 the respondent was dealt with for two episodes of sexual offending.  The first episode occurred between 2010 and 2012 and related to one charge of indecent treatment of a child under 12 and two charges of attempted indecent treatment of a child under 12.  Those offences were committed against two brothers who were 6 and 10.  The second episode occurred in 2015 and related to offences of carnal knowledge and grooming of a child under 16 with intent to procure engagement in a sexual act.  Those offences related to a 15 year old female.[1]  In addition to those offences, the respondent was also dealt with on that date for breaching a suspended sentence imposed on 30 July 2013 for an earlier offence of rape which was committed in 2012 when he was 16 and the complainant was 17.  His full-time discharge date is 10 March 2018.

[3] The respondent’s criminal history comprises some six pages and his offending is in many offence categories including stealing, weapons offences, burglary and motor vehicle offences.  Counsel for the applicant summarised the respondent’s Queensland criminal history as follows … [table not reproduced].

[4] The respondent’s full criminal history is an important factor and it is a significant feature that there is a reference to material from the Gladstone Youth Justice Service referring to an assault charge in 2005 when he was 10.  His sexual offending then commenced in 2007 when he was almost 12 and involved a charge of indecent treatment which was dealt with in the Children’s Court by way of a caution.  By the age of 19 he had already had three separate incidents of sexual offending.  The respondent has had previous community based treatment which included treatment sessions with a psychologist to address his sexually motivated offending.  However, his engagement was deemed to be superficial and it was considered by the psychologist John Glanville that he lacked insight into his offending.  When he was sentenced in 2016, Judge Butler referred to the fact he had not taken advantage of the probation and parole assistance he had been given.”

  1. [4]
    In relation to the sexual offences in the respondent’s criminal history since 2012, the report of Dr McVie includes the following details (at pp 13-15):

“His next Court appearance was on 30/7/13.  The offence of Rape was committed on 7/3/12 when he was aged 16 years, just over one week prior to his 17th birthday.  He was convicted of this in the Gladstone Children’s Court on 30/7/13, and sentenced as an adult.  He was also convicted of an August 2011 Burglary and commit indictable offence charge on the same date.

Judge Martin’s comments on sentencing include the following:  ‘The rape was committed upon your 17-year-old cousin.  Up until then, you had a very friendly relationship with her.  Whilst force was used to overcome her resistance, there was no violence used beyond that necessary to achieve your offence.  However, this offence of rape involved unprotected penile penetration of the complainant’s vagina.  This case involves a clear breach of trust’.  The Judge considered his plea of guilty and accepted that the behaviour was ‘brought on by the excessive consumption of alcohol’.  He also accepted that Mr Boulton was “genuinely remorseful”.  The Judge advised Mr Boulton to read the contents of the victim’s impact statement.  Mr Boulton was sentenced to three years, suspended after 12 months, for the rape charge.

He returned to the Gladstone District Court on 11/2/16 for conviction of Carnal knowledge of children under 16 years (& attempts) (offence committed on 9/3/15) when he was aged 19 years; and Grooming child under 16 years with intent to procure engagement in sexual act.  He was also convicted of older sexual offences against young boys, Indecent treatment of children under 16 under 12; and Attempted indecent treatment of child under 16 (procure to commit) child under 12 – two charges; and Supplying schedule 2 dangerous drugs (all charges incurred between 16/3/10 and 5/11/10).

At the same time, he was also convicted of Fail to comply with reporting x 3; Stealing x 2; Trespass; Assault or obstruct police officer; Possess utensils or pipes; and Breach of suspended sentence.

In the transcript of submissions on 11 February 2016, it was noted that he had been ‘attending appointments with a counsellor for sexually motivated offending’.  He had missed two appointments around the time the grooming and carnal knowledge offences occurred.

In regard to the indecent dealing, the victims were aged six and ten.  Mr Boulton was aged 15 at the time of offending.  He had touched the penis of the six-year-old-boy.  The victims were offered money and drugs in exchange for sexual conduct.  Mr Boulton was described as having made ‘some admissions’… ‘and then came up with a fabricated account of a story about the parents and their drug supplier and them blaming him for something that happened in relation to this’.

The 14-year-old girl victim of the carnal knowledge and grooming offence was, with Mr Boulton, in a group of offenders who stole electrical accessories and other items from Supercheap Auto store on 8 March 2015.  Police investigations into this offending resulted in the discovery of their sexual relationship.

In his sentencing remarks on 11 February 2016, Judge Butler noted the predatory nature of his behaviour in relation to the grooming and carnal knowledge offences, and that he had ‘admitted to police he had given the 14-year-old girl some prescription medication which can cause dizziness and drowsiness and reduce coordination’. …

Mr Boulton had been subject to the Child Protection (Offender Reporting) Act 2004, being placed under this for 7.5 years from September 2013.  He was charged with ‘fail to comply with reporting’ under that legislation on 19 February 2015, after having failed to notify his contact with a 15-year-old girl whom police found he had ‘friended’ on his Facebook account.  He had also failed to notify his contact with the 14-year-old victim of the grooming and carnal knowledge, and had failed to notify he was living with a 23-year-old mother of a six month old baby.”[2]

  1. [5]
    At [5] of the Court’s 2018 decision, it is recorded that the respondent had been assessed by three psychiatrists, Dr Aboud, Dr Timmins and Dr McVie, and that there was agreement that the respondent’s essential diagnosis is that he suffers from psychopathy, sexual deviancy and substance abuse.  There was some difference, however, amongst the psychiatrists, in relation to the ability to formulate other diagnoses, due to lack of data and variability of some of the information provided to the psychiatrists, particularly by the respondent.  A further difficulty was the respondent’s age, and the fact that many of the sexual offences were committed before he was an adult.  Accordingly, as at the 2018 decision, there were some outstanding issues as to whether the respondent has paedophilia or paedophile urges and whether there is the possible presence of sadism, and to a lesser extent, masochism.  However, the psychiatrists did all agree that the respondent’s unmodified risk of sexual reoffending was high (see at [9]).  
  1. [6]
    At that time, it was relevant also that, apart from commencing a drug and alcohol course in November 2017, the respondent had not addressed the causes of his offending behaviour and had not participated in any rehabilitation programs in relation to his sexual offending whilst in custody (see at [11]).  The evidence of the psychiatrists, variously, was that the respondent’s risk in the community would be reduced to moderate to low, or moderate to high, if he completed a High Intensity Sexual Offender Program (HISOP) in custody, prior to release (at [13]).  
  1. [7]
    An issue of concern to the Court in that respect was that no such course was available until October 2018.  As it would take a year to complete, that would mean the respondent’s full time release date would be extended by about two years. 
  1. [8]
    The psychiatrists addressed this issue in their evidence before the Court.  As summarised in the decision, Dr Aboud considered both the substance abuse program and the HISOP program would have an effect in terms of reducing the risk of reoffending; as would supervision in the community.  However, Dr Aboud recommended the sex offender program be completed prior to release.  He accepted it was hard to predict how the respondent would perform in a group setting, but considered it the best option in the circumstances (at [17]). 
  1. [9]
    Dr McVie agreed that HISOP would be the preferred group program in custody; noting that it is not a program which is available in the community.  As set out in [21] of the judgment, Dr McVie’s view, however, was that the respondent would be difficult to manage in a group situation and would at best be disruptive; it was also possible, she thought, that he would learn more about deviant sexual behaviours by being exposed to a group of offenders with various types of sexual offending.   Dr McVie recommended that he be released on a supervision order, and have regular treatment with a therapist experienced in dealing with sex offenders and young persons with psychopathy.  At [22] of the judgment, it is said that:

“Dr McVie also considered that if he were to be released on a supervision order, his risk would be reduced to some degree by the structure of the supervision order.  She also considered that he would need extensive support on his release.  If he was able to re-engage with an appropriate psychologist who had experience in dealing with sexual offenders and was able to engage him in therapy for his psychopathy then his risk would be further reduced.  Her view was it would be best if he obtained therapy for his psychopathy first and then complete the HISOP.  Dr McVie noted however that it would take some time to engage appropriately with that form of psychological therapy and that he had a history of non-compliance with previous orders.”

  1. [10]
    Dr Timmins, like Dr Aboud, was of the opinion that the respondent should undertake treatment for his sexual offending before being released from custody.
  1. [11]
    Ultimately, given that the paramount consideration under the Act is the need to ensure the adequate protection of the community, the Court was persuaded that the weight of the evidence supported the making of a continuing detention order, since the Court was not satisfied the protection of the community could be adequately ensured without the respondent first undertaking appropriate courses, before any release on supervision (see at [29]).
  1. [12]
    The material now before the Court on this first review demonstrates the following.
  1. [13]
    The respondent participated in the Getting Started:  Preparatory Program from April to May 2018; and then the HISOP between 21 November 2018 and 15 August 2019.
  1. [14]
    An incident occurred on 6 August 2019, involving the respondent and another course participant.  As a result of that, the respondent was exited from the program.
  1. [15]
    A report prepared in relation to the respondent’s removal records that he had completed 210 hours of the program, and four out of the seven modules.  The total time to complete the program is 351 hours, so the respondent has completed almost two-thirds.[3]  However, it was said that he had demonstrated limited efforts to engage in behavioural change throughout his participation in the program.  Specifically, he is said to have frequently engaged in disruptive behaviour, and passive aggressive communication.[4]  The completion report[5] records that whilst his acknowledgment of such behaviour developed, he continued to engage in behaviour of this nature frequently.  The completion report also notes that:

“Prisoner Boulton presented with responsivity concerns pertaining to his motivation to explore his offending behaviour.  Specifically, several barriers were identified regarding his disclosure of thoughts and motivations linked to his offending behaviour.  He reported this primarily revolved around perceived risk to the community and a belief that if he were to disclose fully, his Dangerous Prisoner Sex Offender Act (DPSOA) order would be extended further.”

  1. [16]
    Both Dr Timmins and Dr McVie agreed that this last observation is concerning; although Dr McVie commented that it is not what the respondent expressed to her when she interviewed him.  She said “he didn’t express that he was hiding things because he thought he’d be detained longer.  He expressed that he didn’t want to disclose things in that environment [the HISOP] because he didn’t have faith in the facilitators and he didn’t think they’d understand what he was talking about.”[6]
  1. [17]
    The incident that led to his removal from the program was an allegation that he perpetrated sexual assault against another group member.  It appears from the records annexed to Ms Monson’s affidavit filed on 6 December 2019 that following consideration of the allegation by a Queensland Corrective Services (QCS) officer, the respondent was found not guilty “due to lack of supporting evidence”.   That determination was made on 1 September 2019.
  1. [18]
    The following appears in the recent report of Dr Timmins, psychiatrist, in relation to this incident (at p 34):

“He was exited from the program in August 2019 after allegations he was the perpetrator of two sexual assaults on a co-offender during a break on the program.  He denies his involvement in these assaults although did have problems with the co-offender stating he breached his trust, contacted Mr Boulton’s alleged girlfriend and requested photographs of children whom Mr Boulton identifies as his own.  Mr Boulton has a pattern of committing sexual assaults motivated by revenge which would fit with this current incident.

He had another allegation of sexualised behaviour in the units in July 2019 prior to these issues.  He denied he was involved and after investigation he was not breached.

However, it is concerning that there are three allegations of sexual assault by Mr Boulton during July and August 2019.

In addition, leading up to the allegations of sexual assault during the HISOP program in August 2019, Mr Boulton was observed to have behaviour that was problematic, deceptive and disruptive within group sessions.  There were some missed sessions as well.  His psychopathic personality caused a number of issues for him and there were discussions pertaining to him being exited from the course earlier than the August incident.”

  1. [19]
    According to the affidavit of Ms Carah, filed 6 December 2019, at [25], the respondent will not be reassessed for HISOP until the alleged victim of that assault has completed the program.   In addition, other offenders on the waiting list for the program will be prioritised.  She estimates the next available position for the respondent may not be until January 2021.
  1. [20]
    The recommendations contained in the completion report are as follows:

“Prisoner Boulton demonstrated limited efforts to engage in behavioural change throughout his time in the High Intensity Sexual Offending Program (HISOP).  He identified limited protective factors at this time which would assist in safe reintegration back into the community. 

Given prisoner Boulton did not complete the HISOP, his identified treatment needs remain outstanding.  These being significant social influences, capacity for relationship stability, general social rejection/loneliness, lack of concern for others, impulsive acts, poor problem solving, sex drive/preoccupation, sex as coping, deviant sexual preference and cooperation with supervision.  Limited gains were evident in terms of his awareness of difficulties with emotional identification and lack of care for others due to poor perspective taking skills.  Prisoner Boulton demonstrated an ability to intellectually understand many concepts however he struggled in being able to internalise and apply these to self.

Prisoner Boulton was identified as having treatment needs in the area of deviant sexual interest given the pattern within his victim typology and interests in BDSM behaviours ie inflicting pain and having sexual control.  Prisoner Boulton maintained revenge was his primary motivation for offending throughout his program participation, however the prisoner’s resistance to exploring his offending in detail made it difficult to ascertain additional contributing motivators.  As such, screening of this treatment need remains largely outstanding and further assessment of such would prove instrumental in identifying his level of risk.  It is thus recommended the prisoner engage with a psychologist and/or counsellor to determine the weight of this treatment need. …”

  1. [21]
    The respondent has been further assessed, for the purposes of this review, by two of the psychiatrists whose evidence was previously before the Court:  Dr Timmins and Dr McVie.
  1. [22]
    He was interviewed by Dr Timmins on 11 October 2019, following which Dr Timmins prepared a report dated 12 November 2019.
  1. [23]
    In terms of diagnosis, Dr Timmins says (at pp 32-33 of her report): 

“I continue to be of the opinion Mr Boulton probably does have deviant sexual fantasies and urges.  He is sexually attracted to both males and females with his attraction to females extending to early pubescent females.  His sexual attraction to males is less likely related to paedophilic urges and more likely related to other motivations, eg for revenge.  He seems to be relatively indiscriminate in his choice of sexual partners.  However, I am uncertain as to whether he would meet the DSM-IV-TR criteria for Paedophilia per se.  I cannot completely rule out a paedophilic attraction to males however.

Some of his sexual offending is related to revenge fantasies.  He tends to use sexual behaviours as a form of retaliation which may link with his enjoyment of bondage, discipline, sadism and masochism (BDSM).

I found evidence suggesting the presence of Sadism.  I am less convinced he has Masochism.  He may have other paraphilias that he has not admitted to yet.

He has Anti-social Personality Disorder with the presence of psychopathy.  He also has evidence of narcissistic traits.

He also has Polysubstance Abuse.  His substance use has continued intermittently whilst in custody.

He does not have an Axis I psychotic illness or a major mood disorder.

I do not think he is so impaired cognitively that he meets the criteria for Mental Retardation.  I also do not think he meets the criteria for Adult Attention Deficit Hyperactivity Disorder.”

  1. [24]
    Application of the various risk assessment instruments by Dr Timmins resulted in the following:  his score on the psychopathy checklist indicates the presence of psychopathy; on the HCR-20 he is considered a high risk of violence; and on the RSVP, a high risk of sexual re-offending.  On the Static-99R, his risk is high or well above average, when compared to that of the average sex offender.
  1. [25]
    In relation to the last assessment, the Static-99R, Dr Timmins scored the respondent 9.  There was evidence before the Court, in a further affidavit of Ms Carah, an employee of QCS, filed in Court on 10 February 2020, that she recently re-administered the Static-99R assessment of the respondent, leading to a score of 11.  In contrast, Dr McVie’s assessment resulted in a score of 6.  On any of those scores, the respondent is in the “well above average risk” category.  In her oral evidence, Dr McVie explained that the different outcome may be because she did not include, in her assessment, matters from the respondent’s apparent criminal history that were only referred to in unofficial records, such as correspondence, which explains the lower score in contrast to Dr Timmins’ result.   Dr McVie said she could see how a result of 9 could be achieved; but not a result of 11.[7]   I do not consider this particular issue has any real impact on the matters I have to decide; but to the extent it does matter, I prefer the evidence of the two experts, to that of Ms Carah.
  1. [26]
    In the “opinions and recommendations” section of her report, Dr Timmins records the following:

“Mr Boulton presented with prominent psychopathic traits in interview.  He was minimising his involvement in any assault and attempting to be perceived as a victim, pointing out he had also been assaulted.  Positive impression management was obvious and he admitted to the major driver of his engagement in the HISOP was to show the court he had done the course.  He was disappointed he could not do this now.

The transactional nature of his relationships was also clear and he readily admitted to using some things to his advantage.  His lack of respect for authority was also prominent and it appears he often pushes boundaries.  He admitted to enjoying getting away with behaviours that show he has little respect or regard for the rules.

He has again not put the opportunity that HISOP offered to good use which is a pattern of behaviour that Mr Boulton continues to use.  It appears that little has changed since he was placed on the Continuing Detention Order.  His personality traits will continue to cause a problem for him and raise his risk of sexual offending in additional to general and violent offending.

He has admitted to Subutex use which continues intermittently in custody.  This is a risk factor for him with his sexual offending.

He continues to think that he knows best and does not need to put any work into managing his own risk to the community.  His plans for release reflect this issue in that he appears to rely on others to put a structure around him thus he does not need to do anything himself.  There is an obvious lack of commitment to his own rehabilitation and preparation to be released into the community.”

  1. [27]
    Dr Timmins expresses the opinion that the respondent’s risk of sexual reoffending remains high if released into the community without supervision.  In Dr Timmins’ view, he is at risk of reoffending sexually and also in other ways, with or without violence.  His potential victims are male and female, adult and underage.  He may engage in grooming behaviour and use substances to ensure compliance.  There will be raised risk when he feels stressed, slighted, rejected or angry.  His risk is raised when intoxicated or using substances, which he continues to use in custody.  There may be an element of planning, or he may act impulsively.  There would be physical and psychological coercion involved in the offending, and a high degree of harm to the victim.[8]  
  1. [28]
    Dr Timmins considers that with supervision the risk would continue to be moderate to high, given that he appears to have learnt very little during the HISOP program, has engaged in disruptive and deceptive behaviour through the program which has led to sexual assault allegations and an eventual exit from the HISOP program, has continued intermittent substance use and has very few plans for his release.[9]  
  1. [29]
    Dr Timmins says that she continues to be of the opinion that he requires treatment for his sexual offending, before he is released.  But given his behaviour in the HISOP course, this now would best be done with individual psychological therapy with an experienced forensic psychologist.[10] 
  1. [30]
    Dr Timmins also says (at p 36) that she is:

“guarded as to how successful supervision will be under a DPSOA Order given his previous history with previous supervision under community-based orders, despite the rigours of a Community DPSOA order.  His psychopathic personality, his propensity to use substances and use of sexual behaviours to retaliate against others will cause him issues in the community.”

  1. [31]
    In her oral evidence at the hearing in relation to this issue, Dr Timmins said she considers the respondent’s past history of breaching or disregarding the requirements of previous orders is a concern and needs to be taken into account when thinking about his potential behaviour in the community.  But she said it is also relevant that he has now spent five years in custody, and it is to be hoped there has been a “measure of maturation”, such that he might take things more seriously if released into the community on a supervision order.[11]   Dr McVie said she was less concerned about his past history with supervision, because a supervision order under the Dangerous Prisoners (Sexual Offenders) Act is “much more structured and rigid and contained than any other supervision order he’s ever been on” and, in addition, he has now spent a long time in jail, so he is used to being given directions by QCS officers and knows what happens when you don’t comply.  Dr McVie’s view is that the respondent would comply.[12]
  1. [32]
    Further to her opinion expressed in the report, recommending against release on a supervision order at this time, Dr Timmins observed that the respondent exited the HISOP before doing the modules relating to sexuality and managing emotions, which she regards as “significant in that they may have helped him really understand himself and why he acts in a particular way towards others, and particularly in a sexually aggressive way towards others”.  She regards the respondent’s inability to understand why he behaves the way he does, and his pathway to offending, as a concern from a risk perspective.[13]  Although the respondent disclosed revenge as a motivator for his prior offending, Dr Timmins said she believes there are other motivators as well, observing that she cannot rule out paedophilic interest in underage children, substance abuse issues, and committing a sexual offence in the context of another violent offence.[14] 
  1. [33]
    As already noted, Dr Timmins considers one on one treatment is appropriate and necessary for the respondent, but says this should be undertaken before he is released.  In her oral evidence, she explained her reasoning as follows:

“Because I think at this current time we haven’t really moved too far forward from where we were a couple of years ago, and I think giving a period of time where he’s engaged meaningfully in one on one treatment with an experienced psychologist will help him understand himself, how – how his emotions can contribute to his offending, and how other motivations can contribute to his offending, and that will help him manage himself and his dynamic risk factors more meaningfully in the community.  At the moment, if we release him at this point of time, we’re simply relying purely on the procedural aspects of a community supervision order, and given his previous history of supervision orders, his disregard for authority, his psychopathic personality traits, I think he’s going to struggle with complying.  Going from custody into the community is a highly stressful time during a person’s life, and he’s going to have to manage things like finding himself accommodation … continuing his study, potentially work, not using drugs and alcohol, and just generally abiding by the rules of the supervision.  He’s going to be highly stressed.  And when he’s in a highly stressed situation, because he doesn’t really understand his emotions and how to control them, he’s then at a higher risk of then acting out, and usually that’s towards other people, and that can include the risk of penetrative sexual contact offences.  … I think if [he] undergoes a period of time with individual intervention he can understand himself more and then contribute to his management of his risk factors in the community.”[15]

  1. [34]
    Dr Timmins said she considered it important, in this context, for a person to contribute to their own management; not just to rely on the procedural aspects of a supervision order.  She said she considers the respondent does have the capacity to engage and to learn about himself, and then he can have input into the management of his own risk in the community setting.[16]   She considers it important that a lot of the groundwork in this regard is done in a contained environment, that is, in custody.[17]
  1. [35]
    As to what she considers is the way forward for the respondent, Dr Timmins said:

“I think we have to look at his capacity for maturity, his ability to learn, his motivation to make a better future for himself and the possibility that we could have some gains with individual intervention with an appropriate psychologist – forensic psychologist, and I think that’s the way forward and that’s  where the hope lies.

… I think given the current situation and the possibility that he will breach orders and his anti-authoritarian view of other people, his lack of really understanding himself and contributing to his own risk management, particularly in dynamic risk management, I think it would be best for a period of time still in custody to learn how to manage himself in a better way.  I think that’s appropriate, and that will certainly help decrease the risk from what it is currently.”[18]

  1. [36]
    The respondent was interviewed by Dr McVie on 16 November 2019, and she has prepared a report dated 30 December 2019.  Her opinions in relation to diagnosis are largely consistent with Dr Timmins.  She considers he meets the criteria for antisocial personality disorder; displays the affective features of psychopathy; and also has substance use disorder.  She also identifies sexual deviance.  However, Dr McVie says that, although his sexual deviance is diverse, she does not think he meets the criteria for a diagnosis of paedophilia.  In this regard, she observes that other than one incident with a 6 year old boy, all his victims have been within five years of age, and he has not offended against boys under 16 since he was aged 15 years.  The victims of offences he committed at age 16 and 19 were both females.  He denies any sexual interest in or fantasies about children.[19]   Dr McVie also observes that some of his sexually deviant behaviours could be seen as developing in the context of his having been sexually abused himself as a child, then recreating the behaviour with other young boys.[20]
  1. [37]
    As to that last matter, Dr Timmins’ view is that this may be a factor, perhaps particularly in the early offending, but said it is “very complicated”; she considered that as he got a bit older, 15 onwards, that may be a less likely explanation for his offending.[21]
  1. [38]
    Dr McVie is also of the opinion that the respondent poses a high risk of sexual reoffending, with sexual violence, as well as a high risk of further general criminal offending, including violent offending.[22]  In terms of the relationship between the risk of sexual reoffending and violent reoffending, by the respondent, Dr McVie said, in her evidence at the hearing:

“I think it’s extremely difficult to separate out these things in this man in particular because he’s so young and he’s got such a diverse history of general offending and sexual offending.  So there’s no clear pattern to what he does … or what he’s like and if there was a pattern you could predict what he’s going to do in the future.”[23]

  1. [39]
    Dr McVie refers to the respondent having significant treatment needs, which are outstanding, referring in this regard to the HISOP completion report.   Dr McVie also summarises, in the context of discussing the RSVP (Risk for Sexual Violence Protocol), that:

“Mr Boulon’s risk factors include chronicity of sexual violence, with behaviour over at least an eight year period.  He showed diversity, with change in victim type.  There is some associated physical coercion and definite psychological coercion.  He minimises his previous sexual violence and lacks self-awareness, either being unable to reflect on his own criminal behaviour or having a personality structure which results in his reframing his own role in a positive light and projecting blame on others.  Some of his problems may be related to his own history of being abused as a child.  I was unable to identify a stable pattern of deviant sexual arousal.  He does report considerable viewing of a variety of pornography.  He meets criteria for psychopathy, which is a significant risk factor.  He has a clear history of substance abuse, likely problems in relationships, employment, and with non-sexual criminality.  He has failed to benefit from rehabilitative services in the past, and in previous supervision.”

  1. [40]
    In terms of how the risk might manifest, as Dr McVie observes, “given his history of general criminal behaviour and his varied history of sexual offending, it is difficult to propose a clear scenario for sexual violence recidivism.  I previously considered the most likely to be sexual violence against a similar aged female who had rejected his advances.  In his current environment, it would be sexual violence or physical violence against another male prisoner”.[24]
  1. [41]
    Dr McVie concludes her report with the following:  

“Risk assessment, both actuarial and structured clinical judgment, continues to indicate Mr Boulton is at high risk of reoffending with sexual violence and he has high treatment needs.

His history clearly indicates a high risk of further general criminal offending.

My previous recommendation was, based on his history with education, and his score on the interpersonal and affective facets of the PCL-R, I would consider Mr Boulton would be difficult to manage in a group situation, and would, at best, be disruptive to others.  I considered Mr Boulton could learn more deviant behaviours, being exposed to a group of offenders with various different types of sexual offending, and that he would be unlikely to be able to develop any real remorse or victim empathy due to his psychopathic features.

It appears he has learnt further antisocial behaviours through his prolonged stay in custody with little progress towards decreasing his risk.  Information previously provided suggests no major problems with his behaviour in custody to early 2018, yet by mid-2019, he was becoming increasingly involved in incidents.

Despite the challenges he presents, my recommendation remains that he be released on a supervision order.

I would expect that his behaviour will continue to deteriorate in custody, particularly if he is recommenced in a group program without a lengthy period of individual therapy with an experienced clinician.

He requires intensive regular treatment on a one to one basis, with a therapist experienced in dealing with sexual offenders, young adults and persons with significant affective features of psychopathy. …”

  1. [42]
    Dr McVie also said, in her evidence at the hearing, that she considers it preferable for the respondent to engage in this intensive one to one therapy in the community, because if he is in the community he is going to have hope, and have an opportunity to practise the skills that he is learning, and he is going to be able to identify risks for himself more easily and then bring them back to therapy and address them in therapy as to how to manage them.[25] 
  1. [43]
    Dr McVie’s opinion, as articulated in evidence at the hearing, is that a supervision order would reduce the respondent’s risk to “at least moderate, possibly lower”.  However, she adds:  “The difficulty with this fellow is it’s really impossible to see what he’s going to do in the future because we don’t have a clear pattern of what he’s done in the past”.   She agreed that the way in which more things would be known about the respondent would be by his participation, successfully, in individual treatment from a psychologist.[26]
  1. [44]
    In response to a question from the Court, about whether it may be preferable for individual treatment to commence in custody, so that a determination could be made about whether the respondent was willing or able to engage with the therapist, before his release from custody, Dr McVie said she thought it would take him a long time to demonstrate some movement in his thinking, some insight – whether in custody or in the community – because of his underlying psychopathology.[27]  But Dr McVie agreed that it would have been helpful if, on this review, there was a report from a psychologist who had seen the respondent on a one to one basis, even if that was for only half a dozen times.[28]  Dr McVie acknowledged that the respondent will be a challenge and will be hard to work with – which is why she recommends individual treatment with an experienced psychologist.[29]
  1. [45]
    Unfortunately, after “exiting” the respondent from HISOP in August 2019, and despite finding him “not guilty” of the alleged sexual assaults, no steps were taken to engage him in any other – particularly individual – treatment, prior to 24 January 2020.  On that day the respondent was asked if he wanted to participate in “individual intervention”.  He declined.  As Ms Carah properly accepted, it is entirely conceivable that the respondent did not understand what he was being asked on 24 January.  His refusal therefore should not be taken as an indication of his unwillingness to engage in individual therapy.  Consistently with that, when he was approached again on 31 January 2020, the respondent indicated a willingness to participate in one on one treatment and, when asked about his different response a week earlier, the respondent said he had felt confused, believing it to be an intervention session, rather than an offer of individual treatment.[30]
  1. [46]
    Somewhat surprisingly, given the very clear recommendations by both Dr Timmins and Dr McVie, experienced psychiatrists, what had actually been arranged, by the time of the hearing on 10 February 2020, was an appointment with Dr Lars Madsen, psychologist, on 21 February 2020, to commence the first of five “motivational interviewing” sessions, the purpose of which is to determine the best course of action for the respondent – whether that is individual treatment, or re-enrolment in the group program.   These “motivational interviewing” sessions are not treatment; they are talking about whether he will engage in treatment.  In the face of the clear recommendation of two experienced psychiatrists, that the respondent is not suitable for the group program, and needs individual treatment; and the fact, in any event, that he would not be allowed to re-enrol in the group program until January 2021, this seems, with respect, an entirely unsatisfactory approach.  Ms Carah confirmed, in her oral evidence on 10 February 2020, that there is no obstacle to the respondent commencing individual treatment, without delay.  
  1. [47]
    Following the hearing, I requested further evidence of the arrangements for individual treatment which could and would be made.  An affidavit of Mr Bear, the acting manager of the High Risk Offender Management Unit sworn 14 February 2020 confirms that QCS has been in further contact with Dr Lars Madsen since the hearing on 10 February 2020; and that he is able to engage with the respondent for treatment, commencing with the first appointment on 21 February 2020, followed by weekly sessions, with a review of that treatment schedule after three months. 
  1. [48]
    QCS’ failure to make any arrangements for alternative treatment – relevantly, individual treatment with an experienced psychologist – before now, is not only unfortunate and unfair to the respondent, but also inconsistent with the very purpose for which the power is conferred on the Court, in appropriate cases, to order the continuing detention of a prisoner for control care or treatment, namely, to facilitate their rehabilitation.  As counsel for the applicant observed during the hearing, given the young age of this respondent, the focus should be on his treatment – that is, attempts at rehabilitation – not (merely) control.[31]
  1. [49]
    Although I am critical of QCS’ failure in that regard, I do place weight on the evidence from Mr Bear, in his affidavit filed on 10 February 2020, that based on the risks identified and expressed in the report of Dr Timmins, QCS is concerned that a supervision order cannot be reasonably or practicably applied to the risk posed by the respondent, and is concerned about the respondent’s ability to comply with such an order.  Mr Bear makes the point that QCS’ strategies for supervising offenders under the Act are necessarily informed by the expert psychiatric opinions provided to the Court in these proceedings, which usually identify the nature of the offender’s risk, including the circumstances that might indicate when an offender poses a heightened risk.  I infer from what Mr Bear says, that this is more difficult in a case such as this where the psychiatrists are unable, because of a lack of information (including on the basis of nondisclosure by the respondent) and the diversity of past offending, to articulate an offence pathway, including the circumstances that might indicate when an offender poses a heightened risk.[32]  As was emphasised a number of times in the course of the hearing, one of the main difficulties in this case is that there is a lot which is unknown about the respondent.[33]
  1. [50]
    The practical reality is that despite the failure of QCS to arrange appropriate individual treatment, and the unfairness which results for the respondent, it remains for this Court to apply the statutory test under the Dangerous Prisoners (Sexual Offenders) Act.
  1. [51]
    In that respect, the first issue to consider, on this review hearing, is whether to affirm the decision that the respondent is a serious danger to the community in the absence of a division 3 order:  s 30(1) and (2) of the Act.   As defined in s 13(2), a person is a serious danger to the community if there is an unacceptable risk that they will commit a serious sexual offence if they are released from custody, or released from custody without a supervision order. I am satisfied to the requisite standard that the evidence is of sufficient weight to affirm the decision made by this Court on 8 March 2018 to that effect.  The respondent concedes this. It is therefore appropriate to affirm the decision previously made in that regard.
  1. [52]
    The second issue is what order to make.  Relevantly, s 30(3), (5) and (6) provide:

“(3)  If the court affirms the decision, the court may order that the prisoner –

  1. (a)
    continue to be subject to the continuing detention order; or
  1. (b)
    be released from custody subject to a supervision order.
  1. (4)
    In deciding whether to make an order under subsection (3)(a) or (b) –
  1. (a)
    the paramount consideration is to be the need to ensure adequate protection of the community; and
  1. (b)
    the court must consider whether –
  1. (i)
    adequate protection of the community can be reasonably and practicably managed by a supervision order; and
  1. (ii)
    requirements under section 16 can be reasonably and practicably managed by corrective services officers.
  1. (5)
    If the court does not make an order under subsection (3)(a), the court must rescind the continuing detention order.”
  1. [53]
    The applicant contends the Court should order that the respondent continue to be subject to the continuing detention order; the respondent submits the Court should make an order for his release, subject to a supervision order.  However, as both counsel for the applicant and the respondent observed, this is a finely balanced and difficult matter, particularly given the young age of the respondent, and the divergent opinions of the psychiatrists, on the key question of whether the respondent ought to engage in individual treatment, at least to some extent, before he is released on a supervision order.
  1. [54]
    Although it may be difficult for a person in the respondent’s position to understand or accept this, the purpose of the Dangerous Prisoners (Sexual Offenders) Act is not punishment, but protection of the community against, and to facilitate rehabilitation for, certain classes of convicted sexual offenders.[34]   The paramount consideration is of course the need to ensure adequate protection of the community (s 30(4)(a)).
  1. [55]
    What constitutes an “unacceptable risk” is “a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty”.[35]  The test is not satisfied by evidence of any risk that the released prisoner may commit a further serious sexual offence.  What must be established by the Attorney-General, to the requisite standard, is an unacceptable risk, the determination of which involves a balancing of competing considerations.[36]  The notion of an unacceptable risk recognises that some risk can be acceptable consistently with the adequate protection of the community.[37]
  1. [56]
    In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates.[38]    It must also be acknowledged that the Act “does not contemplate that arrangements to prevent [a particular risk] must be ‘watertight’; otherwise orders under s 13(5)(b) [supervision orders] would never be made”.[39]  In this regard, as McMurdo J noted in Attorney-General (Qld) v Sutherland [2006] QSC 268 at [30]:

“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.”[40]

  1. [57]
    Upon careful consideration of the evidence, I have decided that the discretion conferred on the Court under s 30(3)(a) should be exercised by ordering that the respondent continue to be subject to the continuing detention order.  However, for reasons I will shortly explain, I consider it would be desirable for this order to be reviewed in a shorter period of time than the usual twelve months.
  1. [58]
    The consistent expert evidence is that the respondent poses a high risk of reoffending by committing a serious sexual offence, as well as other offending, including violent offending.   The opinions of the psychiatrists differ as to the effect a supervision order would have on reducing this risk.  Dr Timmins says such an order will “contribute to reducing his risk”, but she does not think it is going to reduce his risk to a high degree or a large amount.  She considers the respondent will still pose a moderate, or moderate to high risk of serious sexual offending, even if subject to a supervision order and in fact expresses doubt about whether such an order would be enough to manage his risk of serious sexual offending in the community.  Her prediction of how that risk may manifest is set out at paragraph [27] above.  Dr McVie stops short of trying to articulate how the risk may manifest, expressly acknowledging that it is difficult to propose a clear scenario, given his history of general criminal behaviour and his varied history of sexual offending.  That lends weight to Dr Timmins’ approach, in my respectful view.  Although Dr McVie favours release of the respondent, on a supervision order, she acknowledges that he is a complex individual, with many outstanding treatment needs, who will be difficult to work with even in individual treatment, and that it is “really impossible to see what he’s going to do in the future because we don’t have a clear pattern of what he’s done in the past”.  
  1. [59]
    It is appropriate, given the objects of the Act, and the paramount consideration under it, to adopt a cautious and conservative approach.  I acknowledge the force, logic and, quite frankly, fairness of Dr McVie’s recommended approach, and her observations about the benefits to the respondent of engaging in individual treatment in the community, rather than in custody.  I do not lightly decide this case, contrary to the careful and considered opinion of Dr McVie; including in circumstances where her prediction about the respondent’s difficulty participating in a group program such as the HISOP has eventuated.  On balance, however, I am not persuaded that the adequate protection of the community can be reasonably and practicably managed by a supervision order, at this time.  The absence of evidence of the respondent’s engagement in individual treatment with an appropriately qualified and experienced practitioner is a significant gap.   I am left with the view that to order the release now of the respondent, subject to a supervision order, would place a significant burden on QCS – one which Mr Bear deposes QCS is concerned about practicably managing – and importantly that it would pose a significant risk to the community, given the extent of the unknowns in the respondent’s case, which is unacceptable in the circumstances.  
  1. [60]
    Although this is a finely balanced case because of the evidence of the psychiatrists, I am firmly of the view that the discretion should be exercised in a manner which ensures greater protection to the community, not less; and consequently that the appropriate order is that the respondent continue to be subject to the continuing detention order.  However, while he continues to be so detained, treatment should be a priority, given the object and purpose of the Act is to facilitate the rehabilitation of a person such as the respondent. 
  1. [61]
    Under s 27(1C) of the Act, the next “annual review” of the continuing detention order must start “within 12 months” after the completion of the present hearing.   Accordingly, it is open to the Attorney-General to commence an annual review process in less than 12 months.   In addition, under s 28 the respondent may apply to the court for the continuing detention order to be reviewed at any time after the first review, if the court gives leave to apply on the ground that there are exceptional circumstances that relate to the prisoner.   It is not for me to prejudge the exercise of that power.  However, I do observe that, in the circumstances, including the young age of the respondent, the length of time he has been in custody, the circumstances in which his participation in the HISOP came to an end in August 2019, the subsequent delay on the part of QCS in making individual treatment available to him in custody, and the opinion of Dr McVie, this case is one which calls for a review of the continuing detention order within a shorter period than 12 months – perhaps more like six months – whether the Attorney-General initiates that process; or the respondent makes an application under s 28.
  1. [62]
    Understandably, Mr Bear deposes that Dr Madsen cannot accurately predict a timeframe for when the respondent will start to engage and at what time treatment gains will be evident.  Dr Madsen will, however, provide progress reports as to the nature and effectiveness of treatment, at appropriate intervals.  With the benefit of some evidence of the progress of the respondent in one on one treatment, the psychiatrists, QCS and, in turn, the Court, will be better placed to assess whether the risk can be reasonably and practicably managed by release under a supervision order, such as to render the risk acceptable in the circumstances.

Footnotes

[1]  Other material indicates the victim was 14 years old:  see, eg, Dr McVie’s report at pp 1 and 14.

[2]  Bold emphasis removed.

[3]  Evidence of Ms Carah at T 1-12 lines 10 to 14.

[4]  Exhibit AC-6 to Mr Connellan’s affidavit.

[5]  Exhibit AC-7 to Mr Connellan’s affidavit.

[6]  Dr McVie’s evidence at T 1-45.

[7]  See Dr McVie’s evidence at T 1-53.

[8]  See Dr Timmins’ report at p 35.

[9]  Ibid; see also Dr Timmins’ evidence at T 1-36.

[10]  Ibid.

[11]  Dr Timmins’ evidence at T 1-19 and T 1-36.

[12]  Dr McVie’s evidence at T 1-55.

[13]  Dr Timmins’ evidence at T 1-20.

[14]  Dr Timmins’ evidence at T 1-21.

[15]  Dr Timmins’ evidence at T 1-21 to 1-22.

[16]  Dr Timmins’ evidence at T 1-23.

[17]  Dr Timmins’ evidence at T 1-38.

[18]  Dr Timmins’ evidence at T 1-32.

[19]  Dr McVie’s report at p 23.

[20]  Dr McVie’s report at p 22.

[21]  Dr Timmins’ evidence at T 1-33.

[22]  Dr McVie’s report at pp 21-22.

[23]  Dr McVie’s evidence at T 1-44.

[24]  Dr McVie’s report at p 23.

[25]  Dr McVie’s evidence at T 1-49.

[26]  Dr McVie’s evidence at T 1-54.

[27]  Dr McVie’s evidence at T 1-55 to 1-56.

[28]  T 1-59.

[29]  T 1-60.

[30]  Affidavit of Daniel Bear, filed in court on 10 February 2020, at [46]-[48].

[31]  See at T 1-32; also at T 1-51.

[32]  Mr Bear’s affidavit, at [10]-[13].

[33]  See for example Dr Timmins’ evidence at T 1-25 to T 1-26; and Dr McVie’s evidence at 1-43, 1-44, 1-45 and 1-53.

[34]  See the objects of the Act, set out in s 3.  See also Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at 597 [34] per McHugh J, at [216] per Callinan and Heydon JJ.

[35] Attorney-General (Qld) v Sutherland [2006] QSC 268 at [30] per McMurdo J; see also Attorney-General (Qld) v Fardon [2011] QCA 111 at [20] per Chesterman JA.

[36] Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at [22], [60] and [225], referring to M v M (1988) 166 CLR 69; see also Attorney-General (Qld) v S [2015] QSC 157 at [40].

[37] Attorney-General (Qld) v Sutherland [2006] QSC 268 at [29] per McMurdo J.

[38] Attorney-General (Qld) v Beattie [2007] QCA 96 at [19] per Keane JA.

[39] Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39].

[40]  See also Attorney-General (Qld) v Bugler [2017] QSC 261 at [28]-[29]; and Attorney-General v Fardon [2019] QSC 2 at [4]-[5].

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Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Boulton

  • Shortened Case Name:

    Attorney-General v Boulton

  • MNC:

    [2020] QSC 13

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    17 Feb 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QSC 1317 Feb 2020Review of continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003; respondent affirmed to be a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); respondent continue to be subject to the continuing detention order made 8 March 2018: Bowskill J.

Appeal Status

No Status
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