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  • Unreported Judgment

Attorney-General v Hill

 

[2020] QSC 47

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Hill [2020] QSC 47

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

IAN MALCOLM CLAUDE HILL

(respondent)

FILE NO/S:

BS No 5977 of 2019

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2020

JUDGE:

Williams J

ORDER:

The respondent be released from custody subject to a supervision order containing the conditions appearing in Appendix 1 to these reasons.

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 was subject to examination by psychiatrists for the purposes of the application – where the applicant sought orders that the respondent be detained in custody for an indefinite term for care, control or treatment – where the applicant sought, in the alternative, that the respondent be released from custody subject to such a supervision order – where the applicant conceded that it was open on the evidence that adequate protection of the community could be ensured by a supervision order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA) – where the respondent conceded the need for a supervision order under Division  3  of Part  2  of the DPSOA  – whether the applicantpresents a serious danger to the community in the absence of asupervision order under Division 3 of Part 2 of the DPSOA – whether such an order should be made

Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 11, s 13, s 16

Attorney-General for the State of Queensland v Beattie [2007] QCA 96, cited

Attorney-General for the State of Queensland v Fardon [2011] QCA 111, cited

Attorney-General v Francis [2007] 1 Qd R 396, cited

Attorney-General for the State of Queensland v Lawrence [2009] QCA 136, cited

Attorney-General for the State of Queensland v S [2015] QSC 157, cited

COUNSEL:

M Maloney for the applicant

J Horne for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    This is an application by the Attorney-General for the State of Queensland for orders in respect of Ian Malcolm Claude Hill (the respondent) pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act).
  1. [2]
    The originating application dated 7 June 2019 seeks orders that:
    1. (a)
      pursuant to s 13(5)(a) of the DPSO Act, the respondent be detained in custody for an indefinite term for care, control or treatment;
    2. (b)
      in the alternative, pursuant to s 13(5)(b) of the DPSO Act, the respondent be released from custody subject to such requirements that this court considers appropriate.
  1. [3]
    Justice Flanagan, on 9 July 2019, ordered as follows:

“1. The application for a Division 3 Order be set for final hearing on 11 November, 2019.

  1. Pursuant to s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists named by this Honourable Court, being Dr Robert Moyle and Dr Michael Beech, who are to prepare independent reports, which are to be prepared in accordance with s 11 of the Act.
  2. Being satisfied that it is in the interests of justice, pursuant to s 39PB(3) of the Evidence Act 1977, the court directs that Dr Scott Harden, Dr Michael Beech and Dr Robert Moyle may give oral evidence to the court other than by audio visual link or audio link.
  1. Liberty to apply granted.”
  1. [4]
    On 8 November 2019, Davis J vacated the hearing set down for 11 November 2019. The hearing date was vacated to allow further time to obtain information on whether appropriate accommodation and related treatment and supports were available to allow the respondent to be released from custody on a supervision order under the DPSO Act, and to allow the psychiatrists to consider the material and to provide supplementary opinions on the sufficiency of the accommodation, treatment and supports available.
  1. [5]
    On 15 November 2019, Davis J ordered that the hearing of the originating application be adjourned for review on 13 December 2019 and the respondent be detained in custody until 4:00pm on 13 December 2019.
  1. [6]
    Further, on 13 December 2019, Davis J ordered the hearing of the originating application be adjourned for review on 20 December 2019 and the respondent be detained in custody until 4:00pm on 20 December 2019.
  1. [7]
    Further, on 20 December 2019, Davis J ordered the hearing of the originating application be adjourned for review on 7 February 2020 and the respondent be detained in custody until 4:00pm on 7 February 2020.
  1. [8]
    On 24 January 2020, Davis J ordered that the originating application be listed for hearing on 16 March 2020 and that the respondent be detained in custody until 4.00 pm on 16 March 2020.
  1. [9]
    The originating application was heard by me on 16 March 2020 and judgment was reserved. Accordingly, an order was made that the respondent be detained in custody until 4.00 pm on Friday, 20 March 2020.
  1. [10]
    At the hearing on 16 March 2020, the applicant relied on its Outline of Submissions dated 29 October 2019 (Outline) and its Supplementary Outline of Submissions dated 5 March 2020 (Supplementary Outline). The respondent relied on its Outline of Submissions dated 8 November 2019 (Respondent’s Outline).
  1. [11]
    Further, counsel for the applicant read a list of material relied upon by the applicant in relation to the application. The material relied on by the applicant consists of over 20 supporting affidavits and numerous risk assessment reports, including of Dr Scott Harden (22 January 2019, 11 November 2019 and 14 January 2020); Dr Michael Beech (dated 27 August 2019, 11 November 2019, 20 January 2020 and 2 March 2020); and Dr Robert Moyle (dated 8 October 2019, 8 November 2019, 8 January 2020 and 3 March 2020).
  1. [12]
    In the period from the filing of the originating application to the hearing on 16 March 2020, there has been considerable evolution in the evidence which has been presented to the court. This is reflected in the supplementary and further supplementary reports provided by the psychiatrists, particularly in response to the additional information in relation to the support to be provided to the respondent should he be released into the community.
  1. [13]
    In this regard, a bundle of relevant documents was tendered to the court and marked Exhibit 1, being the core information relied upon in respect of the application. This is a subset of the list of material read by the applicant.
  1. [14]
    Given the submissions made on behalf of the applicant and the respondent at the hearing on 16 March 2020, I have primarily had regard to the documents in Exhibit 1. However, as the court needs to be satisfied to the level as set out in s 13 of the DPSO Act, I have also had regard to the wider material read in support of the application.
  1. [15]
    A draft form of supervision order was handed up at the hearing on 16 March 2020. This is reproduced as Appendix 1 to these reasons, with amendments to the date to take account of the date of today’s order.

Factual background

  1. [16]
    The applicant’s Outline sets out the factual background of the matter at paragraphs [2]-[48]. The respondent accepts that these paragraphs fairly summarise the background facts.
  1. [17]
    Briefly, some of the background facts are as follows:
    1. (a)
      The respondent was born on 16 March 1975 at Rockhampton and is currently 45 years old.
    2. (b)
      The respondent’s criminal history started when he was 14 years old, and in addition to his sexual offending, it also contains offending of dishonesty, property, violence and breaches of bail.
    3. (c)
      In 1996, the respondent was convicted of two counts of indecent dealing with a child under 12 years; in 2011, he was convicted of committing a public nuisance and wilful exposure; in 2012, he was convicted of an indecent act in a public place; in 2013, he was convicted of two counts of indecent acts in a public place; and in July 2013, he was convicted of an indecent act in a public place, common assault and prohibition of possession of liquor in a restricted area.
    4. (d)
      The respondent has been sentenced on six occasions for offences of a sexual nature, commencing in his early twenties.
    5. (e)
      On 1 April 2016, the respondent was convicted, upon his guilty plea in the District Court at Rockhampton, to one count of assault with attempt to commit rape - domestic violence offence, and one charge of possessing more than the prescribed quantity of a type of liquor in a restricted area without a permit.
    6. (f)
      For the assault with intent to rape offence, Burnett DCJ sentenced the respondent to a period of four years and six months imprisonment.
    7. (g)
      For the liquor offence, he was sentenced to a period of six months imprisonment, to be served concurrently with the four year six month term.
  1. (h)
    Pre-sentence custody in the order of 314 days was declared as time already served under the sentence. It was ordered that the date on which the respondent was eligible for parole be fixed at 21 October 2016.
  2. (i)
    The respondent was due for release on 21 November 2019.
  3. (j)
    Substance abuse, principally alcohol, has contributed to the respondent’s offending. The respondent started drinking alcohol at a young age and it developed into a binge pattern in the order of one or two casks of wine per day.
  4. (k)
    The respondent was diagnosed with paranoid schizophrenia when he was 16 years of age and is currently a patient of the Prison Mental Health Service;
  5. (l)
    The respondent currently receives fortnightly depot anti-psychotic injections. He will require assistance from the Community Mental Health Service to ensure his mental state and medication is monitored.
  6. (m)
    The respondent is currently at the Capricornia Correctional Centre with a security classification assessed as high. His behaviour and conduct is considered generally acceptable with no breaches or incidents recorded.
  7. (n)
    He undertook a cognitive assessment in late 2018 and his general cognitive ability was estimated to be in the extremely low range, with his composite scores predominately falling in the extremely low range.
  8. (o)
    The respondent became eligible for parole on 21 October 2016 and has made two applications for parole. The most recent application for parole was refused in January 2018 because his nominated address was assessed as unsuitable and because he has outstanding intervention programs targeting sexual offending and alcohol abuse.
  1. [18]
    The applicant, in its Outline, characterises the respondent’s sexual offending as “diverse” but also as escalating to the most recent offence being assault with intent to rape. The applicant also submits that the choice of victim appears to be “random and opportunistic”, with the offending being “spontaneous and closely associated with alcohol intoxication”.

Issues

  1. [19]
    The issues for determination in respect of the application are as follows:
    1. (a)
      Whether the court is satisfied the respondent is a serious danger to the community in the absence of a Division 3 order; and
    2. (b)
      If the court is satisfied in respect of (a), taking into account the matters set out in s 13(6) of the DPSO Act, whether it is appropriate to order that:
      1. the respondent be detained in custody for an indefinite term for control, care or treatment; or
      2. the respondent be released from custody subject to the requirements considered appropriate.

Position of the parties

  1. [20]
    At the hearing of the originating application on 16 March 2020, the applicant maintained the application in the alternative.
  1. [21]
    However, in this regard, I note the applicant’s position set out in its Supplementary Outline:

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

  1. Since the initial hearing date for this matter, further material has been provided setting out the extent and range of NDIS funding, future OT assessments upon release from custody, review of supports upon release from custody for the Respondent, mental health services available to the Respondent, the range of supports provided by QCS to the Respondent should he be released to a supervision order, a range of referrals made for the Respondent for individual ongoing psychological treatment, involvement with cultural groups and supports and that he will be provided with details for attendance on alcohol abuse support services. The availability of accommodation at the Rockhampton contingency accommodation has also been confirmed.
  2. This material has been considered by the three psychiatrists in this matter and commented on in a series of reports and correspondence from them as outlined above. It is now the view of all three psychiatrists that the range of supports, together with a supervision order, would be sufficient to lower the Respondent’s risk of sexual reoffending such that he could be released into the community subject to a ten year supervision order. Although there are concerns expressed by each of the psychiatrists, they ultimately consider that the supports are now at a sufficient level to consider that the risks could be reduced and managed by a supervision order.
  3. A draft supervision order is provided to the court.”
  1. [22]
    The Respondent’s Outline concludes:

“24. The psychiatric evidence supports the making of a supervision order, in concert with additional support. The respondent therefore submits that the respondent ought to be released on a supervision order.”

Serious danger to the community

  1. [23]
    Dealing with the first issue, it is necessary to make a determination whether or not the respondent is a serious danger to the community in the absence of a Division 3 order.
  1. [24]
    Section 13(2) of the DPSO Act provides:

“(2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—

  1. (a)
    if the prisoner is released from custody; or
  2. (b)
    if the prisoner is released from custody without a supervision order being made.”
  1. [25]
    Further, pursuant to s 13(3) of the DPSO Act, there is a mandated level of satisfaction required, namely:

“(3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—

  1. (a)
    by acceptable, cogent evidence; and
  2. (b)
    to a high degree of probability;

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

  1. [26]
    Section 13(4) of the DPSO Act outlines the information that the court must have regard to in deciding whether a prisoner is a serious danger to the community. This includes any reports prepared by the psychiatrist under s 11 and any other medical, psychiatric, psychological, or other assessment relating to the prisoner, the prisoner’s antecedents and criminal history. It also includes having regard to the risk that the prisoner will commit another serious sexual offence if released into the community, the need to protect members of the community from that risk and any other relevant matter.
  1. [27]
    ‘Serious sexual offence’ is defined in the Schedule to the DPSO Act as follows:

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

  1. (a)
    involving violence; or
  2. (b)
    against a child; or
  3. (c)
    against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”
  1. [28]
    Section 13(7) of the DPSO Act provides as follows:

“(7)  The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

  1. [29]
    The applicant, at [80] of its Outline, submitted relevantly:

“It is submitted there is sufficient cogent evidence, considering the matters required to be taken into account under Section 13(4) of the Act, to satisfy a court to the high degree of probability necessary, that if released without a Division 3 Order the respondent presents an unacceptable risk of committing a, ‘serious sexual offence’, as defined by the Act.”

  1. [30]
    Counsel for the respondent, in the Respondent’s Outline, made the following concessions:

“5. The consensus in the expert evidence is that the respondent’s  risk of sexual re-offence is high.

  1. The respondent concedes that the psychiatric evidence supports a finding, pursuant to s13(1) of the Act that the respondent is a serious danger to the community in the absence of a Division 3 order.”
  1. [31]
    In light of the evidence read in support of the originating application, in particular the psychiatric reports and supplementary reports provided in Exhibit 1, and having regard to the submissions made by the parties, I am satisfied by acceptable, cogent evidence and to the high degree of probability required by the DPSO Act that the respondent is a serious danger to the community in the absence of a Division 3 order. Accordingly, I find that the applicant has established, to the high degree of probability required, that if released without a Division 3 order the respondent presents an unacceptable risk of committing a ‘serious sexual offence’ as defined by the DPSO Act.

Which order, if any, should be made?

  1. [32]
    The subsequent issue to be determined is whether it would be appropriate to order a continuing detention order or, alternatively, a supervision order in respect of the respondent. Section 13(5) of the DPSO Act states:

“(5) If the court is satisfied as required under subsection (1), the court may order—

  1. (a)
    that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
  2. (b)
    that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).”
  1. [33]
    In determining what form of order should be made under s 13(5), it is necessary to consider the objects of the DPSO Act as set out in s 3 and also the considerations outlined in s 13(6).
  1. [34]
    Section 3 of the DPSO Act provides:

“The objects of this Act are—

  1. (a)
    to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and
  2. (b)
    to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”
  1. [35]
    Section 13(6) of the DPSO Act provides:

“In deciding whether to make an order under subsection (5)(a) or (b)—

  1. (a)
    the paramount consideration is to be the need to ensure adequate protection of the community; and
  2. (b)
    the court must consider whether—
    1. adequate protection of the community can be reasonably and practicably managed by a supervision order; and
    2. requirements under section 16 can be reasonably and practicably managed by corrective services officers.”
  1. [36]
    Section 16 of the DPSO Act provides:

“(1) If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner—

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

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

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

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

  1. (e)
    not leave or stay out of Queensland without the permission of a corrective services officer; and
  2. (f)
    not commit an offence of a sexual nature during the period of the order.
  1. (2)
    The order may contain any other requirement the court or a relevant appeal court considers appropriate—
    1. to ensure adequate protection of the community; or
    2. for the prisoner’s rehabilitation or care or treatment.”
  1. [37]
    The Court of Appeal in Attorney-General v Francis [2007] 1 Qd R 396 at [39] stated:

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

  1. [38]
    Also relevantly, McMurdo J in Attorney-General for the State of Queensland v S [2015] QSC 157 at [38] said:

“Other judgments of the Court of Appeal have expressed the present question somewhat differently. In Attorney-General (Qld) v Lawrence, Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof:

‘[I]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public

only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney- General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.’

Similarly, in Yeo v Attorney-General (Qld), Margaret McMurdo P (with whom White JA agreed) said:

“[73] Under s 13(6), the paramount consideration in determining whether to order a continuing detention order or supervision order is the need to ensure adequate protection of the community. This requires the judge to make a value judgment based on the evidence. It is impossible to eliminate all risk of criminal offending, including offending against children, from a community. A judge must determine what is adequate protection of the community in all the circumstances (Attorney-General v Sutherland [2006] QSC 268, [28]-[30]; Attorney-General v DGK [2011] QSC 73, [28]). The respondent has not persuaded me that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers. It follows that I must release the appellant on an appropriate supervision order.” (footnotes omitted)

  1. [39]
    Justice Chesterman, in Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at [29], stated:

“The concern which the psychiatric evidence raises is whether the supervision order will be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences. The risk of those offences is rated “low to moderate” with the intervention of the supervision order, but whether that order will perform as intended, given the respondent’s stated attitude to it, and his inclination to disregard it or circumvent it, was not the subject of consideration by the primary judge. Accordingly there may be doubt about the conclusion that the adequate protection of the community can be ensured by release on a supervision order.”

  1. [40]
    Further, in Turnbull v Attorney-General for the State of Queensland [2015] QCA 54 at [36], Morrison JA, with whom Philippides JA and Douglas J agreed, stated:

“…The means of providing the protection, and avoiding that risk, is a supervision order. When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection.”

  1. [41]
    The issue of whether a respondent will properly comply with the order was considered in the case of Attorney-General for the State of Queensland v Fardon [2011] QCA 155. In that case, the Chief Justice, with whom Fraser JA and Mullins J agreed, said at [29]:

“These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control. Of substantial present concern is the respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that “there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order”.”

  1. [42]
    The applicant sets out a summary of the statutory scheme and the relevant case law at paragraphs [76]-[86] of the applicant’s Outline. The respondent adopts the applicant’s summary.

Circumstances of the respondent

  1. [43]
    The respondent is a 45 year old indigenous man who is currently serving a four year six month sentence for attempted rape of his cousin (the index offences).
  1. [44]
    It is accepted by the various assessing psychiatrists, and in submissions, that substance use, most notably alcohol, has contributed to the respondent’s offending. The respondent’s alcohol use started at a young age and developed into a binge pattern with one or two casks of wine being consumed per day. I also note that there is evidence that he consumed methylated spirits and sniffed petrol as a teenager for a brief period of time.
  1. [45]
    There is also evidence that the respondent commenced smoking cannabis when he was 16 but discontinued some years later due to complications with his schizophrenia medication.
  1. [46]
    The respondent was diagnosed with paranoid schizophrenia when he was 16 years of age.
  1. [47]
    The respondent is currently receiving treatment through the Prison Mental Health Service, which is subject to regular review. There is evidence before the court that as recently as March 2018, he experienced both auditory and visual hallucinations.
  1. [48]
    The respondent currently receives fortnightly depot anti-psychotic injections and is also reported to take an anti-depressant nightly. The material concedes that he will require assistance from the Community Mental Health Service to ensure his mental state and medication is monitored should he be released.
  1. [49]
    During the respondent’s time in custody, there has also been several recorded incidents of self-harm: for example, slashing his wrists, usually in response to feeling anxious or stressed.
  1. [50]
    The respondent is currently at the Capricornia Correctional Centre and his security classification is assessed as high. The prison case notes, which are in evidence, indicate the respondent’s behaviour and conduct is considered generally acceptable, with no breaches or incidents recorded. He occupies his time in custody walking, going to the gym, praying and playing board games.
  1. [51]
    Between 25 July 2016 and 30 August 2016, the respondent completed the Getting Started: Preparatory Program at the Wolston Correctional Centre. The exit report from this program reported that although the respondent demonstrated limited insight into his sexual offending behaviour, he had accepted full responsibility for it. It was also noted that the respondent did not demonstrate a commitment to change and that the respondent’s motivation to complete treatment programs was driven by external factors (such as attaining release on parole), rather than any impetus to alter his behaviour.
  1. [52]
    It is also noted that the respondent’s level of engagement with the group participants and the program itself was limited. The respondent’s cognitive and psychological responsivity factors presented a barrier to his understanding and comprehension of the program.
  1. [53]
    Between 27 November 2018 and 26 March 2019, the respondent undertook individual treatment and assessment with Ms Shelley Jacks, Psychologist. This consisted of 10 sessions and it was recommended that the respondent would need to continue with psychological treatment.
  1. [54]
    In late 2018, Ms Jacks undertook a cognitive assessment of the respondent, which indicated that the respondent had a general cognitive ability estimated to be in the extremely low range. His composite scores predominantly fell in the extremely low range.

Previous sexual offending

  1. [55]
    On 2 April 1996 the respondent was convicted upon his guilty plea in the District Court at Rockhampton in respect of two offences of indecent dealing with a child under the age of 12 years and one count of break, enter and steal.
  1. [56]
    In respect of the indecent dealing offences, the first victim was a girl aged three and a half years who was playing in a tree in the school yard. The respondent was observed laying on top of the victim. The respondent admitted touching or rubbing the cheek of the victim’s bottom.
  1. [57]
    The second indecent dealing offence occurred two months after the initial offence and was aggravated by the respondent being on bail for the first indecent dealing and the break, enter and steal charges. The victim was a girl aged two years. The respondent was allowed to sleep in a bed under the house where the victim lived with her mother and brother. The respondent was not allowed into the house at night. One night the respondent was observed positioned over the bed of the victim, with the victim’s clothes and nappy having been removed. The respondent had ejaculated over the child’s stomach and touched the victim’s genital area while exposing himself to the victim.
  1. [58]
    The respondent was sentenced in the District Court at Rockhampton on 16 April 1996 to periods of two years and four and a half year’s imprisonment in respect of the indecent dealing offences. Parole eligibility was set at 18 months.
  1. [59]
    On 19 December 2003 the respondent was alleged to have indecently dealt with a 12 year old female relative. It was alleged that the victim had fallen asleep in the lounge room and she woke up with the respondent trying to remove her shorts. The respondent was charged but the charges did not proceed and were subsequently discontinued for reasons unknown.
  1. [60]
    In 2011, 2012 and twice in 2013 the respondent was convicted of indecent exposure- type offences:
  1. (a)
    14 July 2011 guilty plea of one count of wilful exposure and public nuisance. The offences involved the respondent pulling down his pants and exposing himself to a female employee at a Woorabinda bakery after he had informed her he found her pretty and would like to have sex with her. At the time the respondent was intoxicated and/or on a drug.
  1. (b)
    7 March 2012 – guilty plea of one count of indecent act in a public place. The offence involved the respondent entering a Woorabinda childcare centre in the early hours of the morning and sexually propositioning, and then exposing himself to, the female manager (who was the only person present at the time). The respondent was sentenced to three months imprisonment with immediate release on parole.
  1. (c)
    17 May 2013 – guilty plea to one count of indecent act in a place where the public are permitted access, indecent act in a place with intent to insult or offend any person, obstruct police officer in performance of duties and wilful damage of police property over a period of early March to mid-May 2013. In respect of the indecent act offences, the respondent was sentenced to period of six months imprisonment with parole from 17 July 2013:
  1. (i)
    The first indecent act offence involved the respondent approaching a female attendant at the counter at the BP service station at Duaringa with his pants down, exposing himself to her and then masturbating in front of her. He then requested that she give him a “head job” and she requested he leave. The police reported that the respondent appeared to think his actions were normal and acceptable behaviour.
  1. (ii)
    On 15 May 2013, the respondent attended the Woorabinda Multi- Purpose Health Clinic in respect of a leg injury and masturbated himself in front of the female doctor during the consultation.
  1. (d)
    15 July 2013 – guilty plea to one count of indecent act in any public place to which the public are permitted access and common assault. On 14 April 2013 the respondent was at the Woorabinda Hospital and was masturbating while awaiting consultation when the victim, a nurse, approached him and told him to stop. While the victim was attempting to usher the respondent out of the hospital, he grabbed her shoulders and attempted to pull her towards him. On both offences the respondent was sentenced to six months imprisonment with release on parole on 17 August 2013.

Currentoffences

  1. [61]
     On 1 April 2016, in the District Court at Rockhampton, the respondent was convicted on his guilty plea to one count of assault with intent to commit rape – domestic violence offence (and an unrelated count of possessing liquor in a restricted area without a permit).
  1. [62]
    At the time of the offence, the respondent was 40 years old and was 41 at the time of sentencing.
  1. [63]
    The offence occurred on 21 May 2015 as follows:
  1. (a)
    The victim was the respondent’s cousin. They had both been at a party in Woorabinda and they had both been drinking.
  1. (b)
    At 1.30am in the morning of 22 May 2015, the respondent and the victim left the party and went in search of further alcohol.
  1. (c)
    They ended up at the respondent’s residence where the respondent exposed himself to the victim in the kitchen. A physical altercation followed and the victim fell to the floor. The respondent tried to pull the victim’s pants down but was unsuccessful and then the respondent hit the victim on the head in an attempt to render her unconscious. The victim managed to escape.
  1. (d)
    The respondent made admissions to police when interviewed the next day. The admissions included that he had struck the victim in the head in an attempt to render her unconscious so he could have sex with her. He further admitted that had he done so, he would have had sex with her.
  1. [64]
    In respect of the intent to rape offence, the respondent was sentenced to a period of four years and six months imprisonment with parole eligibility fixed at 21 October 2016 (taking into account time served).

Expert evidence

  1. [65]
    The applicant’s Outline sets out, in considerable detail, the psychological and psychiatric reports in paragraphs [49]-[75]. The respondent accepts as accurate the summary of the expert evidence contained in these paragraphs.
  1. [66]
    The reports prepared up to October 2019, include:
    1. (a)
      Dr Scott Harden (Pre-Application Psychiatrist) - affidavit of Scott Harden dated 22 January 2019 (CFI No. 3);
  1. (b)
    Dr Michael Beech, Court-Appointed Psychiatrist - risk assessment report dated 27 August 2019 (CFI No. 21); and
  2. (c)
    Dr Robert Moyle, Court-Appointed Psychiatrist - risk assessment report, dated 8 October 2019 (tab H of Exhibit 1).
  1. [67]
    These initial reports identified a well above average risk of further sexual offending by the respondent and that this risk could be reduced with appropriate supported accommodation, ongoing mental health supports and treatment. However, at the time of the risk assessments, these supports were not in place, including the possibility of NDIS support.
  1. [68]
    The initial report of Dr Harden was prepared for the purpose of a risk assessment in respect of a potential application under the DPSO Act. The report followed an interview with the respondent on 17 December 2018 and provision of various files and transcripts.
  1. [69]
    Following this initial assessment, Dr Harden concluded at page 19 of his report:

“The actuarial and structured professional judgement measures I administered would suggest that his future risk of sexual reoffence 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 reduce the risk to low to moderate by decreasing his capacity for use of alcohol, monitoring his activity and enforcing further treatment intervention.”

  1. [70]
    Dr Beech was appointed by the court at the preliminary hearing for the purpose of a risk assessment pursuant to s 11 of the DPSO Act. The report followed an interview on 9 August 2019 and provision of the filed affidavit material.
  1. [71]
    Dr Beech concluded at page 15 to 16 of his report:

“On the Static-99R, I gave Mr Hill a score of 8. This places him in the range of risk that is much above the average sexual offender.

....

On the Hare Psychopathy Checklist Revised, I gave him a score of 22/40. This is elevated but not in the range of psychopathy.

In my opinion, if Mr Hill is released into the community, he is at high risk of re-offending. He has shown a sustained pattern of sexual offending. While it has been predominately indecent exposure, I think the offending has escalated and the 2016 offence represented a violent attempt to commit rape. In an intoxicated state, driven by exhibitionistic behaviours and fuelled by his sexual fantasies, I think that he is likely to expose himself to a victim and, if the situation allows, persist with his advances in pursuit of having sexual intercourse with the victim. The offending might involve physical coercion (as he did with his cousin) and I think that there is a moderate risk it would involve minors (as it did in 1996).

In my opinion, alcohol use and intoxication play a prominent role in his offending as does his idle unsupervised lifestyle and the lack of community supports. Mr Hill has been resistant to formal treatment generally, and realistically l do not think there is value in persisting with attempts to get him to do a group program. Given his cognitive impairments, mental illness, and cultural issues I think he would be more suited to individual therapy but this would need to go over a sustained period so that he could take in, process and retain the information, particularly in the community. I think that the Parole Board reports and the report of Dr Graham Yule indicate that in the community, under supervision and when abstinent, his behaviour is relatively settled. This is consistent with his behaviour overall in prison. If the circumstances can be arranged where he can go to an accommodation that is supervised, and where his abstinence can be monitored and supervised, and where he can access specialist individual therapy, then I think the risk of re-offending could be reduced to low.

This is a difficult set of circumstances though because of his mental illness, cognitive impairment, cultural attachments, and limited community supports. He may be able to access NDIS funding for this.

It is important that he abstains from substances. He needs psychological intervention that will need to be sustained and robust. Mental health services would need to be involved and he should continue to comply with treatment, although that does not seem to be a particular problem for him at present.

The difficulty would be finding stable accommodation in a supported environment away from substances and the negative influences of his peers.”

  1. [72]
    Dr Moyle was appointed by the court at the preliminary hearing also for the purpose of a risk assessment pursuant to section 11 of the DPSO Act. The report followed an interview on 5 August 2019 and the provision of the filed affidavit material.
  1. [73]
    Dr Moyle concludes at pages 24 to 26 of his report:

“[124] Mr Hill has paranoid schizophrenia under good control, a lifetime of slow learning and educational underachievement worsened by his decision at a young age to use substances for fun leading to intellectually slow learning and reasoning, and leads an entitled life with low regard for the rights of others, while regularly offending sexually, especially intoxicated, that worsens any capacity to comply his behaviours to the requirements of the law and a safe society. His intellectual functioning has been assessed at worst as that of a boy under 9

and we are not aware of any improvement on that. He is able to know what is right and wrong and choose to behave and accept the consequences of wrongful behaviour as he says to those who would have him learn a more prosocial lifestyle. He looks for release unrestricted to live where he is not welcome irrespective of his past behaviour simply on the basis of complying with oversight. In doing so he leaves little confidence he can live outside a supervised setting where he has clear rules to follow that he will largely adhere to when required. I see no such setting on offer.

  1. [128]
    In conclusion he is at well above average risk of offending sexually against isolated female adults and prepubertal children, irrespective of their wishes or the wishes of their guardians or the norms of society, even in their homes where they should feel safe…

  1. [129]
    In my opinion that risk will remain until he is safely supervised over a long period of 10 years as he is slow to learn and modify his behaviour and find a prosocial lifestyle, accepted in his community, despite the good intentions of his relative, in the first 40 years of his life.”
  1. [74]
    Further risk assessment reports were prepared prior to the 18 November 2019 date and following the adjournment, namely:
    1. (a)
      Dr Scott Harden (Pre-Application Psychiatrist):
      1. Supplementary risk assessment report, dated 11 November 2019 Exhibit “ET-10” to affidavit of Emma Thorsen (CFI No. 38);
      2. Further supplementary risk assessment report, dated 14 January 2020 Exhibit “SH-4” to supplementary affidavit of Scott Harden (CFI No. 37).
    2. (b)
      Dr Michael Beech, Court-Appointed Psychiatrist:
      1. Supplementary risk assessment report, dated 11 November 2019 (tab E of Exhibit 1);
      2. Further supplementary risk assessment report, dated 20 January 2020 Exhibit “ET-12” to supplementary affidavit of Emma Thorsen (CFI No. 38);
      3. Addendum risk assessment report, dated 2 March 2020 (tab G of Exhibit 1).
    3. (c)
      Dr Robert Moyle, Court-Appointed Psychiatrist:
      1. Supplementary risk assessment report, dated 8 November 2019 (tab I of Exhibit 1);
  1. (ii)
    Supplementary risk assessment report, dated 8 January 2020 (tab J of Exhibit 1);
  2. (iii)
    Addendum risk assessment report, dated 3 March 2020 (tab K of Exhibit 1).
  1. [75]
    In providing their supplementary opinions, each of the psychiatrists was provided with the affidavits identified below addressing the levels of support including accommodation and treatment which would be available to the respondent if he was released from custody, namely:
    1. (a)
      Affidavit of Jolene Monson, affirmed 4 November 2019 (CFI No. 25);
    2. (b)
      Supplementary affidavit of Jolene Monson, affirmed 12 December 2019 (CFI No. 33);
    3. (c)
      Supplementary affidavit of Jolene Monson, affirmed 19 December 2019 (CFI No. 34);
    4. (d)
      Affidavit of Daniel Bear, sworn 25 February 2020 (CFI No. 41).

Community support

  1. [76]
    The affidavit of Daniel Bear, the Acting Manager of the High Risk Offender Management Unit within Community Corrections, Queensland Corrective Services (QCS), sworn on 26 February 2020, outlines the most recently updated arrangements for the provision of support services to the respondent through the National Disability Insurance Scheme (NDIS) and QCS in the event the respondent is released on a supervision order following the final hearing.
  1. [77]
    The key aspects of the arrangements are summarised below:
    1. (a)
      The respondent has been allocated a placement at the Rockhampton contingency accommodation precinct which is approximately 30 minutes from the Rockhampton City Centre.
    2. (b)
      QCS will provide the following support:
      1. Engage with the respondent in regular case management activities which include an induction interview to outline the terms of his supervision order and associated requirements;
      2. Engage the respondent with his senior case manager on a regular basis to ensure compliance with his supervision order and provide assistance with his reintegration, with the initial direction being to meet with his case manager twice a week;
      3. Refer the respondent for psychological intervention with qualified Forensic Psychologist Dr Luke Hatzipetrou, with the treatment to be provided in consultation with QCS and to begin as soon as possible upon the release of the respondent;
      4. Refer the respondent for ongoing case management with Central Queensland Mental Health, with the frequency and level of engagement to be determined upon the respondent’s release to the community;
  1. (v)
    Provide the respondent with the contact information for the Alcohol and Other Drug Services in the Rockhampton area, and provide assistance to make initial contact, if required;
  2. (vi)
    Refer the respondent for engagement in the New Endings Men’s Program, being a men’s indigenous support group who can provide assistance with the transition from custody into the community;
  3. (vii)
    Review the respondent’s needs to identify any other relevant service providers to address those needs and make referrals as considered necessary.
  1. (c)
    NDIS support:
  1. On 19 November, the respondent’s NDIS plan stipulates the respondent has been approved for core support funding to help with his daily activities, current disability related needs and to work towards his goals of living independently.
  2. The respondent has been allocated an NDIS support co-ordinator to manage the respondent’s NDIS plan.
  3. The support to be provided through the NDIS plan is currently as follows:
  1. Up to 20 hours of community access with support per week, proposed to be allocated across three days being Monday, Wednesday and Friday, but will be determined and adjusted by the NDIS support co-ordinator in consultation with QCS upon the respondent’s release;
  2. The respondent will be supported to access the community with two support workers (2:1) with an assessment as to whether the hours of community access should increase or decrease and whether reduction of support to a ratio of 1:1 is warranted;
  3. The support will be used to assist the respondent to engage in activities or therapeutic support identified by the respondent and approved by QCS and to attend appointments identified by QCS;
  4. The NDIS support co-ordinator can arrange for a Functional Capacity Assessment to be completed;
  5. The proposed plan is flexible and it can be considered whether it is necessary to broaden his support and address his identified needs;
  6. A Supported Independent Living (SIL) application will also be considered and submitted on behalf of the respondent. This provides extra funding for supervising tasks of daily life in a supervised and shared living environment, either temporary or ongoing and is dependent on the level of support required.
  1. (d)
    QCS will continue to monitor and review the respondent’s needs to ensure that his current and future identified needs are being met, as far as practicable.
  1. (e)
    QCS will also source the necessary information and take necessary steps to monitor the consideration and progression of a SIL application.
  1. [78]
    The affidavit of Mr Bear also identifies that there is a need to manage the risk relating to potential cultural retribution that the respondent may face upon his release. Advice has been sought from a number of persons including consultation with the Cultural Elders and Justice Group. On balance, QCS considers that the respondent and any associated risk can be safely and effectively managed, should he be released to a supervision order by the court.
  1. [79]
    Mr Bear concludes that QCS will:
    1. (a)
      Continue to work in collaboration with the NDIS and community based services;
    2. (b)
      Ensure, as far as practicable, that appropriate and culturally sensitive supports and services are engaged; and
    3. (c)
      Review the respondent’s engagement and progress with these services in conjunction with the service providers, and amendments will be made as necessary.

Risk assessment reports

  1. [80]
    Previously, each of the psychiatrists voiced concerns about the level of support required and available to the respondent should he be released on a supervision order. The additional information in the above affidavits was provided for further consideration.

Dr Harden

  1. [81]
    Dr Harden provided an addendum report in relation to the respondent dated 14 January 2020 (which only addresses the revised arrangements and support identified at that time, prior to the affidavit of Mr Bear) and his opinion set out at page 3 to 4 of the report is as follows:

“OPINION

As I have previously noted Mr Hill has committed a series of sexual offences while intoxicated with alcohol and the unmodified risk of sexual reoffending is in the well above average range without intervention. In my opinion a supervision order and the associated constraints will still reduce the risk of sexual recidivism to low to moderate. This is regardless of the concerns raised regarding his capacity to self manage as the constraints of the supervision order would intervene to prevent easy access to alcohol intoxication and subsequent sexual re-offence.

Significant concerns have however been raised about his capacity to self manage in contingency accommodation. This has been appropriately progressed through the National Disability Insurance Scheme process.

I note that he will now get access to personal support for four hours on three days a week. While this is not optimal it should allow for enough community activities to assist with his activities of daily living and his need to undertake shopping, management of finances and similar matters as well as to attend appointments.

I also note that appropriately further assessments with an occupational therapist will be organised as part of the support package.

It may be that in very small contingency accommodation precincts such as 1Rockhampton (two persons) corrective services might also need to reconsider their prohibition on any kind of in-reach services.”

Dr Beech

  1. [82]
    Dr Beech provided an addendum report dated 2 March 2020 (considering the arrangements set out in the affidavit of Mr Bear). He sets out his opinion from page 2 of the report as follows:

“OPINION

In my opinion, Mr Hill remains at high risk of re-offending if he is released into the community without supervision. I have not altered the opinion that I wrote on page 16 of my report dated 27.08.2019. It is a complex matter involving mental illness, cognitive impairment, limited supports, and recurrent sexual offending aggravated by alcohol abuse, exhibitionistic behaviours and sexual fantasies.

In that report I thought the difficulty would be in finding stable accommodation for Mr Hill, providing appropriate supports, and keeping him away from alcohol and the negative influence of his peers. I think that these remain pertinent issues. As I stated in my addendum report dated 11.11.2019, where Mr Hill is abstinent and compliant with treatment for his mental illness and in a stable setting, he is not sexually preoccupied and so the offending risk is lowered. The difficulty is in helping him maintain that state.

In my email dated 20.01.2020, I thought that the NDIS plan at that time did not meet Mr Hill’s support needs, and in practical terms, I thought that over time he would be at risk of being unable to comply with a supervision order and be unable to look after himself independently.

I think that the more recent information about the NDIS plan, the supports that will be immediately available to Mr Hill, and the likelihood that there will be further assessments and that his support will be varied according to the assessed needs, indicate that the plan has more substance.

I think that the risk essentially is that Mr Hill will become bored and idle, be unable to manage himself in his accommodation, and then seek to leave it. He could access alcohol and in an intoxicated state

exhibitionistic behaviours and sexual fantasies will come to the fore. In an intoxicated, entitled and sexually aroused state he will expose himself. From there, the risk is that he will escalate his behaviours and assault someone in order to meet his sexual needs. The offending could span the spectrum of simple exhibitionism, persistent indecent entreaties on children or female minors, and attempts at indecent touching. At the high end, the spectrum would encompass an assault with an intent to commit rape or the indecent treatment of a child.

The new information indicates I believe that there are now significant supports available to him in the interim period, with a likelihood that those supports will be tailored to his needs in the longer term. Under those circumstances, I think that in the longer-term supervision is a more viable option. I think the supervision order would reduce the risk to low in the immediate period following his release, and assuming that appropriate supports are put in place after that occupational therapy assessment, that risk would remain low to moderate.

I think that the attached draft supervision order is appropriate.”

Dr Moyle

  1. [83]
    Dr Moyle provided an addendum report dated 3 March 2020 (considering the arrangements set out in the affidavit of Mr Bear). He sets out his opinions in response to specific questions from page 9 to 10 of his report as follows:

IN ANSWER TO YOUR QUESTIONS

Mr Hill's level of risk of sexual recidivism on release from custody on the 16th March 2020.

Mr Hill's risk of sexual recidivism is well above average without the conditions on the Supervision Order and the support network that has been planned. As much as can be done within the constraints of what is available at the present time is on offer. If he is adherent to treatment for his schizophrenia and for his potential paraphilias and rehabilitation for his institutionalisation and intellectual difficulties in adjusting, with close supervision and monitoring, I think the risk would come down to above average. The risk is of rape of children or adults, worsen at a time he is intoxicated or withdrawing.

ThenatureandtypeofoffenceMrHillislikelytocommitshould the riskmanifest.

As mentioned, the nature and type of offence varies from exposing himself and masturbating in front of somebody while inviting sexual activity, whether or not the partner is willing, through to indecent assault and attempts to rape children and adults. He is able to isolate a victim, although the latter is not necessary as he has offended in places with multiple adults present.

Are the matters deposed to in the Affidavit of Daniel Bear be an appropriate means for which to manage the risk, should I consider some form of management of the risk necessary (for example, a Supervision Order under the Dangerous Prisoners (SexualOffenders)Act),orcouldworktopotentiallydecreaseit?

As mentioned above, I think the risk is likely to decrease to above average and that is likely to occur at a time when he is not being supervised, managed or supported, but alone with his thoughts, impulses and urges, and with the capacity to act on those urges without close supervision and monitoring. The closer the supervision and the more frequent the contact with him, whether person to person through the NDIS support workers, or through telephone contact from his supervisor, asking how he is feeling today and what his plans are, the more it may lower risk. I am concerned however that given his vulnerability to impulsive behaviour and more importantly impulsive urges, that there remains quite a significant risk. Antilibidinal medications can lower risk of spontaneous sexual thoughts and preferentially paraphilic thoughts.

If I consider a Supervision order appropriate, the level of risk with the Supervision Order in place on Mr Hill's release from custody on the 16th March 2020.

I do consider a Supervision Order appropriate if he is to be released into the community. The level of risk as I have indicated would go down from very much above average risk to above average risk. The Supervision Order itself is detailed in its magnitude but is unlikely to be remembered in detail by Mr Hill. We rely therefore on his adherence to the Order and willingness to engage with the many health professionals and community support agencies involved with his care. If he does engage well on release, then it is possible the risk decreases still further. At present the lowest I can rate it is above average risk.

If I consider a Supervision Order appropriate, my comments with respect to the attached draft.

The attached draft seems appropriate.

Any other relevant matters.

I have repeatedly voiced my concern at the level of support I feel is necessary for Mr Hill to survive in the community without reoffending. I would have preferred daily contact by support workers, face to face, who may both assist, empathise and assess his state of mind to a degree that if they had any concerns they could contact the professionals involved in his care monitoring and/or supervision. I think at this stage I think he has done all he can in custody. I believe close support and empathic concern to his needs with ready capacity to respond quickly should there be any triggers such as his disappearance, or interference with the monitoring equipment, or attendance at a place where alcohol is found or where people may gather, should result in swift intervention to prevent a lapse into offending behaviours.”

Relevant considerations

  1. [84]
    Consistent with the statutory scheme and the case law, the relevant question is whether the protection of the community can be adequately ensured. An order for supervised release should, in principle, be preferred to a continuing detention order if the supervision is apt to ensure adequate protection.
  1. [85]
    The risk being protected against is the risk of the respondent, if released, committing a serious sexual offence and that risk must be of an unacceptable magnitude. The legislative scheme must accept that some level of risk is acceptable, consistent with the concept of adequate protection of the community.
  1. [86]
    The assessment of that risk and what terms of order would provide for adequate protection of the community is not a matter for expert, particularly psychiatric, opinion. It is a matter for the court. As recognised by McMurdo J in Attorney- General for the State of Queensland v Sutherland [2006] QSC 268 at [30], the exercise requires a:

“…value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”

  1. [87]
    While that is the case, I note that each of the three psychiatrists are now of the view that the combination of the range of supports now being offered (as set out in the affidavit of Mr Bear) and the terms of the proposed supervision order (in the terms handed to the court on 16 March 2020) would be sufficient to lower the respondent’s risk of sexual offending to a level such that he could be released into the community. Each of them also considers that a 10 year supervision order would be appropriate in all the circumstances.
  1. [88]
    I note that there are some residual concerns expressed by each of the psychiatrists but, provided an appropriate level of support for the respondent is maintained at a “sufficient level”, then they consider that the risks could be reduced to a suitable level and managed by a supervision order.
  1. [89]
    The applicant has the onus of demonstrating that a supervision order does not afford adequate protection of the community. If, on all the evidence, a supervision order would be likely to reduce the opportunity for the respondent to engage in sexual offences against girls and women to an “acceptably low level” then the supervision order should be made: Attorney-General for the State of Queensland v Beattie [2007] QCA 96, [19]. This is subject to there being some evidence that the respondent would be likely to comply with it: Attorney-General for the State of Queensland v Fardon [2011] QCA 155.
  1. [90]
    In making the “value judgment” required, I have considered the views expressed by Dr Harden, Dr Beech and Dr Moyle, and the evidence filed in support of the application. I find that the adequate protection of the community can be reasonably and practically managed by the terms of the proposed supervision order.
  1. [91]
    Further, I find that the requirements under section 16 of the DPSO Act can be reasonably and practicably managed by corrective services officers. This is particularly so given the detailed “plan” for the respondent as outlined in the affidavit of Mr Bear.
  1. [92]
    The terms of the supervision order specifically deal with some of the particular risks in respect of the respondent: curfew direction [14], computers and internet [22]-[24], no contact with any victim [25], rules about alcohol and drugs [26]-[31], rules about medicine [32], rules about rehabilitation and counselling [33]-[35], contact with children [38]-[42] and other specific requirements [43]-[47] . The inclusion of these provisions on their own goes a long way towards reducing the risks to an acceptable level.
  1. [93]
    The level of support for the respondent, given his mental health issues, his cognitive impairment and the need to avoid alcohol, is an essential “plank” in the management of the risk to a level adequate to protect the community. I am unable to mandate or make directions in respect of the community support or management by QCS. However, in the circumstances, I encourage the provision of the relevant risk assessment reports prepared by the psychiatrists and these reasons to the persons appointed to supervise, support and manage the respondent to assist them in understanding the importance of each aspect proposed.
  1. [94]
    The evidence in respect of the respondent’s compliance suggests that the maintenance of his engagement through the various proposed supports and management by QCS is a necessary element. The duration of the supervision order for a 10 year period is, in my view, appropriate to manage on-going engagement and compliance, particularly given the respondent’s cognitive impairment.

Conclusion

  1. [95]
    In summary, I have made the following findings:
  1. I am satisfied by acceptable, cogent evidence and to the high degree of probability required by the DPSO Act the respondent is a serious danger to the community in the absence of a Division 3 order. Accordingly, the applicant has established, to the high degree of probability required, that if released without a Division 3 order the respondent presents an unacceptable risk of committing a ‘serious sexual offence’ as defined by the DPSO Act.
  1. Adequate protection of the community can be reasonably and practically managed by the terms of the proposed supervision order.
  1. The requirements under section 16 of the DPSO Act can be reasonably and practicably be managed by corrective services officers.
  1. [96]
    Therefore, I order that the respondent be released from custody subject to a supervision order containing the conditions appearing in Appendix 1 to these reasons.

APPENDIX 1

THE COURT is satisfied that Ian Malcolm Claude Hill is a serious danger to the community. The rules in this order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003.

THE COURT ORDERS THAT the interim detention order made 16 March 2020 is rescinded.

THE COURT ORDERS THAT Ian Malcolm Claude Hill be released from prison and must follow the rules in this supervision order for 10 years, until 20 March 2030.

TO Ian Malcolm Claude Hill:

  1. You are being released from prison but only if you obey the rules in this supervision order.
  1. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison.
  1. You must obey these rules for the next 10 years.

Reporting

  1. On the day you are released from prison, you must report before 4 pm to a Corrective Services officer at the Community Corrections office closest to where you will live. You must tell the corrective services officer your name and the address where you will live.[1]
  2. A Corrective Services officer will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A Corrective Services officer might visit you at your home. You must let the Corrective Services officer come into your house.[2]

To “report” means to visit a Corrective Services officer and talk to them face to face.

Supervision

  1. A Corrective Services officer will supervise you until this order is finished.[3] This means you must obey any reasonable direction that a Corrective Services officer gives you about:
  1. a)
    where you are allowed to live;
  1. b)
    rehabilitation, care or treatment programs; and
  1. c)
    using drugs and alcohol; and
  1. d)
    anything else, except for instructions that mean you will break the rules in this supervision order.[4]

A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation.

If you are not sure about a direction, you can ask a Corrective Services officer for more information, or talk to your lawyer about it.

  1. You must answer and tell the truth if a Corrective Services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.
  1. If you change your name, where you live or any employment, you must tell a Corrective Services officer at least two business days before the change will happen.[5]

A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday.

No offences

  1. You must not break the law by committing a sexual offence.[6]
  2. You must not break the law by committing an indictable offence involving violence.

Where you must live

  1. You must live at a place approved by a Corrective Services officer. You must obey any rules that are made about people who live there.[7]
  2. You must not live at another place. If you want to live at another place, you must tell a Corrective Services officer the address of the place you want to live. The Corrective Services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a Corrective Services officer to live at another place.[8]

This also means you must get written permission from a Corrective Services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place.

  1. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a Corrective Services officer. You are allowed to leave Queensland only after you get written permission from a Corrective Services officer.

Curfew direction

  1. A Corrective Services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction.

Monitoring direction

  1. A Corrective Services officer has power to tell you to:
  1. (i)
    wear a device that tracks your location; and
  1. (ii)
    let them install a device or equipment at the place you live. This will monitor if you are there.

This is called a monitoring direction. You must obey a monitoring direction.

Employment or study

  1. You must get written permission from a Corrective Services officer before you are allowed to start a job, start studying or start volunteer work.
  1. When you ask for permission, you must tell the Corrective Services officer these things:
  1. what the job is;
  1. who you will work for;
  1. what hours you will work each day;
  1. the place or places where you will work; and
  1. (if it is study) where you want to study and what you want to study.
  1. If a Corrective Services officer tells you to stop working or studying you must obey what they tell you.[9]

Motor vehicles

  1. You must tell a Corrective Services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire.[10]You must tell the Corrective Services officer these details immediately (on the same day) you get the vehicle.

A vehicle includes a car, motorbike, ute or truck.

Mobile phone

  1. You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a Corrective Services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone.[11]
  2. You must give a Corrective Services officer all passwords and passcodes for any mobile phone you own or have. You must let a Corrective Services officer look at the phone and everything on the phone.

Computers and internet

  1. You must get written permission from a Corrective Services officer before you are allowed to use a computer, phone or other device to access the internet.[12]
  2. You must give a Corrective Services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a Corrective Services officer look at the computer, phone or other device and everything on it.
  1. You must give a Corrective Services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things.

No contact with any victim

  1. You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you.

“Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.

Rules about alcohol and drugs

  1. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) alcohol.
  1. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs.
  1. A Corrective Services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, spit (saliva), pee (urine) or blood when they tell you to do this.
  1. You are not allowed to go to pubs, clubs, hotels, nightclubs or bottle shops which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.
  1. You are not allowed to visit any business that is only licensed to supply alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.
  1. You are not allowed to visit a public park. If you want to go to a public park, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.

Rules about medicine

  1. You must tell a Corrective Services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a Corrective Services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.

Rules about rehabilitation and counselling

  1. You must obey any direction a Corrective Services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.
  1. You must obey any direction a Corrective Services officer gives you about participating in any treatment or rehabilitation program.
  1. You must let Corrective Services officers get information about you from any treatment or from any rehabilitation program.

Speaking to Queensland Corrective Services about what you plan to do

  1. Each week, you must talk to a Corrective Services officer about what you plan to do that week. A Corrective Services officer will tell you how to do this (for example, face to face or in writing).
  1. Each week, you must also tell a Corrective Services officer the name of any person you associate with.

“Associate with” includes: spend time with, make friends with, see or speak to (including by using social media or the internet) regularly.

Contact with children

  1. You are not allowed to have any contact with children under 16 years of age. If you want to have supervised or unsupervised contact with a child under 16 years of age you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to have contact with the child.

“Contact” means any type of communication, including things like talking with them face to face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way.

“Supervised” means having contact with the child while another person is with you and the child.

“Unsupervised” means having contact with the child while there is no other person with you and the child.

  1. If you have any repeated contact (that is, more than one time) with a parent, guardian or carer of a child under the age of 16, you must:
  1. (i)
    tell the person(s) about this supervision order; and
  1. (ii)
    tell a corrective services officer the details of the person(s).

You must do this immediately. This means you have to tell the person, and tell a Corrective Services officer, on the same day you have contact with the person.

  1. Queensland Corrective Services has power to give information about you, and about this supervision order, to any parent, guardian or caregivers that you have contact with.
  1. Queensland Corrective Services also has power to give information about you, and about this supervision order, to an external agency (such as the Department of Child Safety).
  1. You must not:
  1. (i)
    be at any school or childcare centre;
  1. (ii)
    be in a place where there is a children’s play area or child minding area;
  1. (iii)
    go to a public park;
  1. (iv)
    go to a shopping centre;
  1. (v)
    join any club or organisation in which children are involved;
  1. (vi)
    participate in any club or organisation in which children are involved.

If you want to do any of these things, you must first get written permission from a Corrective Services officer. If you do not get written permission, you cannot do any of these things.

Other Specific Requirements

  1. You must not collect any material that contains images of children, and dispose of such material if directed to do so by a Corrective Services officer
  1. You must not access child exploitation material or images of children on a computer or on the internet or in any other format.
  1. You must not access pornographic images on a computer or on the internet or purchase or obtain pornographic material in any other format without the prior written approval of a Corrective Services officer in consultation with the treating psychiatrist or psychologist.
  1. You must develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it as directed with a Corrective Services officer.
  1. You must notify a Corrective Services officer of all personal relationships entered into by you.

Footnotes

[1]Section 16(1)(a).

[2]Section 16(1)(b).

[3]Section 16(1)(d).

[4]Section 16(1)(daa) and (db)

[5]Section 16(1)(c).

[6]Section 16(1)(f).

[7]Section 16(2)(a).

[8]This also covers the requirement in s 16(1)(c) (to notify corrective services of a change in place of residence).

[9]Section 16(2)(a). This addresses the requirement in s 16(1)(c) also.

[10]Section 16(2)(a).

[11]Section 16(2)(a).

[12]Section 16(2)(a).

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Hill

  • Shortened Case Name:

    Attorney-General v Hill

  • MNC:

    [2020] QSC 47

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    20 Mar 2020

Litigation History

No Litigation History

Appeal Status

No Status