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  • Unreported Judgment

Attorney-General v Good

 

[2020] QSC 91

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Good [2020] QSC 91

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

ANTHONY CHARLES GOOD

(respondent)

FILE NO/S:

BS No 14127 of 2019

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

29 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2020 (on the papers)

JUDGE:

Williams J

ORDER:

Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be detained in custody for an indefinite term for control, care or treatment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent 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 under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA) –  where the respondent did not oppose a finding that he is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act of the DPSOA – where the respondent did not oppose an order that he be detained in custody for an indefinite term for his control, care or treatment – where the respondent did not oppose the making of a Continuing Detention Order – whether the applicant presents a serious danger to the community in the absence of a supervision order under Division 3 of Part 2 of the DPSOA – whether such an order should be made

Child Protection (Offender Reporting and Offender Prohibition Act) Act 2004

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 8, 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 for the State of Queensland v Fardon [2011] QCA 155, cited

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

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

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

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

Yeo v Attorney-General for the State of Queensland [2011] QCA 170, cited

COUNSEL:

R Berry for the applicant

M W C Harrison 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 Anthony Charles Good (the respondent) pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act).
  2. [2]
    The originating application dated 19 December 2019 seeks orders that:
    1. (a)
      Pursuant to s 13(5)(a) of the DPSO Act, the respondent, Anthony Charles Good, be detained in custody for an indefinite term for care, control or treatment.
    2. (b)
      In the alternative, that pursuant to s 13(5)(b) of the DPSO Act, the respondent, Anthony Charles Good, be released from custody subject to such requirements this honourable court considers appropriate and that is stated in the order.
  3. [3]
    The application was set down for hearing on Monday 20 April 2020.  On Friday 17 April 2020, with the consent of the parties, an order was made in chambers that the hearing date of Monday 20 April 2020 be vacated and that the application be determined without an oral hearing.
  4. [4]
    The applicant filed written submissions dated 8 April 2020 and supplementary submissions dated 14 April 2020.  The respondent filed written submissions dated 16 April 2020.
  5. [5]
    On 17 April 2020, the applicant provided a draft order in the terms of the applicant’s primary position: that is, the court orders that pursuant to s 13(5(a) of the DPSO Act the respondent be detained in custody for an indefinite term for control, care or treatment.  I mark the draft order Exhibit 1 and the draft order is reproduced as Appendix 1 to these reasons.

Factual background / criminal history and offences

  1. [6]
    The respondent was born on 21 July 1983 and is currently 36 years of age.  His current custodial sentence will end on 20 May 2020.
  2. [7]
    The respondent’s adult criminal history commenced in 2001 and contains numerous property offences, convictions for possession of dangerous drugs and drug paraphernalia, domestic violence offences and breaches of community based orders.
  3. [8]
    On 2 October 2013, the respondent was convicted of the offence of possessing child exploitation material.  Child pornography was found on an MP4 player and a mobile telephone after the respondent had pawned these devices.  Staff of the pawn shop found the material on the devices and notified police.  There were 363 images on the devices including images of very young children and babies.  Further, nearly 100 images were of penetration and two involved rape or bondage.
  4. [9]
    The respondent pleaded guilty and was sentenced to six months imprisonment and a three year probation period.  Following this offending, the respondent had told police that he had accidently come across and stored the images during searches for adult pornography.  The sentencing judge observed that this explanation was “inherently unlikely”.
  5. [10]
    Between 2015 and 2017, the respondent was dealt with on six occasions for breaches of reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Act) Act 2004.  These breaches included failure to report a change of address or failure to attend periodic reporting to police. 
  6. [11]
    Of concern, two of the breaches involved unreported contact with children:
    1. (a)
      On 21 August 2015, the respondent was convicted in the Bundaberg Magistrates Court on two charges of failure to comply with child offender reporting.  Upon a police check of his residence, it was discovered that the respondent had been living with two teenage children (and possibly one other child) and had not reported the presence of the children.
    2. (b)
      On 23 February 2016, the respondent was convicted in the Bundaberg Magistrates Court on two charges of failure to comply with child offender reporting and one charge of contravening police direction or requirement. 
  7. [12]
    Further, one of the offences related to the respondent being in the company of a 14 year old boy at a shopping centre and being in the company of three children of ages  six, 13, and 14 years in a room at a private residence.  These instances of contact were not reported to police.
  8. [13]
    On 1 August 2016, the respondent was convicted of one charge of using a carriage service to menace or harass and one charge of failing to comply with reporting.  The respondent had sent an image to the mobile phone of an adult female (with whom he had previously exchanged some text messages) showing himself sitting on a toilet with his erect penis exposed.
  9. [14]
    On 27 November 2017, the respondent was convicted in the Maryborough District Court on three counts of indecent treatment of children under 16 (child under 12 years), one count of indecent treatment of children under 16 (take photograph etc), three counts of making child exploitation material and one count of possessing child exploitation material.  These are the index offences.  He was also convicted of the offences of common assault, failing to comply with child offender reporting obligations and contravening a probation order.
  10. [15]
    This offending occurred at the home of a friend of the respondent’s partner who had nine children.  The respondent and his partner were visiting the friend’s home and the respondent was alone in the backyard with the children.  The respondent took a number of photographs including some of the young children being approximately three to four years of age.  The respondent pulled open the nappy of one of the girls and took a photograph of her exposed vagina, then used his fingers to spread the child’s vagina and took a photo.  Further, he then used his fingers to spread her buttocks and took a photograph of her exposed anus and vagina.  He also took further photographs, including further photographs where he exposed the girls’ vaginas by pulling open their nappies.
  11. [16]
    The respondent’s partner discovered images of the children on the respondent’s mobile phone and confronted him.  She reported the matter to police and upon investigating the respondent’s mobile telephone, police were able to recover deleted child exploitation material in addition to the photographs.  There were 491 images, which can be classified as falling within the most serious and the second most serious categories of material.
  12. [17]
    The respondent also disclosed to police that he had taken images of a child undressing at a swimming pool but had deleted those images.
  13. [18]
    The respondent was effectively sentenced to a total of three years imprisonment, with a parole eligibility date fixed at 21 March 2018.

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]
    The applicant submits that, having regard to the grounds required to be considered pursuant to s 13(4) of the DPSO Act, there is a clear basis for the requisite satisfaction that the respondent is a serious danger to the community in the absence of an order under Division 3 of the DPSO Act.  It is also submitted that there is sufficient and cogent evidence to satisfy the court to a high degree of probability that the evidence is of sufficient weight to justify such a finding.
  2. [21]
    In the circumstances, the applicant seeks an order that the respondent be detained for an indefinite period for control, care or treatment, being a continuing detention order.
  3. [22]
    The respondent’s outline of submissions states as follows:

“3. The applicant maintains that the Court would be satisfied to the requisite standard that the Respondent is a serious danger to the community in the absence of an order under Division 3 of the Act.  The Applicant maintains that, where the Court is so satisfied, the appropriate order is a continuing detention order.

  1. The Respondent does not oppose a finding that he is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act.
  1. Where the court finds that he is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, the Respondent does not oppose an order that he be detained in custody for an indefinite term for his control, care or treatment: he does not oppose the making of a Continuing Detention Order.

  1. In all the circumstances, it is conceded by the Respondent that this Honourable Court shall find that the Respondent is a serious danger to the community and that he should be detained in custody for an indefinite term under a Continuing Detention Order.  The Respondent does not contend for other orders under the Act.”

Serious danger to the community

  1. [23]
    Dealing with the first issue, it is necessary to make a determination as to whether or not the respondent is a serious danger to the community in the absence of a Division 3 order.
  2. [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
  1. (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
  1. (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.
  2. [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
  1. (b)
    against a child; or
  1. (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).”

Which order, if any, should be made?

  1. [29]
    If I am satisfied that the prisoner is a serious danger to the community, 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
  1. (b)
    that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).”
  1. [30]
    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).
  2. [31]
    Section 3 of the DPSO Act provides:

“The objects of this Act are—

(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

(b)  to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

  1. [32]
    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
  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. [33]
    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
  1. (b)
    report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and
  1. (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
  1. (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
  1. (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. (a)
    to ensure adequate protection of the community; or
  1. (b)
    for the prisoner’s rehabilitation or care or treatment.”
  1. [34]
    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 to use alcohol or drugs, he might abscond, the risk of a prisoner absconding is involved in every order under s 13(5)(b). The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”

  1. [35]
    Also relevantly, McMurdo J (as he then was) 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 for the State of Queensland, 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. [36]
    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. [37]
    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. [38]
    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”.”

Circumstances of the respondent and expert evidence

  1. [39]
    In the originating application, the applicant sought an order that pursuant to s 8(2)(a) of the DPSO Act, the respondent undergo examinations by two psychiatrists and for them to prepare independent reports in accordance with s 11 of the Act.
  2. [40]
    By order dated 21 January, Dr Josephine Sundin and Dr Elizabeth McVie were appointed by the court to prepare reports in this matter.
  3. [41]
    The following is a summary of the psychiatric and psychological evidence:
    1. (a)
      The respondent has previously completed the Getting Started: Preparatory Program, being a group based short program designed to prepare and motivate offenders who have committed a sexual offence for participation in more intensive programs.  During this program, it was noted by facilitators that the respondent “demonstrated limited insight into his sexual offending behaviour and did not accept responsibility for the offences for which he was convicted”.  He did, however, indicate a willingness to participate in future programs.
    2. (b)
      Subsequently, the respondent declined to participate in a medium intensity sexual offending program and declined participation in a number of substance use programs.
    3. (c)
      Alana Wood, psychologist, undertook a cognitive assessment report of the respondent.  Ms Wood assessed the respondent as having a low average cognitive ability overall.  Further, his non-verbal reasoning abilities fell within the average range and were significantly higher than his verbal reasoning abilities, which were in the low average range.  Further, Ms Wood assessed his difficulty in the area of working memory and this suggested that his ability to sustain attention and concentration, and to exert mental control, would be likely to cause him difficulties in day-to-day life.
    4. (d)
      Dr Michael Beech, consultant psychiatrist, prepared a report for Crown Law for the purpose of a risk assessment regarding a potential application under the DPSO Act.  The report is dated 25 July 2019.  Dr Beech’s views can be summarised as follows:
      1. If released into the community, the respondent’s risk of re-offending is high.
      2. A diagnosis of Paedophilia, most likely with an attraction to female children but this may not be ‘exclusive’ type.
      3. A diagnosis of substance abuse or dependence for cannabis and amphetamines (in enforced remission).
      4. A diagnosis of anti-social personality disorder.
      5. Assessed risk of re-offending as follows:
      1. Hare Psychopathy Checklist— a score of 26, which reflects elevated psychopathic traits.
      2. STATIC-99— a score of 8 which is considered to be “much above average” recidivism rate of sex offenders.
      3. Risk of Sexual Violence Protocol identified several risk factors which was identified as a ‘heavy dynamic load” of risk factors.
    5. (e)
      Dr Beech was also of the view that the respondent’s offending had escalated over the years.  Further, the respondent’s failure to comply with reporting conditions and continued unsupervised contact with children whilst subject to conditions was “a poor prognostic factor”.
    6. (f)
      Further, Dr Beech noticed that the respondent minimised or denied most of the offending and its extent.  This had been a feature of his offending from 2013 onwards.  Further, attempts at assessment and counselling had been unsuccessful because of the respondent’s “hostility, lack of cooperation and denial”.
    7. (g)
      In conclusion, Dr Beech considered that there was a high risk that, upon release, the respondent would return to “unstable living circumstances and resume substance abuse”.  Further, he was of the view that if the respondent were to re-offend: “I think there is a risk that this would progress further to digital penetration or worse over time.  Idleness, depression, intoxication and relationship problems are likely to heighten the risk of any one time”.
    8. (h)
      In conclusion, Dr Beech was of the view that it was difficult to see what a supervision order would do to reduce the risk, particularly given the history of poor response to supervision.  Dr Beech was of the view that the respondent requires engagement in a formal intensive sexual offender treatment program with an additional individual focus on sexual deviance.
    9. (i)
      Dr Elizabeth McVie, court-appointed psychiatrist, prepared a report dated 30 March 2020.  Dr McVie diagnosed the respondent with:
      1. Paedophilic disorder (non-exclusive, sexually attracted to females); and
      2. Cannabis use disorder and stimulus use disorder.
    10. (j)
      Further, Dr McVie noted that the respondent had some insight into his situation but did not directly admit to any sexual interest in children.  In summary, Dr McVie’s report found that:
      1. The respondent’s score on the relevant risk assessment instrument was suggestive of psychopathy, however did not present with the full complement of effective traits.
      2. The respondent characterised as having significant substance abuse.
      3. The respondent had a low-average IQ but did not have an intellectual disability.  He displayed symptoms suggestive of obsessive compulsive disorder and recommended a referral for assessment of these symptoms.
      4. The respondent scored a 7 on the STATIC-99R, placing him in the highest possible risk category being “well above average risk”.
      5. The respondent scored 29 out of 40 on the Hare Psychopathy Checklist, indicating a significant level of psychopathic traits which correlates with an increased risk of re-offending.
      6. TOn the risk for sexual violence protocol, a number of risk factors were identified.
    11. (k)
      Dr McVie assessed the respondent’s risk of sexual recidivism as high.  Further, Dr McVie recommended that the respondent complete the High Intensity Sexual Offenders Program in custody.
    12. (l)
      Dr Josephine Sundin, court-appointed psychiatrist, prepared a report dated 11 April 2020.  In summary, Dr Sundin was of the view that:
      1. The respondent met the criteria for a diagnosis of Paedophilic disorder (non-exclusive type, sexually attracted to females, not limited to incest).
      2. The respondent disagreed when suggested that he has a deviant sexual focus of that he is a paedophile.
      3. The respondent had anti-social personality disorder and substance use disorder in relation to cannabis and amphetamines.
      4. The respondent did not display any features consistent with a current diagnosis of attention deficit hyperactivity disorder.
      5. The respondent scored a 7 on the STATIC-99R, which places the respondent in the category being well above average for future sexual recidivism.
      6. On the Hare Psychopathy Checklist, the respondent scored 27 out of 40 which was an elevated score but not sufficient to attract the label of “psychopath”.
      7. Under the risk for sexual violence protocol, the respondent demonstrated significantly elevated risk factors.
      8. The respondent’s risk of sexual recidivism is in the very high range.  Future victims are likely to be young children, to whom access may be gained through parents by exploiting parental trust and ignorance.  Any victim is likely to be a vulnerable young girl and may range from toddlerhood to pre-pubertal years.
      9. There is a risk that the respondent’s offending will continue to escalate and progress to vaginal penetration.  This risk could be further escalated if the respondent reverted to use of “intoxicants” or relapse into “impulsive risk-taking behaviour to alleviate boredom”.
      10. A supervision order would reduce the very high risk to high, but would be insufficient to adequately protect the community.
      11. The respondent demonstrated himself to be manipulative and “appears to be a quite fluent liar”.
      12. The respondent had not participated in an intensive group treatment program or extended individual treatment from his sexual deviance.  This needed to be addressed before there could be any confidence that his risk in the community could be safely managed on a supervision order.
      13. The respondent’s participation in a treatment program could assist the respondent to acknowledge his sexual deviance, develop insight into the pathway to his offending and develop a recognition of his risk factors and develop a relapse prevention plan.
  4. [42]
    The respondent’s outline of submissions acknowledges:

“18. The experts concur that the Respondent should remain in custody currently, and that he should complete offence-specific treatment to address his risk levels, including the HISOP.”

  1. [43]
    The respondent’s submissions also state:

“9. The Respondent instructs that he will accept both group and individual offending-specific treatment as may be offered to him, where it is safe to access that treatment in the current custodial setting.”

Serious danger to the community

  1. [44]
    In light of the evidence relied on in support of the originating application, and in particular, the psychiatric reports, 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.
  2. [45]
    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.

Protection of the community

  1. [46]
    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.
  2. [47]
    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.
  3. [48]
    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 (as he then was) 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. [49]
    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 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.
  2. [50]
    There is clear evidence of the respondent’s poor record of compliance with previous community supervision orders and the act of rejection of individual treatment in the past.
  3. [51]
    Further, it is recognised by the psychiatric evidence that the risk is compounded by the respondent’s denial of his sexual deviance, limited knowledge or insight into his risk factors and an unrealistic plan for release.
  4. [52]
    All three psychiatrists have assessed the respondent’s risk of re-offending sexually as high (or very high in respect of Dr Sundin).  Further, all three psychiatrists have noted the importance of the fact that the previous attempts at assessing and counselling have been unsuccessful because of the respondent’s hostility, lack of cooperation or an act of rejection.
  5. [53]
    Dr Beech has provided a view that it is difficult to see how a supervision order would reduce the risk in circumstances where the respondent has a history of poor response to community supervision.
  6. [54]
    Dr McVie recommends the respondent stay in custody to complete an intensive sexual offender’s treatment program.
  7. [55]
    Further, Dr Sundin is of the view that a supervision order may reduce the risk from “very high” to “high” but remains concerned about the adequacy to protect the community in any event.
  8. [56]
    The three psychiatrists are all of the view that the respondent requires engagement in a formal intensive sexual offender treatment program in custody and also requires a formal plan for his release with a specifically focused plan to reduce his risk of re-offending.
  9. [57]
    On the evidence presented to the court, and particularly the psychiatric evidence, I am satisfied that a continuing detention order ought to be made.  This is particularly taking into account the need to ensure adequate protection of the community and also to enable the respondent to undergo the recommended treatment programs.

Conclusion

  1. [58]
    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, that 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.
  2. I am not satisfied that adequate protection of the community can be reasonably and practicably managed by conditions in a supervision order.
  3. The respondent be detained, pursuant to s 13(5)(a) of the DPSO Act, in custody for an indefinite term for control, care or treatment.
  4. Accordingly, I make the order in terms of the proposed draft set out at Appendix 1.

APPENDIX 1

SUPREME COURT OF QUEENSLAND

 REGISTRY: Brisbane

 NUMBER: 14127/19

Applicant

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

AND

Respondent

ANTHONY CHARLES GOOD

ORDER

Before: Justice Williams

Date: [    ] April 2020

Initiating document: Application filed 19 December 2019 (CFI No. 1)

THE COURT, being satisfied to the requisite standard that the respondent, Anthony Charles Good, is a serious danger to the community in the absence of a Division 3 Order ORDERS THAT:

  1. Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be detained in custody for an indefinite term for control, care or treatment.
Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Good

  • Shortened Case Name:

    Attorney-General v Good

  • MNC:

    [2020] QSC 91

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    29 Apr 2020

Litigation History

No Litigation History

Appeal Status

No Status