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Attorney-General (Qld) v S

 

[2020] QSC 164

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v S [2020] QSC 164

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

S

(respondent)

FILE NO/S:

BS No 2012 of 2015

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane 

DELIVERED ON:

10 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2020

JUDGE:

Williams J

ORDER:

THE COURT, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:

  1. The decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed; and
  2. The respondent continue to be subject to the continuing detention order made on 9 June 2015.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the respondent was detained under a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant applied for the order to be reaffirmed under section 30 of the Act – where psychiatrists previously opined that the respondent was a moderate to high risk of reoffending sexually if released under a supervision order – where the respondent refused to be assessed by psychiatrists for the purpose of the review – where psychiatrists considered that the drafting of adequate conditional release orders would only be possible if the respondent engaged with assessment – whether the applicant has discharged the onus to establish that the respondent should continue to be subject to a continuing detention order – whether the community could be adequately protected by a supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 27, s 30

Attorney-General for the State of Queensland v Anderson [2020] QSC 142, cited

Attorney-General (Qld) v S [2017] QSC 32, cited

Attorney-General (Qld) v S [2015] QSC 157, cited

R v S [2002] QCA 38, cited

COUNSEL:

M Maloney for the applicant

J Fenton for the respondent

SOLICITORS:

Crown Law for the applicant

Ashkan Tai Lawyers for the respondent

  1. [1]
    The respondent is the subject of a continuing detention order made by PD McMurdo J (as his Honour then was) on 9 June 2015[1] under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSO Act).
  2. [2]
    His Honour found:
    1. (a)
      That the respondent was a serious danger to the community in the absence of an order under Division 3 of Part 2 of the DPSO Act;[2] and
    2. (b)
      That the adequate protection of the community could not be ensured by the release of the respondent on a supervision order.[3]
  3. [3]
    In those circumstances, his Honour made a continuing detention order.
  4. [4]
    On 6 February 2017, Brown J conducted a review of the continuing detention order and on 13 March 2017 her Honour:
    1. (a)
      Affirmed the decision that the respondent was a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the DPSO Act; and
    2. (b)
      Ordered that the respondent continue to be the subject of the continuing detention order.[4]
  5. [5]
    On 30 April 2018, Lyons SJA undertook a further review (second review) of the continuing detention order and on 1 May 2018:
    1. (a)
      Affirmed the decision made on 9 June 2015 that the respondent was a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSO Act; and
    2. (b)
      Ordered that the respondent continue to be subject to the continuing detention order made on 9 June 2015.[5]
  6. [6]
    On 13 May 2019, Wilson J undertook a further review (third review) of the continuing detention order and on that date:
    1. (a)
      Ordered that the decision made on 9 June 2015 that the respondent was a serious danger to the community in the absence of a Division 3 order be affirmed; and
    2. (b)
      Ordered that the respondent continue to be subject to the continuing detention order made on 9 June 2015.[6]
  7. [7]
    An application was filed by the applicant on 4 March 2020 for a further review of the continuing detention order (fourth review).[7]
  8. [8]
    Following the hearing on 1 June 2020 I made orders in the terms of the draft provided by the applicant and marked Exhibit 1, namely:

“THE COURT, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:

  1. The decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed; and
  1. The respondent continue to be subject to the continuing detention order made on 9 June 2015.”
  1. [9]
    My reasons for making the orders are set out below.

Statutory context

  1. [10]
    The application is made pursuant to s 27(2) of the DPSO Act that the Supreme Court of Queensland review the continuing detention order made by PD McMurdo J on 9 June 2015, affirmed by Brown J on 13 March 2017, and further affirmed by Lyons SJA on 30 April 2018 and Wilson J on 13 May 2019.
  2. [11]
    The application seeks orders:

“3. That the court can be satisfied to the requisite standard, pursuant to s 30(2) of the [DPSO Act], that the respondent is a serious danger to the community in the absence of a Division 3 order.

  1. That pursuant to s 30(3) of the [DPSO Act], the respondent continues to be subject to the continuing detention order.
  1. Alternatively, that pursuant to s 30(3) of the [DPSO Act], the respondent be released from custody subject to a supervision order.”
  1. [12]
    Section 27 of the DPSO Act provides for periodic reviews as follows:

27  Review—periodic

  1. (1)
    If the court makes a continuing detention order, it must review the order at the intervals provided for under this section.

(1A)  The hearing for the first review and all submissions for the hearing must be completed within 2 years after the day the order first had effect.

(1B)  There must be subsequent annual reviews while the order continues to have effect.

(1C)  Each annual review must start within 12 months after the completion of the hearing for the last review under this section.

  1. (2)
    The Attorney-General must make any application that is required to be made to cause the reviews to be carried out.”
  1. [13]
    Section 30 directs the Court on the hearing of the review as follows:

30  Review hearing

  1. (1)
    This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.
  1. (2)
    On the hearing of the review, the court may affirm the decision 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 affirm the decision.

  1. (3)
    If the court affirms the decision, the court may order that the prisoner—
  1. (a)
    continue to be subject to the continuing detention order; or
  1. (b)
    be released from custody subject to a supervision order.
  1. (4)
    In deciding whether to make an order under subsection (3)(a) or (b)—
  1. (a)
    the paramount consideration is to be the need to ensure adequate protection of the community; and
  1. (b)
    the court must consider whether—
  1. (i)
    adequate protection of the community can be reasonably and practicably managed by a supervision order; and
  1. (ii)
    requirements under section 16 can be reasonably and practicably managed by corrective services officers.
  1. (5)
    If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order.
  1. (6)
    In this section—

 required matters means all of the following—

  1. (a)
    the matters mentioned in section 13(4);
  1. (b)
    any report produced under section 28A.”
  1. [14]
    Section 30 incorporates the term “serious danger to the community” which in turn encompasses the notions of “serious sexual offence” and “unacceptable risk”.  This in effect mirrors s 13 of the DPSO Act.
  2. [15]
    Section 13 of the DPSO Act provides as follows:

13  Division 3 orders

  1. (1)
    This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).
  1. (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. (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. (4)
    In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

(aa) any report produced under section 8A;

  1. (a)
    the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
  1. (b)
    any other medical, psychiatric, psychological or other assessment relating to the prisoner;
  1. (c)
    information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
  1. (d)
    whether or not there is any pattern of offending behaviour on the part of the prisoner;
  1. (e)
    efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
  1. (f)
    whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
  1. (g)
    the prisoner’s antecedents and criminal history;
  1. (h)
    the risk that the prisoner will commit another serious sexual offence if released into the community;
  1. (i)
    the need to protect members of the community from that risk;
  1. (j)
    any other relevant matter.
  1. (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. (6)
    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. (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. (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. [16]
    In the recent decision of Attorney-General for the State of Queensland v Anderson [2020] QSC 142, Davis J summarised the effect of s 13:

“[5] The effect of s 13 is:

  1. (a)
    the court must consider whether the prisoner is a “serious danger to the community in the absence of a Division 3 order”;[8]
  2. (b)
    a prisoner is a “serious danger to the community” where there is an unacceptable risk that the prisoner will commit a “serious sexual offence” in the absence of an order;[9]
  3. (c)
    a “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence; or … against a child …”;[10]
  4. (d)
    orders under Division 3 are:
    1. a continuing detention order;[11] or
    2. a supervision order;[12]
  1. (e)
    if there is a finding that the prisoner is a serious danger to the community in the absence of a Division 3 order, then the court may:
    1. make no order;
    2. make a continuing detention order; or
    3. make a supervision order;[13]
  2. (f)
    in determining what, if any order, to make “the paramount consideration is to be the need to ensure adequate protection of the community” from the commission by the prisoner of a “serious sexual offence”;[14]
  3. (g)
    if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;[15] and
  4. (h)
    if the adequate protection of the community can be ensured by a supervision order, then supervision ought to be preferred to the making of a continuing detention order.[16]

[6] The process of the assessment of risk in terms of the DPSOA was explained by McMurdo J (as his Honour then was) in Attorney-General for the State of Queensland v Sutherland[17] where his Honour said:

‘[30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.’[18]

  1. [17]
    Further at paragraph 10, his Honour helpfully summarised the process that is to be undertaken under s 30:

“[10] The process under s 30 involves the following steps:

  1. (a)
    determination of whether the respondent is a serious danger to the community in the absence of a Division 3 order;
  2. (b)
    if so, the court must determine whether adequate protection of the community can be ensured by the respondent’s release on a supervision order;
  3. (c)
    if so, then release of the respondent on supervision ought to be preferred to the maintenance of the continuing detention order; and
  4. (d)
    if not, then the continuing detention order ought to be maintained.”

Background to continuing detention order and previous reviews

  1. [18]
    PD McMurdo J summarised the relevant factual background as at June 2015 as follows:

“[2]  In May 2001 the respondent was sentenced to several terms of imprisonment amounting to a period of 16 years which expires on 10 June 2015. He was sentenced to 10 years imprisonment for maintaining a sexual relationship with a child with circumstances of aggravation over a six month period in 1988-1999. He was sentenced to concurrent terms of five and three years on a number of offences of assault occasioning bodily harm and the indecent treatment of a child who was under 12 years. He was sentenced to a cumulative term of six years for grievous bodily harm. Nearly two years of pre-sentence custody had been served. He was declared to be a serious violent offender.

[3]  These offences were committed against the respondent’s then partner and her young son. The offences were summarised by McPherson JA, in dismissing the respondent’s appeal against conviction and application for leave to appeal against sentence, as follows:[19]

‘The victim of the physical assaults was at the time his de facto wife. Most of them took place after she had, at his insistence, performed indecent acts which the applicant filmed for the purpose of setting up a pornographic business. Some of those acts consisted of performing acts of multiple sex with other adults. The assaults, some of which involved the use or threat of use of a dangerous instrument such as a garden fork, were carried out by the applicant because he was dissatisfied with the standard of the complainant's performance during those indecent acts.

One of the persons with whom she was forced to commit some of the sexual acts was her own nine year old son, who was also the victim of the sexual offences committed against the child to which I have referred. To crown this career of appalling behaviour, the applicant finally subjected the woman complainant to a prolonged and savage beating inflicting grievous bodily harm on her, including brain damage, fractures to facial bones and a severe injury to her left ear requiring plastic surgery.

In the course of his submissions in this Court the applicant, it may be noted, admitted that he had committed that assault causing grievous bodily harm.

He showed no remorse whatever for what he has done. The learned sentencing Judge described his behaviour as depraved and despicable. Those are strong words, but they are in my opinion fully justified. In the 20 years in which I have been on this Court, I have not seen a case in which the conduct of the accused was worse than this.’

[4]  The respondent has always maintained that he did not commit sexual offences against the child. He sought to explain his violent assaults upon his partner as attempts to protect the son from sexual misconduct by her.

[5]  He was born in 1973 and is now 41 years of age. Prior to the matters already mentioned, he had a criminal history for offences of violence, dishonesty and breaking and entering a dwelling house, for which he received various terms, including one of three years imprisonment for which he was required to serve 12 months. The offence of breaking and entering a dwelling house with intent was committed in October 1992. The sentencing judge then remarked:

‘I regard this as a very serious offence. Here we have a decent woman asleep in her own home where she should be safe. You come in the early hours of the morning and subject her to a terrifying ordeal. You say you went there for money, but from what she tells the police even if that were so your mind changed towards sexual matters. You told her to remove her knickers. She managed to escape you and she was punched as she eluded you.’

[6]  There are several recorded breaches during the respondent’s time in prison. Most involved disobeying the lawful direction of a corrective services officer. At least one involved an assault on another prisoner. Another, in 2013, involved an assault on a visitor.

[7]  He has completed a number of rehabilitative programs as follows:

  • Anger Management Core Program- completed 23 July 1997;
  • Substance Abuse Education Program- completed 28 October 1997;
  • Operate a Personal Computer- completed 9 December 2008;
  • Operate a Word Processing Application - completed 5 January 2009;
  • Operate a Spreadsheet Application- completed 19 January 2009;
  • Operate a Database Application- completed 3 February 2009;
  • Operate a Presentation Package- completed 20 February 2009;
  • Transitions Programs- completed August 2011;
  • Work Safely in the Construction Industry- completed 23 November 2011;
  • Present a Positive Image - completed 5 November 2012;
  • Apply Job Search and Interview- completed 29 October 2012; and
  • Stepping Up Program - completed 15 April 2013.

[8]  However he has not engaged in programs to address his sexual offending. If he is detained as a result of this application he will be waitlisted for the Getting Started: Preparatory Program (the “GS:PP”), which is described in the evidence as ‘a mandatory preparatory program designed to motivate offenders to participate and address their offending in a more intensive treatment program …’. It is not a treatment program as such. The records of Corrective Services indicate that in June 2012 he was offered a place in this program which he declined, stating that he was innocent in relation to his sexual offence convictions. There is a further record that in March 2013 he began but did not complete the GS:PP. There is also a record of the respondent being offered the GS:PP in May 2014, when again he maintained his innocence of any sexual offence and refused to attend any sexual offending programs.

[9]  Were he to complete the GS:PP, he could then be considered for what is described as an intervention program, such as the High Intensity Sexual Offending Program (HISOP), the Cognitive Self Change High Intensity Violent Offending Program (CSCP) or the Pathways High Intensity Substance Abuse Program.” (Footnotes omitted)

  1. [19]
    Following a review of the psychiatric evidence, his Honour undertook a consideration of the particular issues and concluded as follows:

“[34]  The respondent’s counsel did not challenge the evidence of any of the psychiatrists and it is conceded on the respondent’s behalf that the court would be satisfied that the respondent would pose a serious danger to the community if released without a division 3 order. But it is submitted for the respondent that adequate protection of the community could be provided by a supervision order.

[35]  I am satisfied that the respondent is a serious danger to the community in the absence of a division 3 order.[20] It is clear, in my view, that there is an unacceptable risk that he would commit a serious sexual offence if released from custody without any such order.[21] The respondent’s offending behaviour, his antisocial personality, the possibility that there is in his case an element of sadism or paedophilia, his denial of his sexual offending and the fact that he has not engaged in necessary treatment programs together combine to present that unacceptable risk.

[36] The question then is whether he should be detained or released under supervision. Counsel of the Attorney-General cited a recent decision of the Court of Appeal, Turnbull v Attorney-General (Qld).[22]  In that case, as in the present one, the prisoner had not undergone the HISOP. Morrison JA described evidence to the effect that there were ‘important gaps’ in what was known of that prisoner’s motivations and desires and that more needed to be known before it could be said that ‘his risk is one that can be managed’. In his conclusion, those ‘unknown factors’ prevented ‘the conclusion that adequate protection of the community could be ensured under a supervision order’.[23]

[37]  Morrison JA (with the agreement of the other members of the court) said that before making a supervision order rather than a detention order, ‘the court has to reach a positive conclusion that the supervision order will provide the adequate protection’.[24]

[38]  Other judgments of the Court of Appeal have expressed the present question somewhat differently. In Attorney-General (Qld) v Lawrence,[25] Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof:[26]

‘[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.’

[39]  It may be assumed that in Turnbull there was no intention to depart from those authorities because they were not cited. And although counsel for the Attorney-General referred to Turnbull, it was not cited for a specific submission that the relevant onus was other than an onus upon the Attorney to establish that the community could be adequately protected only by a continuing detention order.

[40]  In Turnbull, as in the present case, there was uncertainty as to some material facts about the prisoner, an uncertainty which affected the question of whether a detention order was required to ensure the adequate protection of the community. As Morrison JA said, in this context, there is a consideration “of what is known, as well as what is unknown, about the risk …”.[27] In the present case, there is uncertainty as to whether there is in his case sadism or even paedophilia. As I have summarised, each of the psychiatrists recognises that as at least a real possibility. Dr Sundin thought it highly likely that the respondent met the criteria for sexual sadism. I could not make a finding that more probably than not there is that element in the respondent’s case. But my task is to consider whether the community could be adequately protected only by a continuing detention order. That involves a consideration of the nature and extent of risk, as well as the potential consequences of that risk eventuating, in order to assess whether the risk is acceptable in the sense of providing adequate protection to the community. That risk has a content not only from what can be found as a fact about the prisoner, but also from what constitute real possibilities.

[41]  It was argued for the respondent that the effect of the evidence of the psychiatrists was that there was no unacceptable risk from the supervision order on the conditions which, during their evidence, he asked them to consider. But that was not the effect of their evidence. They were not critical of the conditions. Their concern, in each case, was that the respondent would not comply with the order and that a serious offence might be committed before his non-compliance was detected and he was returned to custody. In my view, that is a substantial risk. It is a risk which exists especially from the likelihood, as the psychiatrists explained it, that the respondent would not engage with those supervising him and from the difficulties in supervising this prisoner without his having undergone what they regard as necessary treatment programs.

[42]  In my conclusion, the Attorney-General has established that there could be adequate protection of the community only by a continuing detention order. It will be ordered that pursuant to s 13(5)(a) of the Act, the respondent be detained in custody for an indefinite term for control, care or treatment.”

  1. [20]
    At the time of the first review before Brown J in 2017, the respondent maintained his denial that he had been engaged in any sexual offending and this prevented him from being suitable for the High Intensity Sexual Offenders Program.  Following a consideration of the psychiatric evidence, her Honour concluded:

“[73]  The difficulty for the respondent is that until he meaningfully engages in these programs such that his offending behaviour can be discussed and his motivation and the triggers for that behaviour ventilated, the respondent cannot progress forward and appropriate treatment, and management to avoid his risk of sexual reoffending cannot be implemented.

[74]  While it may be true as submitted by the respondent that he did not consider that he had to participate in such programs in order to obtain parole and had participated in a drug and substance program, it is plain that from his own correspondence that he was aware that the result of the decision last year of this Court that he needed to participate in the Getting Started: Preparatory Program, High Intensity Sexual Offending Program and Cognitive Self Change High Intensity Violence Program. The respondent’s own correspondence in ex 2 dated 8 October 2015 indicated he needed to become part of the Getting Started Program, the Pathways Program and the Violence Program.

[75]  The weight of the evidence supports the fact it is largely the respondent’s own conduct and positional stance that has resulted in him not participating effectively or at all in any of the programs that were recommended as necessary to address his sexual offending behaviour and the risk factors giving rise to sexual reoffending.”

  1. [21]
    Her Honour then considered whether the respondent was a serious danger to the community and concluded as follows:

“[76]  The first question is whether the respondent is a serious danger to the community in the absence of a division 3 order under the Act. I am satisfied to a level of high degree of probability that there is acceptable cogent evidence that has been presented to me, particularly with respect to the psychiatric evidence and the evidence of Ms O’Brien, Mr Phelan and Ms Cowie as to the respondent’s history and conduct in undertaking or being offered various rehabilitation programs, of sufficient weight to affirm the decision that the respondent continues to be a serious danger to the community in the absence of a division 3 order under the Act, having regard to the required matters I am to consider.”

  1. [22]
    Further, her Honour stated: 

“[84]  In the present case, I am also satisfied on the evidence before me that the position remains as was described by this Court in the reasons of Philip McMurdo J at para [40], cited above[28] that while there is uncertainty as to whether there is in his case sexual sadism or even paedophilia, there is a real possibility that the respondent may have a paraphilia which is sexual sadism which raises a high risk of sexual reoffending, particularly having regard to his antisocial personality and psychopathic traits. The absence of a clear determination in this regard due to the respondent’s unwillingness to engage in such a program does not suggest that the respondent is not a serious danger to the community. It supports a finding of unacceptable risk.

[85]  I am satisfied that the court should affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 Order. The respondent’s offending behaviour in the past in relation to sexual offences, his anti-social personality, the fact that he has psychopathic traits and that there is a real possibility that there is an element of sexual sadism in his offending and possibly paedophilia, satisfies me that there is unacceptable risk that the respondent would commit a serious sexual offence if released without a division 3 order. That risk is further heightened by the fact that he is not engaged in necessary treatment programs previously recommended, save for the Getting Started Program. While he did participate in that program, his denial of sexual offending has meant the respondent has not responded positively as it has provided no insight into the nature of his behaviour or motivations and the relevant triggers for his sexual offending such that it could be treated. Presently his attitude indicates that a High Intensity Sexual Offending Program which both psychiatrists considered he would need to engage in is not open given his denial.”

  1. [23]
    In respect of whether adequate protection of the community could be ensured by the respondent’s release on a supervision order, her Honour concluded:

“[89]  It is evident therefore that there is a significant risk that the respondent would not comply with any supervision order and that he may commit a serious offence before his non-compliance is detected. Moreover presently no supervision order can be formulated to properly address the risks posed by the respondent to ensure adequate protection of the community, given the failure of the respondent to engage in programs that would enable that to occur. In the circumstances, I consider that the imposition of a supervision order cannot reasonably and practically manage the adequate protection of the community, because it presently cannot contain the risk posed by the respondent to provide such adequate protection.

[90]  Given the above and taking into account the paramount consideration is the need to ensure protection of the community, I am satisfied that the Attorney-General has established that there could not be adequate protection of the community by a supervision order and there can only be adequate protection of the community by a continuing detention order.

[91]  I therefore affirm the decision of this Court of 9 June 2015 that the respondent is a serious danger to the community in the absence of a division 3 order. I order that the respondent continue to be subject to the Continuing Detention Order.”

  1. [24]
    The second review was carried out by Lyons SJA in 2018.  Her Honour concluded that the respondent was a serious danger to the community in the absence of a Division 3 order and affirmed the decision made on 9 June 2015 and affirmed on 13 March 2017. 
  2. [25]
    In respect of whether adequate protection of the community could be ensured by the respondent’s release on a supervision order, her Honour concluded:

“[42]  Having considered the reports which have been prepared for this hearing, as well as the other material relied upon by the applicant, I am satisfied that the evidence indicates that the respondent’s risk of serious sexual re-offending is still in the moderate to high range and that the likely offence would involve an adult female or child and that such an offence would result in psychological or physical damage. In the present case the applicant submits that the respondent is an untreated sex offender who has limited or no insight into his condition and the steps he needs to take to address his risk and therefore a continuing detention order is required.

[44] In the present case however, I cannot be satisfied that a supervision order would be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences. In making such an order the Court is required to reach a positive conclusion that the supervision order proposed would provide adequate protection. As Counsel for the applicant stated in his closing submission, because of the respondent’s non engagement in the HISOP, the risk cannot be quantified. Counsel continued:

‘The risk can’t be managed by way of an appropriately structured supervision order, absent the offending pathway being identified and one does not know whether [the respondent] is a sexual sadist. One does not know whether he’s a paedophile. One does not know what his drivers are to enable an appropriately structured supervision order to be formulate, which would – which your Honour could be satisfied would provide adequate protection to the community. That’s the touchstone – whether the community would be adequately protected if – without knowing what motivates [the respondent]. One would be releasing him into the community a ticking time bomb that could go off at any stage when corrective services would simply not know how to direct him. For example, a GPS tracker might identify where he goes, but that does not necessarily identify who he associates with and the circumstances and those factors might be quite relevant to corrective services and how they manage him. So without knowing what Mr – what makes [the respondent] tick, it’s very difficult to structure an order which would provide the necessary protection.’

[45]  I accept that the evidence remains unaltered since 2015 and clearly establishes that the applicant has satisfied me that the adequate protection of the community cannot be ensured by a supervision order and the respondent should continue to be subject to a continuing detention order.” (Footnote omitted)

  1. [26]
    On 13 May 2019, Wilson J conducted the third review of the continuing detention order.  Following a review of the evidence, her Honour concluded that the respondent was a serious danger to the community in the absence of a Division 3 order. 
  2. [27]
    In respect of whether adequate protection of the community could be ensured by the respondent’s release on a supervision order, her Honour concluded:

“In this case, however, I cannot be satisfied that a supervision order would be efficacious in continuing the respondent’s behaviour by preventing the opportunity for the commission of sexual offenders [sic].  In making such a supervision order the court is required to reach a positive conclusion that the supervision order proposed would provide adequate protection.  I am not so satisfied.

 The expert evidence does not reach such a conclusion and I take into account Dr Moyle’s report, in particular, paragraphs 154 to 157, paragraph 160 and paragraphs 160 to 168.  And I note Dr Sundin’s report at page 6, from line 158 to page 7 at line 171.

 It is noted that in 2017, Brown J affirmed the continued detention order, as no supervision order could be formulated to properly address the risk posed by the respondent to ensure adequate protection of the community.  And one of the primary reasons for coming to that conclusion was that the failure of the respondent to engage in programs that would enable his release on a supervision order to occur.  I note that nothing much has changed in two years.

 The applicant, in all of the circumstances, has satisfied me that the adequate protection of the community cannot be ensured by a supervision order and that respondent should continue to be the subject to a continuing detention order.”[29]

Further psychiatric reports

  1. [28]
    Pursuant to s 29 of the DPSO Act, further psychiatric reports were obtained from Dr Ken Arthur on 21 February 2020 and Dr Robert Moyle dated 8 January 2020 for the purposes of the fourth review.
  2. [29]
    On 31 January 2020, Dr Arthur attended the Wolston Correctional Centre to conduct a psychiatric assessment, but the respondent refused to participate.  As a result, Dr Arthur prepared his report based on a review of the material in the absence of cooperation from the respondent.
  3. [30]
    In relation to the risk assessment and recommendations, Dr Arthur’s report states as follows:

“178. Based on the documentation provided, I am satisfied that [the respondent] fulfils the criteria for a Mixed Cluster B Personality Disorder, predominantly antisocial with elements of narcissism. It is likely that he has some degree of sexual deviance based on the history of sexual preoccupation and the nature of the offences. In the absence of further information, a provisional diagnosis of Sexual Sadism appears appropriate.

RISK ASSESSMENT

  1. Refer to Appendix A in relation to the assessments listed below.
  • Static – 99R
  1. The Static-99R is an actuarial risk assessment tool which positions offenders in terms of their relative risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders.
  1. The instrument places offenders in risk groups relative to the recidivism rates of the reference population (North American sex offenders).
  1. The authors note that the information provided by the Static-99R can be thought of as a baseline estimate of the risk of new sexual charges and convictions which can be used to guide treatment supervision strategies designed to reduce the risk of recidivism (Static-99R coding rules revised 2016).
  1. The Static-99R does not measure all relevant risk factors and [the respondent’s] recidivism risk may be higher or lower than that indicated by the instrument based on factors not included in this tool.
  1. [The respondent’s] Static-99R score was 8 which places him in the “well above average risk” group.
  • The Hare Psychopathy Checklist (PCL-R)
  1. This is a symptom construct rating scale utilising clinical and collateral information to assess an individual on 20 items relevant to the construct of psychopathic personality. The PCL-R has been validated for adult males in forensic settings. Psychopathy has been correlated with significantly higher rates of sexual and violent recidivism compared to non-psychopathic offenders.
  1. Because I did not clinically assess [the respondent], I cannot use this instrument. However, I note the ratings of previous assessors have confirmed the presence of Psychopathic Personality. There is nothing in the clinical history and documentation that is inconsistent with this finding.

RISK STATEMENT

  1.  

Propensity to reoffend

Estimating [the respondent’s] drivers to reoffend is hampered by his refusal to acknowledge his sexual offences or discuss them in any detail. Based on historical information and prior assessments, he fulfils the criteria for Psychopathic Personality. He has a history of sexual preoccupation and has been found guilty of sexually violent offences that violate the incest taboo. The history is suggestive of Sexual Sadism. It appears that he still has a significant sex drive, masturbates regularly in jail and was found to have pornography in his personal belongings in 2017.

 

As has previously been noted, the combination of Psychopathy and Sexual Sadism is associated with a high risk of future sexual violence. [The respondent] has displayed an ongoing antipathy towards women with shows of verbal and physical aggression directed at women whilst in custody. He refuses to accept responsibility for his offences, shows no evidence of remorse or empathy and continues to justify his use of violence.

 

Pattern of offending

[The respondent] has been convicted for an attempted sexual assault during a break and enter which also involved physical violence. It is likely that this was opportunistic. The index offences involved the use of physical and psychological coercion along with credible threats of violence to force his female partner into deviant sexual acts. He also exposed his partner’s 9 year old son to pornography and both non-contact/contact sexual offences involving the child’s mother whilst under duress. Future sexual offences are likely to include sadistic elements, such as the use of violence, humiliation and control. The offences may be opportunistic but are more likely to involve sexual partners or women familiar to him who are vulnerable to physical and psychological coercion. The victims may include the children of his sexual partners; opportunistic offences against other children cannot be ruled out.

 

Attempt to change

[The respondent] has made no attempts to address his sexual offences. Whilst he completed the GS:PP in 2016, he adamantly maintained his innocence, appeared to manipulate the group process and avoided any discussion about his offending behaviour. His claims that he has been refused access to treatment programs appears disingenuous and there is an underlying lack of motivation to engage in treatment. More recently he has refused to attend HROMU case management meetings, external risk assessments and attempts at motivational interviewing. He has refused offers of placement on the CSCP program.

 

Effects of treatment programs

[The respondent] has completed a Low Intensity Substance Abuse Program and an Anger Management Program early on in his incarceration. It is possible that these programs may have had some impact on his attitudes towards substance abuse; certainly, there has been no recent evidence of drug use whilst in custody. I suspect that he did not meaningfully engage in the Anger Management Program.

 

  1. Based on the available documentation it would appear that [the respondent’s] unmodified risk of committing further sexually violent offences on release remains high.
  1. There is nothing in the available material which would support a dissenting opinion in regard to the low likelihood of his compliance with a supervision order in the community. If anything, it appears that [the respondent] has now resigned himself to remaining in jail. This is reflected by his refusal to engage in risk assessments or treatment programs. He has identified no supports in the community and has volunteered no new plans for release or a relapse prevention strategy. There appears to have been no positive change in his attitudes or behaviour since the last annual review.

RECOMMENDATIONS

  1. Without any indication of attitudinal change or developing insight, it is difficult to recommend [the respondent’s] release from custody on a supervision order. Due to his high levels of psychopathy and antisocial narcissism, [the respondent] is unlikely to tolerate the restrictions of a supervision order. Given his resignation to remaining in custody, lack of community support and absence of any meaningful or achievable goals, there is little to motivate him to remain compliant with community supervision. It is probable that he will seek out sexual partners (despite his antipathy towards women, he appears to have maintained contact with females outside of the jail) and will most likely resent any attempts at Corrections to regulate or supervise this. The threat of returning to custody may not be sufficient to prevent him from acting on sadistic sexual impulses. He also represents a more general risk of aggressive and threatening behaviour directed at female Corrections staff.
  1. As other assessors have concluded, [the respondent’s] risk cannot adequately be appreciated nor managed until he engages meaningfully in some form of offence specific treatment, either in a group or individual setting. A program addressing violence, such as the CSCP, remains a potential entry point for [the respondent] to address his general and sexual violence risk. A valid alternative would be individual therapy with a skilled clinician whilst in custody. As Dr Moyle points out, such therapy is unlikely to provide short term benefit and must be seen as part of a longer term strategy to address [the respondent’s] risk.” (Emphasis in original)
  1. [31]
    The respondent also refused to participate in the psychiatric risk assessment by Dr Moyle and Dr Moyle also prepared a report based on the material supplied to him.
  2. [32]
    Dr Moyle, in his report, identifies the relevant risks and concludes as follows:

“60. [The respondent] will not allow psychiatric examination by myself. It is likely from comments made that psychiatrists all lie when they do not accept his statements of innocence, and repeated accusations of ‘racism’ to account for his ongoing detention, that he projects responsibility away from concern about his behaviour, onto a 'racist' society. He doesn't wish psychiatric analysis exploring an understanding of his offending behaviours and risk.

  1. Addressing the issue of sexual offending, in his criminal history is an offence involving a break and enter when he tried to assault and remove the clothes of a female victim, that would be counted as his first sexual offence prior to the index offending against his partner 12 years his senior, against whom he would use physical assaults and weapons to express violent urges and generate pornography, including stabbing her with a garden fork if her pornographic performances were not to his standard. There was a prolonged period of assaults in that relationship. Her, (possibly their), pre-pubertal child (8 to 9 years old) was used in the manufacture of the pornography. There was no collateral evidence in his favour for his account of the violence being motivated by his punishing her for sexually abusing her child, with all collateral information from statements of past partners, the boy in question, and the female victim, attesting to his violence and sexual violence in relationships, and there was information of him having the child fellate him. For the maintaining a sexual relationship offence he got a ten years sentence, for the grievous bodily harm and other offences against his partner he got a further six years, coming to 16 years in total.
  1. Psychiatric assessments in the past have failed to find any mental illness contributing. Nor is there a clear developmental history that provides an understanding of his criminal career and sexual offending. It seems the evidence was that he was trying to establish a pornography business at the material time. All psychiatrists in their assessments have used the concept of psychopathy and found that he meets the criteria in North America for such a term to be used.
  1. This concept describes a group of people who may enter custodial mental health or criminal jurisdictions repeatedly and show no signs in the institutions of mental illness, despite at times seeming so ill by their behaviour in the community.
  1. In institutions they are often discharged, only to return, and in group settings they may either disrupt the group process or alternatively con and manipulate, often siding with the facilitators to get good reports that allow early release, only to reoffend.
  1. Over three decades ago Canadian psychologists on a relatively unsophisticated global review, found that such people are more likely to reoffend if they receive treatment, than if they do not. Subsequently, that conclusion has been brought to question, but in general they are considered hard to treat in group settings and individually using traditional therapeutic approaches. They seem to lack the empathy and attachment feelings that allow such approaches to be used. None the less, increasingly approaches to treatment of such people is heading back towards more dynamic understandings.
  1. Penal treatment of such individuals has to some degree been based on assessing risk needs and responsivity, an approach defined by a couple called Andrews and Bonta decades ago. Risk assessment and management becomes a vitally important part of overseeing and treating such individuals.
  1. Looking at sex offenders in general there were many reviews from the late 1980's through the 1990's suggesting little efficacy in treatment programs, as applied then. However, a major English and non-English speaking review of the literature out of Germany from Losel’s department did not find a lack of efficacy for treatment, but did find limited efficacy. Many others such as Bill Marshall's unit in Ontario Canada, similarly report some efficacy of interventions. The large multinational meta-analysis initially reported biological treatments to lower sexual interest to have the highest efficacy, but a subsequent review by Losel’s group noted that when treated biologically in psychiatric services, they were treated using a multidisciplinary approach, compared to the other psychosocial approaches. Therefore, it seems reasonable to conclude that approaches that offer biological, psychosocial and behavioural treatments with monitoring and supervision and victim protection strategies are most likely to yield a modest reduction in recidivism as the end point.
  1. Therefore, neither psychopathy nor sexual offending per se lack therapeutic approaches to their management but like mental illnesses they are hard behaviours to reliably influence.
  1. Therefore, in [the respondent’s] case it is sad to see him rejecting or rebelling against interventions and the word ‘institutionalisation’ seems to have come up regularly. For his part his recalcitrant statements that he will live in jail and die in jail due to racism, seems to suggest that he has adapted to a prison lifestyle and cannot conceptualise and work towards a positive life out of jail with the help of the staff of corrections and mental health professionals. Until this attitude changes, I see little prospect for a change in the risk factors.
  1. There are some specific issues that apply to his case to be noted when doing clinical and structured risk assessments.
  • His age is now forty-six and therefore he is likely to still have active sexual interest.
  • He has a significant general criminal history when not in jail.
  • He has a history of drug and alcohol use disorders including amphetamines, alcohol and to some degree marijuana.
  • He has been heard to use derogatory and abusive comments to women while in jail.
  • He continually denies the offending behaviours.
  • In jail he has problems getting and maintaining employment, as he did in the community. He has done vocational educational programs and plans to set up businesses without experience of successfully doing so.
  • He has breaches in custody.
  • The judge hearing an appeal refused permission for the appeal on grounds that any appeal would be unsuccessful.
  • He lies in stating he has not been offered interventions and there is an affidavit from Corrections listing a very large number of offers, including attempts to engage and motivate him. He says he will lie to get through programs if forced onto programs.
  • There is the suggestion by Dr’s Sundin, Beech, Grant and myself that there may be a sexually sadistic element to his sexual interest.
  • Clinically he suffers a personality disorder with antisocial and narcissistic elements and polysubstance use disorders.
  • The use of violence seeming to be gratuitous leads to the possibility of sexual sadism. He enjoys older more experienced partners.
  • He spent a long part of his sentence in Secure Units.
  • In jail he threatens violence through to murder should his wishes not be met, such as having a single cell. Some such threats involve a stated intent to accumulate a large number of weapons to use in the community.
  • He was accused of once man handling a female visitor and seems aggressive to inmates and verbally aggressive to staff. This is especially if his wishes are not met. Recently officers have suggested that breeches [sic] are heard by male officers only.
  • He fails to come up with a realistic release plan that includes minimising risk.
  • In paragraph 22 of this report I list the many clinical elements consistent with psychopathy that would have to [be] overcome by him to learn to lower his risk. All psychiatrists rate his level of psychopathy as reaching north American levels.
  • Dr Beech did not find any medical evidence for any problem requiring heavy narcotic analgesics that he takes in prison. There is no medical report. He uses heavy drugs.
  • I found no evidence of stable friendships or financial support for offspring.
  • He continues to have active sexual interest as seen by the pornographic material stored in custody. I wondered whether medicines to help lower his sexual arousal and anger, may help him engage with mental health professionals.
  • There is nonadherence to Court Orders in the past.
  • There is a question of whether he has visual and hearing problems.
  • I recommend an offer to be there, if he wishes to take the offer up, for him to receive treatment by experienced forensic psychologists and psychiatrists.
  • While positive most of the time, he can be offensive, abusive, resistant to instruction and have prisoner to prisoner confrontations; all decreasing in frequency as he ages.
  • I had to accept the findings of some of the risk instruments done by others. The most common instrument used in sex offender treatment programs here and elsewhere is the STATIC 99-R where he poses a well above average risk of sexual recidivism. Substance abuse, psychopathy and potential sexual deviance is the most dangerous clinical combination for reoffending in a violent, dangerous sexual manner.
  • There is little sign of change and no attempt on his part to reduce risk.
  • Most likely victims would be women partners and children in their care. He is rigidly proud and becomes agitated and aggressive if his wishes are not met. His wishes will not always be met in the community. In the past he has used drugs and alcohol, violent behaviours and violent sexual behaviours, when in such a state of mind. He needs his will to be paramount.
  • I gave reasons for concluding that he is unlikely to comply with conditions of a Supervision Order (paragraph 30 of my original report).
  • Corrections do continue to offer cognitive self-change treatment.
  • After 3 years of continuing detention and he remains at well above average risk of reoffending.
  • Aside from assessing his hearing and other sensory modalities, continuing to offer mental health professional care seems appropriate, especially if that mental health professional could be consistent and work with him in moves towards community reintegration. Such a forensic mental health professional would deal with his sexual attractions, intimacy issues, and he was given regular time with a psychologist. He had previously been treated by a well-regarded colleague, Dr Madsen, who tried motivational approaches apparently unsuccessfully.
  • I concluded he seems to give the court little option but continuing Detention Orders.
  • Her Honour Justice Wilson gave her decision on the 13th May 2019 for a continuing Detention Order, recalling Justice McMurdo’s 2015 comment ‘I have not seen a case in which the conduct of the accused is worse than this’; and comments on elements of sadism and paedophilia; and that his denial and non-engagement in necessary treatment programs adds to the unacceptable risk to the community. Other judges have recommended engagement in High Intensity Violence programs, as well as High Intensity Sex Offender Programs. He was not considered to be likely to reliably inform a supervisor of important matters that would increase his risk of re-offending.
  • Since the hearing he has declined or resisted case management meetings.
  • He resists at times (e.g. 14 July 2019) to take his medicines, only to demand that medical staff attend him in his cell with treatment. Such behaviour looks dominating, rebellious and likely to reflect little hope he will adhere when less securely overseen.
  • His behaviour has been repeatedly challenging and at times oppositional since last years’ review. Such behaviour has continued through to December 2019.
  • He had a visitor who scanned positive to GBH, but the visit could go ahead as it was non-contact.

CONCLUSIONS

  1. [The respondent] has repeatedly rated above the North American standard for psychopathy. In recent times he has repeatedly refused to engage with Court appointment [sic] psychiatrists to allow a psychiatric risk assessment. He has been repeatedly assessed as a well above average risk of sexual reoffending, where the average risk is around 16%. His level of risk would be getting closer to 50/50. He has failed to engage in individual or group treatment programs and continues to deny his offending. He maintains a dominant, unattached relationship with helping agencies and those who supervise detention, seems to have an unclear identity, he uses his behaviour (especially threatening behaviour) to get what he wants, he continues to threaten extreme violence including storing multiple weapons to use, he expresses repeatedly the thought that a racist society is likely to have him living in jail and that is not an outcome that he opposes. Therefore, he seems to be a highly institutionalised, aggressive man who rates highly on psychopathy, who uses and abuses violently, sexually and otherwise those in his sphere of influence in the community. From reading the documents it appears that he sees himself at high risk of extreme violence if released into the community and he is seen as at very high risk of sexual violence if released into the community. There are no clinical factors favouring a Supervision Order with graded release into the community to be considered.
  1. It is hoped that with advancing age he will mellow and start to accept that both Corrections and mental health professionals are there for him to use as a guide on how to survive safely outside of a jail. There is no evidence he is doing so at the present time.
  1. Therefore, for these reasons, it is my opinion he poses a well above average risk that he will commit another serious sexual offence;

I. If released from custody; or

II. If released from custody without a Supervision Order being made.

  1. I cannot envisage any conditions on his Supervision Order that are likely to be met by [the respondent] if he is released on a Supervision Order. It is clear in custody, even in the simple process of getting his regular medicines is fraught with difficulty with angry rejection, oppositional behaviour, defiance if angry, and going his own way, rather than as directed.
  1. I can only recommend that ongoing offers of attendance with a forensic mental health professional that is interested in hearing from him of any goals he wishes to reach that include release to community. Once [the respondent] expresses that as a goal, the mental health professional would be in a position to look with him at the steps he is going to have to take to achieve that goal. Failing that I think ongoing supervision in custody seems the only approach likely to manage his aggressive behaviours.”

Updated facts

  1. [33]
    The facts remain largely the same as those considered in the original judgment of PD McMurdo J and subsequent reviews.  In particular, the respondent:
    1. (a)
      continues to maintain his innocence in relation to the charges of which he was convicted at trial, being the index offence; and
    2. (b)
      remains an untreated sex offender and has not engaged in programs that have been identified in the previous reviews.
  2. [34]
    Counsel on behalf of the respondent submitted:

“22. Once again, little has changed in the last twelve months.  The Respondent has belatedly nominated an accommodation address that he wishes to reside.  The initial investigation of that address appears to be promising.

  1. Queensland Corrective Services will need to investigate the address and reach their own conclusions.  The psychiatrists will need to be cross-examined as to whether this reduces the risk and if so to what extent.”
  1. [35]
    At the hearing of the application on 1 June 2020, the respondent relied on two short affidavits, the first being the affidavit of Mr Tai, a solicitor with Ashkan Tai Lawyers, on behalf of the respondent.  The affidavit states:

“4.  It was explained to [the respondent] what the standard terms of a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 were like.

  1.  [The respondent] told me that:

 (a) He would be willing to comply with any orders of a supervision order;

 (b) He nominated Jaishee Nath, of [redacted address] as a long term friend who was willing to let him reside at her house with her husband and two adult sons;

 (c) He is in regular telephone contact with Ms Nath;

 (d) He gave his full permission for Queensland Corrective Services to discuss his case with Ms Nath; and

 (e) He would be prepared to give evidence at the hearing of this matter that he was prepared to abide by the conditions of a supervision order.”

  1. [36]
    The second affidavit, being an affidavit of Ms Nath, deposes to her knowing the respondent for approximately five years.  Ms Nath states that she resides with her husband and two adult sons and would be happy for the respondent to reside with her and her family.
  2. [37]
    Prior to the hearing, Queensland Corrective Services were unable to provide a suitability assessment of the proposed residential address.
  3. [38]
    However, Dr Moyle and Dr Arthur attended the hearing and gave evidence and were cross-examined in relation to the proposed residential address and whether these additional facts altered their views at all.

Oral psychiatric evidence

  1. [39]
    At the hearing on 1 June 2020, Dr Moyle and Dr Arthur maintained their views that the risks identified in respect of the respondent were not reduced to an acceptable level by the proposed residential address.
  2. [40]
    Dr Moyle gave oral evidence at the hearing on 1 June 2020 as follows:[30]

“Could you please outline for the court the basis for that finding and around his level of risk and what is needed to enable that risk to be managed or reduced?---Certainly.  [The respondent] has a long history from childhood to the present incarceration of substance abu – abuse and dependence involving alcohol, a little bit of marijuana and some amphetamines.  He has a long history of – from childhood through to adulthood of criminal offending of leaving home at a young age, of – and I – most of the history that is of concern relates to violence and sexual violence, including a prolonged period of time from ’91 when he met an older partner till the later 1990s when he was arrested, against a partner which he committed serious violent harm, causing brain damage and a lot of other injuries, and against a child from six till nine years.  The child was nine years of age, I think, at the time of his arrest.  And he was convicted of maintaining a relationship with the child and of serious sexual offending. 

[Dr Moyle continues] [The respondent] has a personality with prominent antisocial and narcissistic features.  He requires people to accede to his wishes or he will get angry.  And the community, if he gets angry, he will drink and – and if necessary, to get his wishes met, he will use violence and – and certainly threats of violence and actual violence.  And his wishes include wishes for sexual acts to occur.  His behaviour in jail has not shown any change in his need to be dominant, having his wishes acceded to and at times, even to the recent times, he gets really quite enraged if people go against him. 

[Dr Moyle continues] He has been offered numerous programs to try and address violence.  He attended one that he did some partial contributions to.  But otherwise, he hasn’t engaged in the main therapeutic programs that are – that he was required to maintain, including high intensity violence programs, high intensity sex offenders programs and the pathways he needed to update his – his substance abuse programs.  He’s been offered individual assistance with numerous psychologists, some very well-regarded psychologists in the field who are very happy to help, try and help people such as [the respondent].  He – he – they have not survived the – the treatment process. 

[Dr Moyle continues] So [the respondent] has failed to address the core issues as to why he’s in custody over this time, has continued with his narcissistic need for dominance and control and to have his wishes met and will use threats in custody, such as, you know, ‘I will murder somebody if you double me up with somebody’ or threats to acquire huge numbers of weapons if released and go to the nearest police station.  So he – there’s little to suggest that he has d [sic] on himself and reflected on the behaviours for which he is in custody for and has come up with any reasonable plan on how he’s going to deal with his frustrations, his – to his wishes and – and how he’s – and in a way that isn’t going to place the community at risk of violence and sexual violence. [Dr Moyle concludes response]

 Okay.  And at what level did you assess his current risk of reoffending sexually?---I assessed it as high. 

Now, you’ve referred to the fact that he has refused to undertake the necessary treatment programs.  Is it reasonable or is it possible for his risk to be managed without him undertaking or engaging appropriately in that form of treatment?---Anything’s potentially possible, but I can’t envisage a set of circumstances where, in the community, he will adhere to any conditions when in – in custody, he has trouble adhering to the norms of doing what he’s told.  For instance, he – he might do – be due medicine, he might refuse it and then demand that it’s brought to him down in his cell.  He might – the psychologist might engage, but he might then get enraged with them and – such that they have to disengage.  He threatens officers and he threatens other people.  So I don’t envisage that – those behaviours being manageable in the community.  I don’t envisage him engaging with – with programs in the community because he – and his statements that, if necessary, if he’s forced into doing so, he will lie, and his statements that if he’s – that he – if he has to serve another 30 years in jail, he will stay in jail for 30 years because it’s a racist society that’s leaving him in jail don’t suggest he’s at all committed to – to – to changing his ways in the community.  The speed with which his anger can result – in the past, anyway – his anger can result in drinking and – and offending is – is probably a little too fast to be detected reliably in the community.

On what we know of [the respondent] at this point, without him having engaged in the appropriate therapeutic programs or treatment, do we fully understand the drivers or the reasons for the sexual offending?---No. 

Is it then possible to consider terms of a supervision order if we don’t understand those core features of his offen – past offending?---Corrections would have a very difficult job formulating a series of conditions under which a supervision order might be applicable. 

Now, Dr Moyle, you were provided with copies of two affidavits that were filed by leave this morning.  You received those two affidavits, one of Mr Tai and one of Ms Nash?---I did.

And you considered the contents of those affidavits?---Yes.

Do they alter your current view as expressed in the report and as outlined here?---No, they don’t. 

So, on your view, further treatment needs to be undertaken while [the respondent] remains in custody?---I think he needs to undertake enough of treatment such that he can formulate a management plan that will take into account all of the factors I’ve just mentioned that will then enable a conditional release to be viable.”   

  1. [41]
    Counsel for the respondent cross-examined Dr Moyle in respect of whether the risks could be ameliorated by appropriate conditions in a supervision order and Dr Moyle gave evidence on this point as follows:

“In particular, you’re aware of electronic monitoring, which involves the wearing of an ankle bracelet which can be tracked by Queensland Corrective Services?---Yes.

Why wouldn’t that be very effective in ameliorating his risk?---Because what we’re dealing with is a man who’s highly reactive to any disappointments, a man who’s proudly rebellious and highly reactive to any disappointments.  If he gets into disagreement, gets angry, he doesn’t – even in jail, he doesn’t modify his behaviour to the conditions.  The fact that he’s wearing an ankle bracelet won’t stop him taking off to a – to get some booze and drinking it, cutting the ankle bracelet off, going and getting some alcohol and – and violently assaulting somebody, sexually or physically. 

I’m sorry, could you just say the last sentence - - -?---Sexually or – sexually or physically, sorry.  I wasn’t speaking loud.  My apologies.  It won’t stop him from finding ways that he will show that he – I mean, he – he does what he – he requires people to accede to his wishes.  If he – if they don’t, he will then demonstrate aggressively what that – what they have to do, either by threats or – or getting – intimidating people.  He – in – in custody.  I’ve got no reason to believe he won’t choose to go his own way when he’s not in custody and cut off the ankle bracelet, go to a hotel, get drunk and – and – and then assault somebody sexually or violently.  There’s no – no suggestion that he – he has learnt to modify that risk, and there’s no suggestion he has come up with a reasonable strategy to manage all of those risks. 

You’re aware of standard conditions that are sometimes imposed in these matters saying that a person released on a supervision order must report any contact with – or sexual contact with a woman or a woman with children or families and prohibiting people from visiting children without permission.  You’re aware of those sorts of standard conditions?---Yeah, they are conditions.

Yes?---The issue isn’t whether the conditions are there;  the issues are how willing [the respondent] is to adhere to them, and it’s got to be a little more than just saying, “I’ll adhere to conditions on – on occasion.”  It has to be that he demonstrates in his behaviours that he can meet expectations of – of – of our – of our society or the – or the places where he lives, such as in custody.

Why would not the imposition of those conditions that we were just discussing and the monitoring conditions together be signifi – be – significantly ameliorate his risk of committing things like the index offence?---Because he has trouble complying his attitudes and behaviour to – to the wishes of – to the rules that – that he has to live under.”

  1. [42]
    Dr Arthur gave oral evidence at the hearing on 1 June 2020 as follows:[31]

“And, Dr Arthur, in your report, you recommend that [the respondent] ought to remain in custody to engage appropriately in ongoing – or treatment to meet his risk needs?---Yes.

 Can you just briefly outline what those needs are and what – the risks that are associated with those?---Well, from a sexual recidivism point of view, the risks are – is that he’s an untreated sex offender.  On – when we look at actuarial assessments of his risk, he comes in at way above – well above average risk.  When you look at dynamic risk factors, there are a number of relevant dynamic risk factors which also place him in high risk.  From a – a treatment perspective, I would go even so far as to say that we haven’t really thoroughly assessed [the respondent] yet because he hasn’t cooperated, engaged, in a – in an assessment process, so there are many aspects of his sexual functioning and sexual offending that we still don’t have adequate information, and looking at his – at the previous risk assessments, there’s been a big question mark around the possibility that there’s the presence of – of a – a sexual sadism paraphilia, in that he has a – a preference for sadistic sexual behaviour. 

[Dr Arthur continues] Now, we haven’t been able to confirm that because [the respondent] hasn’t engaged in any discussion and, in fact, still is in denial and denies that he committed the offences.  It’s a huge question mark because that would place him in a category of offenders that have – we don’t have a lot of data because we don’t have a lot of people who study, but the data suggests that the risk of recidivism is quite high.  We also have someone who scores high on psychopathy ratings, so he would qualify for a psychopathic personality.  That has implications not just for recidivism but also for treatment and management.  So, essentially, we – we have a man who – what we know about him puts him in high risk.  What we don’t know about him is concerning because potentially that puts him in even higher risk category, but we can’t find that information out because he won’t cooperate with any form of assessment. [Dr Arthur concludes response]

And if we look at – given the legislation, whether – there’s remaining in custody or supervision?---Yes.

To formulate an appropriate supervision order to manage those risks - - -?---Yes.

Is that possible, given that gap of understanding of his offending behaviours?---I don’t – I don’t believe it is possible, and I think Dr Moyle’s already pointed out personality factors which would be relevant to him complying with an order and – and compliance is an issue, and when I reflected on what we know about [the respondent] and what we know about his personality and his behaviour prior to custody and his failures of community supervision, his attitudes whilst in custody – he’s been in jail for 20 years now, and he’s certainly developed a set of behaviours which have allowed him to manage being in jail, and, like most people in jail, you adapt to your environment, but none of those behaviours are necessarily going to allow him to adapt to release.  There’s been a question of whether or not there’s institutionalisation, which means that he has developed his coping strategies around the confines of jail, and that’s going to change.  He’s going to be put under a lot of pressure, a lot of frustrations, and this is a man who doesn’t really show that he’s developed any skills or capacity to deal with those frustrations and those pressures.  What we do know about him is that when he’s faced with those situations, the likelihood is very high that he will engage in acting out violent behaviours, that his narcissism will cause him to reject supports and to reject help, and that that’ll place him in a very dangerous position.  So we don’t know enough about him to be able to put a plan in place to contain that.  We don’t know enough about his – his – his sexuality and his presence of sexual deviancy to contain that.  If this is a man who has a sexually sadistic disorder – and he may have had – spent the last 20 years having violent sadistic sexual fantasies, which, under the right circumstances, he will act out.  We don’t know that because he won’t discuss it with us, but that’s a possibility.  So I – I can’t imagine a situation where we could formulate a risk management plan to – to take care of those contingencies. 

So from that – to be able to establish or create that sort of a risk management plan  ?Yes.

   you need him to engage in the appropriate therapeutic treatments, whether that be group programs, individual treatment around sexual offending, around violence, substances – you need all of that to make sure you’ve got the necessary information to be able to put together the plan?---Essentially, yes.  Yes.  And I think it’s been decided that, probably, [the respondent] isn’t appropriate for group therapy, certainly not sexual offender treatment programs, but certainly individual therapy, and even motivational therapy – getting him to a point where he’s willing to consider engaging in some form of treatment.  He hasn’t even gone to that step yet.  So         

But, from the material, he has been offered that, hasn’t he?---Extensively, yes. 

Now, Dr Arthur, you will have seen that two draft affidavits were provided to you at the end of last week?---Yes.

They’ve been filed this morning.  The affidavit of Mr Tai and, also, an affidavit of Ms Nash?---Yes.

You’ve had opportunity to consider the contents of those affidavits?---Yes.

Do they in any way alter your opinions and recommendations as set out in your report?---No.”

  1. [43]
    Counsel for the respondent briefly cross-examined Dr Arthur who gave evidence as follows:

“If I could summarise it in one question, it’s this:  why is it that you say that the combination of electronic monitoring, supervision as to who he’s having contact with and a place to stay doesn’t ameliorate his risk?---Well, we know nothing about where he’s staying.  We really know nothing about the relationship with the people who he’s staying with, so, as Dr Moyle pointed out, until we have a suitability assessment, I can’t really comment on that.  What I would comment on is someone who’s spent 20 years in jail and someone who’s assessed as a high risk – in my experience, it’s unlikely that they would be, you know, discharged from jail to a private residence.  The most likelihood would be that they would be sent to contingency accommodation first, and that would certainly be my recommendation in this case.”

Applicant’s submissions

  1. [44]
    The applicant relied upon its written submissions which relevantly state:

“42. It is submitted that there is acceptable cogent evidence which would satisfy the Court, to the high degree of probability required,[32] that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the Act.

  1. The psychiatric evidence identifies the risk the respondent’s release presents as being in the moderate to high range.  Any offence, if committed, would constitute a sexual assault of an adult female or child.  The risk of psychological damage and/or physical injury to any victim is obvious.
  1. Clearly and unequivocally, the respondent presents a serious danger to the community in the absence of a Division 3 order under the Act.  Accordingly, the decision made on 9 June 2015 ought be affirmed.

 …..

  1. The position remains as it was when the matter came before the court in the second annual review in 2018. 
  1. The respondent presents as an untreated sexual offender.  He has limited or no insight into his condition and the steps he needs to take to address his risk.  He is aware of the importance of the meaningful participation in programs offered by Corrective Services.  This was clearly an issue in the 2015, 2017 and 2018 hearings.  The respondent denies the circumstances which gave rise to his incarceration.  He has not demonstrated any emotional at [sic] intellectual commitment to participation in any programs which would serve to minimise the risk.  His refusal to participate in any involvement by Dr Madsen is evidence of the intransigence that he displays.
  1. On the evidence of the psychiatrists, the respondent needs to meaningfully participate in a high intensity sexual offender treatment program or in individual treatment prior to his release into the community.  If he did meaningfully participate in such program or treatment, it would provide his supervisors with more information about the offending pathways which the respondent is likely to traverse prior to the commission of any offence.  It would enable supervision to be an effective tool in providing adequate serious social protection to the community.
  1. Absent such participation, it is impossible, it is submitted, for the court to be satisfied that adequate protection to the community could be reasonably and practicably ensured by a supervision order.
  1. Taking into account all the evidence, the preference for a supervision order has been displaced.  It cannot be found in the circumstances presented by the respondent’s presentation that adequate protection of the community is ensured by his release on supervision.
  1. Accordingly, an order pursuant to s 30(3)(a) of the Act, ought be made.”

Consideration

  1. [45]
    The position of the respondent has largely remained unchanged since the original application in 2015 and the reviews that took place in 2017, 2018 and 2019.  The respondent remains an untreated sex offender.

Whether the respondent is a serious danger to the community in the absence of a Division 3 order

  1. [46]
    Based on the evidence relied upon by the applicant, including the reports of Dr Arthur and Dr Moyle and the evidence they gave orally at the hearing, I am satisfied that there is acceptable cogent evidence which satisfies me to the high degree of probability required pursuant to s 30(2) of the DPSO Act that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act. 
  2. [47]
    The psychiatric evidence identifies a moderate to high risk of reoffending and any offence, if committed, would constitute a sexual assault on an adult female or child.  In the circumstances, I am satisfied that the respondent presents a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made on 9 June 2015 ought to be affirmed.

Whether adequate protection of the community can be ensured by the respondent’s release on a supervision order

  1. [48]
    The respondent continues to deny his sexual offending and maintains his innocence in relation to the index offence.  Further, the respondent continues to refuse to participate in programs offered by Corrective Services and also refuses involvement on an individual basis for assessment and / or treatment by psychiatrists or psychologists.
  2. [49]
    Consistent with previous opinions, the psychiatric evidence remains that the respondent needs to meaningfully participate in a High Intensity Sexual Offender Treatment Program or in individual treatment prior to his release into the community.  This is important as it will also provide information that will identify what conditions may be suitable in any supervision order to address his particular circumstances.  It is only if a full evaluation can be undertaken that a supervision order could possibly be drafted to ameliorate the risks specifically identified.
  3. [50]
    Given the psychiatric evidence, and in the absence of participation in the relevant programs, I cannot be satisfied that adequate protection of the community could be reasonably and practicably ensured by a supervision order.

Release on a supervision order or the continuing detention order to be maintained

  1. [51]
    In these circumstances, I am satisfied that an order pursuant to s 30(3)(a) of the DPSO Act ought to be made that the respondent continue to be subject to the continuing detention order made on 9 June 2015.
  2. [52]
    The order of the Court is that:

THE COURT, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:

  1. The decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed; and
  2. The respondent continue to be subject to the continuing detention order made on 9 June 2015.

Footnotes

[1]Attorney-General (Qld) v S [2015] QSC 157.

[2]Section 13(1).

[3]Sections 13(5) and 13(6).

[4]Attorney-General (Qld) v S [2017] QSC 32.

[5]Attorney-General (Qld) v S [2018] QSC 89.

[6]Unpublished reasons 13 May 2019.

[7]Section 27.

[8]Section 13(1).

[9]Section 13(2).

[10]Section 2 and Schedule (Dictionary). As to the term “involving violence” see Attorney-General v Phineasa [2013] 1 Qd R 305 at 312-16, [23]-[45].

[11]Section 13(5)(a).

[12]Section 13(5)(b).

[13]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597, [34].

[14]Section 13(b).

[15]Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39].

[16]Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39].

[17][2006] QSC 268.

[18]At [30] and see also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 657, [225], [226].

[19]R v S [2002] QCA 38.

[20]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(1).

[21]Ibid s 13(2).

[22][2015] QCA 54.

[23]Ibid 10 [40].

[24]Ibid 9 [36].

[25][2010] 1 Qd R 505; [2009] QCA 136.

[26]Ibid 512 [33].

[27][2015] QCA 54, 9 [37].

[28][2015] QSC 157.

[29]T-27 line 43 to T-28 line 15.

[30]Note: the below response has been divided into paragraphs for ease of reference.

[31]Note: the below response has been divided into paragraphs for ease of reference.

[32]See s 30(2) of the Act.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General (Qld) v S

  • Shortened Case Name:

    Attorney-General (Qld) v S

  • MNC:

    [2020] QSC 164

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    10 Jun 2020

Litigation History

No Litigation History

Appeal Status

No Status