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  • Unreported Judgment

Attorney-General v Anderson

 

[2020] QSC 142

SUPREME COURT OF QUEENSLAND

CITATION:

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

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

JEFFREY TERRENCE ANDERSON

(respondent)

FILE NO:

BS No 13482 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

29 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2020

JUDGE:

Davis J

ORDER:

  1. The decision of Jackson J made on 30 July 2018 that the respondent Jeffrey Terrence Anderson is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 is affirmed.
  2. The continuing detention order made by Jackson J on 30 July 2018 is rescinded as and from 10.00 am on 2 June 2020.
  3. The respondent be released from custody at 10.00 am on 2 June 2020 and be subject to the requirements of the supervision order which is attached as Schedule A to these reasons for a period of 10 years until 2 June 2030.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is the subject of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 – where this is the first review of the order – where the respondent is transgender and is now clearly committed to gender reassignment – where the respondent has been receiving individual treatment and that treatment is continuing – where the evidence of the psychiatristsis that it is unnecessary for psychological treatment tobe completed before the respondent is released on supervision – where, because of the respondent’s transgender status, some difficulties have been encountered in securing suitable accommodation – where suitable accommodation has now been sourced – whether the respondent’s release from custody on a supervision order would provide adequate protection to the community against the commission of a serious sexual offence

Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 13, s 13A, s 27, s 30, schedule

Attorney-General for the State of Queensland v Anderson [2018] QSC 166, considered

Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited

Attorney-General v Phineasa [2013] 1 Qd R 305, cited

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

Fardon v Attorney-General (Qld) (2004) 223 CLR 575, followed

Kynuna v Attorney-General (Qld) [2016] QCA 172, cited

 COUNSEL:  J Tate for the applicant

S Robb for the respondent

 SOLICITORS:  GR Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    The respondent is a transgender woman who is the subject of a continuing detention order made by Jackson J on 30 July 2018[1] under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA).
  2. [2]
    On that day 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 DPSOA;[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]
    Those findings led his Honour to make the continuing detention order.[4]  An application has been filed by the applicant for review of the continuing detention order.[5]

Statutory context

  1. [4]
    Section 13 of the DPSOA is a pivotal section. It provides: 

    “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).
    2. (2)
      A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—
      1. (a)
        if the prisoner is released from custody; or
      2. (b)
        if the prisoner is released from custody without a supervision order being made.

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

(a) by acceptable, cogent evidence; and

(b) to a high degree of probability;

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

(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;
  2. (b)
    any other medical, psychiatric, psychological or other assessment relating to the prisoner;
  3. (c)
    information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
  4. (d)
    whether or not there is any pattern of offending behaviour on the part of the prisoner;
  5. (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;
  6. (f)
    whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
  7. (g)
    the prisoner’s antecedents and criminal history;
  8. (h)
    the risk that the prisoner will commit another serious sexual offence if released into the community;
  9. (i)
    the need to protect members of the community from that risk;
  1. (j)
    any other relevant matter.

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

  1. (a)
    that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
  2. (b)
    that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).

(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
    2. (ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.

(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. [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”;[6]
    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;[7]
    3. (c)
      a “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence; or … against a child …”;[8]
    4. (d)
      orders under Division 3 are:
      1. (i)
        a continuing detention order;[9] or
      2. (ii)
        a supervision order;[10]
  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. (i)
    make no order;
  2. (ii)
    make a continuing detention order; or
  3. (iii)
    make a supervision order;[11]
  1. (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”;[12]
  2. (g)
    if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;[13] and
  3. (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.[14]
  1. [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[15] 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.”[16]

  1. [7]
    Section 27 provides for the periodic review of a continuing detention order upon the application of the applicant.  The first review must be completed with two years after the making of the continuing detention order.[17]
  2. [8]
    Section 30 directs the court on the hearing of the review. It provides: 

    “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.
    2. (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
  2. (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
  2. (b)
    be released from custody subject to a supervision order.

(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
  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
    2. (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.
  2. (6)
    In this section—  

 required matters means all of the following—

 (a)  the matters mentioned in section 13(4);

 (b)  any report produced under section 28A.”

  1. [9]
    Section 30 mirrors s 13.[18]  It incorporates the term “serious danger to the community” which in turn encompasses the notion of “serious sexual offence” and “unacceptable risk”.
  2. [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.

History to the point of the making of the continuing detention order

  1. [11]
    The respondent was born physically a male in February 1986.  She is 34 years of age.  She suffered a prejudicial childhood and was in foster care at the age of seven or eight.  She fell into illicit drug abuse and was exhibiting mental health difficulties in her early teens.  She is functionally illiterate and suffers intellectual impairment.[19]
  2. [12]
    In September 2003 in the Beenleigh Magistrates Court, the respondent was convicted of offences for the first time.  At that stage she was 17 years of age.  Those offences were minor offences of dishonesty and obstructing a police officer.  She was placed on a good behaviour bond and no conviction was recorded.  
  3. [13]
    Between 2003 and 2006 there were a number of convictions in various Magistrates Courts for minor offences of dishonesty and breaches of bail.  She was fined. 
  4. [14]
    In February 2009, the respondent was convicted of offences which occurred in late 2007.  In March 2009, she was convicted in relation to offences which occurred in August 2005 and in November 2010 she was convicted of sexual offences which occurred in August 2007.  In Attorney-General v Anderson,[20] Jackson J described that offending as follows:

[18] The respondent’s adult history of offending for non-sexual offences begins at age 17. However, the first group of the index offences[21] occurred between 9 and 13 August 2005, when aged 19. He was convicted[22] of two offences of carnal knowledge of a child under 16 years occurring between those dates. He was sentenced to terms of 2 years and 6 months imprisonment for both offences. The victim was aged 12 years. She and the respondent went to an area underneath the Carindale shopping centre and had sexual intercourse. After that they returned to where the respondent was living or staying and again had intercourse. The respondent said that he believed that the victim was 16 years old, but pleaded guilty to the offences.

  1. [19]
    The second group of the index offences occurred on 11 August 2007, when the respondent was aged 21 years. He was convicted[23] on his pleas of guilty of five offences of indecent treatment of a child under 16 years, a further offence of indecent treatment of a child under 16 years by performing oral sex on the child and an offence of unlawful sodomy of a person under 18 years, being a child under 12 years. He was sentenced to a term of imprisonment of 7 years and 6 months for the sodomy offence and to terms of imprisonment of 3 years for each of the other offences.
  2. [20]
    On this occasion, the respondent was staying at the house of a relative or friend of a relative. On one night, he had the short term care of twin 6 year old boys, while their mother was away for the weekend and their grandfather was at work for an evening shift. The respondent sexually abused the boys, including by exposing himself and masturbating in front of them, performing oral sex on one of them and sodomising the other.
  3. [21]
    The third occasion of the index offences occurred between 4 November 2007 and 11 December 2007, when the respondent was also aged 21 years. He was convicted[24] on his plea of guilty of an offence of indecent treatment of a child under 16 years, who was under 12 years and who was under his care. He was sentenced to a term of imprisonment of 18 months, wholly suspended[25] for a period of three years.
  4. [22]
    On this occasion the respondent and a woman with whom he had a relationship had moved into a house where her relatives lived for a short period. The respondent was left at home with two girls who were sisters, aged 7 and 4 years. The respondent placed his exposed penis at or near the 4 year old’s vagina, although she was wearing pants and he did not penetrate her vagina.
  5. [23]
    The effect of the charges for the offences and sentences is that the respondent has been in prison since 21 January 2008. His full time release date on the longest of the terms of imprisonment was 29 May 2018.[26]
  1. [15]
    The respondent’s last offending occurred while she was in prison in 2014.  This was sexual offending described by Jackson J in these terms:

[24] In May 2014, the respondent was imprisoned at the Maryborough Correctional Centre and was subject to an Intensive Management Plan that restricted his entitlement to access or possess some materials. That was because he was trying to source images or photographs of children. A history relating to that question includes that:

  1. (a)
    on 18 December 2010, the respondent handed a picture of a naked child to Queensland Corrective Services Officers;
  1. (b)
    on 19 December 2010, a search of the respondent’s cell (‘cell search’) revealed two naked pictures of children;
  2. (c)
    on 29 April 2011, a cell search revealed a photo of another prisoner and a baby, a number of other photographs of other babies and pre-teen children and a book entitled Human Anatomy and Physiology;
  3. (d)
    on 16 September 2011, a cell search revealed a newspaper pages containing photos of children, a magazine containing ‘explicit’ material and a photo of ‘explicit porn’ material;
  4. (e)
    on 8 November 2013, a cell search revealed a newspaper clipping of a baby photos or photos;
  5. (f)
    on 24 July 2013, a cell search revealed two black and white drawings of depicting a ‘young girl’ in a dress and bare legs and a ‘young female adult’ with ‘exposed cleavage posing as a child blowing bubble-gum’;
  6. (g)
    on 12 May 2014, a cell search revealed two photographs of young children and pictures of children from newspapers; and
  7. (h)
    on 18 May 2014, a cell search revealed photocopied pages from learn to sketch book depicting child images.
  1. [25]
    On 20 May 2014 another cell search revealed an exercise book that contained a three page paedophilic pornographic story handwritten by the respondent, telling of an encounter between the respondent and a three year old girl, including sexual intercourse, and describing in detail his own sexual excitement. The story is a vivid insight into the nature and extent of the respondent’s sexual deviance.
  2. [26]
    On 18 March 2015, the respondent was convicted on his plea of guilty of making child exploitation material and sentenced to a term of imprisonment of 6 months.
  3. [27]
    Another telling point about this offence is that both at the time and subsequently the respondent has told lies in an attempt to cover up or minimise his culpability for it. First, he claimed that it was written by him as part of his involvement in or preparation for one of the sex offenders’ programs conducted and made available for prisoners. That was false, both because the respondent was not part of and had not agreed to participate in such a program, and because prisoners in such programs are not required or encouraged to write such accounts of their offending, for the obvious reason that they might be used for sexual gratification. Second, later the respondent claimed that he had told police he had written the story for and at the request of another prisoner who was participating in such a program, and that police had falsely said that he had written it for himself. That was false, as shown by the transcript of the record of interview between the respondent and police on 29 May 2014 of what the respondent said to police and the accounts given by the respondent to Queensland Corrections Services staff that were to the same effect.”[27]
  1. [16]
    By late 2014, the respondent was seeking to be placed on a transgender program and since that time she has been physically transitioning to female.  She has been receiving hormone treatment since August 2016.
  2. [17]
    No group sexual offender treatment program has been completed by the respondent.  Since her commencement of gender reassignment, she is effectively ineligible for group sexual offender treatment programs.
  3. [18]
    In anticipation of an application being made under the DPSOA, the applicant had the respondent interviewed by Dr Scott Harden, a psychiatrist and a report was prepared.
  4. [19]
    Based on Dr Harden’s report, an application was made under the DPSOA and on 15 January 2018 Martin J made various orders under s 8 of the DPSOA including appointing psychiatrists, Dr Donald Grant and Dr Michael Beech to examine the respondent and prepare reports in accordance with s 11 of the DPSOA.  In due course, those doctors examined the respondent and prepared reports.

The Division 3 hearing before Jackson J

  1. [20]
    His Honour received evidence from various sources, including the three psychiatrists, Doctors Harden, Grant and Beech.
  2. [21]
    Doctor Harden diagnosed the respondent as follows:

“Personality disorder - mixed with antisocial, narcissistic and borderline features - severe.

Polysubstance abuse - in remission due to custodial setting.

Paedophilia - nonexclusive, attracted to males and females.

Low average intellectual function with marked weakness in processing speed.

Attention deficit hyperactivity disorder - possibly in remission.

Possible gender dysphoria, symptoms could be equally consistent with identity diffusion and psychosexual dysfunction associated with early childhood sexual abuse and emotional deprivation.”[28]

  1. [22]
    Doctor Grant’s diagnosis of the respondent was:

“1. A severe Personality Disorder with Antisocial, Histrionic, Borderline and Dependent Traits. He satisfies criteria for Psychopathic Personality Disorder.

  1. A history of polysubstance abuse in the past, largely in remission in custody.
  2. A childhood diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), which may still be relevant to some extent in terms of impulsivity and poor concentration.
  3. A borderline level of intelligence with severe problems with reading and writing and understanding of complex matters.
  4. A Sexual Paraphilia, having been manifest as Paedophilia involving both male and female children, this being nonexclusive, in the sense that he has had multiple relationships with adult women and reports to me that he has fathered six children.
  5. Reported gender dysphoria and current identification as a transgender female.”[29]
  1. [23]
    Doctor Beech’s diagnosis was:

Paedophilia (evidenced by the nature of his offending and ongoing image collection)

  • A mixed personality disorder with narcissistic, borderline, and histrionic features
  • Borderline intellectual functioning (although with a mixed profile)”[30]
  1. [24]
    As to risk, Dr Harden’s opinion was:

“His ongoing unmodified risk of sexual re-offence if released into the community after considering all the available data is in my opinion in the high (well above average) range compared to the recidivism rate of sexual offenders generally.

His greatest risk factors are his severe personality disorder, sexual attraction to prepubertal children and level of denial regarding managing offending risk. Resumption of substance abuse would also be of concern.

If he were to be placed on a supervision order in the community, in my opinion the risk of sexual recidivism would be reduced to moderate. The risk reduction would solely be on the basis of reduction of victim access with strict supervision. He is effectively untreated from the point of view of his sexual offending and no reliance can be placed on internal control structures or his own stated desire not to offend again.”[31]

  1. [25]
    Doctor Grant, on the question of risk, opined:

“Taking all of the material into account and my personal assessment of Mr Anderson I am of the opinion that he represents a high risk for future sexual offending. That risk would mainly involve children of either gender and a wide range of ages. The risk would be higher in the context of alcohol and drug abuse, social instability and lack of supports.”[32]

And:

“If Mr Anderson is released from prison into the community on a Supervision Order, that Order should contain strict criteria preventing him having unsupervised access to children and preventing him using alcohol and drugs. In the community he should, in my opinion, undergo a more thorough re-assessment of his transgender issues to determine whether indeed he should be an acceptable candidate for pursuing transition to female gender, or whether that currently assumed identity is an unstable identity which forms part of a much larger Personality Disorder. If the latter is the case then successful stable transition in gender is unlikely to be achieved.

The relationship between the gender issue and risk for sexual reoffending is somewhat complex, if in fact Mr Anderson remained on gender transition, taking anti-androgen drugs and oestrogen, that would have the effect of significantly lowering his sexual libido and would have the secondary effect of reducing the risk of paedophilic offending. However, if that identity proved not to be stable and his treatment became chaotic, then the risk would not be significantly lowered.”[33]

  1. [26]
    Doctor Beech’s view was:

“Mr Anderson has many issues in the two domains associated with reoffending: antisocial or dyssocial attitudes and psychopathy, and sexual deviance. He has not addressed these to any significant degree; instead, he has avoided appropriate programs that would look at risk factors and assist him to develop strategies for them, and to form a relapse prevention plan. He has eschewed all group work. Instead, he has had a significant amount of individual psychological treatment, but in my opinion this has focused on personality issues, perhaps transition back into the community, and other factors, and it is not the same as high intensity sexual offender program or similar treatment program that a high-risk sex offender would normally receive.

In my opinion, the unmodified risk of re-offending in the community without supervision is high.”[34]

And:

“Mr Anderson said that his gender dysphoria commenced in his very early childhood. However, there is nothing in the contemporaneous material that indicates that this has been mentioned until 2016. Indeed, a comprehensive assessment by an experienced forensic psychologist in 2011 did not elicit anything about gender dysphoria. It does not seem to have been raised in the material until 2016, and then in the course of Mr Anderson’s difficulties in the correctional centre and his attempts to transfer out, or otherwise deal with issues. He has apparently said that he had treatment earlier, prior to his incarceration, but he has subsequently denied this was true. There are other inconsistencies about other areas of his life, and he has a history of manipulation and deceitfulness, that I think should give pause to anyone formally diagnosing gender dysphoria. I gathered in fact that the gender dysphoria diagnosis, and the instigation of treatment, has been done remotely. It would be very helpful to get a copy of the formal assessment of Mr Anderson around the gender dysphoria and the decision to commence treatment, and the details of that treatment.

That being said, it seems to me at interviews with Mr Anderson that he has nonetheless embraced the gender dysphoria status. This may simply be because he has gender dysphoria, and his life long struggles with this have now been mitigated by the recognition of his disorder and the commencement of treatment. Alternatively, as Dr Nelson[35] has suggested, it might meet a number of other psychological needs for Mr Anderson: the manipulation of the correctional system around him, and his need to feel special and receive attention. Certainly, he has gone along with treatment and identified with his new status.

The difficulty is in trying to understand how this might lessen the risk. To some extent it acts against reducing the risk because it prevents him accessing appropriate treatments. It makes it difficult for Mr Anderson to fit in with a high intensity sexual offender treatment program group, and indeed the gender dysphoria and its treatment may exclude him. This is particularly concerning given the nature of the offending against children and evidence that he has continued to collect images of children. It would be helpful to get a clear statement from Mr Anderson about whether or not he identifies as indigenous. If he does, then he could be assessed for the SOPIM.[36] If he does not, then given that the gender dysphoria is being treated, he might be assessed for a HISOP[37] or an ISOP[38] at Wolston CC.

On the other hand, hormone treatment has been used in people with sexual deviance to lower the risk of offending. The difficulty here is that the hormone treatment has not been commenced for that purpose, and I am not aware of any measures of testosterone levels or other matters that might indicate that the risk has been reduced. There has been no formal associated psychological intervention to measure the effects of hormone treatment on sexual preoccupation, sexual urges, or sexual arousal. Mr Anderson has not given any commitment to continue with hormone treatment for the purposes of risk reduction in the community. All guidelines around hormone treatment state that it should be done with in a comprehensive treatment setting that involves psychological counselling and monitoring. I do not think that the risk mitigation effects of hormone treatment have been properly evaluated for Mr Anderson and the fact that child images have been found in his possession as recently as November 2017 indicates that there is an ongoing preoccupation with children.

To that end, I think Mr Anderson should be considered an untreated sex offender with evidence of an ongoing interest in children, and with persisting dynamic risk factors that have not been addressed, and who has limited plans for his release. On the other hand, I think that rehabilitation now is stymied by the gender dysphoria and its treatment.

A supervision order would lessen the risk, I believe, if Mr Anderson were to continue with hormone treatment. It would though need to be seen formally as part of the risk reduction strategy, and to that end, it would need to be appropriately assessed and monitored. It would need to occur in conjunction with formal individual therapy specifically designed to look at risk reduction strategies, and in my opinion this formal psychological therapy should commence prior to his release so that a relapse prevention plan can be developed first. He would have to give commitment to ongoing hormonetreatment.”[39]

  1. [27]
    The evidence therefore showed that the relevant risk of committing a “serious sexual offence” was of committing “an offence of a sexual nature … against a child”.  The psychiatric evidence all supported a finding under s 13(1) of the DPSOA that the respondent was a serious danger to the community in the absence of a Division 3 order and Jackson J so found.[40]
  2. [28]
    It is, with respect, unnecessary to consider his Honour’s detailed analysis of the evidence save his Honour’s findings that at the time the application was before his Honour the gender reassignment treatment of the respondent was in its early stages. In determining that a continuing detention order ought be made, his Honour said:

[89]  If a supervision order were to be made, the parties have agreed upon the form of the appropriate conditions. Among them, proposed condition 49 includes that the respondent must take medication as prescribed by a medical practitioner and proposed condition 28 provides that the respondent must submit to treatment by a medical psychiatrist or other mental health professional as directed by a corrective services officer. Perhaps these conditions would authorise a requirement that the respondent continue with the androgen treatment that has the effect of lowering the risk of serious sexual reoffending that the respondent otherwise presents.

  1. [90]
    However, in my view, the better view of the respondent’s transgender status, shared by all the psychiatrists, is that it may not be stable. In my view, it would be inappropriate for a supervision order to be framed or deployed so as to compel its continuation, even if that were permissible as proper professional practice for a health professional. This is not a case where the respondent has proposed a ‘voluntary’ condition of androgen treatment to lower his risk of sexual reoffending.
  2. [91]
    Once that point is reached, the risk presented by the respondent is not as clearly modified by his transgender status as it would be if that status were accepted as being stable. As well, the suggestion that the respondent, in his present transgender status, has no ongoing sexual interest in children is belied by his continuing to gather and possess images of them in prison, despite the prohibition against him doing so.
  3. [92]
    The result, in my view, is that the adequate protection of the community is not ensured by the proposed conditions of the supervision order. The respondent’s condition as an untreated sexual offender, coupled with the diagnoses of the three reporting psychiatrists, should be recognised as a significant factor in assessing whether the adequate protection of the community can be reasonably and practicably managed by a supervision order at this point in time.
  4. [93]
    In my view, there should be a continuing detention order.”

Developments since the making of the continuing detention order

  1. [29]
    Doctors Harden and Beech again examined the respondent and prepared reports.[41]  
  2. [30]
    Doctor Luke Hatzipetrou is a psychologist who is very experienced in treating recidivist sex offenders.  He had some involvement with the respondent in 2010 and prepared a report, but importantly, he assessed the respondent again in 2019.[42]  Dr Hatzipetrou interviewed the respondent and conducted assessments on 25 January, 22 February and 8 March 2019.  The respondent then agreed to participate in an individualised treatment program with Dr Hatzipetrou.  Doctor Hatzipetrou designed a plan and began administering treatment from 21 March 2019.  Importantly, from this time the respondent was receiving treatment addressing risk of sexual offending.  Equally importantly, her determination to complete gender reassignment strengthened.
  1. [31]
    In his report of 10 June 2019, Dr Hatzipetrou reported:

“The current risk assessment revealed a raft of dynamic risk factors that remain problematic and should be addressed in treatment and management strategies. There had been concurrence between the factors identified by Dr Beech and the current assessment. The additional factor for consideration, which is relevant to Mr Anderson’s ongoing management and risk profile, is the identity as a transgender female. Mr Anderson firmly believes that his identity as a woman presents as a protective factor, rather than an increased risk to children. As such, he vehemently opposed Dr Beech’s opinion regarding his risk as a transgender woman. However, Dr Beech’s points are pertinent to the ongoing risk assessment as the evidence suggests Mr Anderson’s claims of identity as a female throughout his life are not well established or corroborated by other sources. Whilst Mr Anderson referred to dressing in female clothes and performing sexual acts on adult males, there had been little collateral information to confirm this behaviour or his involvement in counselling at a child and youth mental health service for gender dysphoria. Moreover, Mr Anderson was assessed by the author in 2010 and there had not been disclosures regarding identification as a female involving gender reassignment.

Furthermore, Mr Anderson’s mother was not aware of his identification as a female in his upbringing or as a young adult. Whilst Mr Anderson’s claims may be valid, the reports indicate he had sought the gender reassignment therapy in 2016 after he was refused a transfer to another correctional centre. From that point, there appeared to be conjecture regarding the authenticity of his identity as a woman. However, the opinion regarding the transgender identity may be reviewed and firmed if there is additional evidence confirming the pervasiveness of gender dysphoria. Nonetheless, Mr Anderson was assessed by clinicians from Sexual Health and was commenced on hormone therapy. At a later date, Dr Sundin had diagnosed gender dysphoria, which had been also acknowledged by Dr Harden.

Through the course of the assessment, Mr Anderson maintains compliance to hormone therapy and does identify as a woman. It appears Mr Anderson has embraced this identity and lifestyle. However, Mr Anderson’s belief that the risk of reoffending would be mitigated by becoming a woman is not supported and somewhat naive. There are problems of sexual offenders transitioning to women as a means of avoiding treatment programs and, moreover, increasing their risk of reoffending. Hence, the transition to a woman, which would increase the access to children through relationships, has been identified as a complex treatment issue.

Whilst Mr Anderson continues to pursue the gender reassignment, the involvement in a structured long-term sex offender treatment intervention that incorporates the potential risk factors associated with gender reassignment is imperative.

In light of the previous and current risk assessment, Mr Anderson presents with a cluster of dynamic risk factors that were relevant in past and, more so, current risk management. To this end, the prominent areas of treatment include sexual deviancy, substance abuse, self-awareness, psychopathic personality traits, and relationship skills. Moreover, the risk of sexual reoffending against children known to him is likely to be high.”[43]

[32]  By way of general summary, Dr Hatzipetrou observed:

“The general impression of Mr Anderson is that of a 32-year-old Caucasian male with a reported history of Attention Deficit Hyperactivity Disorder, Conduct Disorder, polysubstance abuse and a prejudicial upbringing. The evidence suggests Mr Anderson’s education remained incomplete and he struggled to form functional peer relationships. Moreover, Mr Anderson had reportedly demonstrated rule violating behaviours during schooling, which impacted on his academic achievements, social relationships and school attendance. The social skill impairments and impulsivity are likely to be associated with ADHD and the borderline intelligence.

Whilst attending school, Mr Anderson had been confronted by a prejudicial upbringing and exposure to an environment consisting of parents with mental health problems and substance abuse disorders.

It appears Mr Anderson’s alcohol and drug use emerged in early adolescence, coinciding with his itinerant lifestyle and reported engagement in antisocial behaviours, such as stealing.

Prior to his incarceration, Mr Anderson had referred to a pattern of polysubstance abuse, which included cannabis, ecstasy, amphetamines and cocaine. To access these substances, Mr Anderson engaged in stealing behaviours and/or prostitution. Mr Anderson had referred to his proclivity to solicit sexual favours to older adolescents or adult males whilst portraying himself to be a female. Furthermore, Mr Anderson’s sociosexual development was likely to be corrupted by the reported incidents of sexual abuse and parental neglect. 

Clinically, Mr Anderson has presented with complex childhood emotional and behavioural disorders, compounded by an intellectual impairment associated with ADHD. Mr Anderson’s behaviour appeared to manifest into a conduct disorder that prevailed through adolescence and adulthood. As such, Mr Anderson’s capacity for empathy is impaired, which is a relevant factor to his offence trajectory. In addition, Mr Anderson presented with predisposing risk factors for mental health problems, such as intellectual impairment, a paternal history of criminality and schizophrenia, as well as the exposure to a disruptive and prejudicial upbringing, notwithstanding, the reported childhood abuse.

In light of these experiences, Mr Anderson had struggled to form functional peer and intimate relationships, although he had reportedly reared six children during the course of these heterosexual relationships with older women. Based on the current findings, Mr Anderson did present with a pattern of symptoms consistent with paedophilia in the background of borderline intellectual functioning, ADHD and childhood abuse. Moreover, Mr Anderson presents with a cluster of symptoms consistent with Cluster B personality traits and, as noted in previous psychiatric reports, psychopathic personality traits. Despite the reported history of polysubstance abuse emerging in early adolescence, Mr Anderson has not completed an evidence-based drug and alcohol program. 

Taking into consideration the current findings and materials, Mr Anderson’s interest and preoccupation in children under the age of sixteen years has been well established and directly impacted on his offence path. As evidenced in the previous and current risk assessments, Mr Anderson presents with a raft of dynamic risk factors that have contributed to his previous offending and have been largely untreated during the course of his incarceration. Whilst there are a multitude of risk factors, the presence of the complex personality structure, childhood trauma, limited self-awareness and sexual deviancy are key risk factors, along with a history of impaired self-regulation and relationship problems.

There is conjecture regarding Mr Anderson’s pervasiveness of gender dysphoria, yet he appears to remain committed to transition to a woman. Throughout the assessment, Mr Anderson appeared to maintain this identity as a woman and has complied with ongoing hormone treatment. Moreover, he had expressed intentions to complete the transgender reassignment when released. Mr Anderson had expressed a desire to undergo surgery to complete the transition. Nonetheless, Mr Anderson’s reported gender dysphoria and identity as a woman is potentially a risk factor for future reoffending. To this end, the body of literature indicates that offenders engaging in transgender reassignment to a woman did not pursue treatment and are likely to remain a risk of reoffending against children. In Mr Anderson’s case, he has expressed a willingness to participate in a treatment program and accepts his offences have been facilitated by paedophilia and corrupted understanding of relationships between adults and children. However, he does not consider his identification as a woman to be a future risk factor at this stage. As noted by Dr Beech, the role of hormone therapy may have a mitigating impact by reducing Mr Anderson’s sexual arousal. However, Mr Anderson’s offending behaviours appear to have been facilitated by untreated sexual deviancy, an impaired understanding of functional and safe relationships, dysfunctional personality traits and a marked impairment in self-regulation.

At the time of the assessments, Mr Anderson was aware that he is subject to the DPSOA Order and would have restrictions on his access to children and to abstain from illicit drugs and alcohol whilst maintaining stable accommodation with ongoing supervision and monitoring. Given the complexity and chronicity of Mr Anderson’s offence path and ongoing mental health and gender issues, the individual treatment is likely to be protracted and extend into his transition into the community.”[44]

  1. [33]
    Doctors Harden and Beech were engaged to examine the respondent and prepare reports for the review of the continuing detention order.  
  2. [34]
    Doctor Beech, in his report of 7 August 2019, observed that the respondent had commenced therapy with Dr Hatzipetrou and was addressing his offending behaviour.  He opined:

“In all, I think that this is substantial improvement and a positive change in attitude and behaviour. However, the psychological intervention so far has been limited. It contrasts with the 300-350 hours of treatment that an offender would usually get in a group program.

I believe that it is still too early to say with any confidence that the risk of re-offending has significantly reduced or that this progress would continue in the community. It is still in the early stages of treatment and it is unlikely that a full exploration and modification of distorted thinking has been canvassed. Similarly, I do not think there is evidence of a committed plan for managing paedophilic urges. There is no concrete relapse prevention plan which is the ultimate positive outcome of treatment.

This is not to say that treatment so far has been unhelpful nor to minimise its effects, but to state that I do not think it has reached the point where it could be said that it would necessarily continue in the community or that it has brought lasting benefits. 

In my opinion, the risk is still high and there is no concrete plan to manage this in the community. I recommend further treatment and progress updates from Dr Hatzipetrou coupled with the provision of a relapse prevention plan that Anderson could put in place for release and which those whose supervise her would be able to refer to.”[45]

  1. [35]
    Doctor Harden, in his report of 28 October 2019, said:

“Her ongoing unmodified risk of sexual re-offence if released into the community after considering all the available data is in my opinion still in the high (well above average) range compared to the recidivism rate of sexual offenders generally.

The greatest risk factors are severe personality disorder and sexual attraction to prepubertal children. Resumption of substance abuse would also be of concern. 

If she were to be placed on a supervision order in the community, in my opinion the risk of sexual recidivism would now be reduced to low to moderate, particularly associated with monitoring and supervision as well as hormonal treatment and reduction in testosterone level.

She is in early treatment from the point of view of sexual offending and no reliance can be placed on internal control structures or a stated desire not to offend again as yet.”[46]

  1. [36]
    By January 2020, the respondent’s treatment had been progressing for some 10 months.  Dr Hatzipetrou prepared a further progress report dated 31 January 2020.  After explaining how treatment had progressed he said:

“Miss Rose did present with a pattern of symptoms consistent with paedophilia in the background of borderline intellectual functioning, ADHD and childhood trauma.  Moreover, Miss Rose presents with a cluster of symptoms consistent with Cluster B personality traits and, as noted in previous psychiatric reports, psychopathic personality traits.

Furthermore, Miss Rose’s interest and preoccupation in children under the age of sixteen years has been well established and directly impacted on her offence path. Miss Rose presents with a raft of dynamic risk factors that have contributed to his previous offending and have been largely untreated during the course of his incarceration. In addition, Miss Rose appeared to maintain this identity as a woman and has complied with ongoing hormone treatment. Moreover, he had expressed intentions to complete the transgender reassignment when released. Notably, Miss Rose’s reported gender dysphoria and identity as a woman has been identified in previous reports as a risk factor for future reoffending. However, Miss Rose remains motivated to develop relapse prevention strategies to mitigate the risk of recidivism as a woman.

Since March 2019, Miss Rose has expressed a willingness to continue with the treatment program and accepted her offences have been facilitated by paedophilia and corrupted understanding of relationships between adults and children. Importantly, she has been engaged in the fortnightly sessions and continues to be compliant and co-operative. Whilst there are inherent barriers to treatment, there are counter strategies to manage these issues in sessions and opportunities to model and promote effective problem solving skills and/or process psychological distress. Given the complexity and chronicity of Miss Rose’s offence path, learning difficulties and gender issues, the individual treatment is likely to be protracted and extend into his transition into the community.”[47]

  1. [37]
    Doctors Beech and Harden were then asked to review their opinions based on the progress report of Dr Hatzipetrou.
  2. [38]
    Doctor Beech, in his supplementary report of 17 February 2020, opined:

“In my opinion, this is a very positive report from Dr Hatzipetrou that indicates ongoing progress since I last saw Ms Anderson in July 2019. It confirms that the positive trajectory I noted in 2019 has continued. Her continued participation in the counselling sessions is very positive.

I believe that treatment has not been completed, and Dr Hatzipetrou does not specifically speak of a formal relapse prevention plan. In my opinion, such a formal plan is important for release into the community so that Ms Anderson, her treating clinicians, and her supervisors have a common framework for managing the risk appropriately.

It may be possible to adopt an interim plan to meet the immediate risk with a view to continuing the rest of the treatment in the community. In my opinion, this should be broached with

Dr Hatzipetrou. I agree that ongoing supervision in the community is needed. There should be ongoing counselling and formal completion of the treatment program during the course of transitioning into the community; I think it makes sense that this formal treatment and maintenance treatment continues on release.

However, it is also important that there is some form of formal plan that can be adopted that addresses immediate risk factors prior to release.[48]

  1. [39]
    Doctor Harden responded by email of 11 February 2020 in these terms:

“I have reviewed my most recent risk assessment report dated 28 October 2019 as well as the letter from Dr O’Gorman and the report of Dr Luke Hatzipetrou dated 31 January 2020.

None of the new material changes the conclusion in my risk assessment report of 28 October 2019.”[49]

  1. [40]
    One of the issues raised by Dr Beech was the absence of a formal relapse prevention plan.  That was provided with a further report of Dr Hatzipetrou dated 31 March 2020.  In explaining the relapse prevention plan, Dr Hatzipetrou said:

“Thank you for the referral and request for a brief report regarding Miss Rose’s relapse prevention plans. Miss Rose is currently incarcerated at the Wolston Correctional Centre and engaged in offence specific treatment which commenced from the 21st March 2019. Miss Rose participates in individual treatment tailored to her learning needs and gender. However, Miss Rose has not completed the treatment program to date and as such, the current relapse prevention strategies are based on assessment findings and observations and progress in treatment.

The relapse prevention strategies are not comprehensive and likely to change as Miss Rose progresses through the stages of the treatment. There is a combination of external and internal strategies and diagnostic formulations underpinning the provisional relapse prevention plan (RP). Importantly, the RP should complement court ordered conditions if Miss Rose were to be considered released from prison.

In brief, the internal strategies refer to the identification of high-risk situations leading to abuse and identification and analysis of seemingly unimportant decisions that allow Miss Rose to be put into high-risk situations. Moreover, Miss Rose has the opportunity to develop strategies to avoid, or cope more effectively with, these situations. 

The external strategies (Supervisory Dimension of RP) facilitate supervision of Miss Rose through case managers from HROMU[50] and Parole and Probation. The functions of external strategies are to enhance the efficacy of supervision by monitoring specific precursors to offending and to increase the efficiency of supervision by creating a network of collateral contacts which assists the case managers in monitoring Miss Rose’s behaviour. In addition, these strategies include the opportunity to create a collaborative relationship with mental health and health professionals engaging in treatment with Miss Rose as well as support services particularly those funded through NDIS.”[51]

  1. [41]
    The psychiatrists were then asked to review the plan and opine whether a supervision order might provide adequate protection for the community.  That is the ultimate question under a review pursuant to s 30 of the DPSOA, as Dr Harden pointed out in his email of 2 April 2020: “I have reviewed the report of Dr Hatzipetrou dated 31 March 2020. In response to your questions with the greatest respect the question of the adequate protection of the community is one for the court. From a clinical perspective the plan is an adequate plan to manage the risks and is appropriately developed. As part of a supervision order process it will reduce the risk of sexual recidivism to low to moderate as described in my report of October 2019. My understanding is that therapy has been occurring since 21 March 2019. I see no need for further therapy in custody at this point on the information available.”
  2. [42]
    Doctor Beech also responded by email on 2 April 2020:

“The report indicates significant progress.

I think Dr Hatzipetrou needs to be asked whether he recommends that treatment is finished in custody to ensure a comprehensive relapse plan is established or whether he is confident that it can now be completed in the community. In most circumstances, treatment programs are completed in prison prior to release so that the RPP[52] is the best it can be and those providing supervision are best informed. 

If Dr Hatzipetrou considers it has reached a suitable stage of development, and he can provide advice to supervisors, then it would be appropriate to release Ms Rose/Anderson. Otherwise, it would be better to complete treatment.”

  1. [43]
    It is of importance to note at this point the roles of the various authors of the expert evidence.  The psychiatrists have never treated the respondent.  Their roles have always been forensic.  Doctor Hatzipetrou initially had a forensic role but that changed to one of treating psychologist.  The psychiatrists are relying upon Dr Hatzipetrou’s progress reports when they, the psychiatrists, are assessing risk.  Doctor Beech, in his email, is prepared to rely upon Dr Hatzipetrou’s opinion as to whether treatment can be adequately provided in the community.  This is not an abrogation by the psychiatrists of their responsibilities.  It is simply a recognition of Dr Hatzipetrou’s role as treating psychologist.  
  2. [44]
    On 18 May 2020, an email was sent to Dr Hatzipetrou enquiring as to whether there was any update to the relapse prevention plan.  By this stage, there were further complications caused by the COVID-19 pandemic.  Doctor Hatzipetrou responded:

“There are no changes yet.  Due to COVID-19 restrictions it has been difficult to maintain regular sessions. As such there is no change.”

  1. [45]
    Doctors Beech and Harden were asked to update their opinions.  Doctor Beech responded by email on 19 May 2020:

“Under normal circumstances I believe that it is not ideal that someone whose unmodified risk of reoffending is high is released prior to completing treatment, especially without a completed relapse prevention plan. However, these are not ideal times and paradoxically Ms Rose’s best chance of completing treatment is likely to be if she is released so that she can attend Dr Hatzipetrou’s rooms.

The risks have been explored: boredom, substance use, unstable living circumstances, impulsivity and being in high risk settings. At present the internal strategies to manage these risks have not been developed. Risk reduction therefore in the immediate period will rely upon external strategies of supervision . They are outlined in the provisional RPP in Dr Hatzipetrou’s report.

Under all the circumstances, if appropriate accommodation can be found and if she can be linked to the agencies recommended in the report, then I think that the risk in the immediate release period would be substantially lowered by supervision. My concern is around her judgment and impulsivity; she will need close supervision, frequent case management sessions and repeated advice.

The usual conditions around not having contact with children should apply but she will need reminders about what that entails in practice. Supports will need to be implemented quickly to offset the risk that she will not cope with the restrictions of a SO.[53]

Although there is usually a generic condition around treatment, in this case I think that it should be more specific, to continue to engage in treatment with Dr Hatzipetrou to develop a comprehensive RPP and then participate in a maintenance program.

Similarly, it is important that she develops the weekly schedule that Dr Hatzipetrou recommends.”

  1. [46]
    Doctor Harden:

“I have now reviewed the very brief note from Dr Hatzipetrou as well as my and Dr Beech’s previous responses and my most recent risk assessment report. My opinion is the same as on my email from 2 April 2020.”

  1. [47]
    Because of the respondent’s transgender status, some difficulties have been encountered in securing suitable accommodation.  That has been overcome and accommodation with suitable supports is available from 1 June 2020.[54]

Conclusions and determination

  1. [48]
    There is no doubt that the respondent is a serious danger to the community in the absence of a Division 3 order.  The evidence of the psychiatrists is strongly to that effect.  There is no evidence to the contrary and I accept the evidence of the psychiatrists.
  2. [49]
    When Jackson J made the continuing detention order, the respondent was, in effect, an untreated serious sexual offender and her path to gender reassignment was not stable.  Since then, the respondent has been receiving treatment from Dr Hatzipetrou and that treatment is continuing.  Further, the respondent is clearly committed to gender reassignment and she appears much more emotionally stable and secure.  
  3. [50]
    Neither of Doctors Harden nor Beech have suggested that Dr Hatzipetrou is not appropriately qualified and skilled to deliver the necessary individualised treatment to the respondent.  Similarly, neither psychiatrist has cast any doubt over the appropriateness of the program which Dr Hatzipetrou has designed and is delivering.  
  4. [51]
    Some questions remain as to whether treatment should be completed before the respondent is released on a supervision order.  However, Dr Harden considers this unnecessary and Dr Beech has explained that the COVID-19 pandemic means that treatment is best delivered in supervision in the community.
  5. [52]
    I am satisfied on all the evidence that the adequate protection of the community can be ensured by the release of the respondent to a supervision order.  The terms of the supervision order have been agreed between the parties and the terms are, in my view, appropriate.
  6. [53]
    By s 13A of the DPSOA, it is necessary to set the period of supervision.  Both psychiatrists consider that the order should prevail for 10 years.  In my view, it is necessary to ensure the adequate protection of the community that the supervision order be in place for 10 years.
  7. [54]
    The accommodation at which the respondent is to be housed is available from 1 June 2020.  The respondent has been in custody since 2008.  It is important, in my view, that her transition into the community is a smooth one.  To enable proper preparations to be done, I intend to order that she be released on supervision from 10.00 am on 2 June 2020.

Orders

[55]  The orders are as follows:

  1. The decision of Jackson J made on 30 July 2018 that the respondent Jeffrey Terrence Anderson is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 is affirmed.
  2. The continuing detention order made by Jackson J on 30 July 2018 is rescinded as and from 10.00 am on 2 June 2020.
  3. The respondent be released from custody at 10.00 am on 2 June 2020 and be subject to the requirements of the supervision order which is attached as Schedule A to these reasons for a period of 10 years until 2 June 2030.

"A"

SUPREME COURT OF QUEENSLAND

REGISTRY: Brisbane

 NUMBER:  13482/17

Applicant  ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND

AND

Respondent  JEFFREY TERRENCE ANDERSON

SUPERVISION ORDER

Before:  Justice Davis

Date:  29 May 2020

Initiating document:  Originating Application filed 23 September 2019 (CFI No. 40)

THE ORDER OF THE COURT IS THAT:

  1. The decision of Jackson J made on 30 July 2018 that the respondent Jeffrey Terrence Anderson is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 is affirmed.
  2. The continuing detention order made by Jackson J on 30 July 2018 is rescinded as and from 10.00 am on 2 June 2020.
  3. The respondent be released from custody at 10.00 am on 2 June 2020 and be subject to the requirements of this supervision order for a period of 10 years until 2 June 2030.

TO Jeffrey Terrence Anderson:

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

Judgment-Image

Supervision Order

Filed on behalf of the applicant

Form 59 R. 661

GR Cooper

CROWN SOLICITOR

11th Floor, State Law Building

50 Ann Street

Brisbane Qld 4000

Per Margaret Maloney PL4/ATT110/3545/MAM

Telephone 07 3031 5851 Facsimile  07 3031 5998

Reporting

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

To “report” means to visit a corrective services officer and talk to them face to face.

Supervision

  1. A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a corrective services officer gives you about:
    1. a)
      Where you are allowed to live; and
    2. b)
      Rehabilitation, care or treatment programs; and
    3. c)
      Using drugs and alcohol; and
    4. d)
      Who you may have contact with; and
    5. e)
      Anything else, expect for instructions that mean you will break the rules in this supervision order.
  2. A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation.

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

  1. You must answer and tell the truth if a corrective services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.
  2. If you change your name, where you live or any employment, you must tell a corrective services officer at least two business days before the change will happen.
    1. A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday. 

No offences

  1. You must not break the law by committing a sexual offence.
  2. You must not break the law by committing an indictable offence. 

Where you must live

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

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

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

Curfew direction

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

Monitoring direction

  1. A corrective services officer has power to tell you to:
  1. a)
    Wear a device that tracks your location; and
  2. b)
    Let them install a device or equipment at the place you live. This will monitor if you are there. 

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

Employment or study

  1. You must get written permission from a corrective services officer before you are allowed to start a job, start studying or start volunteer work.
  2. When you ask for permission, you must tell the corrective services officer these things:
    1. a)
      What the job is;
    2. b)
      Who you will work for;
    3. c)
      What hours you will work each day;
    4. d)
      The place or places where you will work; and
    5. e)
      (if it is study) where you want to study and what you want to study.
  3. If a corrective services officer tells you to stop working or studying you must obey what they tell you. 

Motor vehicles

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

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

Mobile phone

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

Computers and internet

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

No contact within any victim

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

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

Rules about alcohol and drugs

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

Rules about medicine

  1. You must tell a corrective services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a corrective services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.
  2. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor.

Rules about rehabilitation and counselling

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

Speaking to corrective services about what you plan to do

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

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

Contact with children

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

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

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

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

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

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

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

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

Offence specific requirements

  1. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence. You must talk about this with a corrective services officer when asked;
  2. You must not collect photos/ videos/ magazines which have images of children in them without prior approval of a Corrective Services officer.

If you have any you may be asked to get rid of them by a corrective services officer

  1. You must not access child exploitation material or images of children on a computer or on the internet or in any other format;
  2. You cannot get pornographic images on a computer or phone from the internet or magazines without written approval from a corrective services officer. Your treating psychologist will provide advice regarding this approval.
  3. You must not have contact with anyone convicted of a sexual offence against children without prior approval of a Corrective Services officer, except for incidental contact with others during the course of fulfilling order requirements.
  4. You must advise your case manager of any personal relationships you have started. 

Footnotes

[1] Attorney-General for the State of Queensland v Anderson [2018] QSC 166.

[2] Section 13(1).

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

[4] Attorney-General for the State of Queensland v Anderson [2018] QSC 166 at [92]-[93]. 5   Section 27.

[5] Section 27.

[6] Section 13(1).

[7] Section 13(2).

[8] 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].

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

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

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

[12] Section 13(b).

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

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

[15] [2006] QSC 268.

[16] At [30] and see also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 657, [225], [226]. 17   Section 27(1A).

[17] Section 27(1A).

[18] Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60].

[19] See the summary in Attorney-General v Anderson [2018] QSC 166 at [8]-[17]. 20   [2018] QSC 166 when making the continuing detention order.

[20] [2018] QSC 166 when making the continuing detention order.

[21] The “serious sexual offence” which triggered the application of the Dangerous Prisoners (Sexual Offenders) Act 2003. 22  On 5 March 2009.

[22] On 5 March 2009.

[23] On 20 February 2009.

[24] On 30 November 2010.

[25] The suspended sentence is explained by the circumstance that although the offence was last in the chronological order of the index offences, it was the first that was dealt with by a court.

[26] Since then, the respondent has been detained under the Dangerous Prisoners (Sexual Offenders) Act 2003.

[27] Footnotes in the judgment omitted. 

[28] Report dated 29 August 2017, page 24.

[29] Report dated 25 April 2018, page 31.

[30] Report dated 29 April 2018, page 25.

[31] Report dated 29 August 2017, page 24.

[32] Report dated 25 April 2018, pages 33-34. 33   Report dated 25 April 2018, page 34.

[33] Report dated 25 April 2018, page 34.

[34] Report dated 29 April 2018, page 26.

[35] Who performed psychometric testing of the respondent.

[36] Sexual Offending Program for Indigenous Males.

[37] High Intensity Sexual Offenders Program.

[38] Inclusion Sexual Offender Program.

[39] Report dated 29 April 2018, pages 26-27.

[40] Attorney-General v Anderson [2018] QSC 166 at [82]-[83].

[41] Doctor Harden’s report dated 28 October 2019, Dr Beech’s report dated 7 August 2019. 42   Report of Dr Luke Hatzipetrou dated 10 June 2019.

[42] Report of Dr Luke Hatzipetrou dated 10 June 2019.

[43] Report dated 10 June 2019, pages 16-17.

[44] Report dated 10 June 2019, pages 18-19.

[45] Report dated 7 August 2019, pages 11-12.

[46] Report dated 28 October 2019, page 27.

[47] Report dated 31 July 2020, page 6.

[48] Report dated 17 February 2020, page 2.

[49] Dr O’Gorman works in the prison health service.

[50] High Risk Offender Management Unit.

[51] Report dated 31 March 2020, pages 1-2.

[52] Relapse Prevention Plan.

[53] Supervision order.

[54] Affidavit of Daniel Bear, sworn 18 May 2020, paragraphs 7-13.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Anderson

  • Shortened Case Name:

    Attorney-General v Anderson

  • MNC:

    [2020] QSC 142

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    29 May 2020

Litigation History

No Litigation History

Appeal Status

No Status