SUPREME COURT OF QUEENSLAND

[1]  FRASER JA: I have had the advantage of reading the reasons for judgment of Lyons J.  I agree with the order proposed by her Honour, and with her reasons for the order.

[2]  FRYBERG J:  Following cross examination of the psychiatrists called on behalf of the Attorney-General before Byrne J on 16 August 2007, it became apparent that, as his Honour put it, “a matter for consideration is whether [Mr Shapland] ought to be detained to facilitate the development of a rehabilitation plan”.  Such a plan would have involved two components, both of which required assistance to the applicant from officers of the Department of Corrective Services.  The first was the development of a relapse prevention program and the second the development of a transition program.

[3] The applicant was willing to undertake the latter task with the necessary assistance.  It may be inferred that its absence was due simply to the fact that it was normally prepared shortly before the date of release, and no release date was envisaged at the time of the application.  His Honour correctly appreciated that a relatively short adjournment could provide the opportunity for the development of such a plan.

[4] Development of a relapse prevention plan was a more substantial problem.  Without it, the applicant posed a high risk of reoffending.  If a suitable plan were developed, that risk might be reduced to moderate.  However his Honour was informed that officers would participate in the development of a relapse prevention plan only in the context of participation by the applicant in HISOP, the High Intensity Sexual Offenders Program, which might take nine months to complete.  On the evidence, none of the psychiatrists would support the applicant's participation in the whole of that program on the basis that it would not make any useful contribution to reducing the risk of his reoffending; and the applicant refused to undertake the whole of that program.

[5] His Honour was evidently puzzled by the departmental attitude.  He speculated:

“HIS HONOUR:  The department’s position may well be, ‘If we’re going to have the Relapse Prevention Plan, under the arrangements we presently have in place there’s no prospect of it being effective in the absence of it being developed throughout the months that are involved in the high intensity program.

MR SHEPHERD:  Yes.

HIS HONOUR:  So what may have happened is somebody hears the words ‘Relapse Prevention Plan’, they’re familiar with what’s on offer and they think that can’t be done without the entire course; and, after all, the exercise that’s presently under consideration, the one Dr Beech described in a little more detail, wouldn’t seem to require more than the resources that many social workers could bring to the task, whether they’re psychologists or not.”

The applicant, through his counsel, indicated that he was willing to participate in the development of a relapse prevention plan of the sort which his Honour envisaged.  However counsel for the Attorney-General after taking further instructions, confirmed that the department would not provide a psychologist or social worker simply to help with the development of such a plan.

[6] Against that background his Honour asked counsel for the applicant what in his submission should be done.  His primary submission involved releasing the applicant on a supervision order.  His alternative submission was:

“MR SHEPHERD:  That the matter be adjourned until we can – your Honour can be absolutely confident that the intent of your Honour’s questions is understood by the Department and that the specific question of whether or not a specific rehabilitation program would be available to Mr Shapland in the immediate future.”

[7] His Honour then observed that what the applicant needed was:

“a viable, considered plan to which he is committed, which would address the concerns that the testimony of Dr Beech in particular raises, where will he go, who will he meet, what will he do, how will he live, and so on.”

He said to counsel for the applicant:

“HIS HONOUR:  If anything useful is to come of an adjournment it rather sounds as though the initiative will have to come from your side.

MR SHEPHERD:  Yes, your Honour.

HIS HONOUR:  Your side developing your proposal about what Mr Shapland will do, by when he will do it, and indicating what level of assistance you’re seeking from the resources of the Department.”

Counsel indicated that his client was willing to undertake that process, and on that basis the application was adjourned.  Arrangements were made for a copy of the transcript including his Honour's remarks to be made available to departmental officers.

[8] The hearing resumed on 5 November 2007.  Further affidavits were filed.  One of them, sworn by an officer of Crown Law, exhibited a memorandum from the Director of the Sex Offender and Dangerous Offender Unit of the Department.  She stated:

“With intensive individualised assistance from the Reintegration Support Officer, the Transitions Plan marked A was completed.  It appeared that SHAPLAND engaged within the process at a superficial level and the resultant plan is considered basic.

Given that the success of any plan often depends on the offender’s level of investment in putting that plan into action upon release, it was not appropriate to force SHAPLAND to draft more comprehensive responses simply to satisfy the requirement of developing a plan.

However, it was explained to SHAPLAND that he was required to expand upon his preliminary Transitional Plan in light of his participation in subsequent elective modules to increase the depth and feasibility of his release plans.

At the conclusion of SHAPLAND’S participation in the Transitions Program, SHAPLAND submitted the plan marked B.  In comparing the two plans, it appears that the final plan submitted by SHAPLAND is less comprehensive than the first that was developed in conjunction with the Reintegration Support Officer.  Furthermore, he did not expand upon sections relevant to his release in any great depth.

Information provided by the Transitions program facilitators indicates that SHAPLAND was generally a disruptive presence in the program.  He was a reluctant participant and often commented that he did not need support as this had already been arranged by him.  When asked for further details, he was unable to provide further information.

On occasion, other group members suggested SHAPLAND should leave the group if he did not wish to participate, however he responded that facilitators would not allow him to leave.  While SHAPLAND was not rude or offensive in his dealings with facilitators, he did display an aggressive manner at times.”

[9] Counsel for the applicant told the judge that there was no real factual or other dispute with that report except that his client did not agree that he was disruptive.  He did not object to hearsay evidence, nor did he demand to see the original report of the Reintegration Support Officer.  As his Honour observed, “This isn't very promising, is it?”  Nonetheless, he told counsel that the matter of most concern to him was the absence of any sort of relapse prevention plan.

[10]  His Honour was right to be concerned.  Without such a plan a finding that the applicant presented a high risk of reoffending was inevitable.  There was no evidence placed before his Honour to explain the absence of that plan.  Since one of the main objects of the adjournment had been to enable the applicant to develop such a plan if possible, this was surprising.  One would have expected that the applicant would have sought departmental assistance for a proposal of the type suggested by the judge before the adjournment.  In the absence of evidence the obvious inference is that no such assistance was sought and that no plan was developed because the applicant was unwilling to cooperate in making that happen.  That inference is reinforced by the applicant's attitude during the development of his transitions plan.  As his Honour said in his reasons for judgment:

“Confronted with the opportunity to participate genuinely in a program to facilitate his re-integration into the community - one which might have appreciably reduced the risk of recidivism - the respondent has not taken advantage of the opportunity.”

[11]  In this Division the applicant (who was unrepresented) submitted that the reason for the absence of such a plan was that the Department had maintained its attitude of not helping him develop a relapse prevention plan except as part of another course.  There is no evidentiary basis for that submission; quite the reverse.  If the applicant had wished to place the responsibility for the absence of the plan on the Department, he should have led evidence to that effect at first instance.  The position might have been different if the applicant had done as his Honour suggested[1] and been met by unreasonable Departmental non-cooperation.

[12]  I agree with Lyons J that additional evidence sought to be relied on by the appellant should be rejected, for the reasons which her Honour states.  I also agree with her Honour that the appeal should be dismissed.

[13]  LYONS J: On 5 November 2007 Claude Shapland was subject to a continuing detention order pursuant to s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).  He appeals against that decision.  The appellant’s grounds of appeal are: (a) that the learned primary Judge erred in making a continuing detention order pursuant to s 13(5)(a); and (b) that the learned primary Judge failed to consider what effect the conditions of a supervision order would have on the appellant’s risk of the offending.

[14]  It would seem that the appellant does not contend that he is not a serious danger to the community in the absence of an order under s 13, but rather, he argues that a supervision order with appropriate conditions would provide adequate protection to the community on his release and that the learned trial Judge erred in not making a finding to that effect.

[15]  Other grounds of appeal raised by the appellant, many of which are not directly relevant to this appeal, include the ground that he had a reasonable expectation that his full time sentence would be sufficient and that, because the total period of imprisonment had been served, he should be released.  He further argues that the common law doctrine of res judicata has force and effect.  The appellant also argues that, in deciding that the appellant should participate in further courses, the trial Judge erred.  In particular, when the trial Judge ordered that the appellant participate in the transition program to address his reintegration back into society and complete a relapse prevention plan, the appellant argues that the Judge relied on irrelevant material and made a serious error of judgment.  The appellant contends that there was nothing in his conduct and industry while he was incarcerated that would harm his prospect of release.

The offences

[16]  In March 2004 the appellant was sentenced to four years imprisonment after he pleaded guilty to three charges of indecent treatment of a child under the age of 12.  These offences were committed whilst he was on parole for 10 other sexual offences committed against an 11 year old girl in 1994 and 1995.

[17]  In the Lismore District Court in September 1995 he had been sentenced to eight years imprisonment in relation to those offences and he was released on parole in 2002 with a condition that he have no contact, directly or indirectly, with children.  The offences of which he was convicted in March 2004, therefore, involved a breach of the conditions of that parole order.  His parole was subsequently revoked.

[18]  The Queensland offences involved digital examination of the genitalia of at least one child.  The appellant had been invited into the house where the offences occurred, apparently in relation to the sale of a motorcycle.  The parents of the victims, who were girls aged 10 and seven, were in the house at the time.  While the parents were distracted, the appellant entered the bedroom with the children and was discovered shortly afterwards by the girls’ mother, inspecting the anal and genital areas of the older girl.  She was on all fours, exposing herself.  The younger child was found under the blankets of the bed wearing no pants.  The appellant had participated in a community-based sex offenders’ treatment program whilst he was on parole.

[19]  The earlier offending, in 1994 and 1995, concerned an 11 year old girl he had met when her parents delivered furniture to the house the appellant was living in.  While the parents were distracted, he put his hand on the outside of her underpants and rubbed her genital area.  A few days later he waited in his car for this child outside her school and drove her to a bushland park.  There, the first episode of sexual misconduct occurred.  About a week later he waited outside her school again.  Again she went with him to the same location and she was given $3.  Again sexual misconduct occurred.  That kind of behaviour continued for up to three times a week, between July 1994 and February 1995.  The sexual activity involved incidents of anal and vaginal intercourse.

The psychiatrists’ reports

[20]  Three psychiatrists expressed opinions concerning the risk that the appellant might commit sexual offences against children were he to be released into the community; Professor Barry Nurcombe, Dr Michael Beech, and Professor Basil James. 

Professor Nurcombe

[21]  Professor Nurcombe, in his report dated 11 June 2006, assessed the appellant as having a late onset antisocial personality disorder together with paedophilia which was heterosexual, non-exclusive, and regressive.  Having administered a number of risk assessment instruments, including the STABLE-2000, the STATIC-99  SORAG, SVR-20, and the Psychopathy Checklist, he considered that the appellant was a high or moderate to high risk of sexual offending.  He was particularly concerned with his lack of any friendship network in the community, the difficulty he would have in forming an intimate personal relationship, and his denial of any involvement in the second set of offences.  Professor Nurcombe also expressed concern about the appellant’s general sense of social rejection, loneliness, childhood emotional privation, and the subtle attitudes the appellant has “...that favour child molestation (e.g. he thinks that children are capable of enjoying sex with adults physically if not mentally, by between 11 and 15 years of age).”  He stated that if the appellant re-offends his victims were likely to be emotionally needy female children, aged between 10 and 14, who may be children he meets but not necessarily the children of friends.  He considered that offences were most likely to occur in a setting of loneliness, bitterness, impecuniousness, and idleness, particularly after the failure of a relationship.

[22]  In his report, Professor Nurcombe indicated that close supervision would be required after the appellant’s release from prison and that he should not live or work in the vicinity of children.  He recommended that, prior to his release into the community, the appellant should complete the High Intensity Sex Offender Program (“HISOP”) and that he develop a realistic post-release plan and an effective relapse prevention plan.

Dr Beech

[23] In his report dated 7 August 2007, Dr Beech considered that the appellant had an antisocial personality disorder with paedophilia that is not exclusive with an attraction to young females.  Dr Beech noted that, whilst the appellant had done a course whilst on parole, he had refused to do a course in prison.  He also noted that the appellant thought that the courses were for real paedophiles and that he was not in the same category as the more notorious offenders.  Dr Beech noted that, whilst the appellant’s behaviour within the structure of the prison system had been good, when he was in the community he had a “…significant offending history.”  In his opinion, Dr Beech considered that the appellant was at high risk “…of re-offending if released into the community.”

[24]  In particular, Dr Beech considered that not only had the appellant offended twice, but that the second offences had occurred whilst he was on parole, within 13 months of release, and following his participation in a sexual offender program.  Dr Beech indicated that these offences occurred in the context of his isolation and lack of support and that he did not think that anything had changed since that time.  DrBeech considered that a lack of a realistic, thought through, release plan was the most worrying and that this reflected the appellant’s “…denial minimisation and lack of insight.”  In particular, Dr Beech was concerned that the appellant had no cogent strategies other than to refrain from contact with children and that he had few, if any, supports arranged for his release and that his plans on release were “desultory”.  He considered that on release the appellant would find himself in similar circumstances to that in which he had found himself previously and he “...is likely again to seek out young girls to gratify his need for affection and intimacy.”  In particular he considered;[2]

“If he offends he is likely to do so as before.  He will try to befriend and entice a young girl he has met through some contact with her parents.  He will attempt to form some relationship with her and when separated from adult supervision he will indecently assault her, probably gaining her acquiescence by gifts and bribes.  It is likely that if he is not caught he will attempt to continue the relationship.”

[25]  Dr Beech considered that the risk of re-offending could be reduced to moderately high in the community by the development of a more realistic plan on his release.  Such a plan would involve participation in a sex offender or other suitable program that would assist in addressing his idleness, loneliness, and isolation and make him aware of the risk factors so that he could make preparations.

Professor James

[26]  In his report dated 9 August 2007, Professor James was concerned that when discussing his previous Queensland offences the appellant gave a version which was quite inconsistent with the complaint of the child victims.  He indicated to Professor James that the elder of the two girls was walking around on all fours and he thought she was trying to attract attention and that his mistake was that he should not have gone into the room and, secondly, that when the girl had exposed her naked posterior to him whilst on all fours he had tried to cover her up.  He said to Professor James that he realised that what he should have done was to leave the room immediately and inform the girls’ mother.  He told Professor James that when he was charged he pleaded guilty only on the advice of his lawyer and he now believed that he should have fought the case.  In relation to the offences in New South Wales in 1994 and 1995, the appellant told Professor James that he had initially engaged the girl in play and he had initially accidentally touched her in the vaginal area and, when she had not seemed to mind, the game had progressed to fondling.  He had then agreed to meet her at the end of the day at school and drive her to an isolated place, where they would spend time together.  He told Professor James that they enjoyed each other’s company, quite apart from the sexual element, and he saw her as his “… little companion … a child woman.”[3]  Whilst he admitted vaginal intercourse to Professor James, he denied the anal intercourse and contended that the child must have misunderstood the sensation.  He indicated that he had no wish to hurt the little girl and did not believe that he had seriously done so.

[27]  The appellant told the professor that he was opposed to participating in the sex offenders’ treatment program for a number of reasons, including the fact that he had not committed the offences and that he did not think the courses would be of much value to him.

[28]  Professor James formed the opinion that the appellant can be said to have a diagnosis of paedophilia, as defined in the DSM (IV), non-exclusive, and heterosexual, and that his past conduct fulfils the DSM definition for antisocial personality.  Professor James stated that the appellant had scored high on the psychopathy checklist but he was just below the score for the cut off score for a diagnosis for psychopathy per se.

[29]  Professor James concluded that:[4]

“Mr Shapland’s own unpropitious developmental experiences appear to have resulted in him having little capacity for appreciating the very significant element of exploitiveness (of the victim’s immaturity and vulnerability), and similarly little capacity for appreciating the damaging consequences for the victims.” 

[30]  Professor James concluded, “… [n]othing appears to have changed in these respects during the period of nearly four years of his imprisonment.”[5]

[31]  Professor James noted that it was possible that for the appellant “...the relative predictability and security of the institutional environment may be conducive to some degree of relative psychological wellbeing.”[6]  Professor James also formed the view that the appellant’s risk of reoffending was moderately high. 

Conclusion

[32]  Accordingly, we have each of the three psychiatrists indicating that the appellant has an antisocial personality disorder together with paedophilia which was non-exclusive and heterosexual.  The conclusion of the psychiatrists was that the risk to the community was in the range of moderately high to high if the appellant was released, even on strict conditions.  Each psychiatrist had concerns in relation to the appellant’s social isolation and the lack of a realistic plan on release.  There was evidence that such a plan could reduce the risk of offending down to moderately high. 

[33]  Given the likelihood of re-offending as outlined by the psychiatrists, it was clear that the learned Judge was concerned that the appellant had not prepared a relapse prevention plan or a rehabilitation program.  Queensland Corrective Services helps prisoners design such a plan, which is done through participation in a sex offender treatment program.  The appellant had, as at the date of the first hearing on 16 August 2007, refused to participate in such a program.  A perusal of the transcript indicates that without such a plan in place the appellant was a high risk of offending, particularly as he had previously offended whilst on parole, and he needed to put a realistic plan in place to reduce the level of risk to the community.[7]  Of particular importance to the trial Judge, on the basis of the expert psychiatrists’ reports, was the need for a “Relapse Prevention Plan” which involved “…devising the plan about the things he will and he won’t do when he emerges into the community and getting assistance with respect to it.”[8]  It was clear that the appellant did not need to participate in all of the aspects of the HISOP but rather the aspect which dealt with the development of a relapse prevention plan. 

[34]  It was clear such a plan was not in place and the question for the trial Judge was whether to make a continuing detention order, which would be reviewed in 12 months time, or whether the hearing could be adjourned to allow the appellant the possibility of completing such a plan through participation in a program.

[35]  Counsel for the Attorney-General indicated[9] that a preparatory program could be accessed within two or three weeks.  This was a 10 to 12 session program, it was held twice a week, and would take five or six weeks to complete.  The completion of that course would then qualify the appellant to complete the HISOP, which would then take between seven and nine months to complete, depending on the offender.  Counsel indicated that:[10]

“The integral part of that program is the development throughout the course of the program of the Relapse Prevention Program and I am instructed by officers from the department that a relapse prevention program would not be prepared by them in the absence of the completion of that high intensity program.  In other words, it couldn’t be done after simply undertaking the preparatory program.”

[36]  It was clear that if the appellant had to complete both those programs it would take the best part of 12 months as there would not be an individual program developed for the appellant but that he could take part in the programs available.  A further possibility was then discussed which involved participation in a Transition Program which was a life skill program about accessing Centrelink, banks and other services.  It was clear that this program did not involve any psychological assistance or the completion of a relapse prevention plan.  The trial Judge observed that to develop such an individual plan “… wouldn’t seem to require more than the resources that many social workers could bring to the task, whether they’re psychologists or not.”  He considered that:[11]

“…he doesn’t need the high offenders - high intensity program, what he needs is, by the sound of it, a viable, considered plan to which he is committed, which would address the concerns that the testimony of Dr Beech in particular raises, where will he go, who will he meet, what will he do, how will he live, and so on.

…

And a plan which can be developed in conjunction with a Departmental officer who can assess its practicality and would require a serious change of heart by Mr Shapland.”

[37]  Whilst Professor James had discussed the need for a ‘rehabilitation program’ in his evidence it was clear that such a program was not available through Corrective Services.[12]  The trial Judge made it clear that what was needed was “…a psychologist or experienced social worker to develop in conjunction with him a plan which is practicable to which he is committed … and which has reasonable prospects of appreciably reducing the risk of recidivism.”[13]  The trial Judge made it clear that it was the appellant who needed to take the initiative and develop a proposal “… about what Mr Shapland will do, by when he will do it, and indicating what level of assistance you’re seeking from the resources of the Department.”[14]

[38]  Notwithstanding the fact he had previously refused to participate, the Court adjourned the hearing to allow the appellant a further opportunity to participate in a Transitions Program, which is the life skills course, and to receive assistance in preparing a relapse prevention plan.  In adjourning the matter for almost three months the trial Judge said:[15]

“Now, what that will allow for is the completion of the program, the Transition Program, and, one would think, affording your client every opportunity to genuinely participate in developing a rehabilitation plan and, hopefully, obtaining a report from the person with whom he deals in relation to its development and, if need be, considering placing the report before the psychiatrists, or one or more of them, to obtain their views concerning its appropriateness and its chances of reducing the risk of re-offending.”

[39]  However despite the period of the adjournment, which was specifically for the purpose of allowing the appellant to take advantage of this opportunity, he failed to produce any reasonable plan at the resumed hearing.  Furthermore, the evidence at the resumed hearing on 5 November 2007 indicated that he had been disruptive, reluctant, and aggressive with Corrective Services staff when dealing with this issue.[16]

[40]  At the resumed hearing the trial Judge reviewed the additional material and made an order that the appellant be detained in custody for an indefinite term for control, care or treatment and that, pursuant to the provisions of the Act, he be detained until the continuing detention order was rescinded by order of the Court.  In making those orders the trial Judge gave detailed reasons as required by the Act.  He was satisfied that the appellant was a serious danger to the community within the meaning of s 13 of the Act.  He fully set out the basis for this conclusion, including the evidence of the appellant’s previous offending and the reports of the psychiatrists who had been appointed under the Act. 

[41]  The trial Judge specifically relied on the evidence of Professor Nurcombe[17] who had indicated the importance of the appellant developing a post-release plan that was realistic.  The learned trial Judge stated that a sexual offenders’ treatment program would have included the completion of a relapse prevention program, but the respondent had in recent years refused to participate in such a program whilst he was in custody.  The trial Judge also referred to the evidence of Dr Beech, who was also concerned about the absence of well considered plans for release and referred to Dr Beech’s view that the appellant’s risk of re-offending could be reduced to moderately high by the development of a more realistic plan for his release and, in particular, that he needed to participate in a program which would “… cause him to develop considered plans for the way he would live his life were he to be released now, dealing with such things as where he would live and, realistically, what he would do to address loneliness, idleness and isolation.”[18]

[42]  The trial Judge also specifically referred to the evidence of Professor James and the purpose of the adjournment in his reasons:[19]

“Dr James also considers that the respondent ought to participate in a collaborative program directed towards facilitating his rehabilitation, speaking of the kind of transition program to which most prisoners about to be released are, if they wish, exposed.  A good rehabilitation plan, if implemented and supported actively, could reduce the risk of relevant re-offending by about 20 per cent, Dr James thinks. 

At the conclusion of the testimony of the psychiatrists, the respondent communicated, through his counsel, a willingness to participate in a rehabilitation plan.  Although the respondent had previously refused to participate in such a plan, he would, it was said, join in one and make a genuine effort to participate effectively in it.

Such a transition program was to commence on 3 September and to occupy about a month.  These proceedings were adjourned to facilitate his participation in the program…But he has not taken any useful advantage of it, even though he will have appreciated the objects of the program and his need to develop a detailed, realistic plan for his release which addresses the concerns raised by the psychiatrists.  None of that has happened.”

[43]  The trial Judge then outlined that the transition program offered to offenders pending release involved a number of modules but that the Report from the Director of the Sex Offenders and Dangerous Offender Unit stated that the appellant had “…elected not to attend the housing module” and that at the conclusion of the program he submitted a plan “…which scarcely addresses the many concerns raised by the psychiatrists.”[20]  The Judge considered that:[21]

“This is consistent with the absence of genuine participation in the program.  The report indicates that the respondent was ‘generally a disruptive presence’ in the program.  It describes him as ‘a reluctant participant’, who often commented that he did not need support on any release because this had already been arranged for him.” 

[44]  The Judge also referred in his reasons to the evidence that the Transition Program Facilitator had met with the respondent personally and he had indicated that, whilst the appellant had contacted the Catholic Prison Ministry in relation to supporting him in the community, the appellant had not found their service helpful and had indicated that he would not access it.  The appellant had also indicated that he did not plan to use other community support agencies upon release and he would not be registering with an employment agency as he considered he would be able to find casual work easily. 

[45]  Having reviewed all of this material the trial Judge concluded:[22]

“The absence of an effective plan on release shows that the risks identified by the psychiatrists have not been reduced by a comprehensive plan to which the respondent was committed.  Confronted with the opportunity to participate genuinely in a program to facilitate his re-integration into the community – one which might have appreciably reduced the risk of recidivism – the respondent has not taken advantage of the opportunity.”

[46]  The learned trial Judge then looked at the conditions which were proposed to be imposed upon the appellant were he to be released into the community and agreed that the conditions were detailed and that, if there was any substantial compliance with those conditions, there could be justification for his release.  However, the trial Judge was concerned that the respondent’s conduct over several years had meant that it was unlikely that he would comply with the conditions of a supervision order except to the extent that they suited him, and he was concerned that the risk of recidivism remained high.

[47]  The learned trial Judge continued:[23]

“The respondent’s unwillingness to accept and commit himself to comply with the strictures of a supervisory regime persuade me that the adequate protection of the community requires his continuing detention for control (cf Attorney-General for the State of Queensland v. Beattie [2007] QCA 96, at paragraphs 31 and 32).”

The appellant’s submissions

[48]  The appellant represented himself at the hearing of the appeal and had prepared a written outline of submissions which stated two grounds of appeal.

“…

(a)The learned primary judge erred in making a Continuing Detention Order pursuant to s 13(5)(a) of the Act; and

(b)The learned primary judge failed to consider what effect the condition of a Supervised Order would have on the applicant’s risk of reoffending…”

[49]  At the hearing of the appeal the appellant also asked that the Court consider two further documents which he had prepared since the order for continuing detention was made on 5 November 2007.  These documents were a letter from a private Psychologist, Meg Perkins, dated 30 March 2008, and a Relapse Prevention Plan which he had prepared with the assistance of the psychologist in February 2008, although it is dated 19 December 2007.  It would appear that the appellant met with the psychologist on three occasions over a period of three hours in February and March 2008.[24]  This was clearly an attempt by the appellant to provide information of the sort which the learned trial Judge had considered was essential to the consideration of the issue of whether the risk associated with the appellant’s release into the community could be adequately addressed by a supervision order which contained conditions.

[50]  It is clear that this is new material which was not available to the trial Judge and is material which has not been considered by the respondent to this appeal.  Furthermore, the material has not been considered by the psychiatrists whose expert opinions are required, not only in relation to the viability of the plan, but also with respect to the views of the psychologist that are expressed in the report.  Counsel for the Attorney-General objected to the acceptance of the new material into evidence on this basis.  Furthermore, Counsel for the Attorney-General submitted that the appellant had been given ample opportunity to provide this material to the trial Judge and had not done so despite the adjournment specifically for this purpose. 

[51]  Pursuant to the provisions of r 766 of the Uniform Civil Procedure Rules 1999 (Qld) the Court may receive further evidence as to questions of fact.  For a number of reasons, I consider that this new material cannot now be accepted into evidence.  Not only is the material from the psychologist not sworn and generally not in the appropriate form, but the psychologist has not been made available to be examined in relation to her expert opinion.  In particular, it would seem that there could be a number of concerns in relation to the basis for the psychologist’s opinions given that full scale testing was not undertaken by her, but nonetheless the relapse prevention plan is predicated on the appellant having certain cognitive skills to change his ingrained thinking patterns.  Given the limited nature of the assessments which were carried out by this psychologist, there is a very real question as to whether the appellant actually has these key competencies and whether this has in fact been established on the evidence. 

[52]  The psychologist also clearly states that it is not possible to produce a relapse prevention plan equivalent to that which would proceed from participation in a sex offenders’ treatment program.  Clearly what would be in issue is the question as to the adequacy of the insights which were gained by the appellant over the three hours with this psychologist, rather than as part of a program which usually lasts several months.  None of these issues were able to be explored at the hearing of the appeal.  The appropriate opportunity for an exploration of these issues was at the hearing before the trial Judge in either August or November.  This opportunity could have been taken by the appellant but was not.  This additional material should not now be received into evidence. 

[53]  The main grounds of appeal therefore relate only to the appellant’s submission that the learned trial Judge erred in making the continuing detention order and that in ordering the appellant’s continued detention he did not consider the effect that the conditions imposed by a supervision order would have on the risk of re-offending.  These grounds of appeal cannot be sustained.  It is clear from an analysis of the transcript and of the reasons that were given for the making of the orders, that the learned Judge was acutely aware of the impact of the supervision order and the conditions on the issue of risk.  Critical to the assessment of the risk was the issue, identified by all the psychiatrists, of the need for a realistic plan on the appellant’s release.  It was only if an appropriate plan was put in place that the risk would go to a “moderately high” level rather than “high”. 

[54]  At the resumed hearing there was no appropriate plan in evidence.  Given the serious concerns that the psychiatrists had in relation to the lack of a realistic plan, as well as his failure to participate in programs in the past, his Honour’s concerns were well founded.  This was particularly so given that he had adjourned the hearing to enable the appellant to meaningfully participate in such programs, but the appellant had failed to do so.  In particular, in coming to the decision that he did, the learned trial Judge considered that there were a number of factors which indicated the risk could not be managed by a supervision order and that the risk of recidivism remained high.  There was clear evidence before his Honour to support such a conclusion.  The evidence before the learned trial Judge included his history of sexual offending, offending behaviour which was both predatory and opportunistic, as well as indicating a lack of self-control.  It was also of particular concern to the learned Judge that he had offended whilst on parole and that he continues to deny his guilt, notwithstanding the overwhelming nature of the evidence against him. 

[55]  There was further concern by the trial Judge that the appellant had laid the blame for his behaviour on the child victims and expressed the view that children between the ages of 11 and 15 are capable of enjoying sex with adults.  It was clear that the learned trial Judge was concerned that the appellant had consistently refused treatment and had not given any indication of a genuine change of heart.  In the circumstances, it was clear that the learned Judge had sufficient evidence to be satisfied that the appellant would not adhere to the conditions imposed in a supervision order and that he was therefore an unacceptable risk.  On the evidence available, no other finding was reasonably open.  It was clear that the supervision order would fail to provide adequate protection to the community. 

[56]  In the circumstances of this case, therefore, I consider that the appeal should fail.  I would dismiss the appeal.