SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  In 2001, the respondent was sentenced to 11 years imprisonment for the rape of a three year old child; he served the entire term, which ended in August 2012.  Prior to his release, the appellant sought an order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for his continuing detention, or, in the alternative, a supervision order.  The learned judge who heard the application was not satisfied that there was an unacceptable risk that the respondent would commit a serious sexual offence, and accordingly dismissed the application.  The appellant appeals against that result.

The legislation

[2] The relevant parts of s 13 are as follows:

“(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)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-

(a)if the prisoner is released from custody;

(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 (l), the court must have regard to the following-

(aa)any report produced under section 8A;

(a)the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

(b)any other medical, psychiatric, psychological or other assessment relating to the prisoner;

(c)information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

(d)whether or not there is any pattern of offending behaviour on the part of the prisoner;

(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;

(f)whether or not the prisoner's participation in rehabilitation programs has had a positive effect on the prisoner;

(g)the prisoner's antecedents and criminal history;

(h)the risk that the prisoner will commit another serious sexual offence if released into the community;

(i)the need to protect members of the community from that risk;

(j)any other relevant matter.

. . .

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

[3] The critical question identified by the primary judge was whether the respondent would commit a “serious sexual offence” if released.  That expression is defined in the Dictionary to the Act as meaning

“an offence of a sexual nature...

(a)involving violence; or

(b)against children.”

The respondent’s background

[4] The respondent was 42 years old, and was an Aboriginal man who had always lived on Mornington Island except when he was in custody.  He had a low IQ which might have been the product of mental retardation or brain damage.  He had been in a long‑term relationship with an Aboriginal woman.  His criminal history was lengthy, but consisted mostly of property offences.  There were, however, three convictions for assault of his de facto partner in 1999 and 2000.  Two of those assaults occasioned bodily harm; they also constituted breaches of a domestic violence order.  There was a further assault occasioning bodily harm committed on the respondent’s niece (who was aged 20) in 2000.  The respondent had not committed any offence of a sexual nature before the rape which prompted the application for continuing detention or supervision.

[5] The circumstances of the rape were, as the learned primary judge observed, highly unusual.  The child was playing alone at her grandmother’s house on Mornington Island when she went missing.  Her grandmother, looking for her, entered a room in the neighbouring house and saw the respondent naked, holding the child down and apparently having sexual intercourse with her.  She, the grandmother, hit the respondent and he ran from the room.  The child had suffered serious injuries to her genital area, which required suturing.  The respondent, some hours later, went to the local police station and acknowledged what he had done.  He was said to have been very intoxicated. 

[6] While imprisoned, the respondent had undertaken two programmes directed at rehabilitation of sexual offenders, but declined to undertake a third specifically designed for indigenous men because he could not complete it before his release date.  In the course of one of those programmes, he revealed that he had raped the child as retribution against her grandmother (his own great-aunt) because she had made a hurtful comment about him and his recently deceased mother.

The psychiatric evidence

[7] The respondent was assessed by three psychiatrists: Professor Nurcombe, Dr Lawrence and Dr Sundin.  All three had applied various recognised risk assessment tools, but all acknowledged that there was some doubt as to the reliability of those instruments because they had not been designed with regard to the Australian indigenous population.  In the discussion and opinions section of her report, Dr Lawrence noted that the respondent had a long history of alcohol and marijuana abuse as a background to his behaviour, including the commission of the rape.  He had no history of sexually deviant or paedophilic interest.  The offences against his de facto partner suggested jealousy and violence in the context of alcohol use.  The history of his offending suggested an increasing capacity for violence.  He had developed little awareness of the extent and wrongness of his behaviour or ways of changing it, largely due to his mild mental retardation. 

[8] Dr Lawrence’s view was that if the respondent were to be released from prison without supervision or a supportive environment, he would be at high risk of recidivism and general criminal offences.  The risk of his re-offending by committing a sexual offence against a child was moderate or moderate to low, although it would be increased by factors of intoxication and isolation.  The best prospect of rehabilitating him would be to place him in an accepting Aboriginal community which did not permit alcohol use. 

[9] The examination and cross-examination of Dr Lawrence, like that of the other reporting psychiatrists, was primarily concerned with the risk he posed to adult women with whom he formed relationships.  Relatively little attention was given to the risk of his offending against a child, and the oral evidence on the subject was accordingly limited.  Dr Lawrence said that she thought that it was likely that the respondent would drink alcohol again once released, increasing the risk that he would be violent to others, including children.  The risk of his committing a sexual crime similar to the rape against a child was low, although it would increase if he were drinking.  It was more likely, though, that he would be sexually violent towards an adult partner.  Under cross-examination, Dr Lawrence agreed that the respondent was a violent rather than a sexual offender.  The only evidence of sexual offending against a child was the rape, which did not appear to have been motivated by any sexual interest. 

[10] Like Dr Lawrence, Professor Nurcombe found no evidence of sexual deviance in the respondent.  Although the respondent was “highly sexually entitled” there was no evidence that he had an attitude favourable to rape or child molestation.  If the respondent were to abstain from using alcohol and marijuana, his risk of sexual re‑offending was low, rising to moderate under the influence of those substances.  Professor Nurcombe made the obvious point that if the reoffending were to involve sexual assault of a child the damage would be grave.

[11] In giving evidence, Professor Nurcombe described the risk, if the respondent were drinking, of violence towards or sexual assault on an adult partner, although he resiled somewhat from the suggestion of sexual assault upon being reminded that the respondent’s history did not involve any offence of that kind.  It was doubtful, Professor Nurcombe said, that the respondent could adhere to an abstinence order.  The likelihood of his committing another offence like the rape was moderate at most and probably low.  He did not think that the respondent was a paedophile or had any sexual predilection for children.  Accordingly, he did not think the respondent would benefit from a proposed indigenous sexual offenders programme, because he did not have any paedophiliac tendency.

[12] Dr Sundin’s report described the respondent as presenting a high risk for general offending behaviour fuelled by alcohol or cannabis abuse.  There was also a high risk of violent behaviour towards his adult partners, but his risk of recidivism in regards to sexual offences against a child was moderate to low.  If he were to re-offend, it was likely to be in a context of alcohol or cannabis abuse and with the trigger of an adverse comment or an interpersonal stressor. 

[13] The questioning of Dr Sundin focussed on the risk the respondent posed to adult women and the significance of the rape of the child to that risk, rather than its significance to the risk of offending against children.  In cross-examination, she agreed with the view of the other experts that the respondent was not a paedophile, although she added the qualification that he had made a comment to the effect that he considered that girls between 12 and 14 were old enough to consent to intercourse.  She continued:

“So, from that perspective, children – young adolescent children – are potentially at risk, but very young children, no.”

Dr Sundin accepted the proposition, however, that the respondent’s view seemed to be a reflection of cultural attitudes absorbed from his upbringing on Mornington Island; but pressed further on the point, she said that she was not an anthropologist and could not comment.

The reasons for judgment

[14] The learned primary judge set out the essential parts of the evidence of the three psychiatrists.  He adverted to the question he was required to answer under s 13(2) of the Act and noted the requirement in s 13(3) that the court must be satisfied by acceptable cogent evidence to a high degree of probability that the evidence was of sufficient weight to justify a decision that the respondent was a serious danger to the community.  He then paraphrased the section by saying that the question was

“whether the applicant has established that risk [of commission of a serious sexual offence], by acceptable, cogent evidence, and to a high degree of probability.”

[15] That statement can be read as suggesting that it was the risk which had to be established to a high degree of probability.  If so, it was not, in my respectful view, quite correct; s 13(3), while admittedly tortuous in its reference to satisfaction by evidence as to the weight of evidence, is concerned with the quality and strength of the evidence required before a conclusion can be drawn that the risk exists, rather than the risk itself.  It was not contended, however, that the learned judge’s characterisation of the test at that point in his judgment had any bearing on the outcome at first instance or this appeal; not surprisingly, since, in making his findings, his Honour made it clear that he applied the test in the terms set out in s 13(3).

[16] The primary judge set out the often-cited passage from Davie v Magistrates of Edinburgh[1] to the effect that the function of expert witnesses is to provide the judge with scientific criteria for application to the proved facts and to present expert opinion which, if accepted, becomes a factor for consideration; but not to usurp the decision‑making role of the judge.  His Honour noted that psychiatric reports were one of a number of factors to which he was required to have regard under s 13(4).  After reviewing the expert evidence, he did not consider that it justified a conclusion that the respondent presented an unacceptable risk of committing a serious sexual offence against an adult woman, as distinct from the risk of inflicting violence.  That conclusion was not challenged here.

[17] What was the subject of challenge was the learned judge’s conclusion in relation to the risk of sexual offending against children.  The relevant parts of his judgment are as follows:

“[54]The principal offence is plainly a very serious offence. It demonstrates the extent of the amoral conduct of which the respondent is capable, when affected by anger and alcohol.

[55]Nevertheless, it appears to be a unique event in the respondent's life. It was associated with his mother's death. It seems to be the only case where the respondent's anger was taken out on someone other than the person who induced it.

[56]The respondent is not considered to be a paedophile, nor affected by any other form of paraphilia. There is no suggestion that the respondent has a propensity to commit sexual offences involving children. His pattern of offending behaviour does not include such offences.

[57]The psychiatrists did not consider that the respondent was at a high risk of committing a similar offence, if released from custody.

[58]The expressions ‘moderate’ and ‘low’ when used in the present case with respect to the risk of the respondent's committing a sexual offence involving a child were expressions of clinical judgment, but were not otherwise explained. When I consider the evidence of the psychiatrists as to the level of this risk, against the background of the other matters to which I have just referred, I find that I am not satisfied to a high degree of probability that the evidence is of sufficient weight to justify the conclusion that there is an unacceptable risk that the respondent would commit a serious sexual offence involving a child, if released from custody. As an additional factor in support of that position, I note that the respondent will have completed 11 years in custody for this offence, before his release. There has been nothing to suggest that, in the present case, the time in prison will not act as a personal deterrent of some influence in the respondent's future conduct.”[2]

The appeal grounds and contentions

[18] The appeal grounds, as amended at the hearing, were as follows:

“(a)The primary judge erred in finding that the Appellant had failed to establish that the Respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners  (Sexual Offenders) Act 2003.

(b)That the Primary Judge erred in failing to give any consideration to (and give reasons for) the Appellant’s application that the Respondent be released subject to requirements of supervision;

(c)The primary judge erred in failing to conclude that the Respondent should be released subject to requirements of supervision:

(i)having found the Respondent’s principal offence to have been ‘very serious’ and to demonstrate the extent of the amoral conduct of which the Respondent is capable when affected by anger and alcohol; and

(ii)in light of the evidence from the psychiatrists being that the Respondent’s risk of committing another similar offence was low to moderate (which evidence his Honour wrongly considered to lack cogency and therefore disregarded);

(iii) in light of the evidence being to the effect that the Respondent would, whether under supervision or not, be likely to consume alcohol;

(iv) in characterising the principal offence and the circumstances in which it was committed, contrary to the evidence, as ‘unique in the Respondent’s life’.”

[19] It can be seen that those grounds suffer from failures of syntax and of logic.  Once the primary judge had found against the appellant on whether the respondent was a serious danger to the community in the absence of an order, he could hardly be said to have committed error by not making a supervision order.  However, it became clear in oral argument that the appellant’s real point was made in appeal ground (a): that the primary judge should, having regard to the psychiatric evidence, have found that the respondent posed an unacceptable risk of committing a serious sexual offence against a child. 

[20] Four arguments were made.  The first took issue with what the learned judge had said about the use of the expressions “moderate” and low” in the commencing sentence of paragraph [58].  It was suggested that this amounted to his Honour saying that there was no basis for the psychiatrists’ opinions or (as it was put in oral submissions) that the primary judge had ignored all the factors which the psychiatrists had taken into account.  Counsel went so far as to assert that the primary judge had rejected a finding of any risk at all; had he done otherwise, he would have said that he recognised the low to moderate risk but considered it acceptable. 

[21] That argument is simply not tenable, in my view, in light of the second sentence of the paragraph, in which his Honour expressly refers to considering the psychiatrists’ evidence as to the level of risk against the other matters, which were (as set out at [54] – [56] of the judgment): the seriousness of the offence; the respondent’s capacities for such conduct; the fact that it was unique; and the evidence (from the psychiatrists) that the respondent was not a paedophile and had not exhibited any propensity to committing sexual offences.  The statement in the first sentence of the paragraph that the expressions “moderate” and “low” were expressions of clinical judgment but not otherwise explained was correct; there was no attempt at elaborating on them and very little attention was given in the course of the evidence to examination of the risk to children, as opposed to adult women.

[22] The second complaint of the judgment concerned paragraph [55], in which his Honour referred to the offence of rape against the child as “a unique event in the respondent’s life” and went on to make observations about the circumstances in which it occurred.  That amounted, it was said, to an assessment of risk: that there was no, or only a minimal, risk of such a matter occurring.  According to the written submissions, it showed that the primary judge had misunderstood the evidence about the circumstances in which the rape had occurred, because they were not unique, and had “impermissibly” substituted his own assessment that there was no risk for the assessments of the psychiatrists.  In oral submissions, it was suggested that the fact that the event was unique was an irrelevant consideration. 

[23] Those submissions seem, to me, with respect, wilfully to ignore what the learned primary judge actually said.  He did not characterise the circumstances in which the offence occurred as unique; nor did he draw any inference that there was no or a minimal risk of its recurrence.  What he did, as he was entirely entitled to do, was to take the fact that the respondent had only once committed an offence of that kind into account with other factors in considering whether an unacceptable risk existed.  It would have been entirely illogical to do otherwise.

[24] The third contention was that the primary judge had failed to have regard to the gravity of the consequences should the risk materialise, as opposed to the level of probability of its recurrence.  Reliance was placed on this passage from Attorney-General (Queensland) v Beattie:[3] 

“whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising”.[4]

Again, I do not think the argument is sustainable.  The primary judge said that he considered the evidence as to the level of risk “against the background of the other matters to which [he had] just referred”:[5] an allusion which included what he had earlier said[6] about the gravity of the offence which the respondent had committed and its importance in showing the conduct of which the respondent was capable under the respective influences of anger and alcohol.  It was quite clear from those remarks that the learned judge appreciated the proportions of the risk involved.

[25] The appellant raised in oral argument a concern about the last sentence of paragraph [58], as to the possible effect of 11 years in custody.  The contention was that because the question of the deterrent effect of imprisonment had not been put to the psychiatrists, there was no evidence on the point.  But the fact that the respondent had been imprisoned for the relevant period was in evidence.  His Honour was entitled to draw from it the very limited inference he did, without the necessity for expert opinion on the subject.

[26] The appellant has not established any error made by the learned primary judge in reaching the conclusion that he was not satisfied that the respondent was a serious danger to the community in the absence of an order.  I would dismiss the appeal.

[27] MUIR JA:  I agree that the appeal should be dismissed for the reasons given by Holmes JA.

[28] MARGARET WILSON J:  The appeal should be dismissed for the reasons given by Holmes JA.