Kynuna v Attorney-General[2016] QCA 172

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The appellant, Gregory Kynuna, is a 51 year old man from the Kungai and Kooberra people who has spent most of his life in the Cairns and Yarrabah region.  He has appealed from a decision of a judge of the trial division on 18 December 2015 rescinding a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) made on 7 October 2014 following a contravention of it, and instead ordering that the appellant be detained in custody for indefinite control, care and treatment.

[2] He has two grounds of appeal.  The first is that the judge erred in finding that the offence which constituted the contravention of his supervision order was a “serious sexual offence” as defined in the Act.  The second is that the judge’s finding, that the appellant had not discharged the onus cast upon him to establish that the adequate protection of the community could be ensured by releasing him notwithstanding the contravention, was unreasonable or plainly wrong.  The appellant contends that this Court should allow the appeal, set aside the orders at first instance and instead order that the appellant be released on a supervision order on the same terms as that on which he was released on 7 October 2014.

[3] I will commence my reasons for allowing this appeal by referring to the relevant provisions of the Act.  I will then discuss the appellant’s prior sexual offending and his history under the Act including his most recent contravention; the current psychiatric evidence concerning him; the submissions made to the primary judge and the primary judge’s reasons.  I will then set out the competing contentions in this appeal before stating my reasons for accepting that the appellant has made out his first ground of appeal and should be released on a supervision order.

The relevant provisions of the Act

[4] The objects of the Act are “to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community”;[1] and “to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”[2]  The Attorney-General for the State of Queensland may apply under the Act for orders for continuing detention or supervision of prisoners by satisfying the Supreme Court that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order.[3]  For the purposes of these orders, a prisoner is a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence.[4]

[5] The term “serious sexual offence” is relevantly defined as in the Act as meaning:

“an offence of a sexual nature, whether committed in Queensland or outside Queensland —

(a)involving violence; or

(b)against a child…”[5]

[6] The term “serious danger to the community” in the dictionary Schedule refers to s 13(1) of the Act.  Section 13 relevantly provides:

13Division 3 orders

(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; or

(b)if the prisoner is released from custody without a supervision order being made.

...

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

(a)that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

(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)—

(a)the paramount consideration is to be the need to ensure adequate protection of the community; and

(b)the court must consider whether—

(i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and

(ii)requirements under section 16[6] 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).”

[7] Part 2, Division 5 of the Act deals with the contravention of a supervision order.  It provides for a warrant to issue for a prisoner under the Act who is suspected of contravening a supervision order[7] and relevantly provides:

22Court may make further order

(1)The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order)

(2)Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—

(a)if the existing order is a supervision order, rescind it and make a continuing detention order; or

(b)if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.

(3)For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following—

(a)act on any evidence before it or that was before the court when the existing order was made ;

...

(7)If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order... the court—

(a)must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all those requirements; and

(b)may otherwise amend the existing order in a way the court considers appropriate—

(i)to ensure adequate protection of the community; or

(ii)for the prisoner’s rehabilitation or care or treatment.

....”

The terms of the supervision order

[8] The supervision order of 7 October 2014 included the following 42 terms:[8]

“General Terms

(1) be under the supervision of an authorised Corrective Services officer for the duration of the order;

(2) report to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of the respondent’s current name and address;

(3) report to, and receive visits from, an authorised Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;

(4) notify and obtain the approval of an authorised Corrective Services officer for every change of the respondent’s name at least two (2) business days before the change occurs;

(5) comply with a curfew direction or monitoring direction;

Reasonable directions & requests for information

(6) comply with any reasonable direction under section 16B of the Act given to the respondent;

(7) comply with any reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;

(8) respond truthfully to enquiries by an authorised Corrective Services officers about his whereabouts and movements generally;

Employment

(9) notify an authorised Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two (2) days prior to commencement or any change;

(10) seek permission and obtain approval from an authorised Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;

Residence

(11) reside at a place within the State of Queensland as approved by an authorised Corrective Services officer by way of a suitability assessment;

(12) if this accommodation is of a temporary or contingency nature, reasonable efforts must be demonstrated to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;

(13) whilst housed at any contingency or temporary accommodation, comply with any regulations or rules in place at this accommodation;

(14) not reside at a place by way of short term accommodation including overnight stays without the permission of an authorised Corrective Services officer;

(15) seek permission and obtain the approval of an authorised Corrective Services officer prior to any change of residence;

(16) not leave or stay out of Queensland without the written permission of an authorised Corrective Services officer;

Offences

(17) not commit an offence of a sexual nature during the period of the order;

(18) not commit an offence with an element of assault or involving violence to the person or unlawful wounding during the period of the order;

Contact with victim

(19) not have any direct or indirect contact with a victim of his sexual offences;

Disclosure of weekly plans and associates

(20) disclose to an authorised Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to requests for information from an authorised Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;

(21) submit to and discuss with an authorised Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;

(22) if directed by an authorised Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by an authorised Corrective Services officer who may contact such persons to verify that full disclosure has occurred;

(23) notify the supervising Corrective Services officer of all personal relationships entered into by the respondent;

Motor Vehicles

(24) notify an authorised Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;

Alcohol and Substances

(25) abstain from the consumption of alcohol for the duration of this order;

(26) abstain from illicit drugs for the duration of this order;

(27) comply with any prescribed medication regime including depo anti-psychotic medication;

(28) submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by the authorised Corrective Services officer;

(29) disclose to an authorised Corrective Services officer all prescription and over the counter medication that he obtains;

(30) not visit premises licensed to supply or serve alcohol, without the prior written permission of an authorised Corrective Services officer;

Treatment and counselling

(31) attend upon and submit to treatment, assessment and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by an authorised corrective services officer at a frequency and duration which shall be recommended by the treating intervention specialist;

(32) permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;

(33) attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by an authorised Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;

(34) develop a risk management plan and participate in community mental health case management as devised by a treating psychologist or psychiatrist and discuss it as directed with an authorised Corrective Services officer;

Contact with children

(35) not have any supervised or unsupervised contact with children under 16 years of age except with prior written approval of an authorised Corrective Services officer.  The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender, to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children;

(36) not undertake any care of children without the prior written approval of an authorised Corrective Services officer;

(37) advise an authorised Corrective Services officer of any repeated contact with a parent of a child under the age of 16.  The respondent shall if directed by an authorised Corrective Services officer make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by an authorised Corrective Services officer who may contact such persons to verify that full disclosure has occurred;

(38) not to access schools or child care centres at any time without the prior written approval of an authorised Corrective Services officer;

(39) not visit or attend on the premises of any establishment where there is a dedicated children’s play area or child minding area without the prior written approval of an authorised Corrective Services officer;

(40) not be on the premises of any shopping centre, without reasonable excuse, between 8am to 9.30am and between 2.30pm and 4.30pm on school days other than for the purpose of:

a.approved employment;

b.attending an approved bona fide pre-arranged appointment with a Government agency, medical practitioner or the like;

(41) not join, affiliate with, attend on the premises of or attend at activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation;

Phones and other devices

(42) to advise an authorised Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by you within 24 hours of connection or commencement of use and includes reporting any changes to mobile phone details.”

The appellant’s sexual offending and his history under the Act

[9] In December 1987 the appellant was convicted of two counts of burglary and six counts of aggravated assault of a sexual nature on a female child under 17.  The circumstances were that he entered a Cairns hostel accommodating 10 year old girls on a school excursion.  He touched some of them through the sheets in their genital area.  He was effectively sentenced to three years imprisonment.  On 14 December 1990 he was convicted of aggravated assault on a female and fined $180 after he entered the complainant’s home and kicked her in the groin.  His next conviction for a sexual offence was in May 2004 when he was sentenced to six years imprisonment for the rape of a six year old boy.  The circumstances were that the complainant, who was unknown to the appellant, was playing in the street.  The appellant asked him to go for a walk and then punched and kicked him and took him to a laneway where he ripped a hole in the child’s swimmers.  He fondled and licked the child’s penis through the hole before putting the penis in his mouth.  He made the boy lick his anus and then licked the child’s anus.

[10] On 29 January 2010 he was ordered to be released from custody, subject to a supervision order under the Act, with the order to remain in force for 15 years.  In April 2010 he was returned to custody for contravening the supervision order by using cannabis.

[11] In November 2010 he pleaded guilty to a sexual assault committed on 26 August 2010 and was sentenced to five months imprisonment.  The circumstances of that offence were that when attending an Information Technology class in prison he put his hands down his shorts and appeared to masturbate in front of a female tutor.  He then removed his hands and went touch the female tutor in her groin area but she pushed his hand away.  He pleaded guilty to sexual assault and was sentenced to five months imprisonment.

[12] After being incarcerated for about 14 months, on 9 June 2011 he was returned to the community on an amended supervision order.[9]  On 2 August 2011 he was arrested for contravening the supervision order through using cannabis and being absent whilst on curfew.  On 9 November 2011 his supervision order was rescinded and a continuing detention order imposed.[10]  On the first annual review of this order, the continuing detention order was affirmed.  On the second annual review on 7 October 2014 he was released from custody subject to an amended supervision order under s 22(7) on the terms set out earlier.

[13] Whilst subject to that order, he was taken by ambulance to the Princess Alexandra Hospital for treatment of respiratory problems.  In the early hours of 25 October 2014, a nurse noticed he had urinated in his bed.  She assisted him to the shower where he removed his clothing.  He grabbed the nurse’s hand, put it on his genitals and held it there until she pulled it away.  He was then returned to custody under the Act.  On 22 June 2015, he pleaded guilty to sexual assault and was sentenced to 12 months imprisonment suspended after four months with an operational period of 18 months.

[14] The appellant accepted that the offence against the nurse was a contravention of his supervision order.  The respondent applied to the primary judge for the supervision order to be either rescinded or amended under s 22(7) on such terms as the court considered appropriate.

The psychiatric evidence before the primary judge

[15] The primary judge had the benefit of expert evidence prepared for the application, in both affidavits and oral testimony, from psychiatrists, Dr Donald Grant and Dr Michael Beech.

Dr Grant’s evidence

[16] In his report dated 27 September 2015, Dr Grant noted that the appellant’s most recent contravention of his supervision order occurred only a short time after his release from prison.  He suffers badly with emphysema for which he uses inhalers, and is a chronic smoker.  After experiencing breathing difficulties, he was taken by ambulance to hospital.  The incident occurred shortly after admission.  Dr Grant noted that, at the sentence for this offence, the appellant, who had various impairments including an acquired brain injury, spoke out in court, saying, “Tell the magistrate to send me to jail, I did the wrong thing, I hurt that lady’s feelings, I deserve to go to jail.”[11]

[17] After setting out the appellant’s history of sexual and criminal offending, Dr Grant referred to his past medical history.  When he was 15 he crashed a car he was unlawfully using, whilst heavily intoxicated and in a police chase.  He was taken unconscious to Cairns Base Hospital.  He had suffered a fractured skull in the right parietal region and a definite brain injury. Although the chief complications resolved after several weeks, he developed significant behavioural and subtle cognitive difficulties.  Post injury he had resulting episodic dyscontrol secondary to his head injury, made worse by alcohol.  His anti-social personality disorder, low normal intelligence with aggressive traits and lack of necessary behaviour controls pre-dated this.

[18] The appellant later began to experience symptomatology for which he was given antipsychotic medication for many years.  He was diagnosed with schizophrenia, perhaps paranoid schizophrenia, requiring long term quite high dose antipsychotic treatment.  He has not displayed any evidence of delusions for at least two years.  He required ongoing medication and psychiatric follow-up, especially to transition from a custodial setting into the community.[12]

[19] Dr Grant interviewed the appellant on 18 September 2015.  In Dr Grant’s assessment, there was a possibility that the appellant could have paedophilic attractions in the future, although the appellant denied this.  It was not possible to express a clear opinion as to whether he should be diagnosed with paedophilia.  Future management should take that possibility into account by ensuring he does not have unsupervised contact with children.[13]

[20] His acquired brain injury was complicated by his chronic schizophrenia for which he has been more or less consistently on antipsychotic medication since 1992.  This appears to have contained any active psychotic symptoms and improved his behavioural issues.  Abstinence from substances and individual therapy from psychologist, Dr Luke Hatzipetrou, have also assisted with behavioural control.  He continues to have only very superficial insights into his offending which he minimises by blaming spirits and black magic, while at the same time expressing superficial remorse.  The offence against the nurse was an example of the kind of problem that can arise with impulsive, disinhibited behaviour, secondary to his acquired brain injury, personality characteristics and the influence of physical illness.  At the time of his offending he may have been somewhat impaired because of breathing difficulties.  His rehabilitation and supervision in the community has been made difficult by his complex mixture of problems, some of which are not really amenable to treatment.[14]

[21] Dr Grant diagnosed the appellant as suffering from an acquired brain injury with permanent cognitive deficits and a chronic psychotic illness, schizophrenia, which was currently under reasonable control on quite high doses of antipsychotic medication.  Heavy marijuana and alcohol abuse had also played a significant role in his earlier offending but his more recent impulsive, less severe sexual assaults were not related to substance abuse.  He has an anti-social personality disorder reaching the cut-off point for psychopathy.  He was reported to have distorted negative attitudes to women and expressed jealousy and anger in past relationships in which he frequently used violence; earlier reports suggested he had attitudes that supported the use of violent behaviour.[15]

[22] As to treatment, Dr Grant noted that the appellant’s behaviour had improved since his schizophrenia was controlled by medication.  There was no effective treatment for his acquired brain injury which meant that group sexual offender treatment programs will probably be unsuccessful.  Individual psychological therapy, of the kind he has been receiving from Dr Hatzipetrou, would be appropriate as it is aimed at his limited intellectual functions.  The offence against the nurse was impulsive and difficult to address with treatment.  His antipsychotic medication was clearly not totally effective.  Individual therapy could be of benefit but may not be totally effective.  Impulsive behaviour was therefore quite likely to occur, although more severe expressions of interpersonal violence or very severe sexual offending were likely to respond more effectively to his current treatments.[16]

[23] On the STATIC-2002R test, the appellant falls into the high risk group for future sexual offending.  On the HARE PCL-R 2nd Edition psychopathy checklist the appellant scored 31/40 which placed him in the psychopathic personality category.  This potentially increases his risk of future sexual offending, but this test needs to be considered with extra caution because of the influence of the appellant’s acquired brain injury and schizophrenia on the scores.[17]  On the HCR-20 test which measures the likelihood of future violent behaviour both general and sexual, he presents a high risk of future violence.[18]  On the Risk for Sexual Violence Protocol the appellant would most likely reoffend with impulsive touching or groping of a female in an opportunistic situation.  The potential psychological harm to victims would be high, whereas the likelihood of physical harm would be minimal to moderate.  Re-offending could occur at any time, most likely in association with intoxication, physical illness or non-compliance with treatment or supervision.  The appellant was of high risk of future sexual offending, most likely where there was social disruption, lack of personal support, intoxication or recurrence of psychosis.[19]  Dr Grant noted that the particular risk in recent times has been for impulsive opportunistic offending rather than serious sexual re-offending.  There could, however, be a progression to more serious re-offending in the presence of those serious risk indicators.

[24] Overall, Dr Grant’s opinion was that the appellant was:[20]

“at high risk of sexual re-offending.  Whilst there has been a moderation of risk by virtue of abstinence from substances, support and supervision, individual psychological treatment and the effects of increasing age and maturation, the recent contravention of his Supervision Order indicates that there is an ongoing risk of impulsive sexual re-offending.  Currently, the risk for a more serious sexual re-offence would...be moderate rather than high but that risk would increase in the presence of the relevant risk factors, particularly intoxication with substances and social isolation and lack of support.  Lack of psychiatric treatment and relapse of his Schizophrenia would also significantly increase risk.”

[25] The appellant, Dr Grant recommended, should continue his therapy with Dr Hatzipetrou and psychiatric treatment to control his schizophrenia.  His complex problems require a complex management program combining mental health treatment with supervision and attempts at social rehabilitation.  A supervision order will be reasonably effective at significantly containing the risk of serious sexual re-offending but it will not be totally effective at reducing impulsive opportunistic offending.  Maintenance of sobriety, control of psychiatric illness and quite intense social support and supervision will be the relevant factors in containing risk.  There will be an ongoing significant risk of impulsive sexual offences, most likely of the less severe variety.[21]

[26] Dr Grant opined:[22]

“Whilst the risk to the community cannot be totally contained...a Supervision Order will act to contain more serious threatening or offending behaviour and should be effective in quickly detecting contraventions of supervision in regard to substance use.  Monitoring of [the appellant’s] movements and social interactions would be a relevant aspect of his management.  He should not be allowed to have any unsupervised contact with children.”

[27] In Dr Grant’s assessment of the risks, the appellant’s release on a comprehensive supervision order similar to that which previously applied, for a lengthy period such as 10 years, was appropriate.  The risks relating to the appellant would not be ameliorated in the short term but, as he ages, Dr Grant considered his tendency towards aggression and impulsivity was likely to gradually decline.

[28] In a supplementary report dated 20 November 2015 prepared after reading the appellant’s medical records at the time of the offence against the nurse, Dr Grant stated that the appellant’s physical illness and reduced blood oxygen were probably relevant factors in exacerbating his impulsive behaviour at the time.  He had very poor control over his impulses, however, even when not physically ill.  Dr Grant affirmed his earlier opinion as to the assessment of the appellant’s risk to the community.[23]

[29] Dr Grant gave oral evidence at the request of the primary judge.  Although counsel did not wish to question him, his Honour was troubled by the appellant’s contravention of the supervision order which involved committing a sexual offence.  He asked Dr Grant to explain how the proposed conditions would answer the risk of an impulsive sexual attack by the appellant.

[30] Dr Grant noted that there was a difference between the appellant’s most recent less serious offending and his older very serious violent sexual offences.  Once his schizophrenia was treated, his tendency towards impulsive aggression was quite well-controlled.  He was now a man with no social network with a tendency to be impulsive in the community.  His recent sexual offending against the tutor and the nurse were very brief episodes and in the category of less serious impulsive groping.  They were, however, offensive to the victims and were sexual offences.  It was a matter for the court whether the risk of impulsive behaviour, if released on a supervision order, was appropriate.  His low levels of blood oxygen at the time of his assault on the nurse would make him more likely to be impulsive and less able to monitor his own behaviour and think clearly.  His individual program with Dr Hatzipetrou was proving helpful and seemed to settle his behaviour.

[31] Dr Grant told the appellant’s counsel that the appellant’s risk of re-offending could be curtailed in the future by a “red flag” on his medical history to ensure that if he was unwell and confused he should be attended to by two people.[24]  He agreed that, provided the appellant remained off drugs and alcohol and his schizophrenia was well-controlled, it was likely that, if the appellant were to re-offend, it would be an impulsive groping offence.  More serious sexual offending, in particular against children, was quite unlikely.  The appellant was quite insightful about his past offending against children and was adamant that he would not offend in such a way, recognising that children needed protection.  The regime under the proposed supervision order would likely provide effective control because any abuse of alcohol or drugs would be quickly and rapidly detected and addressed.  The risk under the proposed supervision order was of a very sudden impulsive “grope” and that was being addressed with the individual therapy with Dr Hatzipetrou.[25]

Dr Beech’s evidence

[32] Dr Beech interviewed the appellant on 28 August 2015.  In his report of 19 November 2015 he noted that the prison incident involving the female tutor was likely to have occurred when the appellant’s psychotic illness relapsed.  He subsequently responded to alterations in his antipsychotic medication.[26]  As to the offence against the nurse, Dr Beech noted that, when she pulled her hand away, left and returned with another nurse, the appellant apologised.[27]  The appellant also told Dr Beech he was sorry for what he did to the nurse and he wanted another chance.  He said the nurse would have been scared; he had hurt her feelings and he was sorry.  She had been trying to do her job and what he did was not right.[28]  He seemed to express genuine remorse with elements of empathy.  He claimed to have no recollection of the offence but accepted that he committed it, stating his mind was not working at the time.  He affirmed his commitment to abstaining from drugs and alcohol and his longer term goal of returning to his family.  He wanted to get out, do his time at the precinct and return home to lead a good life camping, hunting, fishing, reading books, writing poetry and gardening.  He accepted he only had himself to blame for his current predicament.[29]

[33] Dr Beech considered that the offence against the nurse, whilst indecent and inappropriate, was somewhat exceptional.  The appellant found himself naked and alone with a nurse in the early hours of the morning, still affected by his lung condition and mildly hypoxic.  In those circumstances his poor problem solving and impulsivity came to the fore.  He immediately apologised and now expressed regret and remorse which appeared genuine.  There was no longer any evidence of psychosis.  The appellant was employed within the prison and remained abstinent with no breaches of discipline.  This is in marked contrast to his earlier years when he was aggressive, difficult to manage and prone to outbursts triggered by persecutory ideation.  He remained somewhat more sexually inclined than the average 51 year old man but there was no ongoing evidence of indecent behaviours.[30]

[34] Dr Beech noted the appellant’s complex range of disorders, including his head injury and schizophrenia, made him prone to impulsivity and sexual disinhibition.  He was likely to act out indecently when his mental state was destabilised by substances, mental illness, or as with the nurse, the stressors of a severe physical illness.  The risk of further violent sexual offending in the community if unmonitored was high.  He would quickly become poorly compliant with medication.  His mental health would deteriorate and he would return to substance use.  He would be likely to act impulsively.  In unrestrained circumstances there was a significant risk that sexual offences would involve a child or a vulnerable female and could range from indecent touching to coerced sexual assault or even significant sexual violence.[31]

[35] Dr Beech considered, however, that a supervision order in terms similar to that upon which he was most recently released would ensure that he was monitored and would reduce his risk of further violent sexual offending to “below moderate”.  This would significantly reduce his risk of returning to substances and ensure compliance with medication for his psychotic illness.  It would provide support and ongoing counselling and rehabilitation.  There was still a risk that he would act indecently.  But it would occur in somewhat exceptional circumstances where his impulsivity was aggravated by intoxication, mental illness, or close, unmonitored proximity to a woman.[32]  This could be managed by alerting those who treat him, or come in close proximity to him when he is unwell, to these risks.  The medical alert relating to the appellant at the Princess Alexandra Hospital should probably be extended to other settings.  He requires further psychological intervention and ongoing rehabilitation.[33]

[36] In oral evidence, the judge explained that he, rather than counsel, wished to hear further from Dr Beech.  As with Dr Grant, his Honour asked how the conditions of the proposed supervision order would address the future risk of sexual offending as a consequence of impulsive acts.  Dr Beech noted that the appellant’s most serious offending occurred when he was young.  The offence against the boy seemed to have occurred when he was intoxicated and probably suffering from a mental illness.  In recent times his offending has been more of the impulsive grabbing at females.  When the offence involving the tutor in prison occurred, his mental state had deteriorated due to schizophrenia and he was acting out fantasies.  He had improved quite a lot since his early years and even since 2010 when first released.  He would struggle in the community without a supervision order.[34]  His risk of offending against children increases when he is using alcohol or drugs and left alone and unmonitored.  He can now have GPS monitoring.  People are much more aware of him.  He has undertaken treatment with Dr Hatzipetrou and his antipsychotic medication regimen has been optimised.  He now repeated useful concrete statements or mantras including, “don’t do evil;” “don’t touch women;” and “don’t take drugs.”[35]

[37] What happened at the hospital was exceptional.  It was offensive and indecent but he was probably hypoxic, with an affected mental state at a time when he was naked at night with a woman.  He acted impulsively but immediately stopped and apologised.  This was a very different offence to the assault on the prison tutor, let alone when compared to his earlier more serious offending.[36]

[38] His Honour raised the concern that, unusually, the contravention of the supervision order was the commission of another sexual offence.  Dr Beech agreed that there was a risk the appellant could act impulsively under certain circumstances.  Those monitoring him needed to be vigilant to ensure he was physically and mentally well and was not alone with women.  These matters could be monitored under a supervision order.  If he again went to hospital or was in a like situation, alerts would state that he has a brain injury and could sometimes act sexually impulsively so that he is not to be left alone with females.[37]

[39] Dr Beech agreed with the appellant’s counsel that, unusually for this appellant, his recent prison record had improved in that he had maintained employment and had no breaches of discipline.  In the past he was always acting up, aggressive, difficult and volatile but that dropped off once he was given antipsychotic medication.  This has also markedly reduced his impulsivity.  When he committed the offence against the nurse, his mental state was affected by his physical illness.  Another protective factor was his one on one counselling with Dr Hatzipetrou.  From his history of past supervision orders, the court could have reasonable confidence that his psychiatric treatment and physical health would be monitored and he would be well supported under such an order.[38]

[40] When questioned by the respondent’s counsel, he agreed that the risk of re-offending against children would be managed by the supervision order which would also address his underlying risk of impulsive behaviour.[39]

The submissions before the primary judge

[41] Relying on Dr Grant’s and Dr Beech’s evidence, the appellant emphasised the unusual circumstances of his contravention of the supervision order and his subsequent behaviour which supported the proposition that the risk he posed could be adequately managed and controlled by a supervision order.  The appellant contended that he had discharged the onus cast upon him under s 22 so that the judge would release him on a supervision order on the same terms as previously.

[42] Counsel for the respondent also referred to Dr Beech’s and Dr Grant’s evidence.  The appellant had breached clause 17 of the supervision order in committing a sexual offence. The question for the primary court was whether the adequate protection of the community could be ensured by the appellant’s release on either the existing supervision order or an amended one.  Concerns remain in relation to the prospect of the appellant committing impulsive offences of a sexual nature.  Counsel conceded, however, in both written and oral submissions, that it was open to the court on the evidence of the psychiatrists to be satisfied that, despite the contravention, the appellant could be released on a supervision order on the same terms as previously.

The primary judge’s reasons

[43] The primary judge set out the nature of the application, the background to the supervision order, the appellant’s previous sexual offending, the evidence from the psychiatrists, the legislative scheme and the competing submissions.  His Honour found that the appellant contravened his supervision order when convicted in July 2015 of an offence of a sexual nature contrary to clause 17 of the supervision order.  The onus, his Honour noted, was therefore on the appellant to establish that the adequate protection of the public from the risk of the commission of a serious sexual offence could be met by the continuation of the supervision order or an amended supervision order.  His Honour found that the respondent had not discharged that onus.

[44] The appellant, his Honour observed, swore that he would comply with his supervision order but his past failures were concrete evidence of his non-compliance.  Previous contraventions have included the commission of sexual offences.  Whilst the most recent contravention occurred in highly unusual circumstances, his impulsivity, the judge considered, was of particular concern in relation to his ability to adhere to the conditions of a future supervision order.[40]  His Honour did not consider that the risk factors identified by the psychiatrists were adequately addressed by the imposition of even stricter conditions under the supervision order.  Such conditions, his Honour reasoned, may address the risk of future serious sexual re-offending in respect of children but did not address the significant risk of re-offending in respect of adults.  The appellant’s behaviour towards the tutor and nurse evidenced the dangerousness of his impulsivity if alone with an adult female.  These offences occurred in public, not in isolated locations, and in circumstances where a supervision order of the kind now proposed had been inadequate to protect the vulnerable adult women victims.  It was simply unacceptable to place adult women at such risk in the future.[41]  His Honour conceded that the risk of sexual offending did not relate to children but found:

“it cannot be said that the risk of sexual offending does not involve violence. [The appellant’s] most recent contravention by the commission of an offence of a sexual nature involved more than ‘groping’ of the female victim.  [The appellant] forcibly placed the hand of the complainant on his genitals.”[42]

[45] His Honour referred to Muir JA’s observations as to violence in the definition of “serious sexual offence” under the Act in Attorney-General v Phineasa[43] and found that:

“Forcibly placing the hand of an adult female onto his genitals involves more than mere physical contact.  It involves the application of force without the consent of the adult woman.  It is conduct which is likely to cause significant psychological harm to that adult woman.

Ultimately, the issue that must be addressed is, as Dr Grant candidly admitted, the level of risk this Court is prepared to find acceptable.  The risk of future sexual offending posed by the [appellant’s] impulsivity is unacceptable.  It cannot be adequately addressed by conditions under a supervision order.  The Court can have no confidence the [appellant] will comply with those conditions, particularly, a condition that he not commit an offence of a sexual nature whilst subject to that supervision order.”[44]

[46] His Honour observed that, whilst Dr Grant and Dr Beech gave considered reasons for their opinions as to “the risk of future sexual offending” being adequately protected by a supervision order, this was a matter for the Court.[45]  His Honour found that the appellant had not discharged the onus placed on him, revoked the existing supervision order and ordered that the appellant be detained in custody for indefinite control, care and treatment.[46]

The appellant’s contentions in this appeal

[47] The appellant submits that under the proposed supervision order the risk of him committing an offence involving children or the use of gratuitous violence against adult females was sufficiently reduced to warrant his release.  Dr Beech considered the risk was less than moderate.  The risk the appellant posed was of groping an adult female when acting impulsively, particularly in a disinhibited state.  This was not an offence of violence for the purposes of the definition of “serious sexual offence” within the Act: see Phineasa.  The appellant contends that the primary judge wrongly concluded that the offence which constituted the contravention of the supervision order involved more than simply physical contact with a sexual aspect to it.  It was an offence of the kind described by Muir JA in Phineasa and did not constitute violence under the Act.  Contrary to his Honour’s findings, the appellant submits that there was no evidence that an offence of this kind caused or was likely to cause significant psychological harm to the nurse.  The primary judge erred, the appellant contends, in determining that the purpose of the supervision order was to protect the community from all sexual offences, however minor, that might be committed by him.  The object of the Act was to ensure the adequate protection of the community from the risk of a prisoner committing an offence of a sexual nature that amounts to a “serious sexual offence” under the Act.  The judge’s error required this Court, the appellant submits, to reconsider the matter.  Accepting the unchallenged evidence of both psychiatrists, this Court would be satisfied that the adequate protection of the community from the risk of the appellant committing a serious sexual offence could be ensured by the proposed supervision order.

[48] As to ground 2, the appellant contends that the evidence from Dr Beech and Dr Grant made clear that the risk of the appellant committing further sexual offences was not a risk involving sexual offences against children or sexual offences involving gratuitous violence.  The only reasonable conclusion from their evidence was that the appellant discharged his onus of proof on the balance of probabilities to establish under s 22 that the adequate protection of the community could be ensured by releasing the appellant on the proposed supervision order, notwithstanding the contravention.

The respondent’s contentions in this appeal

[49] As to the first ground of appeal, the respondent contends that under s 22 it is not necessary that the risk of re-offending must relate to a “serious sexual offence.”  The appellant is presently subject to a detention order under s 13(5) so that he is, for the purpose of the proceedings below and this appeal, deemed to be at an unacceptable risk of committing a “serious sexual offence.”  The respondent, relying on s 3 and s 13, submits that the appellant, having contravened his supervision order and having regard to the risk that he presents, must establish that the community can be adequately protected from the risk of his re-offending by release on a supervision order.  Section 22(2) and (7) refer back to s 13(6).  The question is not whether he is at risk of the commission of a “serious sexual offence” so that the observations in Phineasa are irrelevant.  The judge did not, and did not need to, find that the breach offence involving the nurse was a serious sexual offence.  For these reasons, the respondent contends that the first ground of appeal is misconceived and without merit.  The respondent concedes, however, that if ground 1 is made out and the judge erred, this Court can re-exercise its discretion to determine whether the appellant should be released on a supervision order under s 22.

[50] As to the second ground of appeal, the respondent emphasises aspects of Dr Grant’s evidence, including that the appellant was at high risk of sexual re-offending and that a supervision order would still leave an ongoing significant risk of impulsive sexual offending, even if of a less serious variety.

[51] Dr Beech, the respondent emphasises, considered that although a supervision order would reduce to below moderate the risk of sexual assault on children, or of significant sexual violence on a vulnerable adult female, there was still a risk the appellant would act indecently where his impulsivity was aggravated by intoxication, mental illness or unmonitored close proximity to a woman.  Dr Beech, the respondent contends, effectively said that the appellant should not be left alone with females in the community.

[52] The respondent contends that the appellant was at high risk of the commission of a serious sexual offence both against children and women.  He was emotionally unstable, had an acquired head injury and schizophrenia and was prone to abuse alcohol and marijuana.  He had breached supervision orders on four occasions, twice by consuming cannabis and twice by committing sexual offences.  It was possible he suffered from paedophilia and he might commit future offences against children, especially if taking alcohol or marijuana.  His impulsivity made him more likely to commit offences against women and this could not be fully controlled by antipsychotic medication or treatment.  In light of his past contraventions, his impulsivity, as the primary judge appreciated, was a potent risk factor.  The onus was on the appellant to demonstrate that a supervision order would adequately manage the risk he presented.  As Dr Beech noted, this impulsivity virtually placed any woman whom the appellant encountered in the community at risk.  The primary judge, the respondent contends, was entitled to find that the appellant did not demonstrate that the community could be adequately protected by a supervision order.  The judge was rightly concerned that the recent contravention and the future risk posed by the appellant was that of committing a sexual assault, not merely a precursor to an aggravation of such a risk, such as the ingestion of intoxicants.  As this Court stated in Attorney-General for the State of Queensland v Fardon:[47]

“It was not reasonably open, on all the evidence, to conclude the supervision order would be ‘efficacious’ in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences.”[48]

[53] The respondent contends that the primary judge’s conclusion that the proposed supervision order would not manage this risk was supported by the evidence of the psychiatrists as to the appellant’s impulsivity.  The question whether the appellant should be released under s 22 was a question for the judge, not the psychiatrists.  The judge’s decision was an unexceptional, reasoned exercise of discretion, open on the evidence.

[54] For these reasons, the respondent contends that the appellant has not disclosed any appealable error and the appeal should be dismissed.

Conclusion

[55] In Phineasa, the Attorney-General appealed from a judge’s decision that Phineasa, who had a considerable history of sexual offending, should not be subject to an order under the Act.  In 2006, he exposed his penis, masturbated in the presence of women at a hotel in Cairns, touching a woman’s bottom whilst doing so; masturbated and then attempted to rub his penis against the back of another woman; exposed his penis on a chair and attempted to poke a woman on her back with his penis as he ran it along the top of the chair; and walked closely behind a woman while fiddling with his groin area.  In 2007, he entered a woman’s bedroom and touched her buttocks, pulling her underwear to one side; put his hands down his shorts and appeared to masturbate in front of a 64 year old woman, asking, ‘Do you get naked?’; approached a female shop assistant, masturbated in front of her to ejaculation and touched her on the bottom; grabbed and rubbed a woman’s bottom in a McDonald’s Restaurant; looked into the house of a woman when she was naked, rattled the security door and threatened to come inside; and masturbated or exposed himself in front of female Corrective Services officers on nine occasions.[49]

[56] Muir JA, with whom White JA[50]and Philippides J[51] agreed, rejected the contention that any physical contact of a sexual nature would necessarily involve violence within the meaning of the term “serious violent offence”[52] under the Act.  His Honour noted the pivotal role of the definition of “serious sexual offence” in the Act[53] and concluded that “A serious sexual offence is thus an offence, the commission, or potential commission, of which may represent ‘a serious danger to the community’.”[54]  The objects of the Act, Muir JA considered, do not suggest that Parliament contemplated that those who posed a risk of only minor offending came within the Act.[55]  To constitute “violence” within the term “serious violent offence” under the Act, more than mere physical contact or the application of force is required.[56]  Force significantly greater in degree than mere physical contact such as “pawing, grasping, groping or stroking” is required.  The term “serious violent offence” relates to sexual offences against adults of a very serious kind such as rape within the meaning of s 349 Criminal Code 1899 (Qld) which caused, or would be likely to cause, significant physical injury or significant psychological harm.[57]  Whether conduct involves that kind of violence must always be determined by reference to the particular facts and circumstances of the case.  Violation of a victim’s body by rape would normally involve violence of the kind envisaged by the Act.[58]  This construction, the Court considered, is consistent with the principle of statutory construction that it is improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law without the clearest of stated intentions.[59]  It is also consistent with the Minister’s second reading speech which stated that the Act would be likely to apply only to “a dozen or so very, very serious offenders.”[60]  The Court concluded that Phineasa’s offending did not involve force sufficient to constitute violence within the meaning of the Act.

[57] As the respondent pointed out, this appellant, unlike Phineasa, is the subject of a Division 3 order, having been found to be a serious danger to the community in the absence of such an order,[61] that is, there is an unacceptable risk that he will commit a serious sexual offence if released from custody or released from custody without a supervision order.[62]  This meant that he must be either detained in custody for an indefinite term for control, care or treatment under a continuing detention order[63] or released from custody subject to appropriate requirements stated in a supervision order.[64]  The paramount consideration is the need to ensure the adequate protection of the community.[65]

[58] The appellant was released on a supervision order but having breached that order, most recently by his offending against the nurse, the primary judge could not release him on a supervision order unless satisfied under s 22 on the balance of probabilities that the adequate protection of the community can, despite his contravention or likely contravention, be ensured by the proposed order.[66]  Otherwise the judge was required to rescind the supervision order and make a continuing detention order.[67]

[59] The offending against the nurse must have been disturbing for the unfortunate complainant who was conscientiously performing her difficult duties in the early hours of the morning.  The appellant, however, has been appropriately punished: he was sentenced to 12 months imprisonment suspended after four months with an operational period of 18 months.  He has remained in custody, either serving that sentence or under the Act, since he committed the offence, a period of about 20 months.

[60] The reference to “the adequate protection of the community” in s 22(2) and s 22(7) is clearly a reference to that term as explained in s 13, that is, adequate protection of the community from the unacceptable risk that the appellant will commit a serious sexual offence, namely one involving serious violence of the kind discussed in Phineasa, which caused or was likely to cause significant physical injury or significant psychological harm.  So much was rightly accepted by the primary judge.[68]  The judge rejected the appellant’s submission that the risk of his sexual reoffending was not a risk of serious sexual offending under the Act.[69]  After referring to Phineasa,[70] his Honour concluded that forcibly placing the nurse’s hand on the appellant’s genitals was likely to cause significant psychological harm.[71]  His Honour was therefore finding that, in terms of this Court’s analysis in Phineasa, the appellant’s offence against the nurse was a serious violent offence as it was likely to cause her significant psychological harm.

[61] Whilst not diminishing the repugnant nature of the offence, there was no evidence that it caused the complainant significant psychological harm and no evidence from which the judge could infer this.  A complainant might suffer significant psychological harm from such conduct but this was by no means probable or inevitable.  The appellant’s offending against the nurse was no more likely to cause significant psychological harm than the equally inappropriate and unpleasant offending in Phineasa.  The judge erred in finding the offence against the nurse was a serious sexual offence under the Act.

[62] The respondent’s reliance on Fardon[72] is misguided.  It cited Chesterman JA’s single judge decision granting the Attorney-General’s application for a stay pending appeal in which the reasons made clear that the use of the expression “sexual offences” in [29] was a shorthand expression for “serious sexual offences” and his Honour from time to time used the expressions interchangeably.[73]

[63] I consider that the appellant has established the primary judge erred in concluding that the offending against the nurse which constituted the breach of the appellant’s supervision order was a serious sexual offence under the Act.  This error means that this Court must re-exercise its discretion to determine whether the appellant should be released on a supervision order under s 22.  If so, the appeal must be allowed and it is unnecessary to consider the second ground of appeal.

[64] In Attorney-General v Francis[74] this Court made plain that if the supervision of a prisoner is apt to ensure adequate protection of the community under the Act, having regard to the risk to the community posed by the prisoner, then an order for supervised release should be preferred to a continuing detention order.  This is because the intrusions of the Act upon the liberty of the subject are exceptional and the liberty of the subject should be constrained to no greater extent than warranted by the Act.  It is not contemplated under the Act that supervision orders must be watertight; otherwise they would never be made.[75]

[65] Psychiatrists, Dr Grant and Dr Beech, both thoroughly reviewed the appellant’s case.  They concluded that his risk of re-offending by way of serious sexual offence involving violence or against a child could be very significantly moderated by a supervision order of the kind to which he was previously subject.  His impulsivity which led to his latest breach could be controlled by his antipsychotic medication and his individual therapy with Dr Hatzipetrou.  The Court can have reasonable confidence that his psychiatric and physical condition will be monitored and he will be well supported and supervised under the terms of the proposed order.  His risk of re-offending against children and his alcohol and drug taking, the psychiatrists agreed, could also be managed by such an order which would end his social disruption and provide a high level of support.  The order is wide enough to monitor him by GPS and to ensure he does not receive medical treatment from unaccompanied women.  The psychiatrists, therefore, do not suggest that the proposed supervision order would leave any women whom the appellant encountered in the community at risk.  They considered the appellant’s general behaviour and insight post offending has improved in recent times.  Dr Grant considered a supervision order will be reasonably effective at controlling the risk of serious violent offences[76]  Dr Beech considered that the risk of serious violent offending was below moderate.[77] The respondent did not submit it was not open to order the appellant be released on the proposed supervision order if the primary judge was found to have erred.

[66] The psychiatrists did identify a real risk that the appellant could re-offend by committing a relatively low level sexual offence, but this does not make a supervision order inappropriate.  The carefully structured supervision order proposed is likely to ensure that any such offence will be quickly detected and his immediate return to custody would follow before any escalation to more serious offending: see Attorney-General for the State of Queensland  v WW[78] and Harvey v Attorney-General (Qld).[79]

[67] I consider that the appellant has established, on the evidence before the primary judge, that the adequate protection of the public from the risk of the future commission of a serious sexual offence can be met by the continuation of a supervision order on the same terms as that of 7 October 2014.  This outcome sits comfortably with the objects and scheme of the Act.  I would therefore allow the appeal and make the following orders.

Orders

1. The appeal is allowed.
2. The order of the primary judge is set aside.
3. Instead it is ordered that, being satisfied to the requisite standard that Gregory David Kynuna 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 (Qld):

1. The decision made on 30 November 2011, that Gregory David Kynuna is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed;
2. The continuing detention order made on 30 November 2011 is rescinded;
3. Gregory David Kynuna is released from custody on 23 June 2016 and from that time is subject to the requirements set out in [8] of these reasons until 23 June 2026.

[68] MORRISON JA:  I have read the reasons of Margaret McMurdo P and agree with those reasons and the orders her Honour proposes.

[69] APPLEGARTH J:  I agree with the reasons of the President and with the orders proposed by her Honour.