Black v Attorney-General[2022] QCA 253

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Dalton JA.
2. [2]
   DALTON JA:  Mr Black has a history of accessing child pornography online since 1999.  From 2002 he was trading and selling that type of material online.

Serious sexual offence

3. [3]
   In 2013 he offended in a different way; posing online as a 14 year old boy, he succeeded in encouraging a 12 year old girl to send him photographs of her naked body.  It was the conviction for that offence which brought him within the purview of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA).  That is because the definition of “serious sexual offence” in that Act is:

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

1. (a)
   involving violence; or

2. (b)
   against a child; or

3. (c)
   …”

4. [4]
   There is little authority on the question^[1] but it was accepted by the parties to this appeal that, without more, offences based on accessing, possessing, trading and selling images of child pornography did not fall within the definition at (b); they are not offences “against” a child.  It was also accepted on this appeal that the 2013 offending did fall within (b).  That offence was different because Mr Black interacted with an identifiable child and encouraged her to make pornographic photographs of herself.  The offending could therefore be said to have been committed “against” that child.  P Lyons J thought so in SBD – [71], although that opinion was obiter.

History of orders under DPSOA

5. [5]
   When he was released after imprisonment for his 2013 offending, Mr Black was on a five year supervision order under the DPSOA imposed by Byrne SJA on 16 February 2016.  He returned to prison in June 2016 because he had a USB stick.  That breached his supervision order.  The breach was on the basis that he admitted having the USB stick.  That admission only came to light after he had destroyed it.  He claims it had a Star Wars movie on it, but no check was able to be made, and Mr Black has a history of being deceptive.
6. [6]
   He was released by Flanagan J on 21 November 2016 on the supervision order made by Byrne SJA.  He returned to prison in May 2017.  He had gone to the Department of Housing for a legitimate purpose.  While there, he fell into the company of a mother and her prepubescent daughter.  Mr Black is attracted to prepubescent girls.  He spent some time with the mother and child, both at the Department of Housing premises, and also at an adjacent shopping centre.  At the shopping centre the mother left him in care of her daughter for a short time while she went to the toilet.  There was no offending against the daughter, but contact with the child was a breach of his supervision order.
7. [7]
   On 26 February 2018 Mr Black was released from custody again, this time by Boddice J, on the supervision order made by Byrne SJA in February 2016.  In May 2020 it was discovered that he had an electronic tablet and a connection to the internet.  There were 400 images of child pornography on the tablet.  Mr Black said that he had been downloading images since January 2020 and deleting them; he said he had downloaded perhaps 2000 images in that time.  Mr Black was sentenced by Kent QC DCJ for possession of those images and his full time release date under that sentence was 19 November 2022.
8. [8]
   The hearing in relation to Mr Black’s third contravention of his supervision order came before the primary judge on 1 November 2021.  It was conceded that he had breached the order.  She made an order rescinding Justice Byrne’s order and detaining Mr Black in custody for an indefinite term.

Appeal

9. [9]
   This appeal is against that order, inter alia, on the basis that the primary judge erred in her assessment of the risk of Mr Black committing a serious sexual offence, and because she found he could not be adequately managed in the community on a supervision order when that was unjust, or against the weight of evidence.
10. [10]
    In my view these grounds must succeed.  I would therefore order that the appeal be allowed and that Mr Black be placed on the supervision order made by Byrne SJA in 2016, but that the duration of that order should be amended so that it expires on 1 November 2031 that is, 10 years after the orders were made below.  Having regard to the history of non-compliance with that order, and the psychiatric evidence below that Mr Black’s risk of serious sexual offending remains essentially unchanged since 2016, despite almost five years on DPSOA orders, I think it appropriate that the supervision order upon which he is released is one made for 10 years.  I give the reasons for my opinion.

Mr Black’s diagnoses and personality

11. [11]
    The primary judge had reports from two psychiatrists, Dr Arthur and Dr Beech.
12. [12]
    Mr Black was raised by a mother who was physically abusive to him.  He says his stepfather was an alcoholic and abused one of Mr Black’s stepsisters.  He denies ever having been sexually abused himself.  He spent time in foster care.  He did not fit in with his peers; he attributes this to his physical appearance, and his family’s poverty.  He has failed to make any lasting personal relationships throughout his life.  He has almost never worked.
13. [13]
    He has offending other than sexual offending.  He is said to have had a gambling addiction and substance addictions.  Relevantly for this hearing, he is diagnosed as a paedophile (attracted to prepubescent females) and as having an anti-social personality disorder, with prominent psychopathic traits.  Dr Arthur scored him at 28/40 on the Hare psychopathy scale; Dr Beech scored him at 27.  Dr Beech said that while in the United States of America a score of 30/40 is required before a diagnosis of psychopathy can be made, in Australia psychopathy can be diagnosed at a score of 26 or 27/40.  An additional probable diagnosis is mild autism spectrum disorder.  Mr Black is now 48 years old.
14. [14]
    Mr Black’s personality disorder is probably more to blame for his current circumstances than his paedophilia.  It is likely responsible for his failure to integrate into society in any meaningful way; with no work, and no interests, he is almost exclusively preoccupied with sex.  This in turn means that his trading and selling child pornography on the internet is important to him, because it gives him a feeling of self-worth and belonging in the online paedophilia community.
15. [15]
    Mr Black’s personality disorder means that he has failed to learn from years of imprisonment; courses undertaken in jail such as HISOP, and years of individual counselling with psychologists.  The psychiatric reports describe him as glib, grandiose, critical and contemptuous.  There is evidence of that contempt being felt towards other inmates in prison; corrective services personnel who have supervised him, and his treating psychologists.  The reports also show that he minimises or denies his sexual interest in children; is dishonest about his behaviour; refuses to accept any responsibility for his actions; is not particularly adverse to spending time in jail, and sees time on a supervision order under the DPSOA as some kind of game in which his aim is to outwit those who are charged with his supervision and surveillance.
16. [16]
    Mr Black refuses to take anti-libidinal medication and, while he attends counselling sessions with psychologists, he does not engage in any sincere way with them.  Dr Beech uses the terms “nearly incorrigible” and “incorrigible”^[2] in respect of Mr Black.

Section 22: adequate protection of community

17. [17]
    The question which was before the primary judge is framed by s 22 of the DPSOA:

“22 Court may make further order

1. (1)
   The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner … has contravened, a requirement of the supervision order … (… existing order).

2. (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 –

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

…

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

…

2. (b)
   may otherwise amend the existing order in a way the court considers appropriate –

1. (i)
   to ensure adequate protection of the community; …

…”

18. [18]
    In Kynuna v Attorney-General (Qld)^[3] President McMurdo said, “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 …”.

Evidence about risk

Dr Arthur

19. [19]
    As to risk, Dr Arthur thought that Mr Black was a “moderately high risk of reoffending, most likely by accessing [child exploitation material] on the internet” if released to the community under a supervision order.  He went on to say that “his risk of contact offences is much less and could be reduced to low under a supervision order, mainly through limiting victim access”.^[4]
20. [20]
    As already discussed, accessing child exploitation material is not a serious sexual offence, as defined.  Thus Dr Arthur’s opinion, relevantly, was that if Mr Black were released under a supervision order, his risk of committing a serious sexual offence was low.
21. [21]
    In a second report (24 September 2021) Dr Arthur recommended the extension of Mr Black’s supervision order to 10 years.  In the course of that report he said:

“8. The fact that he reoffended whilst on a supervision order suggests that at the time of his return to custody, his risk was not able to be adequately managed by Community Corrections. There is little evidence of any attitudinal change since that time.

9. As noted in my report, the stringent conditions required to manage prisoner Black in the community are likely to cause him a significant degree of frustration and anger, resulting in further rejection of supervision and an escalation in his attempts to manipulate and circumvent the order. As such, at the current time I do not believe that prisoner Black's risk of sexual recidivism can be adequately mitigated by the provision of a supervision order.” (emphasis in the original).

22. [22]
    It is important to note that these opinions are as to Mr Black’s risk of accessing child exploitation material on the internet; that is, they are not about his risk of committing a serious sexual offence, as defined.  In oral evidence Dr Arthur would not be drawn on the risk of Mr Black “escalating from downloading CEM to a contact offence” if he were not under a supervision order – t 1 – 8.  The most he would say was that there was “a possibility that there’s an opportunity that may escalate his risk to a contact offence”.  He was then asked if Mr Black were on a supervision order would that lower his risk of committing a contact offence and he said:

“Well, we’ll start without a supervision order, and then we’ll import-‑‑? --- Okay.

---a supervision order? --- Look, it’s a very difficult question to answer because I don’t think we really understand Mr Black that well. I don’t think he’s been honest and forthcoming about many aspects of his sexuality. What we do know is that he has a long history of downloading CEM and disseminating that. He gets sexual pleasure from it, but it also gives him a sense of purpose and a place in that world. He sees himself as someone who’s useful to other people who are interested in that material. So there’s an inherent – well, there’s a number of – of – of motivators for him to continue to do that. There was some escalation in that, in 2010/2011, I believe, he had made direct contact with someone over the internet, a underage girl, and procured pornographic material from her, so that can be seen as an escalation. There’s some concern his observation in the community under supervision when he – I think the last time he was returned to custody before the current one, where he was noted to be interacting with a woman and her young daughter, her prepubescent daughter, at Centrelink. I believe he spent some time with the family, and there were concerns that he was showing an inordinate amount of attention towards the child ---

Yes? --- - - - rather than the mother. So what we have is – we have a history of someone who hasn’t committed a contact offence but someone who maintains a deviant sexual interest, and, therefore, there’s a risk, I think, of an opportunistic offence. I think the other area of concern is that if he’s not availing himself of child exploitation material, there’s a concern of maybe – where else does this man get, you know, satisfaction for his deviant sexual fantasies and desires, and there’s a possibility that there’s an opportunity that may escalate his risk to a contact offence because he doesn’t have his normal outlet.

Yes. Now if we interpose – that’s unmodified risk. Now if we impose a supervision order, do you see that procedural security lowering his risk? --- Yes. Well, supervision order has shown that – you know, that surveillance were able to identify that behaviour that – when he had unsupervised contact – well, supervised contact with a child, unauthorised contact, and they acted quickly, and there’s been no other suggestion of a contact offence or an attempt for a contact offence. So I think that that risk can be managed adequately by supervision order.

And what reduction would you see a supervision order giving? Would it be medium-high? Medium? Medium-low? Low? --- I think it’s below medium. I would say it would be low.”

23. [23]
    The primary judge returned to this topic with Dr Arthur.  He said:

“…I think what your Honour’s asking is, is his noncompliance a risk factor that would lead to a contact offence, or a more serious offence. And I think the answer to that is yes, it is, but I think so far, the supervision order has mitigated against that, and any activity directed towards that was identified quickly and acted upon.

I suppose the – the difficulty I have, is that on the current state of the evidence, I have one view that the release on a supervision order is not appropriate, and one view that it is, and it’s actually trying to – to understand the basis upon which those opinions are given. Is there anything further you wanted to say in relation to your opinion on the operation of the supervision order? --- Not really, your Honour. I suppose it comes down to how seriously the court considers his accessing and disseminating CEM, which seems to be the most likely behaviour we’re going to see if he’s released on a supervision order.” – t 1 – 13.

24. [24]
    In oral evidence Dr Arthur thought that without a supervision order Mr Black was at high risk of accessing child exploitation material on the internet, and that even with a supervision order, that risk was moderately high – t 1 – 9.
25. [25]
    The Attorney submitted at the hearing of this appeal that Dr Arthur’s opinion that Mr Black was at low risk of “contact offences” applied only to physical contact offences, and not to the type of offending committed in 2013, where Mr Black made internet contact with a real person in order to produce pornography.  The submission was that, on Dr Arthur’s evidence, his risk of internet contact offences remained moderately high.  I accept that there is a passage in Dr Arthur’s report which, if read literally, supports this interpretation,^[5] but the passage which I have outlined at [22] above, to my mind demonstrates that Dr Arthur saw this type of offending as being different from simply accessing pornography.  He described it as “direct contact with someone over the internet” and described it as an “escalation” from offending involving downloading child exploitation material and disseminating that.  I see the passage extracted at [23] above as implying the same division.
26. [26]
    In that regard, I note that in a long history of offending, Mr Black has never committed a physical contact offence and has committed an internet contact offence only once, in 2013.  That fact needs to be borne in mind in understanding the opinions expressed by Dr Arthur (and for that matter Dr Beech), but also independently in assessing whether or not a supervision order could adequately protect the community against the risk of Mr Black committing a serious sexual offence.

Dr Beech

27. [27]
    Dr Beech gave evidence in his report that Mr Black remained at high risk of further sexual offending, “that high risk relates particularly to using the internet to access child exploitation material.”  He went on to say,

“There is a lower, probably moderate, risk that he would use the internet to access a specific child as he did for the 2013 offences. There is a below-moderate risk that he would contact a child in person. …

I believe that a supervision order substantially reduces the risk that he would contact a child in person and commit an offence, but surveillance is needed to ensure he does not establish or maintain this contact”.^[6]

In oral evidence he thought that Mr Black’s risk of contacting a child online would be moderate without a supervision order and below moderate with a supervision order – t 1 – 24.

28. [28]
    The above passage from Dr Beech’s report shows that he separately considered the risk of three types of offences.  Relevantly, he thought that Mr Black’s risk of committing a serious sexual offence was moderate in the case of internet contact, and below moderate in the case of physical contact.  Dr Beech thought that without a supervision order Mr Black was at high risk of downloading child exploitation material and sharing it.  On a supervision order, he thought that his risk was moderate if on a precinct, and higher than that if he were off a precinct.^[7]  While Dr Beech’s opinion was that Mr Black’s risk of accessing and sharing child exploitation material was higher than moderate, even with supervision, that offending is not serious sexual offending as defined by the DPSOA.
29. [29]
    In oral evidence Dr Beech clarified that, “I think the most likely risk is that he’s going to return to accessing child exploitation material”.  He said that people who sell that type of material have a higher risk of committing a contact offence, and made it clear that he regarded the 2013 offending as a contact offence.  He said that Mr Black’s offending “might manifest itself” in the way it did in 2013, and said that Mr Black “could progress” to actually touching a child – t 1 – 22, but he said that he could not “be precise in defining that risk”.  More specifically he said, “I think the risk of viewing child exploitation material is high.  It’s just – the pattern is there – I – to see.  It’s difficult to know to what extent that 2013 offending was an aberration.  Something – or something that is now part of a trajectory that has been aborted by incarceration, treatment, supervision and surveillance.  And whether he would return to that if he were undetected.” – t1 – 22.
30. [30]
    Dr Beech thought that the risks he identified would persist “for at least the next five years” when asked to provide a specific opinion on the duration of any continuing supervision order.

Assessing risk in this case

31. [31]
    The question as to risk before the primary judge was as to risk of committing a serious sexual offence, see Kynuna, above.  The only evidence before the primary judge was that, on a supervision order, Mr Black’s risk of committing a serious sexual offence was moderate (Dr Beech) or low (Dr Arthur).
32. [32]
    It is true that Dr Beech did say that accessing child exploitation material, and in particular selling child exploitation material, was associated with a higher risk of going on to commit a contact offence.  However, even holding that view, he thought Mr Black’s risk of committing an internet contact offence on a supervision order was moderate or below moderate, and the risk of his committing a physical contact offence was below moderate.  It follows that the primary judge was wrong in thinking that “the psychiatric evidence supports the conclusion that it is impossible to separate the risk of continued access to CEM from the risk of contacting a child to obtain ‘fresh’ images and ‘make’ CEM” – [79] of the judgment below.  Each of the psychiatrists who gave evidence before her expressly did separate those risks.  Likewise, it was wrong to reason that “[t]here is evidence that in the particular circumstances of this respondent, accessing CEM could be described as a ‘precursor’ to the respondent accessing a child victim and procuring images” – [80] of the judgment below.  Neither of the psychiatrists gave that opinion.  While Dr Beech in particular drew an association between offenders who sell child exploitation material on the internet and the risk of offending escalating to an internet contact offence, he was, as explained above, able to draw a distinction between the two types of offending and the likelihood of the appellant reoffending by committing an internet contact offence.
33. [33]
    The primary judge then concluded:

“[81] Accordingly, a consideration of a supervision order reducing one risk in isolation does not look at the entire risk presented. The two risks cannot truly be separated out in that fashion.

[82] The evidence supports the conclusion that the risk of a serious sexual offence remains at an unacceptable level, particularly given the ‘intertwined’ nature of:

1. (a)
   the risk of sexual reoffending in the nature of accessing and possessing CEM (which remains high); and

2. (b)
   the risk of a serious sexual offence in the nature of making contact with and procuring images from a child victim (which while lower, remains at least ‘average’ due to the relationship between the two risks, particularly in respect of the respondent).”

34. [34]
    As just explained, this reasoning is based on a misunderstanding of the psychiatric evidence.
35. [35]
    In an apparently separate section of her judgment, the primary judge addressed “the issue of the respondent’s compliance with any supervision order” – [91].  Given Mr Black’s lack of insight and unusual lack of co-operation with any interventions against his offending, this was something properly to be considered.
36. [36]
    The primary judge cited a passage from the judgment of de Jersey CJ in Attorney‑General for the State of Queensland v Fardon,^[8] referring to a supervision order as having “the character of a compact between the prisoner and the community”.  This characterisation has been rejected on subsequent occasions in the trial division, and in my view is plainly wrong.^[9]  There is “nothing consensual” about a supervision order, to adopt the words of Jackson J in the first of the cases just footnoted.  As Jackson J pointed out, an order made under the DPSOA is not like a bail undertaking or a probation order.  Under the DPSOA the order is imposed by the court in circumstances defined by Statute.  Because the legislation makes many of the terms of a supervision order mandatory, a supervision order is in all cases a severe restriction and imposition on the freedom of the person who must comply with it.  Non‑compliance with an order will lead to arrest and, unless exceptional circumstances are shown, imprisonment for a not inconsiderable period of time before a s 22 hearing can be held.
37. [37]
    The primary judge placed an over-emphasis on the likelihood that Mr Black would not try to comply with an order made under the DPSOA – see [91] – [96] of the judgment below.  In the last of these paragraphs she concluded:

“[95] On the evidence, there is a high likelihood that any supervision order is not going to be complied with by the respondent given his attitude to supervision and his personality characteristics, and as a result the full protection of any supervision order in moderating the risk of a serious sexual offence is lost.  Consequently, the ‘real risk’ may effectively be the unmoderated identified risks.

[96] In these circumstances, the evidence establishes that:

1. (a)
   the adequate protection of the community cannot be reasonably and practicably managed by a supervision order; and

2. (b)
   the requirements under section 16 of the DPSO Act cannot be reasonably and practicably managed by QCS.”

38. [38]
    These paragraphs show that the primary judge had become distracted from her main task, which was to assess whether or not there could be the adequate protection of the community from the risk of Mr Black committing a serious sexual offence if released on a supervision order.  Both the psychiatrists gave considerable time and attention to evidence of the unusually poor attitude of Mr Black towards compliance with such an order.  It was largely this attitude which was responsible for their views that Mr Black was a high to moderately high risk of breaching a supervision order by accessing child exploitation material if he could.  Notwithstanding this, the psychiatrists considered that he was at a moderate or low risk of serious sexual offending on a supervision order.
39. [39]
    Of course, the question as to whether or not Mr Black was to be released upon a supervision order was not one for the psychiatrists, but one for the primary judge.  Nonetheless, the primary judge did not purport to exercise her discretion on the basis that she rejected the expert evidence before her.  If she had wished to do so, reasons for rejecting the evidence as to risk needed to be given, just as reasons needed to be given for preferring the evidence of one psychiatrist to the other, if that was what the primary judge intended to do.
40. [40]
    I will say something further about the idea of managing Mr Black on a supervision order.  There are many cases involving the DPSOA which come before the court where the offender has a history similar to that of Mr Black.  That is, the offenders are released on supervision orders; breach the orders and return to jail, then, after a s 22 hearing, they are returned to the community on supervision orders.  Often an offender repeats this sequence two or three times and then learns to comply with the provisions of the supervision order.  There are other cases where the sequence is repeated with a higher frequency over the whole duration of a 10 year order; at the end of that order, the Crown applies, and another 10 year order is made.
41. [41]
    There will be many and varied reasons why offenders continue to breach supervision orders with frequency and regularity.  Some have very low intelligence; so much so that occasionally it is the case that review under the DPSOA is the trigger for pleas of guilty to be set aside and proceedings to be taken in the Mental Health Court to establish a defence of unsoundness of mind based on natural mental infirmity.  In other cases offenders are so seriously mentally ill that they simply cannot understand the need to comply with the terms of the order.^[10]  Mr Kynuna’s case (above) was not quite that bad, but he suffered from both schizophrenia and frontal lobe damage, which meant that he repeatedly reoffended, by contact offending against children, on a supervision order.
42. [42]
    The evidence here was that Mr Black was likely to reoffend on a supervision order, but was at moderate or low risk of committing a serious sexual offence.  While it may be affronting to consider that his risk of reoffending is the result of deliberate choice, rather than a condition for which he is not responsible, there is no sensible basis to treat him more harshly because he has a personality disorder, not say, schizophrenia.  His risk of committing a serious sexual offence is what is relevant to assessing whether or not a supervision order can adequately ensure the protection of the community.  Having regard to the only psychiatric evidence before the court in this case, a supervision order could be expected to do that.  I would add that Mr Black’s history of offending is relevant.  While it is long, and while child exploitation material offences are serious, he has never committed an offence involving physical contact with a child, and has only ever committed one offence which qualifies as a serious sexual offence under the DPSOA; that was nearly 10 years ago.  The evidence before the primary court was such that a supervision order ought to have been made.
43. [43]
    There was a further ground of appeal: that the primary judge ought not to have made a factual finding that Mr Black was unlikely to try to comply with a supervision order when he had sworn to the contrary of that, and where there had been no cross‑examination of him as to this issue (or at all).  Having regard to the conclusions which I have expressed above, I do not find it necessary to deal with this ground of appeal.
44. [44]
    FLANAGAN JA:  I agree with Dalton JA.