R v Garland[2012] QDC 228

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent to this application is a prisoner, Mr Raymond Henry Garland. He is, in terms of the legislation, the “offender”. The application before the Court, filed by the Director of Public Prosecutions on 31 October 2011, seeks a review of 4 indefinite sentences imposed by Hoath DCJ on 23 October 1998. The term of each “nominal sentence” was life imprisonment. On application, he had “served” 13 years.

2. [2]
   The purpose of the review is to determine whether this Court must order that those indefinite sentences be discharged, with the default being that the indefinite sentences continue in force.

3. [3]
   Many questions have arisen for determination in this application made pursuant to the Penalties and Sentences Act 1992 (Qld) (“PSA”).  They include:

• whether the determination (of whether the “offender” is “still” a danger to the community “when” a review is “made”) involves temporal aspects;
• whether, amongst any such temporal aspects, a consideration needs to be undertaken of the parole provisions contained in Part 10 (which deal generally with indefinite sentences);
• what is meant by the term “to the community” (concerning “still a serious danger”) on such an application;
• what effect the amendments to the PSA effected by the Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Act 2010 (Qld) have on, first, the use of the term “a finite sentence” in s 174, and following, of the PSA(when the transitional effect of that amending Act, relevant to this present application, has not inserted that term in s 173, which gives this Court power in this application) and, secondly, s 172D, dealing with disregarding the dangerous prisoners’ legislative effect in “hearing” a review;
• whether, if at all, the Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 (Qld) has effect, and if so, what; and
• whether there is any power given by Part 10 of the PSA to make recommendations concerning the offender, should no order be made pursuant to s 173 and, if there is such a power, whether any recommendation should be made in this application.

Legislation

4. [4]
   The PSA in the form that applies to this application is relevantly canvassed in this Section.  The transitional provision inserted by the 2010 Amending Act has become s 217 of the PSA.  Although s 217(1) states that, relevantly, the amended Part 10 applies to the sentencing of an offender and to a “review” under that Part “no matter when the relevant offence happened or happens”, s 217(2) provides that, however, the amended Part 10 only applies if the conviction for the offence took place after, relevantly, the date of assent of the amending Act (being the 2010 Act).  But, indirectly by s 217(1) and 217(2), and directly by s 217(3), the “new” sections 172D and 174 to 174C (inclusive) apply to an offender on whom a “finite” sentence “has been imposed”, no matter when the relevant offence or conviction happened or happens, or when the finite sentence was made.  By s 217(5), in deciding what “amended part 10” means, it defines it as meaning Part 10 as amended “under” the 2010 Act and defines “new sections 172D and 174 to 174C” as meaning those numbered sections of the post-amended Act, as affected by any relevant definitions under the post-amended Act (with the latter term being defined to mean “this Act as amended by the Amending Act”).

5. [5]
   The consequence of s 217 of the PSA is, therefore, for this application, not to have the “new” s 173 of the PSA applying.  An immediate difficulty that arises is that the 2010 Amending Act introduced the terms “finite sentence” and “finite term”.  Thus, although such terms appear in the “new” sections 174 and following, they are not in the applicable s 173.  Consequences will be discussed later. 

6. [6]
   As will be indicated, s 171 of the PSA permits an application of this kind to be brought.  For a person such as the present respondent, being a person for whom each “nominal” sentence [defined in s 163(2)] is life imprisonment, it has the effect that this Court “must”, for the first time, review that indefinite sentence within 6 months after this offender has served 13 years: see s 171(1)(a)(ii), as not modified after 2002 for cases such as this [by s 171(3)].  Further, s 171(1)(b) states that this Court must review the indefinite sentence “at subsequent intervals” of not more than 2 years from when the last review was “made”.

7. [7]
   The power and obligation, indicated earlier, for the Director of Public Prosecutions to make the application are contained in s 171(2).

8. [8]
   Section 173(1) states that, unless this Court is satisfied that the offender is still a serious danger to the community when a review is made under s 171, it “must” –

1. (a)
   order that the indefinite sentence is discharged; and

2. (b)
   “sentence” the offender under the PSA for the violent offence for which the indefinite sentence was imposed.

9. [9]
   Unsurprisingly, s 173(2) of the PSA states that, if a Court does not make an order under s 163(1)(a), the indefinite sentence “continues in force”.

10. [10]
    By s 173(3) a sentence imposed under s 173(1)(b) –

1. (a)
   is taken to have started on the day the indefinite sentence was originally imposed; and

2. (b)
   takes the place of the indefinite sentence; and

3. (c)
   must not be less than the nominal sentence. 

Where as, here, each nominal sentence is life imprisonment, that must be the sentence to be imposed if this provision is triggered.

11. [11]
    Section 176 of the PSA, which is utilised in this case, empowers the Court to direct the Registrar of the Court to give to the Court certain identified and other “appropriate” reports.  By s 176(5) such reports are in addition to any other evidence that may be placed before the Court. 

12. [12]
    In turn, s 172A of the PSA states that the Court must, a reasonable time before a review under s 171 is to take place, cause a copy of a report ordered by it under s 176 to be provided to various persons (including the Director of Public Prosecutions and the legal practitioner representing the offender).  Further, s 172A(2) states that if the prosecution or the defence has caused a report about the offender to be prepared for a review under s 171, it must, a reasonable time before the review is to take place –

1. (a)
   file the report with the Court; and

2. (b)
   provide a copy of the report to the Director of Public Prosecutions or the legal practitioner representing the offender, as the case requires. 

13. [13]
    Following from that, s 172B of the PSA - utilised by both the Director of Public Prosecutions and the respondent in this case - states that the Director of Public Prosecutions or the offender may file with the Court a notice of intention to dispute the whole or any part of a report provided under s 172A. Consequent upon such a notice being filed before the review is to take place, the Court must not take the report or the part in dispute into consideration on the hearing of the review unless the party that filed the notice has been given the opportunity –

1. (a)
   to lead evidence on the disputed matter; and

2. (b)
   to cross-examine the author of the report on its contents.

14. [14]
    With respect to the nature of the evidence, s 172C of the PSA states that, on a hearing of a review under s 171, a Court must –

1. (a)
   give both the Director of Public Prosecutions and the offender the opportunity to lead “admissible” evidence on any relevant matter; and

2. (b)
   subject to s 172B, take into consideration any report of the offender that is filed with the Court; and

3. (c)
   have regard to any submissions on the review made to it; and

4. (d)
   have regard to the fundamental principles of justice for the victims of crime declared by the Victims of Crime Assistance Act 2009 (Qld), Chapter 2.

There was no statement from any victim sought; and, as will be noted later, there is some further reference to the nature of the evidence which is contained in the provision dealing with the standard of proof.

15. [15]
    Although the sections in Part 10 dealing with onus and standard of proof do not expressly state that they are applicable for all parts of Part 10 of the PSA, it is not in dispute that they are so applicable here.  In turn, s 169 provides that the “prosecution” has the onus of proving that an offender is a serious danger to the community and s 170 provides that a Court may make a finding that an offender is a serious danger to the community only if it is satisfied –

1. (a)
   by “acceptable, cogent evidence”; and

2. (b)
   “to a high degree of probability”;

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

16. [16]
    Although not applicable here, it is congruent with the reference in s 172C(a) of the PSA referring to “admissible evidence” that s 167, dealing with admissibility of evidence before the Court imposing an indefinite sentence, relevantly states, by s 167(2), that, subject to s 167(3), “ordinary rules of evidence” apply. 

17. [17]
    Because the provisions dealing with a review do not define the term “a serious danger to the community”, it is necessary – and again is not in dispute between the parties here – that sections 163(3) and 163(4) contain the elements of that term. By s 163(3)(b) the satisfaction that the sentencing Court must reach is that the offender “is a serious danger to the community” because of –

1. (i)
   the offender’s antecedents, character, age, health or mental condition; and

2. (ii)
   the severity of the violent offence; and

3. (iii)
   any special circumstances.

18. [18]
    For its part, s 163(4) states that, in determining whether the offender “is a serious danger to the community”, the Court must have regard to –

1. (a)
   whether the nature of the offence is exceptional; and

2. (b)
   the offender’s antecedents, age and character; and

3. (c)
   any medical, psychiatric, prison or other relevant report in relation to the offender; and

4. (d)
   the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and

5. (e)
   the need to protect members of the community from the risk mentioned in s 163(4)(d). 

Lastly, s 163(5) states that s 163(4) does not limit the matters to which a Court may have regard in determining whether to “impose” an indefinite sentence.

19. [19]
    The “new” s 172D, in effect, means that a Court “hearing” a review such as this, relevantly, must not have regard to possible orders under the Dangerous Prisoners (Sexual Offenders) Act 2003. This on its face is clear and unambiguous. But, although the original Explanatory Notes confirm this [at page 7 and s 14B(1)(c) of the Acts Interpretation Act 1954 (Qld)], further amendments agreed to during “Consideration” by Parliament stripped the indefinite sentencing from this provision and provided separately for it. And, although both parts, originally, were not retroactive (for convictions before “assent”), the further consideration led to the present s 217 as well, making s 172D retroactive where a “finite sentence” “has been” imposed, no matter the time of the offence or conviction: see comments by O'Brien DCJA in R v Stone^[1] at [24]. Because part of my consideration – analysed later – is whether I should make an order for which the consequential effect must be such an imposition (also discussed later in an interpretation of the “old” s 173 and “finite” sentencing), it is necessary that I pay s 172D full heed in that context, despite the transitional terms referring to the past tense. It would be impossible, as a matter of interpretation, to have a court “hearing” a “review” (as s 172D states) when (already) a relevant finite sentence “has been” imposed, because that is one of the potential purposes of a review and can only happen in the relevant review itself.

20. [20]
    Dealing with the “new” parole provisions, it is sufficient for present purposes to refer to s 174 of the PSA.  By s 174(1) an offender “on whom a finite sentence has been imposed” may “apply” under the Corrective Services Act 2006 (Qld) (“CSA”) “for release on parole” under that Act.  By s 174(2), however, an application under s 174(1) cannot be made less than 6 months before the relevant period of imprisonment for the offender ends.  By s 174(3), despite the CSA, s 187, the Queensland Parole Board must hear and decide the application.  A combination of sections 174(4) and 174(5) states that, if a decision on the application is to grant the parole, the Queensland Parole Board must decide the parole period but the Board cannot decide a parole period “that ends before the relevant period of imprisonment ends” (i.e., here, before the life term “ends”). It is strongly arguable that these parole provisions in Part 10 are exclusive of the remaining sections in Chapter 5, Part 1 (Divisions 5 and 6 apart) of the CSA: see ss 174B(1), 174B(2) and 174B(4) of the PSA - and the similar, but not identical, wording in s 180 of the CSA .  If correct, then practical difficulties, concerning eligibility, could occur with the other life sentences imposed at the same time by Hoath DCJ.

21. [21]
    The Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 was assented to on 19 July 2012.  Even despite the exclusionary effect of the transitional provision, it is difficult to see that the “new” s 181A of the Corrective Services Act 2006 could apply, given the special parole provisions in Part 10 of the PSA.  Further, if this particular Amending Act were to apply, then s 171 as amended inserts a “new” s 171(4) which would mean that this offender would not have a right to a review until he had served 20, rather than 15 (or 13), years. I hold that it has no effect here.

22. [22]
    In summary, there is nothing in this 2012 Amendment Act (and certainly nothing in the transitional s 223 of the PSA, concerning “previous” offences and dealing with the transitional effect of the amending legislation) which would in any way lead to this being legislation affecting the existing indefinite sentences. 

Background

23. [23]
    The Court was provided by both parties with a two page document – which became Exhibit 1 – in which was listed all documents relied upon both by the applicant and the respondent. It was necessary to “correct” the documents to refer to the correct filing dates of the various affidavits and to note that, during the evidence, there was an additional report of Dr Jill Reddan dated 30 July 2012 (which became Exhibit 2). In addition, during the evidence of Dr Lars Madsen, various score sheets for the PCL-R rating prepared by him consequent upon his interview with the respondent were tendered by the respondent’s Senior Counsel and became Exhibit 3. There was, also, what was called the “third report” of Ms Jenny Lynas, Director of the High Risk Offender Management Unit of the Queensland Corrective Services “filed” (which was a letter addressed to the respondent’s legal practitioner, undated, containing additional information relating to the respondent’s placement in prison). No objection was raised by either party as to its admissibility.

24. [24]
    Pursuant to s 172B of the PSA, both the Director of Public Prosecutions and the respondent filed Notices of Intention to Dispute. Of the 6 persons named in the applicant’s Notice of Argument 2012, the respondent relied upon 4 only and they were each cross-examined by the applicant’s Counsel. All persons named in the respondent’s Notices, apart from the authors of the 1998 reports, were called to give oral evidence. Except by way of background, I have treated those reports in 1998 as providing, at least, only marginal additional input into the present consideration, apart from detailing circumstances of the relevant offences and the general criminal history.

25. [25]
    I will deal, later, with each of the non-expert witnesses who were called. As for the experts, the psychiatrists, Dr Joan Lawrence and Dr Jill Reddan, and the psychologist, Dr Lars Madsen, were, in turn, cross-examined by Senior Counsel for the respondent. In addition, I gave leave to call rebuttal evidence concerning certain entries which were made in a 2 Volume report to the Court under the hand of Ms Jenny Lynas dated 8 December 2011. This leave was given after the respondent, in cross-examination, put certain facts contained in entries in the relevant part of that report to the Court in doubt. The person called was Mr Robert James Wood who, at the relevant time, was the principal advisor of the Sexual Offending Programs Unit in Queensland Corrective Services, holding a Bachelor of Arts in Psychology, a Master of Justice in Critical Criminology and being, then, a member of the Australian and New Zealand Society for the Treatment of Sexual Abusers. He conducted 3 lengthy interviews with the respondent on 19 May 2010, on 26 May 2010 and on 1 June 2010.

Antecedents

26. [26]
    Although Senior Counsel for the respondent submitted that the court was not required to look at any “prison record” prior to the commission of the offences which brought about the indefinite sentences – and should only start with the sentencing remarks of Hoath DCJ – the terms of both s 163(3)(b)(i) and 163(4)(b) of the PSA in relation to determination of “a serious danger to the community”, bolstered by the remark of the Dr Lawrence that she did not believe that her ability to assess the respondent was adversely affected by his abbreviated interview with her – resulting from the respondent’s decision to terminate it early – because she already had an extensive and intensive view of the respondent’s “history”, I have accepted that it is appropriate to at least bring it into consideration as a relevant background fact. Dr Reddan also referred in some detail to the respondent’s “Offending History”. As extracted from the respondent’s extensive and violent criminal history up until the sentencing by Hoath DCJ (contained in Exhibit “A” of the affidavit of Mr Craig Allan Johnston filed 2 August 2012) and as set out in the original Outline of Submissions for the applicant, in New South Wales and Queensland, between mid-1985 and late-1992, beginning with his sentencing at age 14 years for the first sexual offences, there were many sexual assaults, as well as very many general assaults (of all kinds), 4 wilful damages, an escape and a preparation to escape. There were, amongst other terms imposed pre-sentence, imprisonment imposed for 7 years (1988) and, later, 4 years (1989, after appeal). The offences dealt with by Hoath DCJ on 23 October 1998 included 4 indefinite sentences imposed for 4 counts of rape, with, as noted, life imprisonment being specified as the “nominal sentence” on each of those counts.  On 3 counts of indecent assault with circumstances of aggravation, sentences of life imprisonment were also imposed.  There were also numerous other sentences for various other offences, though none of the sentences of imprisonment for them exceeded 5 years.  I accept the summary contained in the applicant’s Outline of Submissions to the effect that the 45 count indictment involved a total of 32 individual complainants, with 11 sexual offences being committed in relation to 4 such complainants.  Additionally, all offences were committed within 1 week after being granted parole for the previous sexual offences and 4 months after being released from custody to home detention in 1997.

27. [27]
    Since those sentences were imposed in 1998, the respondent has spent over 9 years in solitary confinement, with the longest consecutive period being from 2001 to 2008. Outside of solitary confinement – where obviously there was little opportunity for the respondent to commit breaches, particularly with respect to other prisoners – there have been a number of incidents and breaches recorded in such pre-confinement and post-confinement times. Even outside solitary confinement, a Table attached to the applicant’s submissions shows the gradual increasing of permitted “association” hours up to 1 April 2009. I accept that the material before the Court shows that there were 2 incidents of 31 October 1998 and 25 November 1998, the first which involved a display of anger and the smashing of a chair and the second which involved an assertion to a prison officer that the respondent would “smash” the first officer who walked into his cell. With respect to the time from August 2008 until mid-September 2010, there were 3 positive results to drug test samples which resulted in 1 breach and 2 major breaches, an incident involving the possession of a syringe, an incident of acting aggressively towards staff, an incident of a refusal to muster and 2 major breaches for the above aggressive incident and for acting contrary to security and good order. When relevant documents contained in the third report of Ms Lynas were examined closely, the incident on 1 September 2008 of acting aggressively towards staff was shown to have its origin in agitation and distress on the respondent’s part that another inmate was being moved from S8 (with no actual physical assault taking place). Similarly, for the major breach of acting contrary to security and good order of 16 December 2009 the relevant documentation established that the incident occurred when the respondent was stopped from using a boxing bag for weight training, in consequence of which he used offensive abuse and threats, although, again, no physical violence was offered by him to anyone involved (despite threats of doing so). There are no recorded incidents or breaches for the calendar year 2012.

28. [28]
    Dealing with several incidents in the relevant history contained in an Incident Report of 6 May 2011, an examination of the relevant documentation showed that, despite a complaint being made by a prisoner that the respondent had sexually assaulted him, the prisoner, on further interview, specifically reported consenting to have sex with the respondent and wishing to keep it a secret. This same interviewed prisoner, with respect to other approaches that he said were made on 2 other occasions to him by the respondent, stated that such approaches were declined by him on both occasions. Lastly, there was an alleged incident on 17 October 2011 involving a complaint made by a prisoner (different from the May 2011 incident) about an alleged sexual assault by the respondent. Although the respondent gave evidence himself, the applicant’s Counsel did not cross-examine him with respect to this incident. Moreover, it should be noted that the Incident Report itself, in commentary, states that “questions exist to the validity of the complaint” and that the “victim does not want to press charges”. Given the requirement for “admissible evidence” under s 172C(a) of the PSA, I intend to ignore everything concerned with the incident of 17 October 2011.  This means that it is unnecessary to consider the prospect of potential false complaints, which was the subject of some cross-examination by the respondent’s Senior Counsel of the various witnesses.  For completeness, I also intend to treat the matters referable to 6 May 2011 as being irrelevant to any breach in the present proceeding.

29. [29]
    It is undisputed that since 1999 the respondent has been incarcerated in the following facilities and has undergone the following placements:

• during his time at the Arthur Gorrie Correctional Centre, from 4 February 1999 to 19 April 2001, the respondent, on 6 separate occasions, was placed in the Detention Unit, and from 4 April 2000 to 19 April 2001 was placed in the Maximum Security Unit;
• while in the David Longland Correctional Centre, from April 2001 until 3 August 2005 the respondent was placed in the Maximum Security Unit;
• on transfer to the Arthur Gorrie Correctional Centre in August 2005, the respondent was initially placed in the Maximum Security Unit until 9 January 2008, after which he was placed in the Detention Unit until 25 February 2008;
• when transferred to the Wolston Correctional Centre, from 2 June 2008 until late December 2011, the respondent spent 10 separate periods in the Detention Unit; and
• from 22 December 2011, upon transfer to the Woodford Correctional Centre, the respondent was placed in the Detention Unit until his transfer back to the Wolston Correctional Centre on 7 June 2012 (where he has been placed in one of the Secure Units).

30. [30]
    This means, as noted above, that since 1998 the respondent has spent over 9 years in solitary confinement, up to the time of this hearing.

31. [31]
    But dealing specifically with the respondent’s placement in the Detention Unit at the Wolston Correctional Centre, a close analysis shows that, apart from the 3 “failed” drugs tests and other incidents involving threats and acting contrary to security and good order, there were 9 days spent there immediately after the reception at the Wolston Correctional Centre, being part of a Staged Reintegration Plan, and 5 months spent there while awaiting placement at “another” centre. I have excluded from that consideration 24 days placement regarding the alleged (but unsubstantiated) incident of sexual assault on 6 May 2011.

Programs undertaken by the respondent in custody

32. [32]
    The report of Ms Lynas of 20 July 2012 outlines what has been undertaken by the respondent since 1999. In particular, it is noted that:

• there has been no completion of any Sexual Offending Programs (although attributable to placement in Maximum Security and Detention Units);
• there was completion of an Anger Management Program on 11 February 1999;
• there was completion of a Cycles of Behaviour module of the Violence Intervention Program on 21 July 2002 (being completed on an individual basis from the Maximum Security Unit);
• there was participation in an individual Intervention Program (developed as a result of a psychological assessment by Ms Catherine Creamer on 20 August 2002) conducted from January to June 2003 (it being noted that, on a review of this treatment, it was identified that there were still outstanding treatment needs, with the respondent being waitlisted for: a Specialised Assessment for Sexual Offending Program; a Cognitive Self Change: High Intensity Violent Offending Program; and a Getting SMART: Moderate Intensity Substance Abuse Program); and
• there was completion of a Specialised Assessment for Sexual Offending Program (“SOPA”) over 19 May 2010, 26 May 2010 and 1 June 2010 (resulting in the need for a further case conference with “senior clinical staff” to determine suitability for any further QCS group programs).

33. [33]
    A Security Classification Placement Assessment indicates that the respondent remains eligible for participation in:

• Getting Started: Preparatory Program for Sexual Offending;
• Cognitive Self Change: High Intensity Violent Offending Program;
• Making Choices: Moderate Intensity General Offending Program; and
• Getting SMART: Moderate Intensity Substance Abuse Program.

34. [34]
    Recently, Dr Madsen (identified earlier) was engaged by Queensland Corrective Services to provide a psychological report in order to identify and manage the risks that the respondent posed to the general prison population and the appropriateness of group based programs. As a result of that he produced the report dated 28 January 2012, which was the subject of cross-examination (and which will be discussed later).

The respondent’s behaviour from 2008 to 2011

35. [35]
    In the affidavit of Mr Edward Turkovic [a solicitor with the Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd (“ATSILS”) having the carriage of the matter on behalf of the respondent], filed 5 April 2012, he details various instances of “positive comments” made relating to the respondent’s conduct, behaviour, attitude and demeanour during the period from 2008 to 2011 while at the Wolston Correctional Centre: see Exhibit “ET-2”.

36. [36]
    In response, the applicant in its written Outline of Submissions (in a Table marked “A” to that Outline) prepared a table of significant events from the relevant Case File of the respondent in which “negative” comments have been made.

37. [37]
    Given the requirement for admissible evidence, notes made as a result of hearsay statements carry little weight in the present hearing, although, clearly, observations by particular officers do form part of the report ordered by Shanahan DCJ at the directions hearing on the first return date of 7 November 2011, with all the consequences that flow from the potential to dispute such a report. It should also be noted, in this context, that the section entitled “Offender Case File” in Volume 2 of the first report of Ms Lynas [pages 447 to 565 (inclusive)] contains regular entries, sometimes daily, concerning the respondent. For this period, apart from the matters covered in the review of the incidents and breaches (referred to above) there is little (excluding hearsay statements) that shows other than agitation and anger – and then from time to time only – when circumstances did not meet the respondent’s expectations. An instance is the agitation shown by the respondent – which was not denied by him in evidence – when fellow prisoners were “moved out” because of an officer’s suspicion of, amongst other things, that the respondent was “attempting to groom” fellow prisoners. Given the quality of the evidence that I must consider – in contrast to either that before a Parole Board or a prison officer’s need to consider a matter for the purposes of maintaining security - I cannot act on the basis that all such suspicions are ultimately capable of verification. Necessarily, where there are specific instances of the respondent being located in another prisoner’s cell in breach of clear rules to the contrary – which the respondent himself acknowledged in his evidence – then more weight can be placed on such matters. With respect to the alleged sexual incidents referrable to the 6 May 2011 Incident Report and the further “complaint” of 8 September 2011 [referred to in the Table (“A”) of significant events in the applicant’s original Outline], I have ruled that the first is unsubstantiated and the second is yet a further matter on which there was no cross-examination of the respondent while he was in the witness box and, in addition, although there is a reference in that Table to “violation history”, there is nothing in the evidence of that type with respect to that date.

Offender’s other post-sentence behaviour; and his evidence about it

38. [38]
    As the respondent stated in his affidavit, he was born on 18 January 1971 and is therefore presently 41. Both of his parents are deceased. It is his understanding that from 1982 to the present time he has spent approximately 18 months only outside jail and, or alternatively, other such institutions. As already noted, much of the incarcerated time has been spent isolated even from the general prison community. The only people outside of the relevant correctional centres with whom the respondent has regular contact are a retired catholic priest, Father Richard Pascoe, and the respondent’s half-brother, Mr Tom Allen – this is besides the legal team from ATSILS. Part of that contact has involved an indigenous case worker, Ms Tabatha Young, providing assistance and support. She, also, made an affidavit and was cross-examined. Her evidence was that between 2008 and 2011, depending on her workload, she made fortnightly or monthly visits to the Wolston Correctional Centre, although not always being able to see the respondent because of that caseload.

39. [39]
    Some of the contact that the respondent had with other prisoners – which became the subject of some evidence led by a few of those persons – will be dealt with later when considering the issue of remorse.

40. [40]
    One of the concerns expressed generally about the respondent is his lack of education. Nevertheless, it is generally conceded that he has done well in achieving his present literacy standards and, perhaps more controversially, in undertaking tertiary education in mathematics.

41. [41]
    The respondent exhibited a number of documents to his affidavit concerning his education. One in particular was the official academic transcript of the University of Southern Queensland.  Although the early years of 2000 and 2001 showed failures for the respondent, for Semester 1, 2004 he achieved a pass in a subject called “Studying to Succeed” (part of a general Access and Equity course).  Besides achieving passes in Levels A and C in Mathematics TPP in the first Semesters of 2004 and 2006, there is an entry showing a high distinction, or GPA of 7.0, for Level B Mathematics TPP in the second Semester of 2005.  That last “achievement” was questioned by Dr Lawrence as being so anomalous as to suggest an error.  Despite that concern, there was no evidence led by the applicant that it was other than a true achievement.  No investigation of the circumstances of undertaking the relevant test was embarked upon.  The record also shows that the respondent continued courses in 2007 and 2008 in a Bachelor of Science course (majoring in Mathematics).

42. [42]
    The respondent’s cessation of such courses was also the subject of some adverse comment by Dr Lawrence. A concern was that the respondent only undertook the bulk of the study for which he obtained success while he was in solitary confinement and that it was said to be pertinent that, on return to the general prison system, he ceased.

43. [43]
    The respondent’s own explanation for not currently being involved in studying any subject – although he stated he planned to continue with his tertiary studies – was that he had his personal computer confiscated and had not been able to obtain access to a Corrective Services computer, adding that there were also difficulties obtaining the necessary computer software to complete certain subjects in the designated course work (citing, as an instance, “three dimensional geometry”).

44. [44]
    When asked in cross-examination about whether in mid-July 2008 he had indicated to a Corrective Services employee that he did not then feel ready to return to return to his studies but had text books in his cell and would do some revision, he indicated that that “sounds correct”. In response to the suggestion that he did not feel ready to return to his studies and that he chose not to pursue them at that point, he responded that it was a combination of both “not feeling ready and not having the equipment”, although he later conceded that it “eventually” got to the point that he had full access, including to education, as was available to any other prisoner in those particular units.

45. [45]
    In his affidavit, the respondent asserted that he is “highly conscious” of his general fitness and health level, particularly noting that from the period 1998 to date he always participated in whatever sporting activities were available (including football, boxing, squash, basketball and table tennis). Additionally, he spent a great deal of time training for these sports, as well as training generally in the gym. When not allowed access either to an oval or a gym, he contended that he continued to train and maintain his general fitness, further asserting that he was often involved in encouraging and involving other inmates in training and participation.

46. [46]
    It was remarked by Dr Reddan that it was interesting to note that, while it was acknowledged by some staff that suspicion of the respondent is “deeply entrenched”, in February 2011 it was commented that his bulk had considerably reduced as he no longer felt the need to be seen as physically powerful.

47. [47]
    With respect to his own more recent history, the respondent, while acknowledging that his past offending involved violence both inside and outside of gaol, asserted that, in the period from April 1997 to the present time, he had not been charged with, or convicted of, any offence involving violence (by assaulting another person or become engaged in a physical altercation with another person), despite the fact that, from time to time, he had been involved in arguments or heated exchanges with fellow inmates and Corrective Services’ employees. As noted earlier, from the period June 1998 to the present, even though several breaches of prison discipline had occurred, none were connected with actual violence to any person. The respondent’s explanation of his present control of anger is that while it was not correct to say that he never got angry or never felt anger, when he did feel angry he shut it down and walked away, no longer using violence as an outlet.

48. [48]
    Concerning sexuality and sexual offending, the respondent stated that he now believed that he was bisexual and that even to his early 30s he was very confused about his sexuality. He states that his realisation came about when he was in the maximum security unit as he, amongst other things, no longer feared for his own personal safety. He also stated that that was at a time when he was learning to read and write better; and that he had the time and the ability to read about things that had happened to him and the things that he had done.

49. [49]
    He stated that he has become more aware of his sexual urges and drives and has become more aware of the types of interactions and conduct that is, and is not, allowed or acceptable between people in prison and in the greater community, contending that he believes he knows what is appropriate in interactions between people and is now able to control his sexual urges and drives.

50. [50]
    In his evidence-in-chief, the respondent stated that the regular moving from one institution, or one section of an institution, to another affected him, to the extent that he does not even unpack his cell anymore, asserting that he cannot build up any sort of friendship or relationship with other prisoners because jail is “a very suspicious place and you need to spend time with the people to get to know them”.

51. [51]
    When cross-examined about sexual contact with other prisoners, the respondent admitted that it was contrary to the management plans (that he was subject to) both that he would have any form of sexual contact with any other prisoner and that he would enter, or allow entry to, another prisoner’s or his cell. Despite that, he freely acknowledged that he did have consensual sex with other prisoners, although he, respectively, did “not recall” or did “not remember”, when undergoing a sexual offending program assessment in 2010, that he had spoken to the interviewer stating that he was having intercourse once every 2 to 3 weeks and that he was engaging in what was described as “role-played, non-consensual, coercive sex”. When pressed further about particular role-playing involving a situation in which another prisoner would agree to him acting out that he was raping that prisoner, the respondent stated that it was “not something I’d say, no” and that it was “not something I did either, no”. Further, he disagreed that he had told those things to the person conducting the assessment that they were things that he had been doing.

52. [52]
    When it was put to him, in detail, that the person he had spoken to in 2010 had “reported” that while engaged in the role-played activity, he had stated that he could tell if he had gone too far, the respondent replied that he “can’t recall that – full stop”.

53. [53]
    In terms of otherwise acknowledging things that he had done, the respondent freely acknowledged that he had “dirty urines”, it “sound(ing) correct” that there were 3 in total, and that it was contrary to the rules to take drugs. He also freely acknowledged that he had become quite upset and agitated when other prisoners had been moved. As well, he acknowledged that, although it was a breach of the rules, he did have prisoners in his cell and that he had been to other prisoners’ cells.

54. [54]
    Turning back, then, to questions concerning sexual matters, the respondent, in cross-examination, when it was put to him that he was having “inappropriate fantasies ... about rape” admitted that he did say that he had had “inappropriate fantasies”, but stated that he could not tell – when it was put to him that he was having those twice a week – the exact times or how many.

“Remorse”

55. [55]
    The genuineness, or otherwise, of expressions of remorse by the respondent has loomed large in this consideration.

56. [56]
    The evidence of both present prisoners and ex-prisoners called on behalf of the respondent was primarily directed to this issue. Mr Raymond Ali, serving a life sentence, gave evidence by video link from the Wolston Correctional Centre, having earlier made an affidavit. When cross-examined, he stated that, from sitting down and talking to the respondent, the respondent was very remorseful of things that he had done in the past, although when pressed as to the words used, the witness suggested that the respondent has stated that “he would like to get out one day and live a life of a normal person”. He further stated that, although he had heard a lot and read in the papers about the respondent, what he knew of him, having met him, was that he “was a real gentleman and that’s all I know him as”.

57. [57]
    The next prisoner who gave evidence similarly was Mr Oliver Alincic, also serving a life sentence and also having made an affidavit. Besides acknowledging an extensive criminal history, including attempts to escape lawful custody and many varieties of unlawful assault (including one of a correctional officer), when questioned about the expressions of remorse by the respondent, he noted that the respondent was someone whom he had known for half his life, that he had been a close friend and that they often confided in each other. The context of those statements appeared to be that they were made at times of speaking about things that they had done, things that they could have better done and of circumstances that might have been if only “this didn’t happen or that didn’t happen”. And it was in such conversations that they often expressed to each other “a remorse that if it wasn’t for our lives and things, things could have been better”. In the end, when the applicant’s Counsel posed the question whether he wanted to provide the affidavit and give evidence “today” in order to help the respondent, he stated that he wanted “to help him become better” and that “we all try to become better people and hopefully help those around us”.

58. [58]
    The last such witness was the ex-prisoner, Mr Christopher Matthews. I accept the applicant’s submission that he was not an impressive witness: see, for instance, his evidence about “shared” cells. To the extent that he gave evidence about remorse, he stated that the word “regretted” was not the correct word for it – rather it was that “he wished he could start again” and that “(i)f he had another chance, it would never have happened”, not recollecting the context.

59. [59]
    The witness who gave the most detailed evidence about statements of remorse by the respondent was Ms Young (already referred to). In her affidavit - ignoring comments she made outside the limited area of her expertise as a case worker - the statements were primarily concerned about remorse. When cross-examined about the context of the conversations that she deposed to, Ms Young stated that they were made at times when things were “getting a little tough and he was recollecting different things”, noting also that he was “feeling down” and that there was a “struggle, struggle to make it in Wolston”. When a specific conversation was put to her about the respondent understanding that what he had done was wrong, she responded that her recollection was “vague” as it had “been a while now”. Similar answers were given to other specific conversations that she had deposed to.

60. [60]
    When considering those specific conversations that are contained in the affidavit of Ms Young, it is clear that they were statements made to a person who had been assigned to work cooperatively with him and who had significant sympathy for him, illustrated by her statement that, after she had spent a bit of time getting to know the respondent, she recalls him crying, sobbing and being visibly upset. It should be noted that there is no other witness of any kind who deposes to a similar effect. Even so, the context of that, according to Ms Watson, was that they were discussing the respondent being “isolated from other people either in maximum security and/or the DU for long periods of time”.

61. [61]
    The respondent’s affidavit had a specific section dealing with “Victim’s Apology”. After stating that his time in prison and especially in the maximum security unit have given him a great deal of time to reflect on what had happened to him and what he had done to other people, he stated that he would “like to say that I am so sorry for the crimes and offences that I have committed and the effect that they have had on my victims, my victim’s families and the greater community”. He continued that he was “sorry for the pain and the suffering that I have caused (and continue to cause) my victims and my victim’s families”, adding that he “sincerely” regretted “all of his actions” and wished he “could go back and change things”. Lastly, he added that he was “truly and sincerely sorry for what I have done to so many people”.

Credibility

62. [62]
    Although I have not yet discussed the various expert psychiatric and psychological witness’ evidence concerning an understanding of the respondent’s behaviour, including his asserted capacity for “manipulation” and “deceit”, I judge it to be appropriate to reach some conclusions from what I observed from the respondent, and his supporting witnesses, during the time that they gave evidence.

63. [63]
    First, I have a little doubt that, from time to time, the respondent has truly made statements that have used the word “remorse” or its derivatives. Secondly, there has been little evidence about the context in which such statements were made; and, coincidentally, where some context, however vague, has been advanced, it would generally appear to be where the respondent was concerned primarily for himself and the situation that he was in. This is not to gainsay that there has not been a maturing of what Dr Reddan had originally opined was “an uneducated, untudored mind”. Thirdly, the statements that were made for which no context was provided – which is a majority of all the statements made – cannot give a true sense of what the respondent was contemporaneously feeling, rather than contemporaneously stating. Fourthly, I do have concerns about his veracity on certain issues. The reasons, for example, for my hesitation about accepting the genuineness of his statements of remorse arise, at least partly, from observing his responses in the witness box. Quite obviously, those matters which had become the subject of breaches – and therefore could quite easily be independently proved – the respondent readily, and openly, conceded. Where he was much more circumspect, if not deliberately refraining from recalling, or remembering, were those circumstances involved with his thought processes and control mechanisms for dealing with sexual fantasising. It is very important that the rebuttal evidence of Mr Wood was not challenged at all with respect to those statements made by the respondent to him in those 3 interviews in mid-2010. Further, the fact that the statements were made 2 years ago does not lessen their significance in this context of false denial. As will be remarked on later, even Dr Reddan (who was, of all the expert witnesses called, the most “sympathetic” to the respondent’s circumstances which have been engendered by a universally acknowledged appalling socialisation) found a marked reluctance on the respondent’s part to engage in any detailed examination of fantasising. She noted, in particular, that although open about some aspects of his sexuality, the respondent was “somewhat evasive” about aspects of his masturbatory fantasies, although he acknowledged that at times “he still finds thoughts or images of coercive sexual contact arousing” (emphasis added).  Further, after the respondent had volunteered a reason as to why he would not take a prescription drug such as Androcur (namely, to reduce sexual fantasising and reduce possible sexual offending), relying upon the fact that he “has been coming to terms with his sexuality”, and maintaining “that his impulsivity has improved”, Dr Reddan judged it to be “unlikely” as the only explanation to refuse drug assistance. She did, though, express the view that, although there is “probably little doubt” the respondent was sincere in his statements that he would like to develop mutually consenting relationships, the major difficulty is that he has very little experience “really of any long term, mutually consenting relationships”.   Lastly, on this point, Dr Reddan noted that, though the respondent’s thought content in relation to sexual matters was to some extent accessible, it was difficult to know what extent there was “concealment”, as the respondent “admitted” to being “reluctant” to fully express his thoughts about certain matters, not all of which were sexually related.  Associated with this last matter is the opinion expressed by Dr Reddan that it remains unclear to what degree the “coercive” aspects of his behaviour were instrumental to the purpose of sexual gratification and to what degree coercion was necessary for him to experience sexual gratification.  Associated with that opinion was one that, in spite of any detailed assessments by individuals experienced in the area, there still are some aspects of the respondent’s sexual preferences that remain “a little unclear” and that “the answer to this question may remain somewhat unclear” even to the respondent himself, “because of a lack of opportunity for him to develop more adaptive, pro-social sexual behaviours”. 

64. [64]
    Consequently, while I do otherwise accept the psychiatric and psychological indicators – somewhat reflected in his more recent behaviour - that the respondent is maturing in his social behaviour, I conclude that his own evidence indicates to me that his actions and verbal responses are directed towards what he perceives to be the responses and answers - that he has learned over time - that those who have power over his future life would, from the respondent’s point of view at least, wish to hear if they were inclined to believe in good prospects for his rehabilitation. It is not without some significance that despite the actions and the words from mid 2008 until the end of 2011 expressed by the respondent – even if one was to take the view that a lot of them had little significance in terms of the fundamental decision to be made here – they would be the kind of occurrences that might have been expected to continue during 2012, rather than totally ceasing, although I am mindful of the extensive period he spent in the Detention Unit up to 7 June 2012. It is, in my view, likely that, since the first orders were made by Shanahan DCJ on 7 November 2011, the obvious need for good behaviour has impinged on the respondent’s consciousness regarding what he ought to do. That is not to criticize him for any adjustment in his behaviour; but it does show the extent to which he can, if necessary, control the way in which perceptions might be formed, even if that control was assisted by confinement until his return to Wolston. I find that particular conclusion to be reinforced by his lack of concern for, or recognition of the significance of, his transgressions concerning engaging in any sexual activity with other prisoners and in him “sharing” cells. Regarding changes in such behaviour, even Dr Reddan concluded that it was “unclear” to her to what degree they had been due to the regime imposed or due to ordinary maturation or due to changes in thinking, or any combination of those.

65. [65]
    Necessarily, final conclusions about issues of behaviour must await a detailed analysis of the psychiatric and psychological evidence.

Psychiatric and psychological evidence

66. [66]
    Dr Lawrence was requested by Queensland Corrective Service to conduct a psychiatric risk assessment of the respondent for the purposes of this review.

67. [67]
    Although Dr Lawrence was the subject of criticism in the affidavit of Mr Turkovic, filed 5 April 2012, for ignoring positive features of the respondent’s condition in the extensive sources of information provided to her, I conclude that she did undertake a full examination of the relevant records. That is not to say that a few of the matters upon which she relied have been proved, in evidence led before me, to be erroneous for “admissible evidence” purposes, with the consequence that to the extent that they were supporting features for the eventual decision reached, they cannot be used for that purpose. As remarked recently by Beazley JA in Hancock v East Coast Timber Products Pty Ltd^[2], relying on cited authority, what is identified as the expert’s “prime duty” is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion, because that is sufficient to enable the tribunal of fact to evaluate the opinions expressed: at 54-56 [66]-[78].

68. [68]
    The substance of Dr Lawrence’s conclusions is contained in her Executive Summary of her first report dated 25 January 2012. She concluded that the respondent remains at a “very high risk” of reoffending sexually and violently were he to be released now or in the foreseeable future, with no supervisory conditions being envisaged presently which would mitigate the risks to any reliable or significant degree, adding that the risk of serious physical and psychological harm to any victims remains “high”.

69. [69]
    After acknowledging that some others have “repeatedly” diagnosed the respondent as having an Antisocial Personality Disorder (under the DSM-IV classification), Dr Lawrence proceeded to diagnose him as qualifying as a Psychopathic Personality Disorder with Sexual Sadism, with a primarily homosexual orientation. I will come later to that additional diagnosis on her part.

70. [70]
    In dealing specifically with the time since 1998, Dr Lawrence concludes that, in spite of intensive, prolonged and ongoing efforts at rehabilitation in an effort to achieve change over the past 13 years, it was her opinion that little, if any, effect of change in the respondent’s character and offending behaviour has been achieved.

71. [71]
    Before turning to a detailed analysis of Dr Lawrence’s reasoning – particularly to the extent it is contended that it relied upon criticised tests and assessments and “erroneous” facts - it should be noted at this stage that the other psychiatrist who prepared reports and gave evidence before me, Dr Reddan, was more circumspect in her conclusions.

72. [72]
    Dr Reddan’s opinions, formulated at the conclusion of her first report dated 2 July 2012, were:

• while it has been suggested that the respondent manifests the paraphilia, Sexual Sadism, and that while his revelations about some of his sexual fantasy life do lend support to such a suggestion, it is “unclear” whether this really represents an entrenched sexual preference (i.e. coercive sexual relations) or whether this is a reflection of his developmental and early adult experiences and is largely contextually or situationally driven;
• after reference to the lack of clarity (referred to earlier) concerning coercion and sexual gratification, that, “if” it is true that the respondent has enjoyed some with consensual sexual relationships where no coercion on his part was involved and “if” it is an accurate reflection of some maturing, then it “would suggest that sexual sadism is not an entrenched sexual deviation or paraphilia” but rather a “modifiable mode of sexual expression”;
• while many individuals with one paraphilia manifest multiple paraphilias, there is no evidence at all, in the respondent’s case, of multiple paraphilias “which is unusual although not impossible”;
• alternatively, the respondent’s use over the years of coercion may have been primarily secondary to his need for power, control and dominance over others and to deny homosexual desires, particularly when he felt powerless, anxious or stressed;
• it is “likely” that, in the respondent’s case in view of his history, his risk of reoffending “may be higher than for other age and sex matched individuals in the prison population”, with the question remaining about how high the risk is, what degree of risk is acceptable and whether the risk of reoffending, particularly for sex offences, is manageable;
• even before a consideration is undertaken of those risk factors, it would need to be “established” that the respondent “could behave appropriately in a general prison environment”, noting that he has been given very little opportunity to do so since his re-incarceration in 1997;
• it is difficult to know “to what extent the respondent has changed” (because of the strict regimes under which he is being housed, although the evidence does suggest some improvement in impulse control which may be due to the aging process and because he has got the capacity to learn new ways of behaving); and
• a new and more detailed management program should be developed.

73. [73]
    In her oral evidence, Dr Reddan elaborated a little on those opinions. At this stage, I will not deal with the different approaches to the various tests and assessments conducted by not only the psychiatrists but also the psychologists. More generally, for the moment, Dr Reddan’s views included the conclusions that:

• with respect to satisfactorily addressing the issue of persons’ future risk, “a careful reading of their past tells you about their future”, while also “telling you a lot about how they should be managed in the future”;
• concerning any conclusion by her in relation to assessing future risk, there was nothing that a psychiatrist necessarily knows about the respondent that cannot be determined by careful reading of the material (except for resolving whether he has any paraphilia, or paraphilias, or not);
• in light of the conditions under which the respondent has been held - including long term solitary confinement – the only way to get to know what the future holds is “to actually start integrating him into the mainstream population with a view to a longer term program”, because “you couldn’t release (the respondent) at the moment as he is so institutionalised, creating a huge amount of stress for him” (even leaving aside the risk of offending);
• but there “would be a significant risk of reoffending” if he were to be released today and “I don’t think you need to be a psychiatrist in a way to work that out” (emphasis added).

74. [74]
    The other expert witness called was Dr Madsen, a forensic clinical psychologist. The reason for a referral to him, which led to his report dated 27 January 2012, was a request from Queensland Corrective Services for an assessment of the respondent in relation to the management of his risks and to certain treatment needs that he may require.

75. [75]
    The conclusions reached by Dr Madsen in his report (which are termed “Recommendations”) were that:

• since the respondent “remains” at “a high risk” of committing a future sexual or violent offence and since his long involvement with treatment appears to have had a limited impact on successfully managing his offending behaviour, while it is not recommended that the respondent be moved back to isolation on a permanent basis, it is suggested that a long term graduated management plan be devised, with such a management plan reducing both risk and preventing the respondent “becoming comfortable” with his surrounding environment, “removing the predictability of inmates”;
• in regard to future treatment, he would appear suitable for individual treatment, although it is not recommended that he undertake group treatment due to “displaying” characteristics consistent with psychopathy and his past history of offending behaviour against inmates (with specific suggestions about the kind of treatment); and
• it is “strongly recommended” that “adjacent to” individual therapy, the respondent be referred to a psychiatrist to explore the risks and benefits of pharmacotherapy.

76. [76]
    It is clear from his Summary that Dr Madsen relied significantly on the “results of the administered assessments” which had indicated that the respondent “is a high risk of recidivism”. Apart from static factors – which will be analysed later – Dr Madsen stated that the respondent displayed problems in a variety of dynamic domains including: attitudes that support or condone sex offences; remorse; and behavioural control. After noting that during his early years of treatment it was reported that the respondent struggled to commit to treatment and had difficulty maintaining attention, it was then noted that “recently” he has been described as being engaged and an active participant. Further, although concluding that the respondent appeared to display some insight into his offending behaviour and did not appear to overtly deny or minimise the extent of that behaviour, Dr Madsen expressed the opinion that it “would appear from his offending history” that those new factors do not serve “as a protective factor for future risk”. Relying not only on a prolonged period of isolation but also allegations of an involvement in a sexual offence since being released from isolation, as well as the elevated scores on the tests and assessment undertaken by him, Dr Madsen opined that the respondent “remains at a high risk for committing a future sexual or violent offence”.

“Risk” tests administered; and the consequences

77. [77]
    It is most profitable, in discussing this aspect of the case, to begin with Dr Reddan. She expressed the view that her biggest criticism was that she was “not sure that (such tests and assessments) always tell you anything more than what a reading of the person’s file would tell you when they are used in these kinds of proceedings” (emphasis added).  After expressing the view that they could be used clinically, being useful when you look at the items under risk, she expressed the view that any reading of the file “by a reasonably well educated person can tell you what it all means”.

78. [78]
    When Dr Reddan was pressed on whether there was any utility in the tests or whether a combination of them and clinical observations would be of utility, she opined that more and more tests do not actually add to anything because the results do not create any more certainty, “mainly because the items and a lot of the subtests within them are exactly the same in each one”. Additionally, she stated that one had to be extremely careful about any instrument that claimed some sort of “absolute certainty”, because there is no instrument that is going to predict the future and no instrument can tell you what is an acceptable risk, being a matter “for others and not for clinicians”. As for the utility, she was of the view that, while they are useful in combination, they are primarily for planning for the future, which includes future treatment and management, rather than “other” uses. For the Historical, Clinical and Risk Management Scales (HCR-20) test, designed to assess risk of sexual offending, she opined that it was “never intended to justify prolonged or indeterminate incarceration”.

79. [79]
    Before turning to the cross-examination of Dr Reddan, it is of note that Dr Reddan’s utilisation of the HCR-20 test – which she used only to express her scepticism about its scoring for an Aboriginal man with the respondent’s background - led to her coding the historical factors as somewhere between 13 and 15 out of 20, her coding of the clinical factors being 3 out of a possible 10, and her coding for risk management factors being 7 out of 10. That gave a “score” of between 23 and 25 out of 40. Dr Lawrence, while indicating that she left open the factor concerning plans because of lack of feasibility, reached a score of 30.

80. [80]
    In Dr Reddan’s second report, dated 30 July 2012, she noted that an instrument called the Sexual Violence Risk – 20 (SVR-20), had recently become available, being essentially a companion to the HCR-20 but being an assessment, method or procedure rather than a test or scale. With respect to it, she states that it is not sufficiently structured or standardised to be a test and does not yield norm-referenced or criterion-referenced scores. Dr Madsen did not state the score he calculated, but concluded that the SVR-20 items scored on the respondent “indicated a high level of future risk”. Dr Reddan’s overall conclusion was that the difficulty with the SVR-20 is whether the respondent has a clear paraphilia and, while the SCR-20 is a useful adjunct to the HCR-20, it certainly does not elucidate further factors which had not been already covered in previous reports.

81. [81]
    The cross-examination of Dr Madsen on the utility of the tests and assessments showed that, particularly with respect to the Psychopathy Checklist Revised (PCL-R), an earlier assessment by the consultant forensic psychologist, Ms Creamer, scored the respondent below the cut off point for a diagnosis of psychopathy and that the impressions of Mr Stephen Smallbone in a 2005 Psychological Report and Drs Atkinson and Grant, psychiatrists in the relevant sentencing procedure, while diagnosing a severe case of Antisocial Personality Disorder, did not reach a diagnosis of psychopathy.

82. [82]
    As for the administering of the PCL-R test itself, Dr Madden’s scores became Exhibit 3, totalling 31.3. It appears to be common ground that anything over 30, or even the high 20s, would be considered a high score for the uses for which the psychopathy checklist was designed. After denying that some measure of personal interpretation was involved, Dr Madsen indicated that in, for instance, scoring “Lack of Remorse or Guilt”, the fact that at some time in an offender’s history there was a demonstrated lack of remorse or guilt would mean that the score would remain unchanged, even despite treatment and possible rehabilitation. But the reason for this seems to be circular in that Dr Madsen considered that psychopathy, as a syndrome, means that the score for aspects of it “may get worse over the years but it shouldn’t get any better”, with Dr Madsen further agreeing that all of the scores that are related to historical factors were of that kind, being a “personality construct” and “something that doesn’t change”, particularly conceding that there was “about 10 points that are never going to change”, meaning that the offender “will always score highly” because of his antecedents. Dr Lawrence rated the respondent at 35.

83. [83]
    Before turning to any other tests or assessments, on the 2 so far considered, being the HCR-20 and the PCL-R Scale, despite the “very specific instructions” given by the designers of these tests, startlingly different results have been obtained. And the analysis of the PCL-R Scale scoring does show a rigidity that bolsters support for Dr Reddan’s review about the lack of utility for the concerns that I am required to consider, even though having utility for the purposes of management and treatment. As well, Dr Madsen conceded, in cross-examination, that there was a potential error rate of + or – 3 for the PCL-R.

84. [84]
    The next major test to be considered is the Static-99. According to Dr Lawrence, she scored the respondent at 10, putting him in the very high risk category. In her first report she conceded that it makes no allowance for clinical or other moderating factors. Importantly, for present purposes, is that even within that scale the sample group on which the rating scale was based showed that, of the 12% who came in the high risk category, only 52% had “recidivated” within 15 years and that violent recidivism occurred in that group at 59% within 15 years.

85. [85]
    Dr Madsen’s Static-99 measure also showed a scoring of 10, with a score of 6 or higher placing the person in a high risk category. As he had to, Dr Madsen considered that, since the tests were conducted on a group and not on an individual basis, the chance of not reoffending was equivalent to the balance of the percentage listed. Again, on questioning by the Court, he conceded that even if an offender received very significant treatment leading to a change it “wouldn’t change the historical score”.

86. [86]
    The other tests done by Dr Lawrence were the Violence Risk Appraisal Guide (VRAG) and the Sex Offender Risk Appraisal Guide (SORAG). According to her, those instruments were developed for the prediction of recidivism and were accepted for validity and reliability “in limited populations”. On the VRAG, the respondent was scored at 33 by her, placing him in Category 9 (being in a group of people who have “a 100 per cent probability of violently reoffending within 7 years”). With respect to the SORAG, the score was 48 placing him in Category 9 (again placing him in a group of people who have that 100% probability and that 7 years).

87. [87]
    Dr Reddan’s response to both the VRAG and the SORAG ratings was that common sense and a more careful examination of the instruments in question create suspicions of any instrument which claims an “implausible risk estimate such as complete certainty of reoffending”, stating that, if such instruments existed with such accuracy and absolute prediction, then there would be no need for expert witnesses, judicial oversight of provisions for long term incarceration or judicial sentencing discretion.

88. [88]
    In her oral evidence-in-chief, Dr Lawrence noted that one cannot extrapolate from a test such as the VRAG by saying that “this proves that this man is definitely going to reoffend” (particularly since the limited group of people who formed the survey basis for that test was not identical with the Australian population). Dr Lawrence also conceded that there is validity in criticising the strict actuarial approach, with the result that the modern “best practice” is to combine the historical based or clinical assessment based approach with the actuarial based approach and “then” try to make your predictions.

Conclusions on psychiatric/psychological testing

89. [89]
    Reference to, and cross-examination about, various entries on the respondent’s Incident and Breaches files in the period from 2 June 2008 to December 2011, as already canvassed, reveals that there is no evidence that satisfies the “admissible evidence test” about any sexual assault by the respondent on any other prisoner. Furthermore, a careful analysis of the reasons for placement in the Detention Unit at Wolston Correctional Centre shows that many of the reasons for such placement were either the unsubstantiated instances of sexual assault or reception at (or awaiting placement from) that Correctional Centre.

90. [90]
    As earlier noted, the conclusions of Dr Lawrence were also attacked on the basis that she did not have an opportunity, as did Dr Reddan and Dr Madsen, to interview the respondent for at least several hours. But it is clear from Dr Lawrence’s discussion of this matter – and it was not put to her in any contrary way in cross-examination – that it was the respondent who terminated, at a very early stage, the interview. Although the reasons proffered by the respondent suggested concerns about privacy, no such concerns were advanced in the lengthy interviews with Dr Reddan – whose report was ordered by me on 10 April 2012 on an application by the respondent’s counsel, as being appropriate in the circumstances of a report being obtained from Dr Lawrence. Additionally, the lengthy interview by Dr Madsen was the subject of no objection by the respondent. Both the last two mentioned interviewers were seeking the respondent’s answers to various questions that also inevitably involved matters that were private.

91. [91]
    Thus, while it would have been best practice for Dr Lawrence to have conducted such an interview, given that her own evidence was to the effect that she was able to complete a number of risk assessment tools and reach conclusions on her limited interview, particularly because of the large amount of documented material and her previous experience in undertaking reports where it had proved impossible to interview the subject, I do not set her report at any lesser standard because of the conscious and deliberate decision not to participate in the interview by the respondent. If any decision must be made about whether the termination was reasonable, I accept the explanation given by Dr Lawrence that, despite the respondent’s expression of concern that he was being overheard, she did not really accept that the officers could hear and that, even though the door was ajar, it was only open insofar as it “wasn’t closed fully but it was pulled to and there was not a great gap”. Further, I accept Dr Lawrence’s assertion that the officers were standing well back from the door, that they were to the back of the outside corridor and that she could not see that the respondent would have had eye contact.

92. [92]
    I accept that no psychiatrist has recommended that the respondent ought to undertake chemical intervention, if only because it would require the respondent’s co-operation (which he has not provided). No criticism is raised against him with respect to that choice.

93. [93]
    Additionally, as Dr Lawrence comments in her second report dated 25 July 2012 with respect to Dr Reddan’s first report, after noting that Dr Reddan had reported observations when the respondent appeared to be reserved or reticent in his responses, although Dr Reddan’s interpretation of certain activities may be slightly more generous than her interpretations of the same behaviours, in general terms, she had no great argument with Dr Reddan’s position. In terms of further consideration of Dr Reddan’s report, Dr Lawrence then stated that she would agree entirely with the premise, unspoken but implied, in Dr Reddan’s report that “past behaviour is the best predictor of future behaviour”.

94. [94]
    As for the disagreement between Dr Reddan and Dr Lawrence about the respondent’s developing a capacity for shame and regret, while noting it comes within one of Dr Lawrence’s qualifications of “slightly more generous” interpretation by the former, Dr Reddan herself had some reservations about the respondent’s personality traits, illustrated by the opinion in cross-examination that the respondent “certainly now wants to give up that persona” (i.e. representing a threat to other people) but “the question is whether he can give it up, in a way, and whether the milieu around him would also allow him to give it up”.

95. [95]
    Turning, then, to the extent to which Dr Lawrence relied upon “facts” which have not been established in the evidence:

• in her cross-examination, Dr Lawrence referred to allegations coming “thick and fast”, but the context was a question about how the “past is the best indicator”, and the reply then went to note the respondent’s history including that history in 1994 (i.e. previous to these relevant offences) involving many “allegations” of sexual, violent offending of a significant kind, before immediately moving to the relevant offending for these indefinite sentences;
• any concern by her about the accuracy of the High Distinction does not negative the general conclusion that by 2005 the respondent was displaying potential ability to enter the Indigenous Studies courses, externally, at the University of Southern Queensland, which is suggestive of at least average intellect, and that his studies ceased as he began to be integrated in the more main stream prison milieu (but, nevertheless, there do appear to be valid reasons why the respondent was unable, in particular, to continue any advanced mathematical studies due to computer and software complications);
• although Dr Lawrence conceded that a report on which she relied was wrong (when it noted that the day after the final interview on 2 June 2010 the respondent received a major breach for using “ICE”), she did state, in further cross-examination, that it still fell within the general characterisation of “avoidant coping”;
• although Dr Lawrence referred to two incidents, one on 6 May 2011 and the other on 17 October 2011, involving allegations of sexual assault, where others “appear to be possibly involved”, the comment made by Dr Lawrence in her first report was simply to the effect that such “evidence” did not inspire confidence in a significant change in the respondent’s sexual drive/offending behaviour; and
• concerning the respondent’s involvement in a list of 10 “major” incidents, there was nothing established in cross-examination of Dr Lawrence that showed that errors of that kind of fact would severely undermine any specific, or even general, conclusion of hers.

96. [96]
    From those just mentioned considerations, while erroneous reliance does weaken some aspects of her approach, I find that they do not undermine her substantive conclusions because they were not fundamental support posts, just guiding struts, for the stated outcomes. And I also accept that Dr Lawrence has not relied upon the criticised tests and assessments as of themselves requiring but a single outcome, relying on dynamic factors as well as static ones. It is important that her second report indicated a suggestion of “a degree of maturity with possible implications for some potential decrease in the level of re-offending, if he is given the opportunity”.

97. [97]
    Even though I accept that Dr Reddan’s criticism of the tests is that they are rigid in their application, leading to such results as 100% certainty (though contrary to commonsense and life experience), both psychiatrists are firmly of the view that past behaviour is the best predictor of future behaviour.

98. [98]
    I accept that Dr Reddan is right in concluding that what is useful in determining risks for clinical purposes does not necessarily demonstrate an answer to the conclusions that need to be reached by this Court in this review.

99. [99]
    Subject to concerns that must still be addressed, I do not adhere to the view that it is for psychiatrists, or even psychologists, to determine the very question that the court must answer. Accordingly, even if Dr Reddan does not, and even if Dr Lawrence does not directly, address specifically the question about whether the respondent is “still a serious danger to the community” now, it is not necessarily their role to do so, noting that the provision of expert reports in a review such as this is to assist the court in reaching its conclusion, aided by such expert opinions as to matters not within the ambit of judicial or common knowledge. Further, the fact that Dr Madsen does not address the legal question as well is no particular reason for not attending to conclusions that are otherwise accepted in his report, subject to the same absence of some supporting “evidence” (due to its rejection for review purposes).

100. [100]
     As to the debated question of whether earlier reports of, in particular, Dr Ian Atkinson (dated 29 June 1998 and 14 September 1998) and Dr Donald Grant (dated 29 June 1998 and 24 September 1998) are irrelevant, as can be seen from the discussion undertaken here, they are viewed simply as part of the historical background for the original sentencing in 1998, with primary attention being directed towards what has occurred since then, although judged in light of the respondent’s antecedents, including his criminal history and social behaviour, to that time.

101. [101]
     The final conclusion that I reach from the psychiatric and psychological reports (as adjusted for deletion of “inadmissible” material), taking also into account my own conclusions about the respondent, is that whatever prospect there might be in the longer term future with existing, or new, management programmes directed to reintroducing the respondent to the general prison population, notwithstanding many of the difficulties or barriers to such a management plan, there remain aspects of the respondent’s behaviour and personality that, as at the present time, would lead to a significant risk of reoffending in ways that would involve engaging in non-consensual, coercive sexual behaviour in the general community. Even though I will canvass it later, I also conclude that there is evidence that paraphilia is an additional aspect of the respondent’s condition, because, although I am sceptical about the tests and assessments being conclusive of it, the tentative approach of Dr Reddan to it causes me concerns. Even if I were to find to the contrary, there is still enough concern arising from all the other accepted material of relevant risk. As originally foreshadowed, it is necessary to define and then apply the notion of what s 173(1) of the PSA means by a serious danger “to the community” and “when a review is made”.

102. [102]
     In reaching that conclusion I accept the guidelines adopted by Dr Reddan, and even more strongly advanced by Dr Lawrence, that careful reading of the respondent’s past tells this Court about the respondent’s future behaviour, relevant to the matters in hand.

Which “community” is involved

103. [103]
     There are two issues to be addressed here. The first is whether the “community” in question includes the prison community. The second is whether a “community” can exist for the purposes of a determination under s 173 of the PSA when there is no imminent release into any such identified community.

104. [104]
     As to the first, written submissions were proffered, during oral argument, by the respondent. First, attention was drawn to s 9(1)(e) of the PSA which refers to the fact that one of the prescribed purposes for which a sentence may be imposed on an offender is “to protect the Queensland community from the offender”.  Secondly, it is submitted that such protection can – and presumably by other means as well – be done by “sending the offender to prison, thus taking him out of the community for some time”.  It might well be added that s 9(2)(a)(ii) refers to the principle that a sentence that allows the offender “to stay in the community” is preferable.  Thus, the clear import of the sentencing guidelines points strongly to the notion of a community being that which is other than the prison community. Of necessity, the respondent’s prison behaviour is still relevant to general behavioural issues.

105. [105]
     Turning to the second question, as put by Mr Cooke QC in oral submissions, there “couldn’t be a community (where, as here, the Parole Board could not consider the particular offender’s file at this time) that he could be released to because he wouldn’t be eligible for parole”. He conceded that the argument would mean that for every life sentence that is the nominal sentence the court would have no power other than to discharge the indefinite sentence on the first review. As then elaborated upon, the effect of discharging the indefinite sentences here would be that the offender is not a danger to the community because he is not to be released into the community and, consequently, there is no community that is going to be at risk as a result of the discharge of the indefinite sentence. As I proposed to him, applying that interpretation of the legislation would mean that in this case I would have no choice, to which he responded “No”. The position was summarised then by Mr Cooke QC to the effect that the test is:

Is he a danger to the community if the indefinite sentences were to be discharged? And the logical answer to that question is that he is not ‘because he is still in prison’.

106. [106]
     Although it would not encounter the problem identified in the applicant’s supplementary Outline that such an interpretation would mean that an offender who had a nominal sentence of 14 years and a serious violence declaration made would be entitled, on a review after the passage of 7 years, to an immediate discharge because the eligibility for parole for that person would not arise until the person has served 80 per cent of that 14 year term – because the problem would not arise since the original “nominal term” does not appear to envisage other than the imposition of a nominal head sentence alone and s 174 of the PSA is indifferent to parole “eligibility” outside its own terms (unless the changes that will apply to the “new” s 173 where the sentence would be “imposed” change that for the future) - any such interpretation mistakes the purpose of s 173 to be a determination based upon implication of immediate release not in any notional sense but in a real sense.

107. [107]
     Since it is obvious that any original imposition of an indefinite sentence is made in circumstances where protection, by postponed release indefinitely, is the touchstone, and since the satisfaction that must be reached here is whether the offender “is still” a serious danger to the community - and therefore requiring the continuation of that protection of the community - it is clear that such an interpretative approach is erroneous. In part, at least, it must rely upon a reading into the terms of s 173 of the PSA additional words to those which the Legislature has chosen: such as “if able to be released immediately”, after the word “community”.  As was analysed recently by Fraser JA in Special Projects (Qld) Pty Ltd v Simmons^[3] relying, amongst other cases, upon R v Young^[4], ultimately, the issue is whether the result required by the argument amounts to legislation: which is not open to a court, because a court must construe the statutory language itself: at [25].

Temporal aspects?

108. [108]
     The test posited for the decision in this case by s 173(1) of the PSA is one about satisfaction, or not, that the offender “is still” a serious danger to the community “when” a review is made.

109. [109]
     That, on its face, suggests that the use of the present tense requires a consideration of satisfaction at one particular moment in time only (namely, at the very time of making the review).

110. [110]
     Despite that, it is equally clear from the terms of the provision in the PSA dealing with the imposition of an original indefinite sentence, s 163, that “before” such a sentence is imposed originally, the court must be satisfied that the offender “is” a serious danger to the community (using the present tense as well), even though no contemplation of immediate danger from imminent release could be entertained.

111. [111]
     With respect to the test under s 163 of the PSA, the High Court in Buckley v The Queen^[5], in a joint judgment, held that the assessment of the risk required by the statute “may involve temporal issues requiring careful consideration”: at [6].  They added that the available finite sentence which is to be weighed carefully by the judge imposing the indefinite sentence “sets the timeframe by reference to which the temporal issues earlier mentioned are to be examined”: at [7].  With respect to that, it was held that estimations of future risk “were being undertaken in a temporal context that necessarily gave rise to substantial uncertainty”: also at [7].

112. [112]
     When, in Buckley, the High Court considered the application of temporality to the facts in question, noting that Part 10 of the PSA proceeds upon the basis that there may be certain cases where the extraordinary step of imposing an indefinite sentence may be justified as a response to the risk of serious danger to the community, they stated that the risk to be weighed is the risk “if an indefinite sentence were not imposed”: at [42].  Turning then to the actual term of 22 years nominally imposed, they held that it was then necessary “to consider whether the protective purpose in contemplation could reasonably be met by such a term”, holding that, if it were otherwise, “the consequence would be the banalisation of the indefinite imprisonment”: also at [42].  Later, the joint judgment, in dealing with the reasoning of the sentencing judge, held that it did not deal with the issues “including issues of predictability” involved in deciding why an actual finite sentence should not have been imposed, “having regard to relevant sentencing considerations, including the need to protect the community”: at [43].  In considering this issue, the High Court stated that one of the matters of particular difficulty in the case with which they were dealing with was “the uncertainty that is necessarily involved in estimating the danger to the community of a person who, on any view, will be incarcerated for such a long time”: also at [43]. They, therefore, held that the “operation of the parole system, and the possibility of treatment while in prison, are matters that call for close attention” (emphasis added): also at [43].  They went on then to state that, nevertheless, the “protective potential of the ordinary sentencing regime needs to be examined first and most closely before deciding to depart from it”, remarking that, in a particular case, it may be that the system of review under Part 10 provides the only appropriate method of relating the interests of the community to the requirements of justice to an individual offender: also at [43].  Lastly, with respect to the case under consideration, the joint judgment held that another difficulty, addressed in some detail by the psychiatrists, but referred to only briefly and without analysis in the reasons for sentence, was “the relationship between the appellant’s paraphilia and the level of risk that he would be likely to present in, say, 20 years time”: also at [43].

113. [113]
     While it is easy to see that temporal issues are inherent in any original imposition of an indefinite sentence, it may not be so easy to see how temporal aspects inhere in a review. But it must be borne in mind that a decision which means the indefinite sentence imposed “continues in force” does involve considerations of risk into the future. For a male prisoner who has turned only 41 and who has a nominal sentence of life imprisonment, the temporal aspect has particular impact, even though it must be also borne in mind that periodic reviews pursuant to s 171(1)(b) of the PSA must occur at intervals of not more than 2 years.  Even a period of 2 years requires a consideration of risk assessment during that admittedly relatively short period.

114. [114]
     But the unspoken question yet to be addressed is that which loomed large with respect to the facts in Buckley.  That question involves whether, by close attention to the operation of the parole system, and the possibility of further treatment while in prison, the protective potential of the “ordinary sentencing regime” can deal effectively with the level of risk that exists and will, if it does, continue to exist.  That is, if this Court were to consider, as a preliminary determination only, that immediate, or pre-subsequent review, release (on a notional basis) would present, to the relevant satisfaction, a serious danger to the community so that effectively no parole application should be able to be made under the “new” sections 174 and following, it would mean that there would be a 2 year period before the next review. But, should the court not also consider what treatment has been proposed concerning the level of risk and what effect it might have on the paraphilia, both being matters which would involve a specialist board such as the Queensland Parole Board determining what danger to the community then existed at the hearing of such an application for parole in the meantime? With respect to this review, it is simply a review of the original imposition of the indefinite sentences.  It in no way generates any immediate release but, rather, on a discharge of the indefinite sentences simply permits the parole provisions under Part 10 to have application. Why does not that “protective potential” raise questions not only for the “future” 2 years but also for some shorter period, particularly if protection is arguably available by that path?

115. [115]
     The subsequent consideration of the defendant’s appeal in Buckley was dealt with by the Queensland Court of Appeal in R v Buckley^[6].  Its consideration brought into account something that this Court cannot [namely, the effect of the Dangerous Prisoners (Sexual offenders) Act 2003]: at [19] and [23].  Otherwise, it dealt with how the High Court’s interpretation of the legislation was to be applied in the circumstances of the case. It therefore is of little additional assistance here.

116. [116]
     It was urged upon me by Senior Counsel for the respondent that I should not follow the course adopted by Mullins J in R v Fletcher^[7] (by way of directing my attention not only to the actual time of the review being made but also to “the short to medium future when a parole order could be granted, if the respondent were not the subject of an indefinite sentence”): at folio 1-8.  As canvassed above, it is my view that the correct approach is that, besides an assessment being made at the time the review decision is made of risk, an assessment also needs to be made, to give due effect to the temporal issues, to at least the end of the 2 year period mandated by s 171(1)(b) of the PSA and the role, in that time, of how parole can be brought into account in determining whether the imposition of a “finite” sentence would have a sufficient protective effect for the particular finite sentence in the case in question. Those are to be decided in the context of the exceptional nature of the course that is taken when an indefinite sentence is imposed and, as here, where it is contemplated to be continued.

Application of parole provisions

117. [117]
     As analysed originally, the “new” s 174, and the following “parole” provisions have present application. Therefore, as just canvassed, if they must be bought into account, how is a reconciliation to be done with the wording of s 174(1) in its reference to a “finite sentence” and in the absence of a relevant amendment to s 173. The accompanying amendment to the definition section, s 4, defines both “finite term” and “finite sentence”, for Part 10, in terms of s 173(1)(b) (in its amended form). Given that s 217(5) – the transitional provision of the 2010 Amending Act – picks up “relevant definitions”, it is clear that the reference to “finite sentence” in s 174(1) has a relationship back to s 173(1)(b) in whatever form. It would be an absurdity, then, not to interpret any sentence that might be imposed under the “old” s 173(1)(b) as being other than a sentence to which the “new” s 174(1), and consequential provisions, apply.

118. [118]
     In any event, as Project Blue Sky v ABA^[8] instructs, a court construing a statutory provision must strive to give meaning to every word in the provision (at 382 [71]) and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: at 381–382 [70].

119. [119]
     Hence, I intend to approach the resolution of the question on the basis that the “new” parole provisions are the ones that would have application should it be considered that a “finite” sentence – even one of life imprisonment - ought now be imposed.

Power to make new recommendations

120. [120]
     Although there are instances in the recent past where judges on review have proffered recommendations for future treatment, such cases have often involved both parties to the proceeding urging such an outcome.

121. [121]
     I can see nothing in Part 10 which would give power to this Court to make a recommendation here. Even if that were not the case, given the number of internal reviews that have been undertaken, and particularly respecting the latest one done by Dr Madsen (reported on in January 2012), I would conclude that it would be inappropriate for this Court – particularly where Corrective Services has generated most of the psychiatric and psychological reports presently relevant – to give any attempted guidance as to what should be the future treatment of the respondent.

Conclusion on “risk”

122. [122]
     The standard of proof, as earlier analysed, is satisfaction to a high degree of probability that the evidence is of sufficient weight to justify the negative finding.

123. [123]
     As discussed above, I do have significant concerns about accepting the respondent’s evidence, both as to its truth about his actual feelings and the extent to which he is able to exercise sufficient control over his actions when faced with the reality about which he now still has continuing fantasies of non-consensual, coercive sexual acts.

124. [124]
     A summary of these concerns is as follows:

• Dr Reddan’s already noted concerns about the respondent’s reluctance to discuss in any meaningful way aspects of his fantasising, despite the generally favourable approach by Dr Reddan on issues such as self-education and an emerging capacity for remorse;
• the respondent’s own lack of recollection, which I find to be feigned, concerning the conversations that he had with Mr Wood concerning role-played coercive sex (given his willingness, in contrast, to admit independently verifiable actions such as those concerning drug breaches);
• the finding that the respondent is aware of his ability to learn, and implement, reactions which he reasons to be beneficial to the collection of evidence to be used in a review of this kind (i.e. I find that he has exercised that control which he does have to formulate appropriate verbal and physical responses to achieve favourable outcomes on issues such as moderating his behaviour, controlling his aggression and providing statements about remorse);
• the finding that both Dr Lawrence and Dr Madsen – although only appropriately relying upon the various tests and assessments that I have canvassed as “clinical” issues - still have raised very significant doubts in my mind about the effectiveness of any rehabilitation programs that have been able to be undertaken (it being readily acknowledged that the systematic placement of the respondent in both sole and restricted detention has, as a matter of fact, hampered significant rehabilitative efforts); and
• the agreement by both Dr Reddan and Dr Lawrence that the respondent’s past history is the best indicator of the future and, in particular, Dr Reddan’s conclusions that the respondent has not had enough time to really demonstrate that he has effective impulse control and that there would be a significant risk of reoffending if released “today”.

125. [125]
     It is necessary, nonetheless, to consider, individually and collectively, the requirements under s 163(4), and to the extent to which there is no direct overlap, s 163(3)(d) of the PSA.

126. [126]
     In determining whether the nature of the offence is exceptional, it is of some significance that Senior Counsel for the respondent described the offences which led to the imposition of the indefinite sentences as “horrific sexual offences”: see his cross-examination of Mr Wood. In Buckley, the High Court stressed the fact that, since such a sentence involves a departure from the fundamental principle of proportionality, the imposer of any indefinite term must, in taking that step, act with a “clear appreciation of the exceptional nature of the course being undertaken”.  Although the “exceptional” aspect mentioned there is one of general importance rather than one directed to the nature of the offence, it does inform an understanding of what is seen to be exceptional.  Thus guided, I find that, consistently with the original imposition of the finite sentence, the 4 offences in question here were exceptional. 

127. [127]
     The next aspect is the respondent’s antecedents, age and character. The antecedents are significant, particularly through the incorporation of the criminal history. Even so, due attention should be paid to the circumstances that lead to that aspect of the antecedents. Even with such an appreciation, it cannot be ignored that the offences which are in issue here occurred in a relatively short time after the respondent had successfully convinced the authorities that he was an appropriately responsible person to be released on parole. As to the respondent’s age and character, it is important that he is only 41 years of age and a life sentence which was imposed upon him as the nominal sentence must be the sentence to be imposed upon him even if it is to be as a “finite” sentence. Nevertheless, there are aspects of that which yet need to be considered in the contemplation of whether the “ordinary” operation of the parole system should lead to a particular conclusion. With respect to the respondent’s character, his criminal and prison history leads to the inevitable conclusion that he has not been a person of good character. Attempts at treatment through appropriate management have been directed towards this aspect; but it cannot be found at the present moment that the accepted psychiatric and psychological evidence leads to a conclusion other than, while some improvement can be detected, his character cannot be a significant fact tending towards credibility or to establish a lack of serious danger to the community.

128. [128]
     The medical, psychiatric, prison and other relevant reports placed before this Court have been canvassed in some details in these Reasons. My conclusions with respect to them have been outlined immediately above.

129. [129]
     Before turning to the matter of “risk” and the need to protect from that risk, the additional aspects identified in s 163 involve the respondent’s health, his mental condition, the severity of the violent offence and “any special circumstances”. As canvassed above, the respondent’s health is good and it is important – though not decisive – to note that his past attempts to build up his physique, to a point where it was used not only defensively but also to dissuade others, has been moderated. There is nothing of a negative feature about his health which would influence the outcome in any measurable way.

130. [130]
     As for the respondent’s mental condition, although, as Dr Lawrence states in her second report, he is “not suffering from any mental illness”, even Dr Reddan notes that he developed an Antisocial Personality Disorder (DSM-IV-PR). The dispute is whether he manifests the paraphilia, Sexual Sadism. As outlined before by Dr Reddan, on the assumption that if it is true that the respondent has enjoyed some brief consensual sexual relationships where no coercion on his part was involved and if that it is an accurate reflection of some maturing, then it would suggest that Sexual Sadism is not an entrenched sexual deviation, or paraphilia, but rather a modifiable mode of sexual expression. In contrast, Dr Lawrence was firm in her view that the respondent did have a Psychopathic Personality Disorder with Sexual Sadism. Given the considerable doubts I have about the respondent’s veracity arising from not only the evidence he gave in Court but also the firm view of Dr Lawrence and the reservations expressed by Dr Reddan, to the extent to which it is necessary to find the exact nature of the respondent’s mental condition, I accept the diagnosis of Dr Lawrence, despite what other reservations I have about some over reliance, for judicial purposes, rather than for clinical purposes, on the tests and assessments which were utilised. Besides providing background information, and tests and assessments, Dr Madsen’s prime concern was about direct management and treatment. I regard it, therefore, as only ancillary to the evidence of the 2 psychiatrists.

131. [131]
     Neither party has suggested that there are any special circumstances that need be bought into account.

132. [132]
     Accordingly, it is necessary to evaluate the risk of serious physical harm to members of the community. Although it was important for the original imposition to assess the risk in circumstances of a further determination of an indefinite sentence not being imposed, the requirement under s 173(1) is that the Court is obliged to order the discharge of the indefinite sentence unless it is satisfied that this respondent is still a serious danger to the community when this review is made. As I have indicated, there is a temporal aspect which I will deal with next. Associated with the ascertainment of that risk is the need to protect members of the community from that risk.

133. [133]
     Stripping the conclusion of its temporal aspects – though for the moment only – I am, for all the reasons that I have canvassed in these Reasons, satisfied to a high degree of probability that the respondent is now a serious danger to the community because, if notionally released at the moment, the Queensland community (outside the prison system) would be at risk of serious physical harm from the respondent in that I find that he has not yet reached the stage where he has such control over his impulses that the fantasies which he still has about non-consensual, coercive sexual acts will not be played out if so notionally released. Therefore, there is a need to protect members of the community from that risk.

134. [134]
     But having reached that decision, in what way, if any, does a consideration of the temporal aspects modify that conclusion?

135. [135]
     One particularly complicating feature at the present time is that, although it has been thought that the prospects of actually predicting the likelihood of any offender’s reoffending once released would be better towards the end of the prisoner’s sentence than at the beginning (see, for instance, Muir JA relying upon the evidence led when speaking for the Court in Buckley, in 2008), the evidence in this case, at least with respect to the 2 year term before the next review, suggests that it will depend upon how any treatment provided, and accepted, under any management program devised by Corrective Services has an effect in a positive way.  In précis, no clear prognosis for necessary improvement can be reached now.

136. [136]
     Even in such a set of circumstances, it is my view that it is still proper for a judge on review, in considering the risk of serious harm - or to use the term of the legislation “danger” - to members of the community if an indefinite sentence were to be discharged, to consider “the protective effect of the finite sentence that would otherwise” result: see Buckley at [40]. As further discussed, it “may be” that the “system of review” provides the “only appropriate method” of “relating” the interests of the community to the requirements of justice to an individual offender: at [43].

137. [137]
     In this proceeding, if a decision were to be made that the court make an order that the indefinite sentences be discharged and that the (inevitable) sentences of life imprisonment be imposed (being not less than each of the nominal sentences), the parole provisions would then be available for utilisation by the respondent. It is clear from Buckley that the operation of the parole system is a matter that calls for close attention and that the protective potential of the ordinary sentencing regime needs to be examined first and most closely before deciding to depart from it.

138. [138]
     For this respondent, a Queensland Parole Board would, as illustrated by Gunn v Queensland Corrective Services Commission & Queensland Community Corrections Board^[9] not be restricted to considering only evidence legally admissible in accordance with technical rules of evidence. Its principal concern would be with the future and whether, if released, there would be a risk to the community that the respondent, as applicant for parole, would reoffend: at folio 9.

139. [139]
     While I accept that a forceful argument can be advanced for considering that the more appropriate course would be to now conclude that the indefinite sentences ought be discharged and thereby leave the protective effect for the community to the parole system, even placing to one side the practical complications attendant on the other life sentences, since no clear conclusion can be reached about a discernable diminution in the risk of serious physical harm to members of the community for the whole of the 2 year period, I determine that neither the temporal aspects nor the ordinary sentencing regime, although properly accounted for, does generate a conclusion that sways me from the preliminary decision that I have reached.

Order

140. [140]
     It is somewhat perplexing that r 173(2) of the PSA, in the form in which I must consider it, does not give power to make an order if this Court “does not make an order” under s 173(1)(a) – but rather states that the indefinite sentence “continues in force”. It therefore seems to me to be inappropriate to simply “dismiss” the application.  The application was properly brought because it was mandated to occur.  It is not, for instance, an application under s 172 of the PSA which can be bought by the offender himself. And the review has been “made”.

141. [141]
     Consequentially, it is my conclusion that the appropriate order to make, although admittedly self-contradictory, is to the effect that the Court makes no order on the application: see s 173(2) of the PSA.