Attorney-General v Robinson[2006] QSC 328

SUPREME COURT OF QUEENSLAND

1. LYONS J:  This is an application by the Attorney-General for Queensland seeking orders pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) in relation to the respondent Nigel Patrick Robinson who is currently serving a nine year term of imprisonment for offences including rape, indecent assault of a child and deprivation of liberty.  The objects of the Act are to provide for the continued detention or supervision of prisoners who are serving a period of imprisonment for a serious sexual offence in certain circumstances.  The applicant submits that the Act applies to the respondent and the originating application seeks an order under Division 3 of the Act that the respondent be detained in custody indefinitely for care, control or treatment or alternatively an order that he be released on conditions that the court considers appropriate.

2. A Division 3 order can be made if the court is satisfied that the respondent will be a serious danger to the community in the absence of either a continuing detention order or a supervision order.  Section 13(2) then provides that a prisoner is a serious danger if there is an unacceptable risk that the prisoner will commit a serious sexual offence if he is released or released without a supervision order.  The applicant submits that the circumstances of this case are such that a continuing detention order rather than a supervision order should be made. 

3. The respondent submits that, whilst not arguing that the respondent is not a serious danger to the community in the absence of a Division 3 order, the adequate protection of the community can be ensured by the making of a supervision order.

4. Section 13(4) sets out various factors which the court must take into account in determining whether the respondent is a serious danger to the community. Section 13(3) provides that the court may only decide that it is satisfied that there is an unacceptable risk that the respondent is a serious danger to the community in the absence of a Division 3 order by acceptable, cogent evidence and to a high degree of probability that the evidence is of a sufficient weight to justify the decision.

5. In deciding whether a prisoner is a serious danger to the community the court must have regard to the following matters in accordance with s 13(4):

‘(a)the reports prepared by the psychiatrists under section

11 and the extent to which the prisoner cooperated in

the examinations by the psychiatrists;

(b)any other medical, psychiatric, psychological or other

assessment relating to the prisoner;

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

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

(e)efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;

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

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

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

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

(j)any other relevant matter.’

The respondent’s criminal history and background

6. The respondent is currently 27 years of age. He is serving a nine year term of imprisonment for two counts of deprivation of liberty, one count of rape and one count of indecent assault on a child under 12 years of age. The respondent pleaded guilty to all these charges in 1998. He is due for release on 11 November 2006. The respondent was raised in Gympie and is the middle child of seven children. His father is a council worker who during the respondent’s childhood was a heavy drinker and a strict disciplinarian. The respondent’s mother is a housewife who is described as the more dominant of his parents. The respondent had a significant history of illness as a child and in particular was very underweight and failed to thrive until he was diagnosed with Coeliac disease. At the age of 15 he was diagnosed with diabetes and has diabetes in quite a severe form whereby he needs several injections a day.

7. The respondent was difficult to manage as a child and was disruptive at school until he was asked to leave the Catholic Secondary School he was attending because of stealing and truancy and went to the local State High School for a short period before he was expelled. After his expulsion at the age of 15 until the offences at the age of 18 the respondent had a poor work history with essentially only a couple of weeks of work. On one occasion he worked at a hardware stare for a short period but was fired due to allegations he stole money and on the other occasion he worked at an upholstery business but was fired for making calls to a sexual fantasy line.^[1]  He spent the rest of the time on Centrelink benefits at home with his mother who tried to keep an eye on him. 

8. During this period he was described as ‘a very troubled young man who had struggled to come to terms with both the difficulties in his home life and its associated traumas as well as the major health problems which he had to confront.’^[2]  He had a history of occasional marijuana use from the age of 14 and this use increased while he was on bail for the first offence.  He also had a history of severe temper tantrums at home and he would smash property, throw things and break windows.  The respondent was small in stature and had a physically very young appearance during his teenage years.  All psychiatrists agree that he was very immature both physically and emotionally at the time the offences occurred, and at the time he went into prison he had the emotional maturity of a young teenager rather than a nineteen year old.  

The offences

9. The respondent had one previous offence for stealing a push bike prior to these offences. In May 1997 whilst at a local shopping centre in Gympie he saw a 19 year old woman, stole a knife from a supermarket and followed her along a road leading away from the centre. He approached the victim from behind, covered her mouth whilst holding the knife and put the other hand over her throat. He threatened to slit her throat. He then forced her across a barbed wire fence into bushland and ordered her to remove her clothes and lie on the ground. The respondent then took off all his clothes and raped her while holding the knife to her chest, he was interrupted by a passer by and the victim took control of the knife and screamed. The respondent fled. He was 18 years old at the time of this offence.

10. In November the same year, whilst on bail for the rape offence, the respondent went to a Catholic Primary School in Gympie and approached a nine year old girl who he forced into a room. When she screamed he covered her mouth and used his hand to push her up against the wall. He removed her clothes, she began crying and asked him to let her go. He then rubbed his fingers and hands over her body touching her on the breast and vaginal area. When he was disturbed by another person he dressed and fled.

11. The respondent admitted that both offences were premeditated and that the victims were otherwise unknown to him. The sentencing judge McMurdo DCJ said in her sentencing remarks:

‘You have pleaded guilty to some very very serious offences. … The offences are more serious because the second series of offences were committed whilst you were on bail for very similar offences and this is of great concern to the community.’ 

Her Honour also noted;

‘the pre sentence report indicates limited remorse as he now denies certain aspects of the offence of rape.  His youth means that rehabilitation before and upon his return to the community is the most important concern although the reports indicate that there is much work needing to be done before rehabilitation will be effected.’

The section 11 Psychiatric Assessments

12. The respondent was examined by two psychiatrists Dr Donald Grant and Professor Basil James who were appointed by the Court in accordance with section 11 to each prepare a report. These reports are required to indicate the psychiatrist’s assessment of the level of risk that the respondent will commit another serious sexual offence if released from custody or if released from custody without a supervision order. The report must also set out the reasons for such an assessment. Section 11 also requires that the psychiatrists be given all relevant information in relation to the preparation of the report and both psychiatrists have been provided with extensive medical, psychiatric and prison material in relation to the respondent which is in excess of 4,000 pages. The assessments were conducted in September 2006 and the respondent co-operated fully with the examination by the psychiatrists.

13. Dr Donald Grant notes that there is no history of any psychiatric disorder other than some early school phobia and features of conduct disorder during adolescence. The prison psychiatric assessments also noted no psychiatric diagnosis other than personality problems. I note that all of the psychiatrists are generally in agreement in this regard. On the basis of the DSM-IV Diagnostic criteria Dr Grant assessed the respondent as having an antisocial personality disorder with a pre-existing conduct disorder during childhood and adolescence. Dr Grant also noted an IQ of 81 but indicated that this was probably higher given his good verbal skills.

14. In his report Dr Grant was particularly concerned that there were indications the respondent suffered from a paraphilia.^[3]  The indications of this were that there were fantasies of a sexual assault preceding the offences, there was evidence of planning of the offences, the offences followed a similar pattern, the offences were carried out by force and the use of a weapon and the element of control and domination were clearly an important part of the offences in addition to the sexual elements.  Dr Grant also considered that there were factors which militated against there being paraphilia present, namely that the respondent was in a considerable state of turmoil at the time in particular due to his social, medical and interpersonal problems, and that he was a very immature young man who felt powerless for a variety of reasons.  Dr Grant notes that the respondent has reported a lack of any relevant sexual fantasies since the offences occurred and that he now reports no interest in or sexual arousal from thoughts of violence or forced sexual relations. 

15. Whilst Dr Grant took all of these factors into account ultimately he was concerned that it was not clear whether there was paraphilia present. This also raised for him the further issue that if there was paraphilia present then there was more likely to be a diagnosis of sexual sadism rather than a diagnosis of paedophilia. Whilst Dr Grant concedes that there is no clear evidence of the presence of sexual sadism he is concerned however that the respondent is suffering from sexual sadism and/or paedophilia.

16. Of particular concern to Dr Grant was the fact that the offences were predatory offences against strangers, that the respondent lacks empathy with his victims, and that he has failed at times to acknowledge the sexual element of his second offence. Dr Grant was also concerned that initially the respondent was suspended from the Sexual Offender Treatment Program (“SOTP”) and there was ‘a possibility that in the second attempt he simply went through the motions and learnt to say the right things without really achieving genuine change.’^[4] 

17. Dr Grant is also concerned that in prison there have been indications of continued problems with impulsivity and immaturity and a lot of problems with control of anger. Dr Grant also stated that the respondent had demonstrated problems in relation to the self management of his medical conditions and the organisation of his life in a mature fashion. Taking all this into account Dr Grant considered that it would be unsafe to come to the conclusion that the respondent does not suffer from sexual sadism and therefore the risk of recurrence of offending behaviour must be considered very seriously.^[5]

18. Dr Grant then used a number of recognised assessments which give guidance from a statistical point of view as to the likelihood of re-offending. Some of the instruments are actuarial and use static factors only and other instruments combine actuarial static factors with more dynamic and clinical factors. In particular he used the PCL-R which is a psychopathy check list which provides a measure of psychopathy otherwise known as antisocial personality disorder traits. Dr Grant scored the respondent at 30 which indicates that he is at the threshold for a diagnosis of psychopathy. In particular he noted that this rating conforms to the clinical assessment that the respondent suffered from a conduct disorder in adolescence and that he would be seen as having an adult antisocial personality disorder.

19. Dr Grant considered that using the Static 99 instrument the respondent would be in the moderate to high risk category. Using the Violence Risk Appraisal Guide (VRAG) together with the PCL-R score the respondent would be in a category of 7 indicating a probability of violent recidivism of 55 per cent at seven years and 65 per cent at ten years.

20. On the HCR 20 instrument which combines historical, clinical and risk management items to produce an overall assessment of risk the respondent scored as high risk on the basis that he scored poorly in the area of risk management. In particular Dr Grant notes:

‘Mr Robinson has a high probability that his plans will not succeed, a high probability of exposures to destabilizers, a high probability of lack of personal support, a moderate probability of non-compliance with mediation attempts and a high probability that he would be easily detsabilized by stress.’^[6]

21. In relation to the SRV 20 the respondent scored between moderate and high risk. In relation to the SORAG the scoring indicated that the risk of violent recidivism of a sexual nature is 75 per cent at seven years and 89 per cent at ten years. In relation to the SONAR however the respondent scored low to moderate for re-offending.

22. Overall Dr Grant considered that the respondent was at high risk of some kind of re-offending upon release from prison.

23. The other s 11 report was obtained from Professor Basil James. Professor James also noted that there was no major psychiatric abnormality present and that on the basis of the DSM-IV criteria he believed a diagnosis of antisocial personality disorder should be made on the basis that the respondent had a history of a pervasive pattern of disregard for the rights of others occurring since the age of 15 as indicated by a failure to conform to social norms with respect to local behaviours, repeatedly performing acts that are grounds for arrest, impulsivity, as well as persistent irresponsibility and reckless disregard to the safety of himself and others.^[7]

24. In relation to psychopathy however Professor James considered using the PCL-R format that the respondent scored well below the cut-off point of 30 for the diagnosis of psychopathy. Professor James also did not consider that a diagnosis of paedophilia was justified in the circumstances. In particular Professor James noted that there were a number of environmental circumstances present at the time of the onset of the respondents offending which should be taken into account in relation to a diagnosis. In particular he noted that the respondent’s anomalies in relation to his pubescence health and development particularly the presence of coeliac disease, the failure to thrive, diabetes and the arrest of his physical development during his teenage years. He also noted that he was one of seven children and that he was in a family which was under continuing and escalating stress.

25. Professor James also considered that noting this background of significant stress there should be a separate and specific diagnosis of an impulse control disorder. Whilst the other psychiatrists have noted a conduct disorder during his teens they have not made a formal diagnosis of a current impulse control disorder.

26. In relation to the assessment of risk of recidivism and using some of these same instruments used by Dr Grant, Professor James scored the respondent as low to moderate risk of recidivism on the Static 99. In relation to the SORAG he placed the respondent in category 6 which meant 58 per cent of whom would commit a sexual offence within seven years and 76 per cent of whom would commit a sexual offence within ten years. In relation to the VRAG the respondent scored a 9 which puts him in category 6 where he therefore belongs to a group of persons 44 per cent of whom will commit a violence offence within seven years and 58 per cent of whom will commit a violent offence within ten years. In relation to an overall assessment Professor James considered that the respondent’s risk of re-offending would be low to moderate if he had sufficient support in the community and at least moderate if he did not have this support.^[8]

Other Reports

27. Section 13(4) makes it clear that other reports may be taken into account and in this regard a report by Dr Prabal Kar dated 3 November 2005 should also be considered as it specifically addresses the issue of the respondent’s dangerousness to the community should he be released. Dr Kar noted that the respondent has not required psychiatric care in the past and is not currently receiving any psychiatric care. In his opinion Dr Kar considered that the respondent has a diagnosis of paedophilia, sexually attracted to girls – non exclusive type together with an antisocial personality disorder.^[9]  Dr Kar considered that the respondent had displayed extremely high dangerousness towards the community in that he had committed the rape of a young woman and a serious sexual offence against a nine year old school girl.  He notes that these offences have been predatory, violent and involved threats, physical force and a knife.  Dr Kar considers that these offences have shown extreme risk taking behaviour as well as a high degree of predatory sexual offending and dangerousness.  He considers that the offences show a good degree of premeditation because in relation to the 19 year old girl he selected her as a victim and then stole a knife to use to threaten her.  In relation to the nine year old girl Dr Kar states he showed a longer degree of premeditation and is concerned that even though he was on bail for rape at the time of the offence this did not deter him. 

28. In particular Dr Kar comments that he had planned the offence for weeks and had gone to the school where he lured the victim into a vacant room. Dr Kar considers that the respondent has a very high degree of psychopathy which is an absence of normal empathy and almost an absence of normal conscience and reality. Dr Kar considers that the respondent has had behavioural problems from a very young age which was evidenced by his long history of conduct disorder. In particular in prison his initial years were marked by problems with anger control and he engaged in behaviour such as fights and making threats in prison.

29. Dr Kar considers that the respondent had a high risk of future dangerousness in the community. Whilst he noted that the respondent had completed several courses in prison and importantly had completed the SOTP and was likely to have benefited from it, he is however concerned that given the respondent’s recklessness and risk taking then the potential harm that he could cause if he reverted to his offending behaviour makes the risk to the community high. He considers that given the respondent’s previous offending there was a high risk of future sexual offences against women and children, particularly young girls and that these offences could involve violence and threats including the use of physical violence and weapons.

30. Dr Kar also noted that the respondent is a risk taker and his offences have a focus on control. For Dr Kar this raises the question as to whether he is sadistic.

31. I also note the Psychiatric Assessment and Pre Sentence Report dated 2 February 1998 prepared by Drs Harden and Dr Matthews which gave a provisional diagnosis of paedophilia in the following terms;

“Mr Robinson meets criteria for paedophilia because he has had ongoing fantasy activity of a sexual nature related to pre-pubertal girls.  His is a non-exclusive type because he also has orientation towards adult females.  This is a provisional diagnosis because of the lack of detail provided by him at interview but it would appear that he meets criteria for at least this”.^[10]

32. I also note that this report specifically stated that the factors which were of particular concern at the time he was sentenced were:

1. His poor capacity to form relationships with other humans outside his immediate family, his general lack of empathy with others including his victims.

2. The pronounced lack of remorse with regard to current offences.

3. His relatively young age combined with the degree of force and coercion used; and

4. His ambivalence about whether his sexual attraction to pre-pubescent females is a problem

While obviously being unable to predict the chance of reoffence one would have to be quite guarded regarding this gentleman’s prognosis as he has little in the way of good prognostic signs and many worrying features.”^[11]

Rehabilitation Programs

33. As has been previously indicated the respondent completed a SOTP whilst in prison. The SOTP provides intensive therapeutic intervention, predominantly group based, for men convicted of sexual offences. The respondent undertook the program twice. Initially the respondent was excluded from the program in 2002 due to disruptive behaviour but he successfully completed the program on his second attempt in 2003. The course involved a 12 month program of ‘approximately nine hours per week of group-based psycho-education and psychotherapy, and occasional individual sessions to informally address course work.’^[12]

34. The Exit Summary prepared by the Co–Ordinator Eli Sky and the Counsellor Christine Lucas indicates that the respondent’s attendance was good. The following comments in the report are illustrative of his participation in the course:
     

‘At times he presented as anxious and hesitant about discussing certain personal details but this lessened over time allowing him to speak more honestly and openly.  He appeared to expend a great deal of time and effort in both his written work demonstrating a renewed commitment to addressing his offending.  He was a quiet participant who was encouraged to increase his level of participation, which improved only partially over time.  He tended to separate himself from others by sitting apart from them, reflecting some interpersonal difficulty.  He was co-operative with the facilitators and other group members and his disruptive behaviour, noted in his previous attempt at the SOTP, appeared to have vanished.’^[13]

35. This Exit Summary noted further that when presenting an account of his life the respondent exaggerated his criminal activities somewhat to fit into the group. The authors also commented that in the Disclosure Module ‘[h]e was, however, unable to understand fully how the high level of coercion he employed (threats of violence, a knife, stand over tactics) had affected his victims.’^[14] Additionally, the Exit Summary later stated that he demonstrated an ability to emphasise with his victims ‘[a]lthough he struggled to understand the potential consequences of his offending on secondary and tertiary victims’.

36. The Exit Summary also referred to Psychometric Testing which was done and in particular referred to the Personality Assessment Inventory (PAI) which indicated that the results suggested antisocial behaviour involving illegal behaviour and possible conduct disorder during adolescence. A high degree of recklessness, self destructive behaviour and impulsivity was also noted as was ‘[h]is profile suggested he was withdrawn and introverted with little interest in socialising which may account for his low level of social support.’

37. In the Offending Cycle Module of the course the Exit Summary stated that the respondent identified a number of stressors prior to offending ‘such as health problems, unemployment, loneliness, anger at his circumstances, argument with his mother, his lack of control and power in his life and sexual frustration.’^[15]

The effects of the respondent’s participation in the rehabilitation programs.

38. In terms of whether the participation in the rehabilitation programs has had a positive effect on the respondent the Exit Summary of the two authors, who were the ones most closely associated with the respondent during the SOTP, indicate that the program has had an overall positive effect on the respondent. Their Exit Summary indicates that ‘[o]verall Mr Robinson completed the SOTP to a good standard demonstrating both internal and external motivation and exhibited attitudinal and behavioural changes that were pro-social, constructive, and more socially skilful.’^[16] 

39. As has been previously noted Dr Kar is concerned that Mr Robinson has simply gone through the motions of completing the course and he has simply learnt the right words to say without actually experiencing a true change in his understanding or his behaviours. In this regard the submission for the respondent is that the successful completion of the SOTP is a significant factor in his favour and that the completion of the course together with his growing maturity is an important consideration.

40. The Exit Summary stated that the overall risk of the likelihood of re-offence was medium. In coming to this assessment the authors had also considered a number of the assessment tools but in particular the Static 99, the Sexual Offender Need Assessment Rating (SONAR) and the Sexual Violence Risk–20 (SVR 20).

Progress in Prison

41. The respondent entered prison just after turning 19 and has completed almost 9 years within the prison system. The affidavits of Margaret Cameron, Greg Brown and Clare Kelly attach a significant volume of material relating to his time in prison and his applications to the Corrections Board. A review of this material indicates a significant history of breaches by the respondent within the prison. These breaches are listed predominantly as “behaves in offensive manner”, “threats against staff”, or “disobey or refuses to obey” and are referred to in the various psychiatric reports as indicating a lack of impulse control, risk taking, recklessness and disregard for the rights of others.

42. An incident report dated 1 July 2005 outlines a major incident where the respondent was observed ‘kicking the walls, toilet bowl, cell door and the bottom of his bed with his bare feet and commenced head butting the wall’.^[17]  A body belt was needed to restrain the respondent on that occasion.   Of concern is the fact that as recently as 22 July 2005 the Community Correction Board considered the respondent’s application for a post prison community based release (“PPBCR”).  In a letter to the respondent dated 28 July 2005 he was advised in the following terms:

‘…the Board has received concerning reports that you have continued to have serious issues complying with institutional requirements and have incurred numerous breaches, most of which were major breaches.

Of particular concern is the fact that in your relapse prevention plan you indicate that not dealing with problems and not being able to deal with anger appropriately are the roots of your sexual offending behaviour.  Your recent history includes at least 3 breaches involving abusive and aggressive behaviour and others where you deliberately acted against good order.’^[18]

43. In response to this letter the respondent sent an abusive letter to the Community Corrections Board in August 2005 calling them a “bunch of fucking hypocrites”.^[19]  In November 2005 the respondent was involved in two major breaches involving possessing medication without approval.

44. The prison history also includes some entries relating to medical emergencies involving his management of diabetes with 2 incidents at least involving a refusal to eat or drink (4 &8 May 2002).^[20]  There is a clear indication in the material that the respondent has not taken full responsibility for the management of his medical conditions and at times has used his diabetes in a manipulative fashion to seek to achieve outcomes.

45. His prison history also states that the respondent’s employment history in the prison was transient and that he had been terminated from employment in the prison in July 2000 and May 2001 due to inappropriate, disruptive and unsafe behaviour.^[21] 

46. Apart from the SOTP he has completed a number of other courses in prison including a Cognitive Behaviour Course in 2001(with an Exit Report noting that he had sound to poor levels of motivation but had achieved some advances in insight but with deficits in impulse control), an Anger Management Program an Occupational Health and Safety program and he has completed Junior Maths and English but he has not successfully completed any Senior studies.

47. The Reports prepared for his application for PPCBR indicate as early as November 2003 that the respondent had no real interests in the community, he tended to isolate himself from people and that he had no contact with previous friends.^[22]  Importantly this limited interest in the community was one of the factors the report referred to as a reason for refusing PPCBR. 

The Plan

48. The respondent is due for release in a matter of a few short weeks. This date has been planned for some 9 years, and would have been earlier if he had been successful in obtaining PPCBR. There is however little in place by way of a plan. There is no certainty as to where he will go or what he will do upon release.

49. The respondent cannot return to live with his parents as they still reside in Gympie quite close to where the second of the offences occurred and it has been deemed as unsuitable. In his Transition Plan^[23] the respondent identifies his family as his major source of support on release however he will be residing some distance from them.  The respondent plans to try and obtain accommodation in either Beaudesert or Toowoomba.  The Beaudesert plan is based on living there so he will obtain Qld Housing accommodation more quickly.  The Toowoomba plan is based on living in a caravan at back of a person’s home who he has not met.

50. The respondent has indicated that he will try and build up support networks, obtain counselling and undergo programs and treatment with the assistance of his supervising corrective services officer. The current plan clearly relies heavily on the supervising corrective services officer to fill in all the gaps in the respondent’s plans on release.

51. I note Dr Grants comments in this regard as follows:

‘Mr Robinson’s plans upon release also seem very vague and ill formed.  He has no definite accommodation plans and those that he has have not been thought through or examined realistically.  It would appear that he has very few supports outside prison with the exception of his family and the degree of support available there might even be questioned…If he goes to Toowoomba or stays in Brisbane he will have to develop a support network which currently does not exist.  Overall his plans for release seem to be lacking in viability at present.  He would be very reliant on the support of processional agencies.’

Is the Respondent a Serious Danger to the Community in the Absence of a Division 3 Order?

52. The first question which must be answered is whether the applicant has satisfied the onus of establishing that the respondent is a serious danger to the community in the absence of a Division 3 order. Having considered all of the material I am required to take into account pursuant to the provision of s 13(4) I am satisfied that there is acceptable, cogent evidence to a high degree of probability and it is of sufficient weight to justify a decision that the respondent is a serious danger to the community in the absence of a Division 3 order. In coming to this decision I am satisfied that there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody or released from custody without such an order being made.

Should the respondent be subject to a Continuing Detention Order or a Supervision Order?

53. Having determined that the respondent is a serious danger to the community in the absence of a Division 3 order then next question which needs to be determined is whether there should be an order that the respondent be detained in custody for an indefinite term for control, care or treatment (continuing detention order) or whether he should be released from custody subject to a supervision order with conditions it considers appropriate (supervision order).

The Respondent’s Submissions

54. Counsel for the respondent submits that he should be subject to a supervision order given the significant progress towards rehabilitation during the period of his imprisonment, particularly in the last twelve months. Counsel noted that the respondent has not been breached for any offences in prison since November 2005, that he has successfully completed the SOTP and that the SOTP Exit Report confirms that the respondent’s behaviour during the program was of a good standard, and he has demonstrated internal and external motivation. The report also indicates that he had exhibited attitudinal and behavioural changes that were pro-social, constructive and more socially skilful. Importantly during this course he developed a relapse prevention program.

55. Counsel also submits that the respondent has now shown more empathy with his victims than in 2002 when he was excluded from the first SOTP because of his behaviour. Previously the reports indicated that the respondent had an extremely limited understanding of the impact of his behaviour on his victims.

56. Counsel further submits that the view of Professor James should be preferred to that of Dr Grant and Dr Kar and in particular submits that there is no evidence that the respondent is either a paedophile, is a sexual sadist or has psychopathy. In particular Counsel for the respondent states that particular emphasis should be placed on Professor James’ report which indicates that the respondent’s offences occurred in a background of a dysfunctional family and the presence of a lot of stressors. In this regard Professor James went through his scoring on the psychopathy checklist at the hearing and indicated that his scoring was lower because he scored the respondent zero in some areas as follows;

“Need for stimulation and proneness to boredom, zero.  Pathological lying, zero.  Conning and manipulative zero.  Lack of remorse or guilt I scored him one for that.  It certainly-his expression of remorse and guilt was not fulsome, but it certainly was not absent, so it was an intermediate score there.”^[24]

57. On the basis of my reading of the extensive material in this case I prefer Dr Grant’s scoring on the psychopathy checklist as I consider it more accurately reflects the material on file. Accordingly I do not consider a diagnosis of psychopathy can be totally excluded. In relation to whether there is paraphilia present I have to accept that there are serious concerns in this regard. Dr Grant has a concern that there may be paraphilia present and if it is present ‘then it more likely to be a diagnosis of Sexual Sadism rather than Paedophilia’. Whilst he is not satisfied that this has been definitively established on the evidence he does not believe it can be eliminated. Dr Kar is more concerned and has indicated that his opinion is that there is paedophilia present. The psychiatrists who prepared the presentence report also made a provisional diagnosis in 1998 of paedophilia. Once again I am not certain that such a diagnosis has been eliminated and I do not prefer the evidence of Professor James in this regard.

58. The respondent’s Counsel submitted that preventative legislation of the kind implemented by this Act represents a very significant interference with the liberty of a citizen and that the making of a continued detention order should only be made where there are exceptional circumstances. In this regard the respondent’s counsel referred to the decision of the High Court in Chester v The Queen^[25] which stated that the power within the legislation to continue detention should be confined to very exceptional circumstances where the exercise of the power is demonstrably necessary to protect society from physical harm.  Reference was also made to the Queensland Court of Appeal in the decision of A-G (Qld) v Francis^[26] which stated:

‘the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorises such constraint.’^[27]

Counsel submitted therefore that the Court should only permit a continuing detention order in circumstances where there is an exceptional case and this is not an exceptional case.

59. Counsel stated that the draft supervision order,^[28] which proposes a 20 year supervision period along with other numerous restrictive provisions, was not objected to by the respondent.  The respondent fully agrees with a supervision order but requests a modification to the condition relating to an absolute prohibition on attending any premises where alcohol was served.  Counsel suggested that this condition should be altered so that he would be required to obtain the permission of an authorised Corrective Services Officer rather than a blanket prohibition.  Otherwise counsel submitted that the supervision order sets up a very restrictive regime and as such it manages any risk to the community.

60. Counsel for the respondent acknowledges that there are few details in relation to the respondent’s plans post release. The respondent relies however on Professor James’ evidence during the hearing which was that it would be very difficult for a person who has spent their entire adult life in prison, with no real outside support, to be able to come up with and develop concrete plans for his release into the community. The respondent points to the Transition Plan which he has formulated and submits that this is a start and that once he is released into the community he will have the assistance of the supervising Community Corrections Officer who will be able to guide him towards suitable employment and other recreational activities. The respondent submits that all of the details of his support into the community will be sorted out once he is actually in the community.

61. Counsel also submitted that the respondent was at a significant disadvantage because he had never had post prison community based release and had not therefore had any opportunity to build up support in the community. He had however had some recent contact with the Catholic Prison Ministry and also Ozcare to try and obtain suitable accommodation on his release. The respondent was also willing to participate in a maintenance sexual offender treatment program whilst in the community. The respondent is also under an existing requirement under s 19 that he report any change of address to the Police for a period of five years. The respondent is also willing to participate in any programs that are going to be offered to him upon release which are required pursuant to the supervision order.

62. Counsel for the respondent also submitted that since the Court of Appeal decision in Francis it must be presumed that the respondent will be given the appropriate supervision pursuant to the supervision order.  Counsel submitted that as the Court of Appeal observed in Francis, there is no reason to think that the necessary supervision for a particular prisoner would not be provided. 

63. Counsel further submitted that the respondent accepts that he has used insulting words and that at times his behaviour has fallen short of what was appropriate. Counsel submitted however that the fact that there have been breaches of internal discipline in the prison do not necessarily point to the fact that he is going to commit a serious sexual offence in the community.

64. It was further submitted that the fact that the respondent had not used cannabis during his recent history in prison shows his developing maturity and that whilst his early years in prison were marked with some undesirable behaviour it must be accepted that now he has knuckled down and on balance his progress has been good.

65. Counsel for the respondent also submitted that it was not correct that the respondent did not accept sexual motivation for his offence but rather having completed the SOTP he realises that there was more behind the offence to do with power and control issues rather than with him having interest in children. Counsel also submitted that Dr Kar’s report should not be considered to be of assistance to the court because it was not provided pursuant to s 11 and they submit that his evidence at the hearing presented quite an unbalanced view of the respondent as he has not given sufficient weight to the respondent’s progress in prison.

66. Whilst I note Counsel’s submission in relation to Dr Kar’s evidence I accept Dr Kar’s evidence in relation to the clinical assessment which he has made which is that the respondent does not show remorse but note that Dr Kar had not taken any other objective information into account when making this assessment. Whilst I note that Dr Kar was prepared to categorise the respondent as a dangerous sexual psychopath without the use of any of the usual risk prediction instruments in coming to that conclusion, this is accepted by other experts as a legitimate approach. I will however disregard Dr Kar’s statement in his report that the respondent had a genetic basis for a predisposition to serious sexual offending and prefer the evidence of both Professor James and Dr Grant that there is in fact no proper academic or research basis for such a comment.

67. Counsel for the respondent conceded that in cases of this kind there was almost always some kind of risk of re-offending but there was insufficient evidence in this particular case to warrant the conclusion that a continuing detention order should be preferred to a supervision order particularly given the clear indication from the Court of Appeal that a supervision order should be preferred. Counsel noted that neither Professor James nor Dr Grant asserted that the level of risk required that the respondent be detained on a continuing basis. Furthermore it was submitted that there was no further treatment or assistance that the respondent could receive in prison. In particular Counsel submitted that both Dr Grant and Professor James concluded that the risk of reoffending would be significantly reduced by the imposition of structure in his life particularly with a mature case worker and some supervision.

68. Counsel for the respondent also referred to other cases where a supervision order had been made rather than a continuing detention order particularly Francis, Attorney-General for the State of Queensland v Fardon,^[29] and Attorney-General for the State of Queensland v Yeo.^[30]  It was submitted that in the decision of Francis the material indicated that the prisoner was in the moderate to high category in terms of risk of re-offending and whilst Mackenzie J had not been satisfied the prisoner could be sufficiently supervised the Court of Appeal set aside the order of continuing detention and subsequently made a supervision order on 26 September 2006.  Counsel also submitted that the Court of Appeal had discussed the issue of adequate protection of the community and indicated that adequate protection does not encompass the notion of a guarantee.

69. In the case of Fardon the respondent’s counsel submitted that in that particular case Dr Moyle considered Fardon to be a high risk upon release and Dr Grant considered him to be a moderate risk of committing some kind of violent offence but a relatively low risk of sexual violent offence.  Fardon also had a hostile attitude, a poor attitude to treatment and a reluctance to explore his sexual offending and his psychopathy.  It was also clear that Fardon did not participate in some treatment programs.  The respondent therefore submitted that he was in a much stronger position in terms of his prospects of rehabilitation than Fardon and yet a supervision order was being considered in relation to Fardon. 

70. In case of Yeo a continuing detention order was made but counsel submitted that the circumstances were quite different as there was a denial of all aspects of responsibility by Yeo and a refusal to participate in a Sexual Offender Treatment Program.  In that case Dr Lawrence thought there was a high risk of reoffence and Dr Moyle described him as having a long history of antisocial behaviour and impulsivity and at least a moderately high risk of reoffence.  Counsel submitted therefore that the case of Yeo should therefore be distinguished.

Conclusion

71. In coming to a determination on the question of whether the adequate protection of the community can be ensured by the making of a supervision order or whether the circumstances are such that a continuing detention order is required it is clear that the starting point is the decision of the Court of Appeal in Francis where it was stated quite clearly that a supervision order should be preferred over a continuing detention order if the adequate protection of the community can be ensured by that means.  I am not convinced by Counsel for the respondent’s submission that as a result of the decisions in both Chester and Francis there is now a test in Queensland that a continuing detention order can only be made in exceptional circumstances.  In this regard I note that the decision in Chester related to the Western Australia Criminal Code which permitted indefinite detention.  I would endorse the comments of Philippides J in Yeo that

“The provision did not have as its purpose the facilitation of rehabilitation of a prisoner who had a propensity to commit serious crimes, nor did it specify a precise criterion according to which the discretionary power conferred was to be exercised and made no reference to the need to protect the public from serious as distinct from violent, crimes…..it is not appropriate to superimpose an additional gloss, derived from a consideration of other differently worded legislation, in order to determine when a division 3 order is to be made.”^[31]

72. The essential question in issue is whether the adequate protection of the community can be ensured by the making of the supervision order. It is a question then which really comes down to examining the risk presented by the respondent and determining whether the support and supervision which will be put in place are appropriate to manage the risk or whether the risk is still unacceptable even if this support and supervision is put in place.

73. The starting point in determining that question in this particular case must be the nature of the offences and the comments of the sentencing judge in 1998. The offences were both premeditated and involved violence. The second offence occurred while the respondent was on bail for the first offence. In sentencing the respondent the sentencing judge indicated that she considered whether she should exercise her discretion and declare the respondent a serious violent offender. Whilst her Honour was satisfied the offences were grave enough she took into account the respondents youth, the fact he had no prior convictions as well as his significant health problems and did not make the declaration. Her Honour remarked however:

“His youth means that rehabilitation before and upon his return to the community is a most important concern, although the reports indicate there is much work needing to be done before rehabilitation will be effected.”

74. What then is the situation after some nine years in prison? The respondent clearly currently has an antisocial personality disorder as well as problems with impulse control which may in fact fit a diagnosis of an impulse control disorder. There is also a further concern that there may also be paraphilia and psychopathy present.

75. Given this psychological background it is important to examine the respondent’s behaviour whilst in prison to determine whether the ‘rehabilitation’ the sentencing judge referred to has been effected. It has to be said that there are real concerns about the respondent’s behaviour in prison.

76. There is a long and consistent history of breaches involving wilful behaviour on the respondent’s part. In this regard I note with concern the major incident in July 2005 when he needed to be restrained with a body belt and his outburst in his letter to the Community Corrections Board in August 2005. It is only in the last twelve months that that there is any evidence that there has been any effective control by the respondent of these behaviours. On the basis of the respondent’s own submission evidence of his growing maturity is only present in relatively recent times. There is concern that whilst he learnt impulse control strategies in courses he went through in 2001 (Cognitive Behaviour) and 2003 (SOTP) some major breaches occurred after this time. In addition he was still manipulatively using his medical conditions to achieve his own ends at least until May 2005.

77. The respondent in his relapse prevention plan identifies that there will be stressors on his release which will contribute to his re-offending. He identifies these factors are essentially isolation, unemployment and boredom. His past offences arose out of factors such as these and these factors are specifically referred to as the matters of particular concern to the psychiatrists in the pre sentence psychiatric report. In the SOTP Exit Report it is specifically identified that amongst other things the following will be a problem for the respondent:

• Failure to develop or maintain a suitable support network and intimate relationship with a mature adult.

• Avoiding problems by distancing himself, not communicating or by minimising issues which will lead to loneliness

• Social isolation

• Not finding constructive use of his time

78. The major concern is that the respondent needs to address these risk factors himself. He needs to manage the risk by ensuring that these factors are addressed by him. The need to address these issues has been a constant theme since the respondent has been incarcerated and in June 2005 he was specifically advised by the Community Corrections Board that his plans for release were not viable.

79. Of major concern is the fact that despite being advised on numerous occasions of the need to establish links within the community the respondent has totally failed to do so. Despite being one of 7 children and despite the opportunities presented by 9 years in prison to establish some social supports or some network he has failed to do so. The affidavit of Greg Brown attaches a memo dated 23 June 2004 from Christine Tunbridge which stated that it was ‘[e]xplained to him that it may be necessary to talk to the chaplains about supported accommodation as there were limited places available in the community.’^[32]  The memo went on to state that the respondent refused to go to these church places even when it was explained to him that it may only be these sorts of organisations who would be willing to support  him on release.  It would appear from the report of Professor James that the respondent has now made some contact with a prison ministry but there is no evidence that any real support will be provided.  He simply does not seem to have built up a rapport with anyone despite knowing for several years he could not live at his parents home or indeed return to Gympie.

80. I note Counsel for the respondent’s argument that it is unfair to expect a long term prisoner to build up social networks while in prison but would indicate that this has been achieved by many other long term prisoners. I also accept that appropriate accommodation on release is very difficult. This matter has been referred to in a number of decisions such as Attorney- General v Hansen^[33] and Francis. I note however that even in those cases the plans proposed on release were at least more concrete than the plans proposed by the respondent in this case. 

81. The difficulty in this case is that not only has the respondent failed to develop a strategy to manage these risk factors but additionally his plans on release are such that they put him into a situation where all the stressors will be immediately present. The real question is whether the supervision order and the plans the respondent proposes to put in place are such that the adequate protection of the community can be ensured. I note that neither Dr Grant or Professor James have specifically stated that the respondent should be subject to a continuing detention order but neither do they endorse the respondent’s current plans. As Dr Grant stated at the hearing there is a worrying lack of detail in the plans.

82. Professor James has also made it quite clear that his assessment of the respondent’s risk of re-offending as ‘low’ was dependent on a number of factors including suitable accommodation for him on release as well as ready access to a counsellor. He indicated that:

‘the ready availability of supportive intervention at times of personal life crisis would seem an even more important prerequisite for release.  For this to be effective, it needs to be ensured that Mr Robinson has an ongoing relationship with an appropriately trained Therapist on a regular basis over a prolonged period of time, with arrangements made for ready access at times of crisis.’^[34]

There is no arrangement currently in place for this to occur and importantly the areas the respondent is seeking to live such as Beaudesert or Toowoomba present some very practical difficulties for such a person to be found let alone engaged.  

83. Professor James stated that “if that person is not available he may flounder.”^[35]  He further stated

‘I think if the supervision order were translated into real action, and by real action I mean a fixer, somebody has got to be a fixer for this person, a case manager, as I mentioned, really needs to sort of parent him around for a while and make sure that he becomes established in the community in a self sustaining way, but that’s a very important area of rehabilitation.’^[36]

84. In addition during the respondent’s time in prison he has not had a good employment record and neither has he developed any real skills which he could use on his release in terms of finding work. Boredom and lack of employment he has identified as one of his stressors but he has not taken advantage of the courses available in the prison to obtain work skills.

85. The respondent has never lived independently having lived at home prior to going to prison. Neither has the respondent ever had to manage his complex medical conditions completely independently having relied on either his mother or the medical support within the prison system. In addition he has used his medical conditions in a very manipulative way.

86. The respondent has also identified in his Transition Plan that on release a major difficulty for him will be the fact that he will have to budget and manage his money very carefully given the cost to him of managing both his diabetes and coeliac disease. There is no evidence that the respondent has any strategies to manage this difficulty.

87. The question I must answer is whether on the current information I am satisfied that the adequate protection of the community can be ensured by a supervision order. I have been referred to a number of other cases where a prisoner has been considered to be a moderate to high risk of re-offending but has nevertheless been placed on a supervision order. The distinguishing feature in those cases however is that generally the prisoners had a more substantial plan for their release and had developed some supports in the community despite their long incarceration. In particular in the case of Fardon, despite 27 years in prison, he had developed a more detailed plan for his release and in particular had developed support within the community, had developed positive relationships with a prison ministry, had saved   a substantial amount of money and had a long history of employment in the prison system as well as employment skills. 

88. In the recent decision of Attorney- General for the State of Queensland v O'Rourke^[37] the prisoner had convictions for rape and had a definite diagnosis of psychopathic personality but was released subject to a supervision order.  The important differences however are that the reports in that case indicated that there were a number of family supports, there had been no prison breaches in recent years and there was clear evidence of maturity in his middle years.  In that case there were ‘demonstrated efforts at change and clear utilisation of assistance received, as well as the possibility of a degree of personality maturity with middle life’.^[38]   

89. In the current case Counsel for the respondent submitted that the supervision order will provide all the support necessary. Essentially, Counsel submits, one must presume the support will be provided as well as the supervision. This submission however misses one important point which is that the respondent himself has not taken steps to address the risks and the stressors to him on release. The supervision order cannot supply the factors which need to be present in the respondent himself. The respondent has not done what is required of him to enable him to be released subject to a supervision order. The current Transition Plan places him in a position of high risk due to his failure to ameliorate the stressors. Whilst the supervision order can provide some support supervision cannot supply those factors which are missing in the respondent himself. In short if the respondent is not ready for a supervision order the supervision order itself cannot meet the shortfall. If the essential groundwork for a successful supervision order has not been done by the respondent himself the supervision order is doomed to failure.

90. In addition, there is absolutely no evidence before me as to the support the respondent will receive. There is no evidence of any social network or support other than the Department of Corrective Services. On current plans he will see his family on release but then will be isolated from them as he cannot live in Gympie. Whilst the Draft Supervision Order states at paragraph (xvi) that the respondent will attend a psychiatrist as required and at (xviii) that he will attend any program as directed. That is essentially all the support that is proposed. It gives no indication as to the type of programs proposed or the nature of the psychiatric care or its frequency. There is nothing in the order about how his particular stressors of unemployment and social isolation are to be addressed.

91. The difficulty in this case is that irrespective of who should arrange it there is simply no strategy in place for the respondent on release, he does not have any idea where he will live (it could be Beaudesert or it could be Toowoomba). He has not one iota of support in place and simply no realistic plans at all. It is this vacuum which poses the very real difficulty in this particular case because in the respondent’s case all of the reports indicate that it actually increases the risk.

92. In particular I am concerned by Dr Grant’s prediction that:

‘Mr Robinson has a high probability that his plans will not succeed, a high probability of exposures to destabilizers, a high probability of lack of personal support, a moderate probability of non-compliance with mediation attempts and a high probability that he would be easily detsabilized by stress.’^[39]

93. I am concerned that the respondent’s his more mature behaviours have really only commenced in the last 12 months of his nine year term in an environment where the respondent has high supervision. In addition the proposed plans for his release and indeed the supervision order are woefully inadequate and do not in any meaningful way address the very real stressors which the respondent will be exposed to on release. In essence the reasons for this are that given the nature of the respondent’s psychological condition, the stressors for him, and his own failure to address these stressors, the plan proposed and the draft supervision order in particular do not adequately address the risks that are presented. In particular there are very real risks given the premeditated nature of the offences, the violence involved, and the respondent’s clear problems with impulse control.

94. In the current circumstances I am satisfied that there is a high probability that the respondent will be destabilised by stress. I am also satisfied that the current plans will actually place the respondent in an environment of considerable stress. I am further satisfied that the current Transition Plan and the Draft Supervision Order do not adequately manage the risk presented and I am not therefore satisfied that the adequate protection of the community can be ensured by the making of a supervision order.

95. When a continuing detention order is made the Act provides for annual reviews of such orders and the question of whether there should be a continuing order must be considered afresh each time the review is conducted. The circumstances in existence at the time of the review must be considered and the review is in no way a re–hearing of the previous decision but a fresh decision is made each time.

96. This matter will be reviewed in 12 months time and during this period the respondent should focus in particular on building up his support networks, managing his medication, looking at his employment skills, saving such money as he can and putting in place a realistic plan for his life on release. It is vital that all of these factors are addressed to ensure that a supervision order is a viable option in twelve months time.

Order

97. I am satisfied to the requisite standard and on the basis of acceptable, cogent evidence that the respondent is a serious danger to the community in the absence of a Division 3 order. It is ordered pursuant to s 13(5)(a) of the Act that the respondent be detained in custody for an indefinite term for control, care or treatment.