Attorney-General v LSS[2007] QSC 202

SUPREME COURT OF QUEENSLAND

1. Philippides J:  By originating application filed on 21 March 2007, the Attorney-General sought orders pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for either the continued detention of the respondent, LSS, or alternatively, that the respondent be released under a supervision order.

2. Although the application as filed sought a supervision order as an alternative to a detention order, counsel for the Attorney-General conceded at the outset of the hearing of the application that material before the court (in the form of the expert opinion evidence of the court appointed experts) supported the making of a supervision order. For his part, counsel on behalf of the respondent conceded that there was evidence to support a finding that the respondent is a serous danger to the community in the absence of a Division 3 Order. The hearing therefore largely centred on the appropriateness of the conditions proposed in the draft supervision order prepared by and tendered by the applicant (exhibit 3). The focus of the respondent’s submissions on the need to ensure that the conditions imposed on the supervision order were no more onerous than was necessary to ensure the adequate protection of the community or for the respondent’s rehabilitation or care or treatment, as contemplated by s 16(2) of the Act.

3. In determining whether to make an order under s 13 of the Act, the court must be satisfied that the prisoner is a serious danger to the community in the absence of a Division 3 order, that is, that there is an unacceptable risk that the prisoner will commit another serious sexual offence if released from custody or if released from custody without a supervision order: s 13(1) and (2). A court may decide that it is satisfied that a person is a serious danger to the community in the absence of a Division 3 order only if it is satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of such a weight to justify the decision: s 13(3).

Respondent’s Antecedents

Personal history

4. The respondent was born on 13 November 1936 and is now aged 71. The respondent suffers from hypertension, diabetes and hypercholesterolaemia. In 2004 he underwent a prostatectomy. He is married with children and grandchildren.

Criminal history

5. He is currently serving a term of four and a half years imprisonment for three counts of attempted indecent treatment of children under 12 years and one count of indecent treatment of a child under 12 years and is due to be released from custody on 24 August 2007. The complainant children all lived in the caravan park where the respondent and his wife also lived. The respondent had toys glued to the railing of his caravan, which attracted children.

6. The complainant in the indecent dealing count (charged as occurring between 1 January 1999 and 31 December 2000) was aged between four and six years old.  The respondent digitally penetrated this complainant’s vagina.  He sucked her nipples and exposed his penis to her. The second complainant was aged five.  The respondent asked if he could see her vagina, something the complainant refused.  The respondent placed the third complainant, aged seven, on his lap and asked if he could touch her vagina.  She refused to allow this.  On a later occasion, the respondent asked this complainant to have a shower and then sexual intercourse.  The complainant declined.

7. The parents of these children permitted the respondent access to them as they trusted him, treating him as a surrogate grandparent and allowing the respondent to baby-sit them. The sentencing judge said that there was remarkable similarity between these sets of offences and the offences he was sentenced for in 1996 in the ages of the children, the nature of the offending and the position of trust to the girls.

8. The offences for which the respondent is currently incarcerated occurred during the parole period following his earlier offending.

9. On 13 February 1996 the respondent was sentenced to concurrent terms of two years imprisonment for five offences of indecent treatment of a child under 12 years between 28 May 1990 to 1 December 1994. Four of those complainants were the respondent’s granddaughters. The fifth complainant was the granddaughter of a friend of the respondent.

10. The facts of count one were that the first complainant was nine years old at the time of the offence. The respondent touched her on the skin of her vagina with his fingers and continued to do so after she protested. With respect to count two, the respondent touched the second complainant – nine or ten years old at the time of the offences – on the vagina with his penis. She described it hurting as he attempted to insert it. On another occasion he masturbated to ejaculation in her presence. The allegation made by the third complainant, who was seven at the time of the offence, was that the respondent touched and rubbed her on the area of her vagina.

11. The incident involving the fourth complainant (nearly six years old at the time of the offence) occurred at the respondent’s caravan during Easter holidays in 1994. The respondent asked the first four complainants if they would like to have sex. They all replied “no”. The respondent touched the fourth complainant on the skin of her vagina. This lasted for about five minutes. The fourth complainant was crying and asked the respondent to stop during this episode.

12. The fifth complainant was aged seven at the time of the offence. The respondent arrived at the complainant’s house. He asked if he could take the complainant shopping. An adult at the house refused to let her go with the respondent without her mother’s permission. The respondent waited about 30 minutes, obtained the complainant’s mother’s permission over the phone and took her shopping. While parked in the shopping centre car park, the respondent touched the complainant in the vaginal area with his hand. He also put his penis on her leg (top and side of her thigh) and licked her in the area of the vagina.

13. On 25 February 2003 the respondent was sentenced to four years and six months imprisonment in respect of the indecent treatment of children under 16 (under 12 years) on dates between January 1999 and December 2000. Also on 25 February 2003 the respondent was sentenced on three counts of attempted indecent treatment of children under 12 years (in March 2002) and was sentenced to three years and six months on all counts, to be served concurrently.

Psychiatric and Other Reports

14. Before the court were a number of reports including reports by psychiatrists, Professor Nurcombe, Dr Sundin and Dr Moyle.

15. In 1996 the respondent completed the Sex Offender Treatment Program (SOTP). In February 2005, the respondent was tested on the Static-99 and Stable-2000. The Static-99 is an assessment guide used to assist clinicians in identifying the risks of sexual recidivism for males over the age of 18 who are known to have committed at least one sexual offence. The Stable-2000 is a tool designed as a companion measure to the Static-99 and used to assist in identifying stable criminogenic needs and treatment targets for sex offender programs. In the February 2005 testing, the combination of the Static‑99 and Stable‑2000 scores placed the respondent in the high risk category. 

16. In 2006 the respondent completed the High Intensity Sexual Offenders Programme (HISOP). After the completion of the HISOP, the respondent was retested by the psychologists on the Static‑99 and Stable‑2000.  Testing on the Static‑99 put him in the moderate high risk zone and testing on the Stable‑2000 placed him within the high risk group for recidivism.

Dr Moyle

17. Dr Moyle assessed the respondent on 29 May 2006.  He noted that the respondent minimised and denied his offending behaviour.  He considered it likely that the respondent had longstanding paedophilic sexual interest.  Dr Moyle’s testing gave the respondent an overall score of 19 in the Hare Psychopathy Assessment (PCL‑R), well under the generally accepted cut off point for psychopathy.  On the Static-99 risk assessment, the respondent was assessed as between moderate high and high risk of re‑offending.  On the STABLE and ACUTE tests, the respondent was rated in the high risk category.

18. Dr Moyle noted, in terms of positive features, the respondent’s age, the absence of drugs or alcohol as a feature of the respondent’s offending behaviour and his lengthy history of employment up until his retirement. Dr Moyle concluded that the respondent continues to pose a high risk of sexual re‑offending against five to twelve year old girls if unsupervised and noted that his family was unlikely to be helpful in impeding his sexual behaviour.

Dr Sundin

19. From a psychiatric perspective, Dr Sundin identified one of the principal problems with the respondent to be his passive avoidant personality style. He has a long‑standing entrenched pattern of appearing to agree with others in order to avoid censure and lying to cover up any behaviour that may potentially attract criticism.  She noted that he struggled to accept responsibility for his behaviour and to truly internalise the material provided to him in the HISOP, such that his future risks might be reduced.  Dr Sundin agreed with the opinion of Dr Moyle that it was highly likely that the respondent has a long‑standing paedophilic interest. 

20. She considered it particularly concerning that the respondent continues to identify his wife and family as both his principal support persons and the people most likely to be able to assist him in avoiding recidivism. She noted that his wife has had little influence in modifying his behaviour in the past and her now increasingly frail state.

21. Dr Sundin observed that from a cognitive perspective, the respondent is of low average IQ, has difficulty with abstract reasoning, struggles with new learning and has a limited capacity for empathy. As to the issues of neurological deterioration raised by the staff of the HISOP, Dr Sundin noted that there was no evidence on a standard clinical examination of a dementia process. In particular on her examination she found no evidence of a frontal lobe dementia solidly present.  However, she accepted that given his medical history and age, there was a future potential risk for dementia which could further increase his risk for recidivist behaviour.

22. On Dr Sundin’s own testing of the respondent on the Hare Psychopathy Rating Scale (PCL‑R), she gave the respondent an overall score of 16, not dissimilar to Dr Moyle’s score of 19.  In combining the actuarial and clinical assessment of the respondent’s risk for recidivism, Dr Sundin placed him in the high risk group for sexual re‑offending.  The clinical factors noted to be present which impact upon his risks of recidivism include his low average IQ, impaired capacity for abstract reasoning, demonstrated capacity for repetitious lying, failure to take responsibility for his actions, failure to follow through in enacting potential solutions and his persistent deviant sexual fixation. 

Professor Nurcombe

23. Professor Nurcombe saw the respondent on 30 April 2007. He also administered various risk assessment instruments to assess the respondent’s risk of re-offending. On the re‑offence risk scale of the Vermont Assessment of Sex Offender Risk (VASOR), Professor Nurcombe rated the respondent as being at moderate risk of re‑offending.  On the Sex Offender Risk Appraisal Guide (SORAG) Professor Nurcombe assigned the respondent a total score of ‑6 or ‑8, placing him in SORAG category 2, indicating a low level of risk of sexual re‑offending.  On the Static‑99 the respondent’s scoring indicated a moderate to high level risk of sexual re‑offending.  On the Stable-2000, Professor Nurcombe rated the respondent as indicating an either low or moderate risk of re‑offending, depending on whether the changes in his sexual self‑regulation, attitudes supportive of sexual assault, intimacy defects and general self‑regulation were authentic or not.  Professor Nurcombe did not think they were feigned. Risk‑increasing factors were identified as a sense of loneliness, particularly if he would be required to live separately from his wife (as is the case), sexual rejection by his wife and rejection by his family.  It was observed that he has re‑offended in the past despite (and indeed partly because of) erectile impotence.  Risk‑protective factors would involve close supervision following release.  Professor Nurcombe considered that the best way to monitor any warning signs that the respondent’s risk of re‑offending is increasing would be regular supervision by a corrections officer.

24. In his written report, Professor Nurcombe stated that, judged on the risk‑analysis instruments, particularly those of a purely historical nature, he considered the respondent to be a moderate risk of re‑offending.  He stated that re‑offending of any type is extremely uncommon after the age of 60 years and for that reason, the respondent’s risk of re‑offending could be rated as low.  However, in giving oral evidence he modified his opinion, stating that “despite [his] unusually high age and erectile impotence, he still is at risk, at some risk, and probably the best level would be to say moderate.”

Whether the Respondent is a Serious Danger to the Community

25. The matters to be considered in deciding whether a prisoner is a serious danger to the community in the absence of a Division 3 order are set out in s 13(4) as follows:

• reports prepared by psychiatrists under s 11 and the extent of prisoner co‑operation in the examination;

• other medical, psychiatric and psychological assessments relating to the prisoner;

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

• whether there is any pattern of offending behaviour on the part of the prisoner;

• efforts by the prisoner to address the cause or causes of the offending behaviour including participation in rehabilitation programs;

• whether or not the prisoner’s participating in rehabilitation programs has had a positive effect on him or her;

• the prisoner’s antecedents and criminal history;

• the risk of the prisoner committing another serious sexual offence if released into the community;

• the need to protect members of the community from that risk;

• any other relevant matter.

26. The material that was filed in support of the application, as supplemented by the oral evidence, has addressed the matters set out in s 13(4) of the Act. Taking those matters into account, the evidence of Professor Nurcombe is that the respondent represents a moderate risk of re-offending, while Drs Moyle and Sundin consider him to be a high risk. On balance I prefer the evidence of Drs Moyle and Sundin. That evidence is acceptable and cogent and satisfies me to the high degree of probability that is required under the Act that the respondent’s risk of sexual re-offending (unless appropriately supervised) presents an unacceptable risk in terms of s 13(2) of the Act.

Whether a Supervision Order Should be Made

27. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community: s 13(6).

28. All the reporting doctors were shown the draft supervision order which contained 32 conditions. They were unanimous in considering that a supervision order could be fashioned to manage the respondent’s risk of re-offending so as to ensure adequate protection of the community and that the appropriate duration of a supervision order was 10 years.

29. In Dr Sundin’s opinion, in order to minimise the risks of recidivism, the respondent would require the following:

• An externally validated relapse prevention program which ensures that the respondent would be monitored by an informed person within the community who was well aware of the nature and extent of his offending behaviour.  This would be best undertaken by a senior male parole officer who had the opportunity to regularly monitor the respondent.  It is not considered that there is any evidence that any adult member of the respondent’s family is capable of providing the level of objective, structured and, when necessary, challenging supervision that is required.

• Accommodation in an appropriate residence which minimises the respondent’s access to small children.

• Participation in a community based relapse prevention program for sexual offenders.

• Regular monitoring of the respondent’s mental state with careful attention to any potential adverse neurological or physiological repercussions from his Non‑Insulin Dependent Diabetes, Mellitus and Hypertension.

• Regular reviews of the respondent’s residence and other places of activity by a staff member from Queensland Corrective Services to ensure that his opportunity for access to children is minimal.

• Linkage into appropriate community‑based activities with an older age group which could mitigate against any further isolation or loneliness within the community.

• A supervised meeting between the respondent, his wife and adult children within his family who are prepared to participate in order to educate them in the warning signs of recidivist behaviour and the conditions of any conditional community release program.

• Referral to a suitably trained professional (psychologist, psychiatrist) who can continue to challenge distorted beliefs and assist with development of safer, more functional alternatives which can be applied on an everyday basis.

30. Dr Sundin’s oral evidence in respect of the draft supervision order was that the proposed condition imposing a night curfew was not required, to reduce the risk of re-offending, given that the respondent had no history of nocturnal predatory behaviour. She saw no advantage in electronic monitoring to assist with a night time curfew, although she thought there may be some advantage in electronic monitoring if it could be used to prevent the respondent from attending places where children were likely to congregate, before or after school, which was one of the proposed conditions in the draft order. Dr Sundin indicated that she had reservations about the respondent being required to participate in an outpatient sexual offender programme (also a proposed condition), taking into account that pre-morbidly he is of limited intelligence and that the impact of his medical conditions further diminishes his capacity for any new learning.  With those qualifications, she saw the conditions in the draft order as providing the highly structured and detailed supervision programme required in order to appropriately manage the risks of the respondent re-offending.

31. Professor Nurcombe’s evidence as to the draft supervision order was that he did not consider that it would be worthwhile for the respondent to enter a community Sex Offender Treatment Program, given the respondent’s capacity to absorb this sort of information is limited by his borderline verbal intelligence. However, while Professor Nurcombe saw no purpose in further formal sex offender treatment, he considered that close supervision by a firm but sympathetic correctional officer would be required and that counselling of a supportive type would be helpful. Professor Nurcombe also saw no need to impose urine drug screening or regular breath analysis as neither alcohol nor drugs were involved in any of the respondent’s offences. Professor Nurcombe did not see any purpose in imposing a distance from schools in view of the fact that the respondent’s offences had taken place with family or children familiar to him whom he had groomed. He advised that the respondent should not live in a caravan park or in a house or apartment adjoining a domicile with underage females. He considered that it would be appropriate and suitable for the respondent to reside in a residential facility run by Anglicare where the other residents are men of his own age and that this would be beneficial in reducing risk.

32. Professor Nurcombe considered that the conditions contained in the draft supervision order would be effective in managing the risk of re-offending and were appropriate, except for the conditions relating to the imposition of a curfew and electronic monitoring. Professor Nurcombe saw no purpose in requiring those conditions. He saw electronic monitoring as essentially a means to support and reinforce a curfew condition, which he did not consider was necessary, observing that the respondent was not a person who offended at night in a predatory manner.  Rather, his offending had taken place in his own home during the daytime and against children of such an age that they would not be expected to be about at night. 

33. Dr Moyle’s evidence in respect of the conditions in the draft supervision order were that they were appropriate, except for the conditions relating to a night time curfew in respect of which he shared the views of Professor Nurcombe and Dr Sundin. As regards the matter of electronic monitoring, he indicated reservations about expressing an opinion, stating that he was not fully familiar with its effectiveness. Dr Moyle considered that the proposed condition requiring the respondent to undergo assessment for a sexual offending maintenance programme and, if assessed as suitable, to attend such a programme, would be beneficial, because it offered the prospect of counteracting the respondent’s tendency to rationalise and deny his offending conduct. Dr Moyle’s opinion was that such a maintenance programme could provide a means for the respondent to perhaps gradually acknowledge his offending behaviour and therefore add to the benefits of overall supervision of the respondent.

34. In light of the psychiatric evidence, I am satisfied that appropriate conditions can be formulated for a supervision order that sufficiently addresses the need to ensure the adequate protection of the community and that a supervision order should be made.

Conditions of the Supervision Order

35. In relation to the 32 conditions contained in the draft order, it was accepted on behalf of the respondent that proposed condition xxi relating to the respondent undergoing assessment for a sexual offending maintenance programme was appropriate and was not opposed. Given Dr Moyle’s evidence I consider that that condition ought to be imposed.

36. As regards proposed conditions xxix and xxx there was no expert evidence to support a night time curfew and counsel for the applicant did not press for those conditions. Given the evidence before the court I am satisfied that a curfew is not warranted as a means of reducing the risk of recidivism. It was conceded by the applicant that the electronic monitoring was a device which had utility in policing a curfew and that given no curfew was appropriate in this case electronic monitoring was also not appropriate.

37. As to the issue of electronic monitoring, counsel for the respondent submitted that without satellite navigation technology being available as part of electronic monitoring, as apparently is the case, it could provide no effective means of policing proposed condition xxvii of the draft order, that the respondent not attend any shopping centre during specified hours. The devise apparently alerts authorities when an individual leaves specified premises, but without accompanying satellite navigation technology, is unable to identify where an individual is at any given time. Counsel for the applicant accepted those submissions and conceded that in the circumstances of the present case electronic monitoring was not appropriate. I agree and would not impose such a condition.

38. Counsel for the respondent submitted that draft condition xxxi, requiring the respondent not reside at a caravan park, was rendered redundant given the terms of conditions viii and ix. The applicant agreed with that submission. The applicant also accepted the respondent’s submission in relation to the draft condition xxxii that it ought to be amended so as to provide that the respondent not visit or attend a caravan park without the prior written approval of an authorised corrective services officer.

39. Accordingly, the conditions that will be ordered as part of the supervision order are those provided for in the draft order modified to delete conditions xxviii, xxix, xxx and xxxi and to provide for the requirement of prior written approval in relation to visiting or attending a caravan park.

Orders

40. The court is satisfied to the requisite standard that the respondent LSS is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

41. The respondent be subject to the following conditions until 23 August 2017, or further order of the court:

The respondent must:

1. be under the supervision of an authorised corrective services officer for the duration of this order;

2. report to an authorised corrective services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9.00 am and 4.00 pm on the day of release from custody and at that time advise the officer of the respondent’s current name and address;

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

4. notify and obtain the approval of an authorised corrective services officer for every change of the respondent’s name at least two business days before the change occurs;

5. notify an authorised corrective services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed;

6. notify the supervising corrective services officer of every change of employment at least two business days before the change occurs;

7. seek permission and obtain approval from an authorised corrective services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;

8. reside at a place within the State of Queensland as approved by an authorised corrective services officer by way of a suitability assessment;

9. seek permission and obtain approval of an authorised corrective services officer prior to any change of residence;

10. not leave or stay out of the State of Queensland without the written permission of an authorised corrective services officer;

11. not commit an offence of a sexual nature during the period for which this order operates;

12. not commit an indictable offence during the period for which this order operates;

13. comply with every reasonable direction of an authorised corrective services officer;

14. respond truthfully to enquiries by an authorised corrective services officer about his whereabouts and movements generally;

15. not have any direct or indirect contact with a victim of his sexual offences without the prior approval of an authorised corrective services officer;

16. notify an authorised corrective services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;

17. submit to medical, psychiatric, psychological or other forms of assessment and/or treatment as directed by an authorised corrective services officer;

18. attend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by an authorised corrective services officer at a frequency and duration which shall be recommended by the treating intervention specialist, the expense of which is to be met by Queensland Corrective Services;

19. agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist and supervising corrective officer, and permit the release of the results and details of the testing to Queensland Corrective Services, if such a request is made for the purposes of updating or amending the supervision order or for ensuring compliance with this order, the expense of which is to be met by Queensland Corrective Services;

20. permit any medical, psychiatric, psychological or other mental health practitioner to disclose details of medical treatment, intervention and opinions relating to the respondent’s risk of re‑offending and compliance with this order to Queensland Corrective Services if such request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;

21. undergo assessment for a sexual offending maintenance program, and if assessed as suitable, attend such a program, on a group or individual basis, as directed by an authorised corrective services officer;

22. attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by an authorised corrective services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;

23. not have any supervised or unsupervised contact with female children under 16 years of age except with prior written approval of an authorised corrective services officer.  The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place;  Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children.  Excluded from this condition is incidental contact with female children under the age of 16 where the respondent is in an area open to the public, upon payment of a fee or otherwise, and the respondent’s presence is in the course of trade or commerce;

24. seek written permission from an authorised corrective services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group;

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

26. not be on the premises of any shopping centre, without reasonable excuse, between 8.00 am to 9.30 am and between 2.30 pm and 4.30 pm on school days other than for the purposes of:

1. approved employment;  or

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

27. not visit public parks without prior written permission from an authorised   corrective services officer;

28. not visit or attend at a caravan park without prior written permission of an authorised corrective services officer.