Attorney-General v Oliver[2009] QSC 34

SUPREME COURT OF QUEENSLAND

A LYONS J:

The application

1. Dale Oliver is an indigenous man who is currently 34 years of age. Mr Oliver has an extensive criminal history which commenced at the age of 12. His earlier convictions were, for the most part, breaking and entering, stealing, serious assault on a police officer, breach of bail, drug possession and numerous drink driving offences. He has not had more than a year without a conviction since he was 15 except during the periods he was imprisoned.

2. On 29 August 2002, Mr Oliver was convicted of five counts of rape. All offences were committed on 7 January 2002. He received a sentence of seven years imprisonment for these offences. He appealed his conviction and on 22 November 2002 the Court of Appeal dismissed his appeal.

3. On 20 February 2009, he completed a seven year term of imprisonment for those rape offences.

4. On 19 September 2008 an application was filed whereby the Attorney-General seeks an Order that the respondent be detained for an indefinite term pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”).  In the alternative, a Supervision Order under s 13(5)(b) of the Act is sought.

5. Pursuant to s 8 of the Act, a Risk Assessment Order was made requiring Mr Oliver to undergo psychiatric examinations. He has been examined by four psychiatrists, Professor James, Dr Grant and Dr Harden. Mr Oliver has also obtained a report from Professor Morris.

6. On 9 February 2009, an Order was made that the respondent be detained in custody pending a hearing on 28 February 2009.  On 26 February 2009, Orders were made by consent, pursuant to s 9A(2)(b) of the Act, adjourning the application and ordering that the respondent be detained in custody until 4 March 2009, pending hearing of the application.  Further orders were then made on that date ordering that the application be adjourned and that Mr Oliver be detained in custody until 6 March 2009 pending a final determination of the application.

The requirements of the Act

7. The objects of the Act are stated in s 3 as being:

“(a)to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection to the community; and

  (b)to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

8. For the purpose of this application, a prisoner includes a person who is detained in custody, serving a period of imprisonment for a serious sexual offence. That term is defined as an offence of a sexual nature, whether committed in Queensland or outside Queensland, involving violence or against children.

9. Section 13 of the Act provides for the making of a Continuing Detention Order or a Supervision Order. Before an Order can be made pursuant to this section, the court must be satisfied that the prisoner is a serious danger to the community in the absence of a Division 3 Order, because there is an unacceptable risk that the prisoner will commit another serious sexual offence, if he is released from custody or released without a Supervision Order being made.

10. Section 13(3) provides that a court may only make a finding that a person is a serious danger to the community if the court is satisfied by acceptable, cogent evidence. In Attorney-General v Van Dessel^[1] White J stated that what is at stake is a prisoner’s fundamental legal right to unfettered personal liberty on the expiration of his term of imprisonment.  The serious nature of the inquiry is emphasised in the Act by the requirement that a court only make a finding that a person is a serious danger to the community if it is satisfied to a “high degree of probability”.

11. A Continuing Detention Order is subject to periodic review.^[2]  A Supervision Order is made for a definite term.^[3]  In determining whether to make a Detention Order or a Supervision Order, s 13(6) provides that the paramount consideration is the need to ensure the adequate protection of the community.

12. Section 13(4) of the Act sets out the matters to which the court must have regard in determining whether a prisoner is a serious danger to the community in the absence of a Division 3 Order:

●the reports prepared by the psychiatrists;

●any other medical, psychiatric, psychological or other assessment relating to the prisoner;

●information indicating whether there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

●whether or not there was a pattern of offending behaviour;

●efforts to address the cause or causes of the prisoner’s offending behaviour, including participation in rehabilitation programs;

●whether the participation in the programs has had a positive effect on the prisoner;

●the prisoner’s antecedents and criminal history;

●the risk that the prisoner will commit another serious sexual offence if released into the community; and

●the need to protect the members of the community.

13. Pursuant to s 13(7) of the Act the Attorney-General has the onus of proving that a prisoner is a serious danger to the community.

Mr Oliver’s personal antecedents

14. All psychiatrists essentially note that Mr Oliver is not a good historian. He is the middle of seven children and his mother is indigenous. His father died when he was 13 years old. His father had worked for the Main Roads Department and had been an alcoholic who was violent when drinking. It would appear that Mr Oliver started drinking alcohol at the age of 12. After his father died, Mr Oliver became very disruptive and he initially went to live with his aunties but was then sent to work on a station because he was “acting up”. He worked on the station until he was 18 years of age and then he moved around doing seasonal work, mainly working on stations horse-breaking.  Mr Oliver indicated that he would often just walk off the job and “get on the drink”.  Mr Oliver identifies strongly with his indigenous culture and has phone contact with his mother and one sister.  One brother has died and an older brother has previously been in gaol for a serious assault.

Criminal history

15. Whilst Mr Oliver was first incarcerated at the age of 15, he had been in trouble with the police since he was at least 12, where he had been involved in a break and enter at primary school, as well as car theft and truanting.

16. Mr Oliver’s past criminal history had been extensive, but there had been no previous conviction for a sexual offence.

17. I adopt Professor James’ summary of his criminal history as follows:

●06/10/1989 – Unlawful Use of a Motor Vehicle.  A twelve month Care and Control Order had been issued, and restitution of $40 was also ordered.

●18/10/1990 – Wilful and Unlawful Destruction of Property; Unlawful Use of a Motor Car; Break and Enter with Intent; Stealing.  A two year Care and Control Order was made, with strict custody for six months.

●12/09/1991 – Five charges of Unlawful Use of a Motor Vehicle; one charge of Attempted Unlawful Use of a Motor Vehicle; Unlawful Damage; three charges of Stealing; two charges of Dangerous Driving.  A number of sentences of imprisonment were imposed, the effective sentence being six months.

●11/06/1992 – Attempted Stealing; being Found Unlawfully behind the Counter of a Bottle Shop.  Fined a total of $400.

●21/12/1992 – Unlawful Use of a Motor Vehicle.  Eighteen months probation with sixty hours of community service.

●02/12/1992 – Breach of Bail Act.  Probation eighteen months.

●04/10/1993 – Stealing; Breach of Probation Order; Unlawful Use of Motor Vehicle; Disqualified Driving.  Forty hours of community service and eighteen month Probation Order.

●20/12/1993 – Breach of Probation Order.  Fined $300.

●29/08/1994 – Break, Enter and Stealing; Wilful Destruction of Property in the Night Time; Unlawful Use of a Motor Vehicle.  Sentenced to four months imprisonment.

●29/08/1994 – Breach of Bail and Breach of Probation.  Sentenced to three months imprisonment.

●24/03/1995 – Possession of a Dangerous Drug, and Utensils connected.  One month imprisonment.

●24/03/1995 – Serious Assault on a Police Officer.  Three months imprisonment.

●20/09/1995 – Obstructing a Police Officer.  Fined $125.

●16/08/1996 – Assault Occasioning Bodily Harm Whilst Armed; Unlawful Assault; Damage to Property.  Fined $900 with $404 restitution.

●02/03/1998 – Breach of Bail (two charges).  Two cumulative periods of three months imprisonment.

●24/02/1999 – Possessing Dangerous Drug.  Imprisonment of three months.

●12/09/2000 – Possessing Dangerous Drugs.  Fined $300.

●12/09/2000 – Entering Dwelling with Intent; Break and Enter.  Imprisonment of eighteen months, suspended for three years after a period of 208 days imprisonment.

●02/01/2002 – Breach of Bail.  Fined $1,000 or sixty-six hours of community service.

●19/02/2002 – Breach of Fine Option (02/01/2002).  Order revoked on each breach.

●25/02/2002 – Breach of Suspended Sentence imposed on 12/09/2000.  Ordered to serve one month of the unexpired portion of the sentence.

18. Mr Oliver was first incarcerated at the age of 15 for six months for car theft and then he was next incarcerated at the age of 17, also for six months, for car theft. Mr Oliver stated to Dr Harden that he was incarcerated for “six to nine months in most years, although perhaps not every year”.  He also reported that he had been out of prison for approximately two and a-half years prior to the most recent events, and that this was the longest period he had not been incarcerated.

19. During his most recent imprisonment, Mr Oliver was initially in Arthur Gorrie for a month, and then Woodford for 14 months. He then spent periods at the Townsville Correctional Centre, Rockhampton Correctional Centre, and then Lotus Glen.

Sexual offences history

20. Corrective Service records also indicate that Mr Oliver was convicted in the Cloncurry Childrens Court on 22 February 1990 when he was 15, of aggravated assault on a female. The records also indicate that there were two occasions where he was charged with sexual offences but found not guilty. He was found not guilty of rape in the Kingaroy District Court on 14 October 1998 and on 8 September 1999 he was found not guilty in the Mt Isa District Court of deprivation of liberty, two counts of sexual assault and two counts of rape. Clearly these charges cannot be taken into account by the Court when considering Mr Oliver’s criminal history.

21. These charges have been taken into account by the psychiatrists however because the actuarial instruments and Static 99 assessment tool in particular factors into the assessment charges as well as actual convictions. As Dr Grant stated that in taking a psychiatric history psychiatrists “consider behaviour of all kinds.” Furthermore, the psychiatrists agree that the non disclosure of such information on interview is a telling factor. Because these charges were not mentioned to Professor James when he examined Mr Oliver, the subsequent revelation of these charges has led Professor James to revise his risk assessment from moderate to high essentially because of Mr Oliver’s lack of candour.  Whilst these charges were discussed with Dr Harden, Dr Grant and Professor Morris it is significant that an analysis of the reports indicates that Mr Oliver was not able to explain these previous charges in any detail. Dr Grant also indicated that Mr Oliver didn’t give the charges as part of his history and had to be specifically quizzed about it and that the accounts were “fairly superficial and vague.”^[4]    

22. In particular Dr Harden’s report indicates that Mr Oliver had stated that at age 20 he had been charged with sexual assault but this was consensual, and he indicated that he had been found not guilty. He also stated that in his mid 20s he had also been charged with sexual assault of two women with whom he had been drinking and smoking pot. They had both then complained that he raped them. Mr Oliver indicated that he had no idea why they would have made these charges and he did not have an explanation for the charges. He indicated he was found not guilty of these charges as well. Dr Harden noted “He could give few other details of his attitudes to the offences.” I consider that this is a matter of some concern as it indicates a lack of insight into and reflection on his behaviour.

The circumstances surrounding the current offence

23. In terms of the offence which related to his most recent imprisonment for rape, the victim was a Dutch backpacker who had been staying at a backpacker’s hostel. She had arrived a few days earlier and was approached by a female friend of Mr Oliver’s, who invited her to meet with him.  She later spoke to him by phone and he had seemed very pleasant.  She was then invited over to his house.  They spent some considerable time talking and later he asked her to stay the night.  There was, until this time, no sexual activity between them. There were twin beds in the room and the young woman slept in the room but in a separate bed.  She awoke to find Mr Oliver sitting on the bed and whilst she agreed to share the bed, she made it clear that she did not want to have sex.  Mr Oliver later overpowered her.  She screamed.  He threatened to stab her with a piece of broken mirror.  She was frightened that he was going to kill her.  He grabbed her by the hair and forced her onto the bed.  He made her perform oral sex on him and he ejaculated into her mouth.  Continuing with this physical force, he penetrated her twice and inserted his thumb into her anus.  He then engaged in anal sex with her.

24. When these events were over, Mr Oliver insisted that the complainant have a shower and he ensured that her genital area was washed. Mr Oliver then cooked breakfast and later got the complainant to drive him to the police station so he could report under his bail conditions. At the police station the complainant jumped the counter and told police she had been raped. Mr Oliver, however, left and was later apprehended in Sydney.

25. Dodds DCJ in sentencing Mr Oliver said:

“I am satisfied that she made quite clear to you that she did not want to engage in any sexual activity.  Nonetheless, you overcame her resistance with violence.  There are indications that after she stopped fighting you, you seemed to think that somehow or other your violent seduction technique had made her want to engage in sexual activity with you.

I fail to understand and the jury fail to understand how any reasonable person, in the circumstances, could have reasonably concluded that, after what had gone on.  Your treatment of her as she said during her evidence I think, reduced her to a sexual object to use as you saw fit.”

In his comments the Judge also indicated:

“I can see nothing in your conduct before or during this trial which would justify the court in showing you any particular mercy in the sentencing process.

Current circumstances

26. I have read the affidavit of Philip Mannion, which sets out Mr Oliver’s behaviour in prison. It is clear that Mr Oliver’s behaviour in prison has been problematic and he has been breached on a number of occasions. Indeed, some of those occasions involved violence. There was an incidence of violence in April 2008 and even recently Mr Oliver has disobeyed directions, made threats against other prisoners and committed a nuisance against good order and discipline. I am concerned that these breaches indicate that Mr Oliver has difficulty controlling himself despite the completion of the cognitive skills course and an anger management course.

27. I also note that a perusal of Mr Oliver’s criminal history indicates a long history of breaching community based Orders, including bail and probation.

Psychiatric assessments

28. As previously indicated, Mr Oliver has been assessed by three court ordered psychiatrists and he has also provided a report by Professor Morris on his own initiative.

Professor James’ report dated 6 July 2008

29. Professor James initially assessed Mr Oliver in July 2008 and noted Mr Oliver’s participation in a cognitive skills course and an anger management course. He stated that a sex offender’s treatment program would have been of benefit and would be likely, further, to lower his risk of recidivism. He acknowledged that Mr Oliver had participated in a preparatory program but there was some inconsistency as to the reasons why he had not completed the full high intensity sex offender’s treatment program (HISOP).  In particular Professor James reviewed the Report in relation to the cognitive skills program which noted that Mr Oliver had admitted that he was a generally angry person and this had facilitated many of his offences.  He stated^[5] that whilst he was said to have:

“demonstrated a good understanding of cognitive relapse prevention strategies.  He was, however said to have ‘experienced difficulties’ in providing examples of relapse prevention strategies that target his sexual offending behaviours, and it was suggested that completion of the relevant Sex Offender Programme is likely to improve these problems.”

30. Despite his behaviour in prison, Professor James indicated that Mr Oliver had conducted himself in a reasonable, restrained manner in the prison setting, despite these incidents, and noted that, whilst the incidents had led him to being charged with breaches of discipline, they had not been offences against the common law and they were isolated events and not too alarming, within the overall context of prison behaviour. I am concerned that my appraisal of Mr Oliver’s prison history does not indicate simply isolated events and Mr Oliver may have been minimising his breach history to Professor James.

31. Professor James also noted Mr Oliver had benefited from the anger management course which he undertook. He also indicated that intoxicants, including alcohol, were a not insignificant element operating at the time of his offences of rape, but has not participated in an alcohol abuse program during his time in prison.

32. Professor James concluded that at this stage of Mr Oliver’s life, imprisonment per se would be likely to act as an important deterrent for any sexual re-offending and that Mr Oliver’s risk of re-offending, were he to be discharged without any further participation in a sex offender treatment program, would be moderate. Professor James also indicated that he considered that Mr Oliver had an antisocial personality disorder.

33. Professor James then prepared an addendum report, where he changed his view from a moderate risk of recidivism to a high risk assessment. This was on the basis that charges had come to Professor James’ attention indicating sexual elements in earlier charges. Professor James considered that because of Mr Oliver’s lack of disclosure in this regard he felt that he had been “conned”. I also note that Professor James’ initial Report indicating moderate risk had specifically and inaccurately stated;^[6]

“Some mitigation of risk, however, would be suggested by the fact, also noted above that the offences of rape in 2002 were the first sexual offences with which Mr Oliver had been charged.  There was no past history of violence to women, and there was nothing in his history which would suggest that he had experienced or expressed any antagonistic or aggressive attitudes towards females.  There was nothing particularly in his history which would alert one to that specific concern.”   

Dr Grant’s report dated 3 November 2008

34. Dr Grant’s report also indicates that Mr Oliver’s risk of re-offending is high. He considered that whilst he has an anti social personality disorder he has no significant psychiatric illness. He considered however that Mr Oliver scored quite high on the psychopathy checklist at 28 which put him close to the cut off point of 30. He also stated that whilst he does have a history of alcohol and substance abuse he has no history of dependence. Dr Grant stated that he had taken a number of factors into account when assessing the risk including the nature of the index offence. Essentially however he considered that it came down to a clinical assessment and that the prediction instruments are really of limited value and were not particularly sophisticated. He stated that they provide an adjunct but are not a major component of the assessment.

35. Dr Grant stated that Mr Oliver has very limited insight or understanding and that Mr Oliver indicated to him that he considered that his risk of re-offending is “nil”.  Dr Grant considers that it is necessary for Mr Oliver to undergo the high intensity sexual offender’s program (HISOP).  He acknowledged that he had undertaken the preparatory sex offender program in 2007, an anger management course in 2005 as well as a cognitive skills course in 2003.  He considered however that Mr Oliver should undertake the HISOP because not only would such a program provide an indication of the risk but it would give Mr Oliver the knowledge and the tools for him to essentially manage and prevent the risk himself.   Dr Grant considered that even though a HISOP course may not necessarily reduce the risk it was important nonetheless because of the insights gained. 

36. Dr Grant also stated that:^[7]

“Mr Oliver was quite defensive and angry about the fact that he was not able to complete the Sexual Offenders Treatment Program, placing the blame for this on Queensland Corrections.  However, it would appear that this is not the full explanation and that his own prison behaviour and breaches may well have been part of the reason why he has not been able to complete that program.”

37. In his oral evidence Dr Grant was very strongly of the view that it was preferable that such a course be completed in the prison environment in a group setting where there were appropriate supports in place. Dr Grant stated that the program was very confronting and distressing particularly if an offender was in denial. Dr Grant said:^[8]

“So that during the first few months of the treatment at least there’s likely to be that level of anxiety and distress, and if that person wasn’t in a contained and supported environment, then that level of emotional distress could well lead to them being more likely to relapse and commit an offence during that period.”

38. He stated that the evidence indicates that group treatment is more effective than individual programs and he did not consider that the treatment put forward by Dr Madsen was the same as that offered by Corrective Services in the group environment. He considered that “the individual approach is very problematic and not sufficient for someone like Mr Oliver at this stage.”^[9]  Dr Grant did not consider that a programme in the community which was conducted on an individual basis such as that proposed by Dr Madsen would provide the same opportunities and “wouldn’t fulfil the criteria”.  He stated:^[10]

“I think it’s well recognised that the group treatment is more effective.  The group dynamics are important in assisting the process of disclosure, and the other members of the group are often very useful, if you like in facilitating full disclosure.  They are people that have been there and done that , if you like, who know the kind of thought process and denial that occurs and who can confront those issues and help the group to proceed in that way.  And so I think the evidence is that the group approach is more effective and that’s why it is done that way.  There’s no high intensity sexual offender treatment on an individual basis within the prison system for that reason…”

39. Dr Grant considered that Mr Oliver’s account was not very reliable and that:^[11]

“..there would be quite considerable concern about risk and especially when he wasn’t particularly forthcoming about the details of the offences and it had to be sort of elicited from him and then he wasn’t very fulsome in his accounts.”

40. Dr Grant did not consider that his assessment of high risk would materially alter if he did not take into account the charges on which he was subsequently found not guilty. He still considered it was “moderate to high” and that he considered he would still need to do the HISOP course even if he was a moderate risk. This was because of his concerns in relation to the circumstances of the index offence. In particular he was concerned about the violence in the attack, the threats that were made, the fact the victim was restrained by her pony tail as well as the injuries to her.

41. Dr Grant was also concerned about the lack of an adequate relapse prevention plan and the need for Mr Oliver to address his history of alcohol abuse. Dr Grant was also concerned about the fact that Mr Oliver’s post release plans were very embryonic and that he had no real plans as to what he will do when he leaves prison as well as no real support in the community.

42. If a Supervision Order were considered Dr Grant indicated that a 10 year order would be required given Mr Oliver was still a relatively young man.

Dr Harden’s report dated 4 January 2009

43. Dr Harden specifically noted that Mr Oliver had previously been charged with a number of sexual offences but had been acquitted of these, apart from an aggravated assault in 1990. However, Dr Harden noted that he was disinclined or unable to give details of these offences. He also noted that Mr Oliver had a limited or superficial understanding of the nature of his sexual offending and no understanding of his motivation for the offences.

44. Dr Harden considered that whilst Mr Oliver has stated that he has enthusiasm for participation in the programs and that he has completed a preparatory program, the file data is mixed in relation to this aspect. In particular, whilst he was offered the opportunity to transfer to another prison to undertake the program, he failed to do so. In any event, Dr Harden considered that for whatever the reason he has not participated in a full sex offender treatment program, and that Mr Oliver blames Corrective Services for this, despite being offered opportunities to do the high intensity sex offender’s program.

45. Dr Harden considered that Mr Oliver’s assessment of his own risk was limited and in his opinion, he had very significant minimisation and denial with regard to his previous offences and his potential for future offences. Dr Harden also indicated that Mr Oliver had a long history of failure of compliance with community supervision of various kinds and multiple incarcerations. Dr Harden noted that during his incarcerations Mr Oliver had a history of multiple breaches, some of them of a serious nature involving violence towards other prisoners. He also noted that he has extremely limited social supports and, although his family are important to him, he had not organised with them for any of them to be his potential parole contact. Dr Harden also considered that Mr Oliver would meet a diagnosis of antisocial personality disorder and that he had a history of alcohol abuse.

46. Dr Harden considered that using the actuarial and structured professional judgment measures, that Mr Oliver’s future risk of sexual re-offence was high. Dr Harden considered that ideally Mr Oliver should complete “an “indigenous, high intensity sexual offender’s program” prior to consideration of being released from custody, as this would enable a more thorough assessment of his risk and development of appropriate relapse prevention plan, as well as potentially modifying his risk of recidivism to some extent.

47. Dr Harden considered that if he were released prior to the completion of such a program, he would recommend that he complete an appropriate sex offender treatment program, as a group process in the community, and that, if he was released, he would be closely monitored by means of a Supervision Order. He should also abstain from alcohol and undergo random testing. He also considered that he have specific psychological treatment administered by a practitioner familiar with dealing with sex offenders, who had available to him full information regarding his offences and prior lack of involvement in offence specific treatment.

Professor Morris’s report dated 16 December 2008

48. Professor Morris rated Mr Oliver at the low end of the moderate range and considered that there had been an improvement in Mr Oliver’s behaviour and attitude to violence and sexual offending during his period of imprisonment. He considered, however, that further treatment was required to reduce his risk factors for recidivism. Professor Morris recommended that he complete an alcohol and cannabis relapse prevention course either before or after he is released from prison.

49. Professor Morris indicated that in terms of risk:^[12]

“…there’s three broad domains of risk, high, medium and low, and in those instruments the definition of high risk is that the person is at risk of escalation.  In other words, there’s going to be an eminent (sic) increase in risk and something needs to be done to ameliorate or defend against that risk  In other words the person escalating upwards into a risk that need to be sorted out……   Medium risk is risk that can be dealt with by appropriate supervision and review of the person’s condition and their security arrangements, and low risk does not need any specific risk management strategies involved.”

50. Professor Morris continued that against that broad definition he considered that he was in the middle group but at the low end. Professor Morris considered that Mr Oliver should complete the indigenous high intensity sexual offender treatment program prior to release from gaol.  He also considered that if he could remain abstinent from alcohol and cannabis following release from gaol, and participate in post-prison community follow up counselling as part of his treatment, then his prognosis would be positive and his risk of future violent sexual re-offending would be diminished. 

51. Professor Morris considered that Mr Oliver is now 34 and that sexual violence reduces with age. He did not consider that the rape offences had been premeditated. He also considered that he had completed a number of courses in gaol. Professor Morris also gave evidence that there is no real evidence that the sex offender courses which are offered provide any real benefit.

“And, you know there’s probably a lot of gut feeling that some of these things would be helpful.  The problem we have in Australia is that there is no outcome date on any of the programs that been conducted for prisoners in gaol to determine whether they are effective at all.”

52. Professor Morris considered that courses in the community were better than those in gaol and that it was important that a person who started a course actually completed the course. He also considered that the course offered by Dr Marsden would be appropriate and that if Mr Oliver was released from prison on a Supervision Order, a five to 10 year Supervision Order would be appropriate.

Ms Wieczorkowski’s evidence

53. Ms Vanda Wieczorkowski is a principal adviser in the Offender Programs and Services Directorate and she gave evidence of the programs available within Queensland Corrective Services. She indicated that the HISOP program involved an intensive sexual offending program for offenders assessed as being of a high risk of re-offending and that the program ran for a maximum of 350 hours and could take nine months to deliver.

54. Ms Wieczorkowski indicated however that there is now a specific Sexual Offending Program for Indigenous Males (SOPIM) which is delivered at Lotus Glen on a rolling basis and that, based on the level of risk assessed, the offender could take between three months and nine months to complete the program.

55. Ms Wieczorkowski advised that there are no high intensity or inclusion sexual offending treatment programs offered in the community by Corrective Services.

Dr Madsen’s evidence.

56. Dr Lars Madsen a forensic psychologist prepared an outline of the programs that the Forensic Psychology Centre in Brisbane provided and gave evidence of the individual courses which are available. He indicated that his Centre did not provide group therapy in the community and that they did not have a residential program. Essentially the psychologist engaged worked very closely with the probation officers for each person. Dr Madsen indicated that most of the offenders undertaking the program had completed previous courses whilst incarcerated and that the courses were really ‘maintenance’ or relapse prevention courses. Dr Madsen was also uncertain of the ability to deliver assistance in remote areas particularly in indigenous communities over a long period such as might be required for a high intensity program.

Is Mr Oliver a serious danger to the community in the absence of a Division 3 Order?

57. Counsel for Mr Oliver submitted that departmental recalcitrance might be a reason to refuse to make any Order at all. It was argued that Corrective Services had failed to discharge their duty to provide appropriate rehabilitation programs and placed reliance on the decision in Attorney-General (Qld) v Francis^[13] where the Court of Appeal said:

"If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the act.”

58. I do not consider however that there is sufficient evidence to indicate that the Department has in fact failed to provide appropriate opportunities and there is at least one example of Mr Oliver refusing to accept an appropriate offer. I do not consider that there is any evidence that Mr Oliver is being held for punitive reasons. I consider that offers of courses have been made which Mr Oliver has for a variety of reasons refused. It is also clear that his own behaviour has meant that he was unable to transfer to other institutions to undertake the courses. It was also made clear at the hearing that an appropriate high intensity course was currently available and Mr Oliver could commence in such a course within three or four weeks.

59. It has been argued on behalf of Mr Oliver that there is only one offence of a sexual nature and I accept this submission. The details surrounding the offence of assault which was dealt with in the Cloncurry Children’s Court offence are unclear and I do not conclude on the present information that they were of a sexual nature. It is also argued that there is no evidence to indicate that he has a propensity to commit sexual offences in the future and that there is no evidence of a pattern of offending behaviour.

60. However taking into account the matters that I am required to take into account pursuant to s 13(4) of the Act, I am satisfied that Mr Oliver is currently a serious danger to the community in the absence of a Division 3 Order in that there is an unacceptable risk that he will commit a serious sexual offence if released from custody or released without a Supervision Order.  . 

61. I have formed this view on the basis of the opinions of the four psychiatrists particularly the opinion of three psychiatrists that Mr Oliver is a high risk of re-offending and that he has no real insights into his behaviour. The offence for which he is presently incarcerated was clearly a sexual offence with violence. However he also minimises his offending and has been less than frank with some of the psychiatrists. I also take into account the nature of the offences in 2002 particularly the threats, the restraint, the covering of the mouth and the fact there were five counts of rape. Furthermore, Mr Oliver has not addressed the question of his use of alcohol.

62. I am therefore satisfied that Mr Oliver is an unacceptable risk on the basis of acceptable, cogent evidence and to the requisite degree of probability.

Should a Detention Order or a Supervision Order be made?

63. The question that next arises is whether, in the circumstances of this case, a Supervision Order would be an appropriate means of managing the risk of further sexual offences being committed or whether it is necessary to make a Detention Order. On behalf of Mr Oliver it was argued that if the Court were satisfied that Mr Oliver was a serious danger to the community then it would need to consider whether a Supervision Order would adequately protect the community and reduce the risk of re-offending to an acceptable level.  Mr Oliver’s Counsel submitted that there are conditions of supervision that would reduce Mr Oliver’s risk to the community to an acceptable level. 

64. Counsel for Mr Oliver submitted that in Attorney-General (Qld) v Francis:^[14]

“The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made.  The question is whether the protection of the community is adequately ensured.  If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that 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 authorised such constraint."

65. Counsel argued that at least at the outset of a Supervision Order Mr Oliver would be required to reside at the Wacol reserve or another place approved by the Department, he would be required to observe a curfew up to 24 hours, he would be required to abstain from drug and alcohol use and be subjected to testing for those substances. Counsel also submits that Mr Oliver could be required to attend a high intensity sexual offender’s treatment program that could be offered in the community.

66. A draft Supervision Order has been tendered and I have closely considered those conditions. The critical question is whether despite that Supervision Order the risk of a serious sexual offence will remain unacceptable.

67. It is clear that pursuant to s 13 (6) the paramount consideration is the need to ensure adequate protection of the community and that the purpose of Orders under s 13 is not punishment but the protection of the community.^[15]  It is also clear that the existence of some risk of re-offending is not sufficient but that the risk must be of an unacceptable Order.

Is the risk of an unacceptable Order?

68. As I have indicated three psychiatrists are of the view that there is a high risk of re-offending. Ultimately I prefer the reports of Drs James, Grant and Harden to that of Professor Morris. In particular it would appear to me that Professor Morris has accepted what Mr Oliver has said in relation to his breach history in prison and Mr Oliver’s view that he was denied the HISOP course.  It would also seem that he has accepted Mr Oliver’s version of the circumstances of the index offence without critically analysing the Court of Appeal decision.

69. All psychiatrists consider that Mr Oliver should complete a high intensity sex offender’s treatment program and I consider that on the present evidence it would also be preferable if this were a specialist indigenous program in a group setting. Such a program may reduce the risk but the present indications are that such an outcome is uncertain. The fact remains that he has not completed the program as yet so there is no current evidence of a reduction of the risk. The proposals for Mr Oliver to complete the program in the community give less certainty than a completed program within the prison environment.  Of particular concern is the fact that Mr Oliver has a poor history of compliance with community based order and a problematic history in prison of compliance with directions.

70. In summary then I consider that there are a number of factors which have led me to conclude that there is an unacceptable risk:

1. Three of the four psychiatrists consider that the risk of Mr Oliver committing another serious sexual offence is high.  Professor Morris considers it is at least moderate.

2. All psychiatrists consider that Mr Oliver has an anti social personality disorder and score him between 23 and 28 out of 40 on the psychopathy checklist.

3. Mr Oliver has no realistic awareness of the risk he poses;

4. Mr Oliver’s post-release plans are inadequate;

5. Mr Oliver has not addressed the issue of his history alcohol and substance abuse.

6. The psychiatrists are unanimous in their view that Mr Oliver should complete a high intensity sex offender program before leaving prison.  It is accepted that a specific indigenous sex offender program would be preferable.  In particular, the benefits of such a course are not only that it will allow a thorough assessment of his risk, but it will allow development of an appropriate relapse prevention plan.  Significantly however the evidence is clear that it will modify his risk of recidivism and it may help Mr Oliver develop a better understanding of his attitudes and inclinations;

7. Mr Oliver’s behaviour in prison has been problematic.

8. Mr Oliver has a history of breaching community based orders.

9. Mr Oliver’s rapes involved violence;

71. On the present evidence I do not consider that the proposed Supervision Order reduces the risk to an acceptable level. The proposed Supervision Order does not address any of the concerns set out above. In short the proposed Supervision Order does not in any way make up for the lack of an appropriate relapse prevention plan. It does not address Mr Oliver’s lack of insight or understanding. A community based HISOP might reduce Mr Oliver’s risk to an acceptable level but on the current evidence before me this has not been established. The evidence indicates such a course may reduce the risk of recidivism but there is no indication that in Mr Oliver’s case it could reduce the risk because he has not completed the course.  Furthermore there is some evidence that whilst he is undergoing the course the risk to the community may in fact increase which is why prison based programs have been preferred.  I do not consider that anything that has been proposed really addresses the core concerns such that the risk has reduced.  This is particularly concerning given Mr Oliver’s lack of insight into his offending.  

72. I consider therefore that Mr Oliver needs to be detained to ensure the adequate protection of the community and to provide continuing control, care or treatment of him to facilitate his rehabilitation. In particular, valuable insights would be gained from his completing a sex offender treatment program before his release.

73. Given that the paramount consideration in deciding whether a continuing Detention Order as opposed to a Supervision Order should be made is the need to ensure adequate protection of the community, I am satisfied that a Continuing Detention Order in this case is appropriate.

74. During the hearing I indicated that a possible option might be to adjourn the application to allow Mr Oliver to complete the course and for a more thorough assessment to be completed. However the reality is that such a course may not commence for another month and it may take nine months to complete. Mr Oliver would then need to be re-examined by the psychiatrists and further reports prepared. Accordingly it would seem to me that the Orders for his continued detention should be made and the question of whether the risk can be managed by a Supervision Order can be appropriately considered during the annual review.

Orders

1. 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.

2. It is ordered, pursuant to s 13(5)(a) of the Act, that Mr Oliver be detained in custody for an indefinite term for control, care or treatment.