Attorney-General v Perkins[2009] QSC 53

SUPREME COURT OF QUEENSLAND

Introduction

[1] The respondent is aged 70, and is nearing the end of a nine year term of imprisonment for sexual offences committed against a boy under the age of 12.   His full time release date is 13 April 2009.  The Attorney-General for the State of Queensland (“the applicant”) seeks an order pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) that the respondent be detained in custody for an indefinite term for control, care or treatment (“a continuing detention order”).  Alternatively, the applicant seeks an order that the respondent be released from custody subject to such conditions as the Court considers appropriate (“a supervision order”).  The applicant presses for a continuing detention order in the light of the evidence.

[2] In essence, the evidence is that:

• the respondent presents a high risk of sexual recidivism if a continuing detention order or a supervision order is not made.

• he has a low IQ, has limited insight into the effects of his conduct on his victims and has not demonstrated any remorse or empathy for them.

• he has no realistic relapse prevention plan, and has not undertaken or completed an Inclusion Sexual Offenders Program (“ISOP”) prior to release.

[3] There is no dispute that there is an unacceptable risk that the respondent will commit a serious sexual offence if an order under Division 3 of Part 2 of the Act is not made.[1]  The critical issue is whether adequate protection of the community can be provided by a supervision order.  The applicant must prove that adequate protection of the community can be ensured only by a continuing detention order, or in other words, that a supervision order would not suffice.[2]  The applicant must prove more than a risk of re-offending should the respondent be released under a supervision order.[3]  As the Court of Appeal has observed, a supervision order need not be risk free, for otherwise such orders would never be made.[4] 

[4] The principal justification advanced by the applicant for a continuing detention order is that it will enable the respondent to complete the ISOP in a group prior to a future review under s 27 of the Act.  The applicant submits that the respondent’s participation in such a course would enable him “to be more alive to those circumstances which might trigger his offending behaviour and also would facilitate those that are charged with supervising him to be cognisant of those risk factors as well”.[5]  The applicant contends that if the respondent does not participate in such a course he will be poorly equipped to deal with the consequences of re-entry into the community even with a supervision order.  In such circumstances, a supervision order is said to not provide adequate protection to the community compared to the alternative of continuing detention with participation in an appropriate sexual offenders’ treatment program followed by a review under s 27 of the Act.

[5] The respondent submits that the community will be adequately protected by a supervision order which provides stringent supervision, constrains his behaviour and limits his opportunity for offending.  Such a supervision order would include individual treatment and therapy which Professor James says will be of equal value to the ISOP.  The respondent contends that the suggested benefits of participation in the ISOP, which lead Doctors Sundin and Harden to prefer the respondent to complete prior to release, have their foundation in “hopeful optimism of insufficient force” to justify the continued detention of the respondent. 

[6] The principal issue for my determination is whether the asserted benefits of the respondent’s participation in a group ISOP in custody during a continuing detention order means that a supervision order that includes provision for individualised therapy would not suffice to ensure adequate protection of the community.

The legislative scheme

[7] The objects of the Act, as stated in s 3, are:

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

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

[8] The Attorney-General may apply for a Division 3 Order in relation to a “prisoner”, which includes a prisoner detained in custody who is serving a period of imprisonment for a “serious sexual offence”.[6]  A “serious sexual offence” means an offence of a sexual nature involving violence, or against children.[7]

[9] Section 13 of the Act applies if, on a hearing of the application, the Court is satisfied that the prisoner is “a serious danger to the community in the absence of a Division 3 order.”  It specifies the circumstances in which the Court may make an order:

“(a)that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

(b)that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).”

[10] A prisoner is a serious danger to the community within the meaning of s 13 if there is “an unacceptable risk that the prisoner will commit a serious sexual offence” if the prisoner is released from custody, or is released from custody without a supervision order being made.[8]

[11] The Court may decide that it is satisfied as required by s 13(1) only if it is satisfied:

“(a)by acceptable, cogent evidence; and

(b)to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.”[9]

[12] In deciding whether a prisoner is a serious danger to the community as defined in s 13 the Court must have regard to the following:

“(a)the reports prepared by the psychiatrists under s 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.”[10]

[13] The paramount consideration in deciding whether to make a continuing detention order or a supervision order is the need to ensure adequate protection of the community.[11]  The Attorney-General has the onus of proving that a prisoner is a serious danger to the community in an application for a Division 3 order.[12]

[14] Subsection 13(5)(a) identifies the three purposes for which a continuing detention order may be made: control, care or treatment.  In some cases, more than one of these considerations will inform the making of an order.[13]

[15] In Attorney-General for the State of Queensland v Francis[14] the Court of Appeal stated:

“It may be, however, that, in some instances, a dangerous prisoner has such clear and pressing prospects of rehabilitation that the court’s choice of an order under s 13(5)(a), rather than under s 13(5)(b), will turn on the answer to the factual question whether further treatment, necessary to ensure adequate protection to the community, is likely to be available or effective only while the prisoner remains in detention.  If the court were to be satisfied in a particular case that further treatment of a prisoner was necessary, and likely to reduce the risk of reoffending to acceptable levels, but that such treatment would not be made available to the prisoner in detention, then that would be a good reason to make an order under s 13(5)(b).  The choice between an order under s 13(5)(a) or (b) must, of course, be controlled in the end by s 13(6) of the Act; but, in such a case, it might make little sense to make a continuing detention order for the purpose of ‘control, care of treatment’ of the prisoner.”

The Court also made the following important statement about supervised release in the context of the risk of the appellant in that case absconding if he began to use alcohol or drugs:

“The Act does not contemplate that arrangements to prevent such a risk might 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.”[15]

[16] Section 16(1) mandates certain requirements for a supervision order.  Section 16(2) provides that the order may contain any other requirement the court considers appropriate:

“(a)to ensure adequate protection of the community; or

…

(b)for the prisoner’s rehabilitation or care or treatment.”

The respondent’s antecedents

[17] The respondent was born in Brisbane in 1938.  His parents abandoned him and he became a ward of the State.  At the age of three, he was placed in foster care.  The respondent partially completed grade 7 before leaving school.  He has experienced life-long literacy and numeracy difficulties.  The respondent suffered a back injury in his early 20s and apparently spent two years in hospital recovering from the injury.  He has been unable to work effectively since then and has been an invalid pensioner for most of his adult life. 

[18] The respondent did not form any meaningful relationships beyond that with his foster parents, both of whom had died by the time he was 25.

[19] The respondent has had few intimate relationships with adults in his life, many of those with whom he has shared accommodation.  These relationships began to occur after the first of the respondent’s convictions for sexual offences against boys.  The relationships were usually short, none lasting more than a few months and some as short as a few days or a week.

[20] The respondent has no relationships with his biological family.  It appears that he has no friends outside of prison.  The applicant’s submissions note that the respondent’s last visit from a family member in prison was in August 2003.

[21] The respondent has not displayed any drug or alcohol problems.

Criminal history

[22] The respondent’s criminal history is summarised in the following table:[16]

[23] The respondent is currently in prison because of an offence committed in 1999 when he had the care of a 10 year old boy.  The boy and his mother were staying in a caravan parked on the front lawn at the respondent’s home.  Over a period of some weeks, he gained the trust of the mother and the child and in due course the mother allowed the respondent to care for the boy regularly on weekends.  On one such weekend, after having gained the boy’s trust, he showed him a number of pornographic magazines.  He then committed a number of sexual offences. 

[24] The victim subsequently told a friend what had happened.  Police were called, the respondent was arrested and he made some limited admissions.  He claimed that the boy was partially to blame and had initiated the sexual misconduct by backing into his erect penis, thus causing the respondent to accidentally sodomise the child.  It was revealed at his sentence that the respondent had provided police with a similarly improbable explanation with regard to offences against boys in both 1965 and 1977.  The convictions in 1965 and 1977 both involved sodomising boys.  On both occasions the respondent pleaded guilty to the charges.

[25] On 3 March 1965 the respondent was convicted at the Ipswich Magistrates Court of one count of aggrieved assault of a sexual nature for which he was sentenced to four months imprisonment.  No details of the March 1965 offence are available. 

[26] On 17 May 1965 an indictment was presented in the District Court charging the respondent with two counts of carnal knowledge against the order of nature occurring on 24 December 1964 and 5 January 1965.  The respondent was further charged that on 23 January 1965 he indecently dealt with a boy under the age of 14 years.  The boy was 11.  The offences occurred after the respondent befriended the child’s mother and then used that relationship to gain the opportunity to sexually abuse the boy.

[27] On the 22 April 1977 an indictment was presented in the District Court charging the respondent with one count of sodomy that occurred on 16 February 1977.  The child was aged nine.  The circumstances of the offending were that the respondent befriended and gained the trust of the boy by showing him model boats and then sexually assaulted him.

Psychiatric reports and assessments

[28] The hearing focussed on reports from Professor James of 25 January and 3 October 2008, Dr Sundin of 22 February and 6 March 2009, and Dr Harden of February 2009.  Each of the doctors supplemented their reports with oral evidence. In addition to this evidence, I have regard to other assessments.

Sexual Offending Program Assessment of 10 May 2007

[29] The respondent was assessed to determine his suitability to participate in a Sexual Offenders Treatment Program.  He scored a 7 (High) on the STATIC-99 assessment and a 10 (High) on the STABLE-2000 assessment, and was determined to have high intervention needs.  The assessor noted that the respondent preferred the company of children to that of adults and sometimes fantasised about children even though he recognised this to be wrong.  The respondent asserted that pubescent children often have a higher sex drive than adults and that children could start having sexual relations at any age.

Report of Gavin Palk, Clinical Psychologist, dated 9 June 2008

[30] Mr Gavin Palk, a clinical psychologist, examined the prison records and conducted interviews with the respondent on 16 and 20 May 2008.  Mr Palk conducted several psychometric and clinical assessments of the respondent and prepared a report dated 9 June 2008.[17]

[31] Mr Palk observed:

“Due to Mr Perkins’ low level of intellect and poor short term memory, it is highly doubtful he would understand or benefit from cognitive and behavioural therapy programs.”[18]

Mr Palk concluded that the respondent is:

“… a serious repetitive sex offender with little ability or motivation to control his deviant sexual impulses.  He presents as an individual with few friends and limited appropriate social support networks.  In addition, he does not have any adequate relapse prevention strategies to prevent further offending.  His future plans upon release are to rely on visits from prison Chaplains, Bible study and keep away from children to present reoffending.  However, the writer believes that Mr. Perkins’ predatory deviant sexual desires are so entrenched that his response to Bible studies and support from Chaplains would at best be superficial.  Due to his intellect and memory problems he is unlikely to comprehend or benefit from cognitive/behavioural and satiation therapy programs.  If assessed as suitable by a Psychiatrist, libido reducing drugs may be the only means to provide some reduction in his deviant sexual impulses.[19]  Finally, the writer considers Mr Perkins unsuitable for parole and a serious threat and potential danger to any young vulnerable prepubescent boy upon his release.”[20]

Report of Professor Basil James, Psychiatrist , dated 25 January 2008

[32] This report was prepared for the purpose of a risk assessment and with a view to a possible application under the Act.  It was based on an interview conducted with the respondent on 25 January 2008 and an examination of prison files. Professor James carried out several psychometric tests to assist in the assessment of the likelihood of the respondent re-offending.  His assessment was:

• STATIC-99: high risk category.

• Sex Offenders Risk Appraisal Guide (“SORAG”): the respondent belongs in a group of offenders of whom 45 per cent will re-offend sexually within seven years and 59 per cent will re-offend within 10 years.

• Violence Risk Appraisal Guide (“VRAG”):  the respondent belongs to a group of offenders of whom 17 per cent will re-offend violently within the next seven years and 31 per cent will re-offend within the next 10 years.

[33] Professor James commented that the respondent was a pleasant and garrulous ageing man who was clearly of below average or borderline intelligence.  Professor James concluded that the respondent was a paedophile and was essentially exclusively sexually attracted to boys.  He also concluded that the respondent did not appear to be suffering from any form of mental illness or a personality disorder and was not psychopathic. 

[34] The respondent was said to have very limited insight into the significance of his offences and to lack empathy for his victims.  He was found to have very limited appreciation of the need for self-change.  Professor James stated in his report that the respondent should be given every opportunity to change his offending behaviour, despite it being very unlikely that he would derive any benefit from such opportunities. The respondent had commenced attendance on the High Intensity Sexual Offenders Program (“HISOP”) at the time of the interview.  Professor James concluded that although the respondent appeared willing to do the program, he had limited appreciation of the need for change and that although the respondent stated he wanted to “stop doing it”, his participation had more to do with the fact that the authorities considered it necessary.

[35] Professor James stated that incarceration under a continuing detention order would probably do little to reform the respondent’s paedophilic behaviour, but would serve to protect the community.  Professor James’ report concluded there is a “very serious risk” that the respondent would re-offend if released into the community without a supervision order.  Professor James considered that restrictions in the form of a supervision order:

“…be designed to prevent the development of any relationship between Mr Perkins and male children, including any relationship between Mr Perkins and those who have care of and responsibility for such children.  It would seem that Mr Perkins’ past offending has been preceded by a period of ‘grooming’, and there appears to be no history of violent attacks, or attacks upon strangers.  It is likely that the offences for which it is necessary to provide community safeguards would in the future be of a kind for which he has been convicted in the past.”[21]

[36] That report was prepared at a time when the respondent was about to commence the high intensity or HISOP course.  The respondent did not complete that course.  It will be necessary to later consider Dr James’ oral evidence about the benefits of the respondent participating in the “Inclusion” or ISOP course, which is for sexual offenders who have been assessed as intellectually and socially low functioning.  In essence, Professor James concluded that the respondent’s ability to benefit from that course was “very limited indeed”.

Report of Dr Josephine Sundin, Psychiatrist, dated 22 February, 2009

[37] Dr Sundin conducted an assessment of the respondent on 6 February 2009.  As a result of her examination and review of relevant material, Dr Sundin did not consider that the respondent demonstrated any features sufficient to warrant a diagnosis of personality disorder.  He did not have an anti-social personality disorder.  Instead she considered the respondent to be:

“…a man of low IQ with a many decades long history of entrenched, deviant sexual ideation that has been recalcitrant to change.  Mr. Perkins historically has demonstrated little motivation to change, has demonstrated little desirability to control his deviant sexual desires and a continuing inability to empathise with his victims, which have further impaired his capacity to modify his behaviour. His inability to form or sustain appropriate intimate adult relationships and to develop an adequate appropriate adulthood social network has further impeded his ability to resist his deviant sexual impulses.”

[38] The respondent achieved the following results from various “risk assessment instruments”:

• Hare Psychopathy Check List: the respondent rated 15 out of 40, below the point which would attract the label of psychopath.

• On the STATIC-99: the respondent scored 7 placing him in the “high risk group for future recidivism”. Individuals in this group have a 30% risk of recidivism at 5 years and 45% recidivism at 10 years and a 52% risk at 15 years.

• On the SORAG, the respondent scored 12 placing him in category 5 which means that as a member of a group he is said to have a 7 year risk of recidivism at 45% and a 10 year risk at 59%.

[39] Dr Sundin ultimately diagnosed the respondent as meeting the criteria for “Paedophilia sexually attracted to males, non-exclusive type”.  No major psychiatric disorder was found.  Dr Sundin observed that the respondent has remained “largely recalcitrant to change”.  The respondent has failed to develop any form of realistic or reasonable prevention plan.  His limited capacity to do so is due to a low IQ and lack of appreciation of the seriousness of his offending pattern.

[40] Age may have the effect of “slowing him down” but, according to Dr Sundin, it can also be deceptive in that the respondent can appear less dangerous than he in fact is.  Age precludes him from being safely prescribed antilibidinal drugs.  Dr Sundin notes “given that his (the respondent’s) aberrant sexual drives have been persistent for 55 years I doubt they are likely to disappear in the near future”.

[41] Although Dr Sundin found no signs of dementia, such a process may cause further disinhibition, thereby increasing any risk of re-offending.

Report of Dr Josephine Sundin dated 6 March 2009

[42] Dr Sundin provided a further report dated 6 March 2009.[22]  It stated:

“Prior to his release from incarceration it would be to his and to the community’s advantage for him to participate in a Sex Offenders Treatment Program aimed for offenders with his level of intellectual difficulty (ISOP).  Given his entrenched paedophilic drives he needs assistance to develop a range of strategies to lessen his risk of relapsing back into offending behaviour upon release from gaol. 

As he currently stands, I consider Mr Perkins’ global risk of recidivism is moderate to high.  With the assistance of a suitable SOTP I consider this could be reduced to moderate. 

If the Court is minded to release Mr Perkins without completion of this programme; I would recommend that he be strictly monitored, be subject to a curfew facilitated by electronic monitoring, be referred to an appropriate community sex offender maintenance programme, be referred to a psychiatrist such as Dr Paul White, Psychiatrist, who has special expertise in dealing with intellectually disabled sex offenders and be regularly followed up by a General Practitioner to monitor his intellectual and medical functioning.”

Report Dr. Scott Harden, Psychiatrist, dated 25 February 2009 

[43] Dr Harden interviewed the respondent on 2 January 2009 and administered various assessment instruments.  Results of these were as follows:

• On the STATIC-99, the respondent scored an 8 meaning he is a high risk of recidivism and meant that on average there is a likelihood that he will sexually re-offend at 39% over 5 years and 45% over 10 years and 52% over 15 years.

• Further the rate for violent recidivism for this group with this score was 44% over 5 years, 51% over 10 years and 59% over 15 years.  Dr Harden considers that this assessment represents the respondent’s risk “at this time”.

• On the stable 2007 he scored 18 of a possible 26 placing him in the higher needs group in terms of a sexual offender dynamic risk.  In Dr Harden’s view combining his STATIC-99 and stable 2007 assessment, he is placed at the highest risk category in terms of recidivism rates.

• On the sexual offenders risk appraisal guide, the respondent scored 12 which placed him in category 5 which meant that he had a 45% rate of violent re-offending in 7 years and 59% rate at 10 years.

[44] The respondent scored 18 on the Hare Psychopathy Check List, placing him in approximately the 32nd percent of the male offender population.  On the SVR20, he scored 9 items out of 20 placing him at a high risk category on his measure of sexually violent risk.

[45] Dr Harden noted that the respondent is experiencing his third period of incarceration for sexual offences against boys around 10 years of age.  The children had been previously known to him and he had established a relationship with them and their care givers.  On two or three occasions he had intercourse with the boys, causing them distress.  Dr Harden made the following findings. The respondent demonstrated no significant remorse or empathy for his victims.  The respondent’s relationship history is such that he has never been able to sustain an intimate relationship of any significance.  He has not maintained steady employment since his teenage years.   

[46] The respondent was diagnosed by Dr Harden as having “a personality disorder not otherwise specified with dependent, narcissistic and anti-social features”.  He also met the criteria for “paedophilia, sexually attracted to males, exclusive type”. 

[47] In Dr Harden’s view, the actuarial and dynamic assessment places the respondent at high risk of sexual reoffending.  If he were to reoffend it would most likely be in the context of forming a relationship with a caregiver of a boy aged between 8 and 12 and then sexually abusing that boy.  Dr Harden observes that this risk has not “declined significantly with age”. 

[48] Dr Harden reported that the respondent accepted the need for significant restrictions when he was in the community in order to decrease the risk of future offences, but was unable to articulate what these particular restrictions should be.  Instead, the respondent seemed to have “a general understanding that they would be to do with restricting his access to potential victims”.  Dr Harden expressed the opinion that:

“the emphasis will need to be on supervision and restrictions of his access to potential victims and that although therapeutic attempts are worthwhile they are less likely to meet with success.”

[49] Dr Harden made the following recommendations:

“I would recommend that he be closely monitored in the community by means of a supervision order.

I would recommend that he complete the inclusion sexual offending program suitable for people with learning difficulties.

I would recommend that he participate in an appropriate sex offender treatment maintenance program as a group process in the community.

I would further recommend that he have regular offence specific psychological treatment administered by a practitioner familiar with dealing with sex offenders with learning or intellectual impairment and who has available to them full information regarding his offences and prior lack of involvement in offence specific treatment.”

[50] In summary, the expert reports, including the reports prepared by Doctors Sundin and Harden under s 11 of the Act, assess a serious risk of sexual re-offending if an order is not made.  The risk is high despite the respondent’s age and exists, in part, because the respondent has limited insight into his offending behaviour and has not developed strategies or plans to lessen his risk of offending.

The respondent’s participation in rehabilitation programs

[51] On 10 May 2007 the respondent was approached for a sexual offender program assessment which was finalised on 25 July 2007.  As a result it was recommended that the respondent participate in the “Getting started: Preparatory program for sexual offending” and after that the “Crossroads: High Intensity Sexual Offender Program”. 

[52] The respondent commenced the “Getting started” program on 10 October 2007 and completed it on 5 December 2007.  He then was referred to undertake the high intensity program.  The respondent was offered a place in this program, to be conducted at the Wolston Correction Centre, on 11 January 2008.  He accepted this offer and commenced the program on 21 January 2008.

[53] The respondent’s progress of the course was discussed at a meeting on 3 March 2008.  Facilitators of the program expressed concern regarding the respondent’s ability to participate in the program.  It was determined that the respondent’s participation in the program be suspended until testing was undertaken.  Testing was undertaken.  A report dated 8 August 2008 noted that the respondent’s results indicated his full scale IQ was in the “borderline” range.  Further results indicated low memory functioning.  It was suggested that the respondent would be more suitable for the “Inclusion Sexual Offending Program”.  At a case conference convened on 14 August 2008, it was recommended that the respondent participate in this program.  Since that time, the respondent has been unable to commence the inclusion program as the only available program, which commenced in February 2009, did not conclude by his release date of 13 April 2009.  Persons who are unable to complete a sexual offending treatment program due to the fact that they had to be released from custody are not offered places in the course.  The respondent therefore has not completed the high intensity sexual offending program for which he now appears unsuitable and has not started the more suitable ISOP.

[54] It is unfortunate, to say the least, that steps were not taken sooner to have the respondent commence and complete the ISOP prior to release.  The electronic records of Queensland Corrective Services indicate that the “exit report” for the Getting Started: Preparatory Program did not raise any concern regarding the respondent’s intellect or ability to complete the HISOP and, as a result, he was referred to it.  In retrospect, the question should be asked why a person with the respondent’s learning difficulties and intellect was not directed towards the ISOP, which exists for offenders who have been assessed as intellectually and socially low functioning.  No adequate explanation has been given as to why no doubts were expressed about the respondent’s ability to complete the HISOP, or why sufficient time was not allowed for him to undertake the ISOP if it transpired that he was unable to cope with the HISOP.  Any failure by the department in not placing the respondent on the ISOP program at an earlier time is of no real consequence for the task of the Court under the Act.  The obligation of this Court is to consider an application for an order under the Act on its merits. Even if there had been some error in not placing the respondent on the ISOP program at an earlier time, the task posed by the Act for determination is not one which can be resolved in the respondent’s favour by pointing to such a failure in the system.[23]  The respondent’s counsel did not seek to rely upon any suggested failure by the department to place the respondent on the ISOP at an earlier time.

The respondent’s plans upon release

[55] The respondent has provided to a representative of the Department of Corrective Services details of places at which he thinks it would be suitable for him to live, and has yet to be told whether the department has assessed any of these residences as suitable.  He has lodged an application with the Queensland Department of Housing for housing assistance, but has yet to hear whether any housing will be available to him should he be released.  He understands that upon being released from custody he may be able to reside at the Wacol Prison Reserve until such time as other suitable accommodation can be found for him.  He says that he is self-sufficient and able to properly care for himself in that environment and would be willing to share accommodation at that location if it was available to him.

[56] The respondent will be eligible for the age pension if released from custody.  He says that he could repair lawn mowers and do lawn mowing and gardening if he is released from custody.  However, his physical ailments, age and lack of employment experience make it extremely unlikely that the respondent will be fully occupied in these activities or be gainfully employed.  The respondent says that he would also like to engage in his hobby of building model ships and aeroplanes.

[57] The respondent’s affidavit states that he is willing to participate in any sexual offender treatment program that may be available to him in the community, and that he is willing to undergo therapy, treatment and counselling, whether on a group or individual basis, as required pursuant to any supervision order.

Propensity, pattern of offending behaviour and the risk that the respondent will commit another serious sexual offence if released into the community

[58] The reports to which I have referred and the oral evidence given at the hearing are to the effect that the respondent is at a high risk of re-offending if released into the community without a supervision order being made.

[59] The risk exists that, upon release, the respondent will befriend a boy and not be able to control his sexual urges if the opportunity arises to be alone with him.  The respondent’s age does not significantly reduce this risk.  The respondent’s lack of insight, his lack of empathy for his victims and his lack of intelligence means that he is poorly equipped upon release to prevent a relapse unless he is subject to strict supervision.  Professor James and Dr Harden assessed his risk of re-offending as high upon release if he was not subject to a supervision order.[24]  Dr Sundin assessed the same risk as “moderate to high”.[25]

Determination

[60] 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 if he is released from custody without a supervision order being made.  I am satisfied that he is a serious danger to the community in the absence of a Division 3 order.  I am satisfied of those matters because the expert and other evidence is cogent and satisfies me to a high degree of probability that the evidence is of sufficient weight to justify such a decision.

Should a Continuing Detention Order or a Supervision Order be made?

[61] The experts who gave oral evidence agreed on the importance of close supervision and monitoring of the respondent upon his release, and the importance of developing strategies for relapse prevention that could be built into his management after his release.  They differed about the benefit of the respondent completing the ISOP prior to release.  None of the experts had great optimism that undertaking the ISOP, intensive individualised therapy upon release or both of these programs was likely to alter his entrenched beliefs and distorted cognitions. 

[62] I shall refer to the oral evidence of these experts, particularly their views on the possible value of the ISOP.  Their evidence informs my consideration of whether the applicant has discharged the onus of proving that adequate protection of the community can be ensured only by a continuing detention order because a supervision order will not suffice.  McMurdo J stated in Attorney-General for the State of Queensland v Sutherland:[26]

“...the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion.  It is a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”

In deciding whether to make a continuing detention order or a supervision order the Act states that the paramount consideration is to be the need to ensure adequate protection of the community.

[63] Professor James gave evidence that if the respondent was the subject of a supervision order his risk of re-offending would be reduced to moderate.[27]  He stated that the respondent was likely to adhere to a supervision order if it was “sufficiently reinforced by the supervising agent”.[28]  If the respondent did not adhere to the conditions of a supervision order then Professor James considered that the supervisors would detect any trend towards re-offending before any significant re-offending actually occurred.  This is because there would be “prodroma behaviours prior to any actual offending” which would be quite easily detected by the usual kind of supervision, and because the respondent was not “particularly sophisticated” and was not going to be “unduly devious and clever in his evasion of supervision”.[29]  Professor James was aware from similar cases of the intensity of the professional supervision, such that if the respondent’s behaviour deviated from the provisions of the supervision order it would be detected early.[30]

[64] The respondent’s pattern of offending did not include any gratuitous violence or attacks upon strangers.  I accept the medical evidence that those who supervised the respondent probably would be alerted to warning signs, such as any repetition of the grooming that characterised his offending.

[65] Professor James considered that the respondent’s ability to benefit from the ISOP was “very limited indeed”.[31]  This was not simply because of the respondent’s “relative intellectual impairment more or less on the borderline of impairment at lower normality”.[32]  Even with those deficits, Professor James thought that there would be a chance that the respondent would benefit from an inclusion course which is designed for such people.  Instead, Professor James thought that the respondent’s personality factors and also his general health, including what Professor James considered to be a clear decline in his cerebral functioning, meant that the respondent would get limited benefit out of participation in such a course.

[66] Professor James considered that any cognitive therapy or sexual offender’s treatment therapy within the custodial environment would be unlikely to impinge on the respondent’s thinking, modify his view of the world or modify his behaviour greatly.  As a result, Professor James did not think that his estimate of risk would be seriously compromised if the respondent did not undertake a course before release, provided there was a supervision order of the kind proposed.  That form of supervision order[33] would permit the authorities to require the respondent to undertake a course of therapy in a one-on-one environment by a suitably qualified professional.  Professor James thought that the value of any such course after release would be to focus on the need to respect the provisions of the supervision order and was unlikely to change the respondent’s “world view”.[34]  A course of treatment that reinforced strategies to avoid situations where there was an increased risk of offending behaviour was said by Professor James to be very helpful.  Professor James said that one-on-one individualised counselling in the community would be “equally good” as participation in the ISOP program.[35]

[67] Dr Harden considered that the risk posed by the respondent could be managed by a supervision order with very strict monitoring, and that it was more likely than not that the respondent would comply with the provisions of such an order.[36]  Dr Harden thought that completion by the respondent of the intensive group program in detention would significantly increase the state of knowledge about the respondent’s paraphilia.[37]  Such a group program would occupy about nine hours per week over a seven month period and the further information and understanding obtained from it would be useful in managing risk.  Similar programs are not available in the general community because the programs are intensive and residential in nature. 

[68] Dr Harden described an individual program and a group program as being quite different dynamically.  Nine hours of contact a week was unlikely to be available in the community in which individual sessions would likely to be one to two hours.  Group processes were likely to be more effective for a number “of dynamic reasons, including the ability of other offenders to both support and challenge individuals”.[38]  In general, group processes were said to be more powerful in altering offending behaviour for people who commit sexual offences.  The program was not simply designed to shift cognitive thought processes, but to assist participants in learning how to manage risk.  Dr Harden recognised that the process of reinforcing ways to avoid high risk situations could be undertaken in a one-on-one therapeutic environment in the community.  However, group treatment mechanisms were said to be “psychologically much more powerful” in challenging entrenched attitudes and altering behaviour.[39]  This applied even for people with reduced intellectual capacity who were capable of “very complex goal directed and adaptive behaviour”.[40]

[69] Dr Sundin supported the respondent’s participation in the ISOP as an intensive, residential program that was specifically designed to treat people like the respondent who are at the low spectrum of the IQ scale.  The program was said to focus on some degree of cognitive difficulties, but much more on behavioural aspects.  The program allowed evaluators to gain more insight into how the respondent thinks and to help him to develop some greater understanding of his own “triggers” and to develop some strategies for relapse prevention.[41]

[70] Dr Sundin referred to a study involving the metaanalysis of 9,000 sexual offenders which was to the effect that various forms of residential programs, taken globally, reduced the risk of re-offending by seven to eight per cent overall between those who participated in the program and those who did not.[42]  That reduction in risk across the entire population cannot be translated in percentage terms to an individual.[43]  In some sub-populations, such as younger offenders, the reduction of risk is slightly higher.  In someone like the respondent, with the longevity of his paraphilia, Dr Sundin said one would be “less hopeful”.[44]  Dr Sundin ventured the opinion that without an ISOP the respondent’s risk of re-offending was “moderate to high, tending to high” and that with an ISOP it would be “moderate to high tending to moderate”.[45] 

[71] Dr Sundin expressed the opinion that a group program would be very good at challenging the respondent’s entrenched denial and to face his “wrong thinking”.  Its benefits were forcing the respondent to face up to “his triggers and his justificatory behaviour”.[46]  The information obtained through such a program would help in the design of community management, and a treating psychologist in the community could build upon the program.  Dr Sundin did not regard participation in the ISOP group program as involving an “either/or” choice with individual treatment in the community.  Both were required to provide the best chance of decreasing the respondent’s risk.  As a result, her preference was for the respondent to participate in the ISOP program and for him to be released, subject to a supervision order that provided for his participation in a “maintenance program” with a qualified clinical psychologist.[47] 

[72] Participation in the ISOP program was described by Dr Sundin as the only real opportunity to afford the respondent a chance to change, following which he could be moved into a community sex offenders maintenance program.  Participation in the ISOP program would enable professionals to assess the respondent at the time of his release and to develop a realistic relapse prevention plan.

[73] Dr Sundin respectfully disagreed with Professor James’ view that participation in the ISOP would not make any significant difference.  She referred to various assessments of the respondent and reported that there was no evidence that the respondent’s cerebral functioning was in clear decline.  Dr Sundin did not consider that the respondent was incapable of benefiting from an ISOP course.  I accept Dr Sundin’s view that the respondent is capable of participating in such a course which is specifically designed for this kind of offender, and probably would benefit from it.

[74] It is important not to overstate the differences between the evidence given by the medical experts.  The expert medical opinion is that even if the respondent completes the ISOP, the most tangible form of risk reduction will remain close supervision and constraint upon his movements and opportunity for offending.  There was a difference of opinion between the medical experts about the benefits of the respondent’s participation in the ISOP.  Neither Dr Harden nor Dr Sundin were critical of the proposal to include one-on-one treatment in the community as part of a supervision order.    Individualised therapy in the community was submitted by the respondent to have the advantage of being able to be tailored to the specific needs and intellectual limitations of the respondent.  The treatment could focus on reinforcement of concrete mechanisms for relapse prevention. 

[75] Dr Sundin and Dr Harden accept that individualised treatment of that nature would further reduce the risk of re-offending, but preferred it to be in addition to the ISOP.  Professor James considered that an individualised program in the community was likely to be “equally good” to a group program in custody.[48]  Dr Harden and Dr Sundin were of the view that “one-on-one therapy” with sexual offenders did not achieve the same effects as group therapy.[49]  I accept their evidence in this regard.

[76] Neither Dr Harden nor Dr Sundin predicted that participation in the ISOP is likely to alter the respondent’s view of the world.  I accept their evidence that the intensive course of group therapy is likely, however, to provide some benefit to the respondent in developing practical means to avoid re-offending and benefit those who will be required to manage and treat him under any supervision order.  Their evidence supports the applicant’s submission that the respondent’s participation in such a course would enable him “to be more alive to those circumstances which might trigger his offending behaviour and also would facilitate those that are charged with supervising him to be cognisant of those risk factors as well”.[50]  Professor James was not asked to address the benefits that such a program would have for those who would supervise the respondent and treat him in the community following his release. 

[77] I accept Dr Sundin’s evidence that the respondent’s participation in the ISOP is likely to reduce risk by the development of a realistic relapse prevention plan.  Any assessment of the extent of possible reduction in risk is necessarily imprecise.  Any reduction in risk may not be large, based upon the meta-analysis to which she referred.  Dr Sundin thought that it would mean the difference between a risk of “moderate to high tending to high” to “moderate to high tending to moderate”.  I accept the evidence of Dr Sundin and the evidence of Dr Harden in concluding that participation in the ISOP provides a real prospect of reducing the risk of reoffending by equipping the respondent with a realistic relapse prevention plan, and assisting the work of those who may be responsible for supervising him and treating him upon release under a supervision order. 

[78] The respondent submits that such a reduction might be sufficient to justify participation in the program whilst serving a term of imprisonment, but it is not sufficient to justify the exceptional step of continued detention of a person beyond the end of their sentence, particularly in this case where the intellectual capacity and previous course participation record suggests that the benefits to the respondent of participating in the ISOP are likely to be limited.  

[79] If supervision of the respondent is apt to ensure adequate protection, having regard to the risk to the community posed by him, then an order for supervised release should, in principle, be preferred to a continuing detention order.[51] This is because “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”.[52]  The issue is whether supervision is apt to ensure adequate protection of the community having regard to the risk to the community posed by the respondent.  The term “adequate protection” requires a value judgment to be made which takes account of the deprivation of liberty involved in any order, the risk of reoffending and the paramount consideration of the need to ensure adequate protection of the community. 

[80] Based upon the medical evidence, particularly that of Dr Sundin and Dr Harden, I conclude that the risk posed to the community will be greater if the respondent is released under a supervision order than if he remains in custody, completes the ISOP and is subsequently released under a supervision order.  Professor James did not give an opinion to the contrary.  Rather, he stated that he did not think that his assessment of risk would be “seriously compromised” if the ISOP course was not undertaken prior to release. Professor James was not asked to address the beneficial aspects that were later addressed by Dr Harden and Dr Sundin in their oral evidence.

[81] The benefits of the respondent’s participation in the ISOP are likely to be limited.  I accept that even if the respondent completes the ISOP, the most tangible form of risk reduction will remain close supervision and constraint upon his movements and opportunity for offending.  However, I find that the respondent’s participation in the ISOP is likely to reduce his risk of re-offending.  It will do so by, amongst other things, permitting the respondent and those who will be responsible for his supervision and treatment in the community to develop a reasonable and realistic relapse prevention plan.   The respondent’s stated preparedness to undergo the therapy, treatment and counselling required to comply with a supervision order does not constitute a realistic relapse prevention plan, and the respondent’s affidavit does not suggest that he has one.

[82] The value judgment required in the exercise of the discretion in s 13(5) requires account to be taken of the deprivation of a person’s liberty under a continuing detention order.  It also requires consideration of the extent of deprivation of liberty that would be required under a supervision order so as to provide, if possible, adequate protection of the community. In some cases such a supervision order may contain “such extensive restraints upon the respondent’s freedom of movement and association as would see him at effectively no greater liberty than if in custody”.[53]

[83] The respondent submits that the community will be adequately protected by a supervision order which provides stringent supervision, constrains his behaviour and limits his opportunity for offending.  In argument counsel for the respondent accepted that stringent restrictions may need to be placed on the respondent by a supervision order because of the lack of information arising from the respondent’s failure to undertake the ISOP. The respondent’s counsel accepted that “the supervision order might need to be more restrictive than otherwise during the period of the respondent’s first release into the community”.[54] The respondent’s counsel further acknowledged that the respondent may need to be “constantly supervised and escorted if he leaves his accommodation and be accommodated for a longer period of time at the Wacol Prison Reserve”.[55] A treating psychologist in the community would be undertaking a process of assessment and “essentially trying to catch up”.[56]

[84] These appropriate acknowledgements serve to emphasise that the decision between making a detention order and a supervision order in a case such as this requires consideration of the likely deprivation of liberty that would be involved in a supervision order. In practical terms a stringent supervision order of the kind contemplated by the respondent’s counsel would require the respondent to be subject to confinement for an extended period in a location such as the Wacol Prison Reserve or some other facility whilst a treating psychologist tried to acquire the kind of information that would be ascertained during the ISOP, assess it and develop a relapse prevention plan.  Even then, the evidence which I accept is that such a course of individualised therapy in the community would not be as intensive as group therapy and would be unlikely to produce the benefits to the respondent and to those who would manage him than the ISOP would.

[85] In short, a supervision order may involve a significant deprivation of liberty involving confinement in a correctional facility for an extended period, but not produce the benefits that an intensive, residential ISOP course is likely to provide.

[86] The assessment of risk, and what is required to ensure adequate protection of the community, fall to be determined in the case of an individual who seems poorly equipped to re-enter the community, and who has no realistic relapse prevention plan.  The assessment of risk does not arise in the case of a prisoner who is assessed as presenting a low risk of re-offending, who has the intelligence and insight to reflect on his past offending and develop mechanisms to avoid re-offending, who has the support of family and friends in the community and who has developed a reasonable relapse prevention plan.  The respondent presents none of these features.  Adequate protection of the community against the risk of the respondent’s re-offending upon his release may be primarily ensured by a supervision order that provides for close supervision, constrains his movement and otherwise limits the opportunity for offending.  However, I consider that the efficacy of such a supervision order will be enhanced, and the risk of re-offending reduced, if the respondent undertakes an intensive group program of the kind provided by ISOP.  I conclude that until such a program is undertaken the respondent poses an unacceptable risk of committing a serious sexual offence.  The applicant has persuaded me that at this time adequate protection of the community can be ensured only by a continuing detention order.  As a consequence, I intend to make a continuing detention order pursuant to s 13(5)(a) of the Act.

[87] The basis upon which I have decided to do so appears in these reasons.  In brief, it involves an acceptance of the applicant’s submission that currently a supervision order will not provide adequate protection to the community compared to the alternative of continuing detention with participation in an appropriate sexual offending treatment program followed by a review under s 27 of the Act.

[88] These reasons do not seek to pre-empt the outcome of that review.  Future developments, including the completion of the ISOP, may cause medical experts to revise their opinions, and their assessment of risk.  None of the experts thought that participation in the ISOP was likely to result in the respondent changing his deeply entrenched beliefs.  Dr Harden and Dr Sundin did, however, conclude that it was likely to produce benefits to the respondent in avoiding offending behaviour, and to benefit those who will supervise and treat him in the community.  It is principally these benefits and the absence of a realistic relapse prevention plan that have persuaded me to not make a supervision order at this time.

[89] I have taken account of the continuing deprivation of the liberty of the respondent, compared to the deprivation of his liberty that would be imposed by a strictly enforced supervision order of the kind contemplated by his legal representatives in the course of the hearing.  These considerations, the medical evidence concerning the respondent’s risk of re-offending and the paramount consideration of the need to ensure adequate protection of the community have led me to the judgement that adequate protection of the community will be ensured by a continuing detention order so as to enable the respondent to complete the intensive ISOP and to develop a realistic relapse prevention plan prior to a s 27 review.

Orders:

[90] I order:

1. Pursuant to s 13(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the court is satisfied that the respondent, Raymond Keith PERKINS, is a serious danger to the community in the absence of a Division 3 Order.

2. Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent, Raymond Keith PERKINS, be detained in custody for an indefinite term for control, care or treatment.