Attorney-General v Hynds[2010] QSC 436

SUPREME COURT OF QUEENSLAND

Introduction

[1] This is a review under s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”).  On 7 December 2007 Fryberg J made an order, referred to as a continuing detention order, that the respondent be detained in custody for an indefinite term for control, under s 13(5)(a) of the Act.[1]

[2] A previous review of that order under s 27 of the Act has occurred.  The course of that review hearing is described in the judgment of P Lyons J, who on 9 November 2009 affirmed the Division 3 order, and ordered pursuant to s 30(3)(a) of the Act that the respondent continue to be subject to a continuing detention order for his care, control or treatment.[2]

[3] On 29 October 2010 there was a further review hearing before me.  The respondent was self-represented at that hearing, despite the availability of legal aid and the absence of any complaint about the representation that he had received at the previous review hearing.  I urged the respondent to consider the advantages of being legally-represented at the review hearing, and offered to adjourn the matter so that he could be legally represented.  However, he preferred to conduct the hearing on his own behalf.  He examined three witnesses, including Professor Basil James and Dr Scott Harden who had prepared reports for the purpose of the review.

[4] The first issue for my determination is whether I am satisfied by acceptable, cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight to affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order.  If I affirm the decision, I may order that the respondent:

(a)continue to be subject to the continuing detention order;  or

(b)be released from custody subject to a supervision order.

[5] There is no real dispute that there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody without a supervision order being made.  The critical issue for my determination is whether there is an unacceptable risk that he will commit a serious sexual offence if released under a supervision order.

[6] The case for making a continuing detention order, during which time the respondent receives individual counselling of a kind that he has not previously received whilst in custody, rather than making a supervision order, arises principally from the absence of any proper explanation as to why the respondent committed serious sexual offences in the late 1980’s.  Despite the long period that has passed since he was convicted and sentenced for those offences, considerable uncertainty exists about the respondent’s motivation in committing those crimes and, accordingly, what may prompt him to behave in the same or a similar way if released into the community under a supervision order.  This significant element of unpredictability affects the assessment of risk and the extent to which a supervision order would reduce that risk.  In particular, it may be difficult for those with responsibility to monitor the respondent under a supervision order to detect early warning signs of re-offending.  This is because the matters that motivated the respondent to offend in 1987 and 1988 remain something of a mystery.  There is considerable uncertainty whether he may offend again, and, if so, what would motivate him to do so.

[7] These aspects were captured in a passage of oral evidence given by Professor Basil James in response to a question from the respondent about the extent of risk if a supervision order was made.  Professor James answered:

“My concern, Mr Hynds, centres on that question that I addressed with Mr Rolls earlier of unpredictability.  I made comment that both sets of offences for which you have been convicted were really out of the blue, unpredictable offences.  There were no clearly warning signs. I don't think anybody picked up that anything like that was about to happen.  That is a major concern.  Until somebody, so to speak, gets a handle on who you are and when that happens then I think - I, personally, and maybe other psychiatrists as well - would feel more confident about saying, "Look, this is who this man is.  This is how he behaves.  These are the risky situations and these are the early warning signs."  We can't do that just now.  We have no history on which to do that. Having had experience, quite a lot experience of similar circumstances, Mr Hynds, I have to say you, for the reasons I just mentioned, are a bit more difficult to predict simply for lack of knowledge.  It is not a critical comment of you but simply that we have no knowledge on which to formulate a risk profile and early warning signs and Mr Rolls had asked me what would I tell the parole officer and I would be a bit lost.”[3]  (emphasis added)

[8] To understand why the respondent’s future behaviour is said to be relatively unpredictable and why there is a need for therapists in the immediate future to better understand who he is, what motivated him to commit the crimes that he did and whether such triggers to offending behaviour still exist and can be adequately addressed by a supervision order, it is necessary to later outline matters in relation to the offences for which he was convicted, his personal background and his history in custody.  First I shall introduce a significant issue that has arisen in recent times.

[9] This issue is the reluctance of the respondent to undertake a High Intensity Sexual Offenders Program (HISOP) as a group exercise in which the other members of the group are child sex offenders with whom the respondent does not wish to associate and reside during the course of such a program.  The respondent has indicated a preparedness to undertake a HISOP on certain conditions.  However, those conditions do not presently exist.  The HISOP on offer to him always includes a number of child sexual offenders.  P Lyons J was not prepared to be critical of the respondent’s attitude towards undertaking the HISOP at Wolston Park, and nor amI.  His Honour observed:

“[61]Mr Hynds has expressed a willingness to undertake a HISOP in prison.  However, there are only two places where such a program is offered.  One is at Lotus Glen in North Queensland, and is typically offered to indigenous offenders.  The other is conducted at Wolston Park.  As noted, Mr Hynds is unwilling to participate in this program because most of the other participants have committed sexual offences against children.  It was submitted that his attitude reflected an attempt by Mr Hynds to “manipulate the process”;  and that he seeks to put impossible conditions on his participation.

[62]I am not prepared to be critical of Mr Hynds’s attitude to undertaking the program at Wolston Park.  It may be the case that Mr Hynds in truth is not prepared to undergo such a program, and that his conduct is simply designed to give as good an appearance as possible to his conduct.  On the other hand, there may well be rational bases for his position.  One may be that if he commences the program, and does not complete it, his position may be worse.  Another may be that if he undertakes the program, but is not released, life in prison may become more difficult for him.”

[10] In the evidence before me there was a difference of opinion between Professor Basil James and Dr Scott Harden concerning the benefit that the respondent would derive from undertaking the HISOP at this stage.  I shall address these aspects later. 

[11] Importantly, the impasse that has existed in recent years concerning the terms upon which the respondent would be prepared to undertake a HISOP in custody has been recently addressed by a proposal for the respondent to be assessed by psychologists who are members of the Forensic College of Psychologists.  Inquiries have been made with Dr Lars Madsen and Dr Gavan Palk with a view to arranging a custodial treatment plan if the respondent’s continuing detention order is affirmed.  Both psychologists have significant experience in the assessment and treatment of adults who have committed sexual offences.  Both have indicated that they would be able to attend upon the respondent at Borallon Correctional Centre for an initial appointment, with a view to undertaking an extended assessment process at which time a treatment plan would be recommended to Queensland Correctional Services.

[12] At the hearing before me the respondent sought to develop the point that he should have been offered certain kinds of psychotherapy or counselling before now, either in a HISOP in which child sex offenders did not participate or in the kind of individual form which is now in contemplation.  The respondent submits that if these programs or forms of assessment and treatment had been made available to him earlier, then someone would, in Professor James’ words, have been able to “get a handle” on who the respondent is.  Had that happened all, including the Court, would have been better informed so as to assess risk, including the risk posed if the respondent is released subject to a supervision order.  However, as I pointed out to the respondent at the hearing, the fact of the matter is that we are not so informed and the Court has to deal with the matter on the basis of the facts known to it. 

[13] The respondent understandably wished to canvass what might have transpired if different programs and individual treatment plans had been made available to him in the past, and said that “a lot of things could have been addressed prior to ... the expiration of my sentence”.[4]  That said, he realistically accepted the proposal of having Dr Madsen or Dr Palk undertake an assessment and for a plan to be developed in the immediate future that would provide a structure for his release on conditions. This would involve a continuing relationship with a trusted therapist and a date towards which he and others could work to progress practical plans for his accommodation and employment in the community.

[14] The respondent’s resignation to the likelihood that the Court would make a further continuing detention order, rather than a supervision order, does not relieve me from the duty of considering whether a supervision order should be made.  As P Lyons J observed, it is a very serious matter to continue the respondent’s detention indefinitely.  Such a course should only be followed if I am persuaded by acceptable, cogent evidence to a high degree of probability that there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody without a supervision order being made, and that a supervision order is not apt to ensure adequate protection.

[15] The Act does not contemplate that arrangements to prevent a risk of re-offending must be “watertight”:  otherwise a supervision order would never be made.  The question is whether the protection of the community is adequately ensured, and if supervision is apt to ensure adequate protection, having regard to the risk to the community posed by the respondent, then an order for supervised released should, in principle, be preferred to a continuing detention order.[5] 

[16] The question of whether the protection of the community is adequately ensured by a supervision order in this case falls to be determined against the background of the respondent’s antecedents and criminal history, the risk that he will commit another serious sexual offence if released into the community, reports prepared by the psychiatrists for the purpose of these proceedings and other relevant matters.  It is to these matters that I now turn, reproducing substantial parts of the account given by P Lyons J of the respondent’s offences, personal background and history in custody, before supplementing those matters with an account of more recent developments.

The offences

[17] The respondent was convicted of a series of offences committed on 3 April 1987 (the 1987 offences).  They include four offences of sexual intercourse without consent, one offence of attempted sexual intercourse without consent, one offence of threatening to inflict actual bodily harm by means of a weapon with intent to have sexual intercourse without consent, and attempted murder. 

[18] He committed a further series of offences on 9 December 1988 (the 1988 offences).  They included one offence of enticing away for abduction; two offences of sexual intercourse without consent;  and one offence of threatening to inflict bodily harm by means of a weapon.  The 1988 offences were committed while the respondent was on bail for the 1987 offences.

[19] For the 1987 offences, other than the attempted murder offence, the respondent was sentenced to varying terms of imprisonment, the longest term being four years.  For the attempted murder offence, he was sentenced to a minimum term of eight years’ imprisonment, to commence on 19 August 2002, which was the date when the longest of the other sentences for the 1987 offences would expire.  However, the sentences included provision for parole, to be available from 18 February 2003.

[20] The respondent was subsequently convicted for the 1988 offences.  For each of them, he was sentenced to a term of imprisonment of five years, commencing on 18 August 2000.  The respondent was transferred from New South Wales to Queensland in 1996.  The parole provisions imposed in respect of the 1987 offences were varied, with the effect that the respondent became eligible for parole early in 2008.  The order made by Fryberg J for a continuing detention order prevented the respondent’s release at that time.

[21] The respondent was a member of the Royal Australian Navy in 1987.  The first victim’s husband was also a member of the Navy.  The respondent had had previous contact with the victim and her husband, and had been to their home on two previous occasions.

[22] On the night of the offence the respondent arrived at the home (without prior arrangement) and suggested that the victim’s husband and he go out to a club. At the club, the respondent informed the victim’s husband that he had to go to the toilet.  However, he left the club, and returned to the victim’s home.  He gained entry to the home by stating that he was concerned that something had happened to the victim’s husband, and that he should wait for him to return.  He then produced a knife and forced the victim into the main bedroom, where the offences were committed.  In the course of the offences, a struggle, described as being “of quite amazing violence and ferocity”, took place between the respondent and the victim.  The respondent tried to strangle the victim, initially manually, and then later with a telephone cord.  The victim managed to fight back but the respondent retrieved the knife and was kneeling over the victim with it in his hand when her husband returned.  There was then a further struggle, before the respondent collected his clothing and left the victim’s home.

[23] While the respondent was on bail for the 1987 offences, he was transferred by the Navy to Nowra, so that he would not be near the victim of the 1987 offences and her husband.  Another member of the Navy who was based at Nowra was temporarily in Sydney, leaving his wife alone at their home in Nowra.  The respondent arranged for another person to ring this woman, telling her that her husband had been injured in an accident in Sydney, and that the Navy was sending someone around to pick her up, so that she could be flown there.  The respondent arrived, and then drove her to a disused airfield, where he committed the offences, using a knife to threaten the woman.

[24] On a number of occasions, the respondent has given differing accounts of the events associated with the offences.  On one account, he says that, although he was serving in the Navy, he was associated with a man who was a “loan shark” and drug dealer.  The respondent acted as a debt collector and drug courier for this man.  His debt collecting activities involved significant violence, including clubbing people with a baseball bat.  The respondent claimed that he had not received an amount of between $15,000 and $20,000 of the money which had come due to him from this work.  According to the respondent, the drug dealer told him that the money had been given to the first victim’s husband.  The respondent then had to wait some time before he contacted this man.  In that period, he became agitated and angry.  On the day of the offences he went to the house, found the husband and tied him to a chair.  He “then proceeded to question him with violence”.  According to the respondent, the wife was visiting neighbours.  The respondent then went and found her, and she returned to the home with him.  He then tied her up, and tortured both the husband and wife.  He subsequently forced them to perform sexual acts upon one another, but denied that he had participated in any sexual activity himself.

[25] The respondent associated the 1988 offences with the account he gave of the events leading up to the 1987 offences.  He states that he initially thought the victim of the 1988 offences was the same person as the victim of the 1987 offences.  He seemed to suggest that the 1988 offences were a consequence of his belief about the conduct of the husband of his first victim.  However, he says that when he went to the house of the second victim he was shocked when he found out that it “was the wrong person”, but nevertheless went ahead with his plan.  He has said in the past that he has no memory of the events for much of the night of the 1988 offences.

[26] He pleaded not guilty to the 1987 offences.  He pleaded not guilty to some, but not all, of the 1988 offences, his reason for the plea of not guilty being his memory lapse.

Personal background

[27] The respondent was born in 1961 and is now aged 49.  After he left school in 1978, he worked as a car salesman.  He joined the Navy the next year.  He claims to have been deployed to Afghanistan for six months, and has said that while his group was not involved in any direct military engagement, they were regularly shot at.  He says that he witnessed the consequences of torture of Russian prisoners by Afghan tribes.  He said that he saw some atrocious things, and is reported as saying, “nobody took prisoners, neither the Russians nor Afghans”.

[28] There is no reliable confirmation that the respondent was seconded to American forces in Afghanistan in 1982.  Relevantly, he suffered a personal injury in a training accident in 1980, and the extent of his back injury was such as to entitle him to a pension after leaving the defence force.  It seems improbable that someone suffering from a significant injury would be deployed into a war zone.  Still, the respondent explained to me at the hearing on 29 October 2010 that he was deployed into Afghanistan in 1982, notwithstanding his physical ailments from the training accident, and operated radio communications.  He says that he was seconded to American forces.  I expressed my surprise that Australian servicemen were in Afghanistan in the early 1980’s, and questioned whether there were records verifying this and the respondent’s service there.  Professor James had asked a similar question of the respondent, who said that he had made an inquiry of the Department of Defence and had been told that the documentation would be outside of the Freedom of Information Act 1982 and that the documentation would be minimal because the majority of the respondent’s service files were “sealed, suppressed or blacked out due to the protection of the information in confidence.”  The respondent said that there were other Australian servicemen seconded to Afghanistan in 1982.  If, as the respondent claims, he served in Afghanistan then, irrespective of whatever exemptions might apply under the Freedom of Information Act, his service records might have been sought by subpoena.

[29] The respondent also claims to have served in the Mediterranean in 1983.  He told Professor Morris that he assisted in the immediate recovery of US serviceman after their compound had been bombed.  He gave Professor James a similar account that the retrieval and treatment of victims in the immediate aftermath of a terrorist bombing of the American military base in Beirut had been extremely traumatising, leading to what the respondent called “dramatic changes” in his personality.  He said that he subsequently had “vast mood swings”, that his capacity for intimate relationships had diminished and that he had become very withdrawn and begun to consume alcohol much more heavily.  Again, there does not appear to be any documentary verification of the respondent’s service in the Mediterranean during training operations, or that he was “helicoptered in to provide medical assistance because of (his) field of medical experience”.[6]

[30] The respondent points to traumatic experiences in Afghanistan in 1982 and in tending to the victims of the terrorist attack in Beirut in 1983 as leading to the onset of post-traumatic stress disorder (PTSD) and he described to Professor James having suffered for a number of years from flashbacks and nightmares related to his experiences. 

[31] The respondent has a history of alcohol abuse while in the Navy.  He has on infrequent occasions used drugs.

[32] The respondent was married, and has a child.  It seems that the marriage has not survived.  The respondent’s mother and stepfather live in Queensland.

History in custody

[33] While in custody, the respondent has learnt a carpentry trade, and has been working continuously.

[34] Early in his imprisonment there were a number of breaches for discipline problems (including the use of drugs).  These were prior to his transfer to Queensland.  Since then, there have been four breaches, the last being in 2001.

[35] Prior to 2006, he was classified as low security, but the classification was changed to high security, apparently associated with administrative changes.  He has been assessed in recent times as being either a minimum or moderate escape risk.[7]

[36] The respondent has undertaken a number of courses whilst in prison, including an anger management course and a cognitive skills program as well as a violence intervention program.  This is said to be a nine month course, and quite intensive.  The respondent undertook this course in 1998.   The respondent has also completed the Preparatory Program for Sexual Offenders.  

[37] The respondent is a prisoner at the Borallon Correctional Centre.  It has been recommended that he undertake a High Intensity Sexual Offenders Program (HISOP) but he has not done so.  The course is presently only available at the Wolston Correctional Centre, and at the Lotus Glen Correctional Centre outside Mareeba.  The respondent has stated that he is willing to do the HISOP, but is not prepared to go to the Wolston Correctional Centre because the majority of prisoners who undertake the course there are child sexual offenders with whom he is not willing to associate, and because he does not want to be regarded as a “protected” prisoner.  He was prepared to undertake the HISOP at Lotus Glen, but the program at that facility is intended for indigenous offenders.

[38] On 19 November 2009, ten days after P Lyons J had ordered that the respondent continue to be subject to a continuing detention order for his “care, control or treatment”, Legal Aid Queensland on behalf of the respondent wrote to the General Manager of the Borallon Correctional Centre, and stated that the respondent “maintains his willingness to complete the High Intensity Sexual Offender Course (HISOP) at a centre other than Wolston”.  The letter noted that P Lyons J was not prepared to be critical of the respondent’s attitude to undertaking the program at Wolston Park.  The letter noted that as part of the respondent’s Individual Management Plan he received counselling at Borallon from a psychologist in training, but this was submitted not to be the kind of treatment contemplated as being suitable for the respondent from a rehabilitative or treatment perspective.  Legal Aid Queensland requested that consideration be given to his treatment by a qualified psychologist or psychiatrist experienced in treating sexual offenders.  It sought early advice as to whether Corrective Services was prepared:

(a)to offer the respondent the opportunity to undertake a HISOP at a centre other than Wolston;

(b)to arrange a suitably experienced psychologist or psychiatrist to provide treatment to the respondent in place of the psychologist in training currently providing treatment to him.

[39] On 22 December 2009 the Deputy Commissioner, Custodial Operations in the Department of Corrective Services responded to the letter.  She noted that the HISOP program was currently only delivered at the Wolston Correctional Centre and additional HISOP programs were not delivered at alternative locations “due to insufficient demand”.  An exception is the Indigenous Sexual Offender Program which is delivered to high risk indigenous sexual offenders in a culturally appropriate manner at the Lotus Glen Correctional Centre.  It was said to be “clearly neither cost-effective nor feasible for Queensland Corrective Services (QCS) to make arrangements to deliver the HISOP program at another facility (including engaging suitable service providers and making administrative arrangements to deliver the program at that facility) simply to accommodate a single offender when there is insufficient demand at the other centre to justify this, and the program is already available to Mr Hynds at the Wolston Correctional Centre”.  In short, Corrective Services was not prepared to offer the respondent the opportunity to undertake the HISOP program at a centre other than Wolston. 

[40] As to the request for individual treatment, the letter made no reference to the conclusions reached by P Lyons J, who was not prepared to be critical of the respondent’s attitude to undertaking the HISOP at Wolston Park.  The letter reiterated that the respondent had refused offers of placement for a sexual offending program at the Wolston Correctional Centre.  The Department’s letter did not engage with the point made by Legal Aid Queensland that the respondent was subject to a continuing detention order for, amongst other things, treatment.  In response to Legal Aid Queensland’s inquiry concerning the provision of psychological intervention, the Deputy Commissioner of Custodial Operations stated:

“I have been advised that there is no court ordered requirement to provide such individual intervention.  It is noted the most appropriate intervention for Mr Hynds is to complete his recommended treatment programs.”

[41] On 1 February 2010 the respondent’s Individual Management Plan was finalised.  It noted that although the respondent did not decline an offer of placement on the HISOP program, he refuses to transfer to the Wolston Correctional Centre in order to complete the program there.  It recorded that the respondent had attended regular sessions with a psychologist in training at Borallon at which he had demonstrated a positive attitude and in which he actively participated.  These sessions were said to be designed to motivate him to participate in the recommended HISOP program and to continue with his release plans.  His release plans, as documented in the Individual Management Plan, seem appropriate.  They address issues of accommodation and employment.  Because of his military pension, the respondent reports no financial difficulties, and that he could self-fund, if required, psychological support and treatment in the community.  His institutional conduct has been good and he was described as a motivated worker.

[42] I have read the respondent’s case file which includes numerous comments by persons who monitor his behaviour and conduct at Borallon.  These include female officers and psychologists in training.  They consistently report that the respondent is compliant with his Individual Management Program, and well-behaved.  He is reported to be open and polite in his interactions with staff and to make few demands of them.

[43] Ms Johnson, a probationary psychologist (meaning that she has been granted provisional registration to undertake or complete a period of supervised practice) provided individual sessions to the respondent between 28 October 2009 and 13October 2010.  The sessions would occur about every fortnight and last around 60 minutes.  These sessions involved “motivational interviewing” in relation to the respondent being transferred to Wolston Correctional Centre to complete a Sexual Offending Treatment Program.  Ms Johnson explains the content of such motivational interviewing which was used to challenge thoughts surrounding participation in the recommended intervention program and stressors.  The sessions also involve general discussion on issues such as transitional plans, including accommodation and employment, and during these sessions the respondent had discussed past experiences and his upbringing.  The sessions did not address the respondent’s “sexual offending intervention needs, instead addressing barriers to participation in recommended programs such as cognitive distortions and motivation.”  The records of sessions conducted with Ms Johnson confirm that the respondent is willing to participate in HISOP at any centre other than Wolston.  At a session on 23 December 2009 the respondent discussed past relationships and the impact of his upbringing and the Navy on his core beliefs.  In February 2010 he again articulated why he would not be willing to complete the HISOP program at Wolston “due to his fear that he would not cope working with child sex offenders and may do something he would regret”.  He reiterated that no amount of motivational interviewing would change that.  He recognised the ramifications of not completing the program and stated that he was prepared to do more time.  Importantly, he indicated that he was:

“... willing to continue individual intervention if he would be able to discuss other aspects of his life in order to help him grow.” 

He was advised that long term intervention was not available at this time.

[44] More recently another probationary psychologist, Ms Guse, has conducted individual sessions with the respondent.  She conducted four sessions between 26 August 2010 and the date she swore her affidavit on 25 October 2010.  Her notes of the sessions are consistent with earlier reports.

[45] The view has been expressed in the past that the respondent’s refusal to undertake the HISOP at Wolston, which would involve him residing in the company of and undertaking the program with child sex offenders, was an attempt by him to manipulate the system and is part of a personality in which he seeks to control situations, including interviews with medical specialists.  Like P Lyons J, I do not exclude the possibility that the respondent in truth is not prepared to undergo the HISOP and his stated reasons for doing so are simply designed to give as good an appearance as possible to his conduct.  However, there are rational bases for his reluctance to participate in the HISOP at Wolston.  First, he has sufficient insight into his own feelings to conclude that, despite all of the motivational sessions and inducements to undertake the HISOP at Wolston (namely that his failure to complete the program is a significant factor in his continuing in custody well beyond the end of his sentence), he fears that he could not cope living and working with child sex offenders and may do something he would regret.  Next, he has expressed concerns about being known to have associated with child sex offenders and being in a protected unit at Wolston.  As P Lyons J observed, the respondent is concerned that if he undertakes the program, but is not released, life in prison may become more difficult for him.

[46] I was particularly assisted by the oral evidence of Professor James concerning the respondent’s reasons to not undertake the HISOP at Wolston.  Professor James identified the respondent’s concern that he would be identified as a child sex offender if he went there and, secondly, that he would find it difficult to control himself in a setting with child sex offenders “whom he seriously disapproves of”.  Professor James identified a third issue which was the respondent’s “unwillingness to associate himself or identify himself as a sex offender at all.”  Professor James concluded that the respondent probably does hold the views that he has expressed concerning the risk of being identified as a child sex offender or being unable to control himself when living and working in their company.  However, these views may be, in part, a rationalisation of another underlying issue, namely not wishing to be identified as a sex offender at all.  I will return to the views expressed by Professor James and by Dr Harden concerning the possible benefits of the respondent participating in a HISOP.  In short, Dr Harden thought that it may be of some benefit.  Professor James thought that any benefit was unlikely.

[47] In the light of the evidence, the respondent’s reluctance to undertake the HISOP at Wolston Park cannot be characterised as irrational or manipulative.  His expressed concerns have some validity and, like P Lyons J, I am not prepared to be critical of the respondent’s attitude to undertaking the program at Wolston Park.  There may be good reasons, including the rehabilitation of indigenous offenders, as to why there is an Indigenous Offender Program that is delivered in a culturally appropriate manner at the Lotus Glen Correctional Centre.  The respondent is not eligible for that program.  Despite sessions to modify his attitude towards undertaking the HISOP at Wolston and the respondent’s appreciation of the fact that his failure to complete such a program has been influential in decisions under the Act, the respondent maintains an unwillingness to undertake the HISOP in company with child sex offenders.  His attitude is not irrational and Professor James’ evidence casts doubt on the benefit that would be derived by the respondent in undertaking the HISOP.

[48] It was only on 20 October 2010, less than 10 days before the hearing of this review, that inquiries were made with two psychologists with a view to arranging for a custodial treatment plan if the respondent’s continuing detention order is affirmed.  There is no explanation as to why inquiries in this regard were only made on the eve of the hearing.  It is possible that the inquiries were prompted by Professor James’ report dated 3 October 2010 which concluded that the respondent’s risk of reoffending violently and/or sexually would not be significantly changed by his participation in HISOP.  In any event, it is unfortunate, to say the least, that the Department of Corrective Services in December 2009 rejected a reasonable request by the respondent’s legal advisers to arrange a suitably experienced psychologist or psychiatrist to provide treatment to the respondent.  The Department’s dismissive response of 22 December 2009 was strictly correct in stating that there was no “court ordered requirement to provide such individual intervention.”  However, there was a court order in November 2009 that required the respondent to be subject to a continuing detention order for his care, control or treatment.  That order was the result of a judgment in which this Court was not prepared to be critical of the respondent’s attitude to undertaking a HISOP at Wolston Park. 

[49] Despite the Court’s order and its reasons, the Department maintained its position that the most appropriate intervention for the respondent was to complete the HISOP.  There was no realistic chance of his doing so because the Department was not prepared to provide such a program to the respondent at a facility other than the Wolston Correctional Centre and the respondent had made clear that he was not willing to undertake that program over a period of months in the company of child sex offenders.  In those circumstances the Department should have considered more favourably the provision of treatment to the respondent by a suitably experienced psychologist or psychiatrist.  It now, and very belatedly, has done so and the respondent confirms his willingness to undertake such treatment.  His preparedness to undertake individual intervention was recorded by the Department, but no offer of individual treatment was made until the eve of this hearing.  Had the Department made a more timely offer of individual treatment and such treatment been provided in the months leading up to this review hearing, then the examining psychiatrists and the Court would be much better informed in respect of risk and appropriate treatment either under a continuing detention order or a supervision order.

[50] In summary, and with reference to the matters that I am required to consider by virtue of s 13(4)(e) and (f) and s 30(1) of the Act, the respondent has participated in rehabilitation programs that have had a positive effect on him.  He has not participated in a HISOP program that was offered to him.  His reasons for not doing so cannot be described as unreasonable.  For reasons to be discussed in my review of the evidence of the psychiatrists, I accept the opinion of Professor James, who does not consider that the respondent’s risk of re-offending violently and/or sexually would be significantly changed by his participation in a HISOP. 

Psychiatric reports and evidence

[51] Reports were prepared by two psychiatrists, Dr Harden and Professor James pursuant to s 29 of the Act. 

Dr Harden

[52] Dr Harden had interviewed the respondent in November 2008 for the purpose of a report that was considered in the review conducted by P Lyons J.  He interviewed the respondent again on 13 August 2010 and reviewed additional material.  Ultimately, Dr Harden considered that nothing significant had changed since his earlier review.  I shall first reproduce the summary of Dr Harden’s evidence at the time of the review before P Lyons J.

“[37]Dr Harden considered that Mr Hynds has an Anti-social Personality Disorder with additional narcissistic traits.  He also considered that he has some psychopathic personality traits.  He noted a strong history of alcohol abuse.  He considered that the risk of future sexual re-offending on the part of Mr Hynds is high.  He considered that risk to be increased if Mr Hynds were to be released from custody without a stringent supervision order.

[38]In his oral evidence, Dr Harden said with reference to his diagnosis that Mr Hynds suffers from an anti-social personality disorder, that that was based on his long-standing maladaptive way of dealing with other people and the world around him, which involved the persistent violation of the rights of others.  Mr Hynds’ narcissistic traits were related to this condition.  That resulted in Mr Hynds seeking to control situations, such as interviews with medical specialists, including controlling the flow of information in such interviews.  Dr Harden stated that Mr Hynds had reported to him a version of the 1987 offences which was quite different to the version Mr Hynds had presented at the time of his trial.  Dr Harden described Mr Hynds’s personality as “rather anti-social, callous, a little narcissistic”.

[39]Dr Harden considered that Mr Hynds did not display all the diagnostic criteria for post-traumatic stress disorder.  However, he considered it possible that Mr Hynds might have no recollection of some of the events associated with the 1988 offences, because people who have a history of trauma sometimes “disassociate” from traumatic events, such as those related to the commission of a violent kind.  He could not confirm whether that was in fact the case with Mr Hynds.

[40]Dr Harden considered that a clear understanding had not been developed of the things that trigger Mr Hynds’s offending conduct.   He had earlier recommended that Mr Hynds undertake a HISOP, and considered that this might give a better understanding of Mr Hynds’s conduct.  He considered that such a program “may well provide a pathway for Mr Hynds to move back into the general community in a way that’s safe for him and for other people”.

[41]Dr Harden did not entirely exclude the possibility that Mr Hynds suffers from a post-traumatic stress disorder.  He stated that one effect of such a disorder is to increase the risk of alcohol abuse which in turn is a disinhibiting factor, often associated with crimes of violence.  However, the information available to him did not indicate that alcohol abuse was a strong part of the context in which Mr Hynds had committed the 1987 and 1988 offences, and he was not satisfied that preventing the abuse of alcohol by Mr Hynds would result in a significant decrease in the risk that he might re-offend. He considered that Mr Hynds’s personality structure was of primary importance in relation to his risk of re-offending.

[42]Dr Harden’s present assessment was that the risk that Mr Hynds would re-offend is high.  He considered that a supervision order containing comprehensive but practical conditions may well reduce that risk, but in view of the difficulties in understanding Mr Hynds’s personality, he was unable to come to a firm view that a supervision order would have that effect.

[43]When asked about the differing versions Mr Hynds had given of the 1987 offences, Dr Harden said that he did not consider that Mr Hynds suffered from a condition affecting his brain or a psychiatric condition that impairs his memory.  He excluded the possibility of delusions as an explanation for these versions, and could not identify any other psychiatric or psychological mechanism which could explain Mr Hynds honestly giving different versions of these offences at different times.”[8]

[53] According to Dr Harden’s report dated 1 October 2010, the respondent denies that the offences for which he was convicted were sexual in motivation.  As to the respondent’s refusal to undertake a HISOP along with child sex offenders, Dr Harden observes:

“In 2010 his refusal to undertake the high-intensity sex offender program was discussed at great length.  He acknowledged that one of the sticking points of his potentially being released was his nonparticipation in this program.  He said “I’m being punished for not doing a program”.  He continued to maintain that in fact he was not refusing to do the program he was merely refusing to associate with the other individuals who would do the program including child sex offenders.  He proposed that he stay in his current correctional centre and be transported to the program on a daily basis.  He said that however he did not “want to get myself into a position with child sex offenders for nine months.”  He said he did not think he could cope with this and kept returning to this point.

He said that he had thought it all through and he had concluded that the risks were greater to him of doing the program with protection prisoners than not doing the program.  He said that this was because he was fearful of violence between him and other prisoners although he was evasive about this point and went on to once again say that he did not want to be around them as “they are people that I loath”.  He said that the authorities had “deemed me to be hostile to those individuals in protection” and said that that was “their issue” but that he did not want to put “myself into a negative position”.

He said that “my personal belief is I am not a risk to the community”.  When challenged about the lack of information about his offences to support this position he maintained his lack of memory for the second offence and lack of sexual element to the first offence.”

[54] Dr Harden reported on the respondent’s plans on release including offers of support from family and a desire to involve himself in the Community Bridges network.  The respondent said that he would want a private counsellor and support person, and stated that in his opinion he did not pose a significant risk of relapse. 
Dr Harden observed:

“Given his either denial of or stated inability to remember the sexual elements of his previous offences he was unable to describe steps to avoid such an offence pathway.”

Dr Harden’s review of the substantial body of written material led him to conclude that the respondent “is prone to changes of story in order to suit his situation and must be (particularly with regard to his sexual offending) regarded as an unreliable historian.”  He confirmed his earlier diagnosis of anti-social personality disorder with additional narcissistic traits, although these features were said to be mellowing with time.  He also confirmed that the respondent has some psychopathic personality traits and also has a strong history of alcohol abuse.

[55] Based on actuarial and structured professional judgment measures, Dr Harden assessed the respondent’s future risk of sexual offence as high.

[56] Dr Harden is of the opinion that there are three potential ways of interpreting the respondent’s behaviour.  I shall quote a substantial part of his recent report, including his recommendations.

“There are still in my opinion three potential ways of interpreting his behaviour.

The first is that he is a cold and callous individual who has used violence in an instrumental fashion to achieve his own or others goals in a conscious way and that any sexual element to the offences was purely incidental.  This appears to be the version that he prefers.

The second is that his alleged post-traumatic symptoms from previous military service combined with his relative callousness and involvement in organised crime lowered his threshold for engaging in sexually violent activities.  These essentially violent activities are partially or possibly disavowed by his conscious mind and he cannot cope with the memory of them and therefore does not consciously remember them.

The third explanation would be that he is a rather cold and callous individual capable of instrumental violence to achieve his own ends who initially only was violent in sanctioned military activities, then in organised criminal activities and later in sexual violence towards two women.

The second victim was threatened but not physically harmed other than by sexual assault and this would decrease the chance that there is a clear element of sexual sadism to his crimes.

It is my opinion that if he were to be released from custody a stringent supervision order might decrease his recidivism risk to some extent.  Such an order would need to include a prohibition on substance use.

Attempts to reduce this risk should take the form of continued close monitoring and continued attempts to address ongoing criminogenic needs via appropriate sexual offender treatment involvement.  Unfortunately in his situation his adherence to his version of the offending events would make effective sexual offender treatment program involvement more difficult as the sexual elements of the two offences are either denied to have occurred or are inaccessible due to his alleged lack of memory of them.

However it would be worthwhile for him to be involved in the high-intensity program to further explore these issues and see what increased insight, understanding and risk reduction he is capable of.  Unfortunately he chooses not to be involved in the program for the reasons he has advanced and expects that the correctional service should make special arrangements for his treatment.

Recommendations

In my opinion nothing significant has changed with regard to this man since my review in 2008 and supplementary report in 2009.

I would still recommend that if he were released from custody that he be closely monitored in the community by means of a supervision order.  I would think the reduction in risk would be slow and such an order should be in place for at least 5 years and preferably for 10 years.

I would recommend that such an order include provisions that he be abstinent from alcohol and drug use and undergo an appropriate random testing regime.

I would still recommend that he complete the high-intensity sex offender program prior to release from detention.

I would recommend that he participate in an appropriate sex offender treatment maintenance program as a group process in the community if he were released even if he has completed the high intensity program prior to being released.

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

[57] In his oral evidence before me Dr Harden remarked that his dynamic risk assessment (as distinct from the static risk assessment that was based on objective historical matter) had been very difficult “given the lack of understanding of MrHynds’ sexual offending and his psychological motivations for that offending”.[9]  Dr Harden said that it was also very difficult to be sure where the respondent was placed in the high risk category because of “significant gaps in information, or lack of corroboration of information”.[10]  Dr Harden observed that there would be some difficulty in supervising the respondent under a supervision order because those with responsibility for supervising the respondent would not have the benefit of knowledge of what to look out for in terms of worrying behaviour.  Dr Harden observed that the respondent “is not typical of a lot of people who have committed sexual offences in his response, in that he tends to be a rather controlled individual rather than someone with a lot of negative emotionality.”  The respondent also had a capacity to deceive that made it hard for people to supervise him.  In respect of supervision, Dr Harden gave evidence that:

“... there are acute risk factors that supervising staff look out for, and, in fact, there is a rating scale to look for those.  But they rely, to some extent, on negative emotion and agitation and other kinds of acute risk factors that are general, and also it then relies, to some extent, on specific understanding of the person and things that are associated with their offence pathway.  So in this gentleman, ... it would be very hard to monitor those things.”[11]

In circumstances in which the respondent did not accept the sexual motivation for his offences, management of the risk of re-offending was made more complicated.  However, Dr Harden observed that it was not impossible.  The denial of matters did not necessarily increase the risk but it increased the difficulty in complying with risk reduction strategies.[12]

[58] Dr Harden adhered to his recommendation that the respondent complete a HISOP prior to release from detention.  His recommendation was based on two elements.  The first was a risk reduction strategy in that, according to Dr Harden, there is some evidence base to suggest that there is a reduction in risk from such a group program.  The second element was that usually participation in such programs gives supervising authorities a much greater chance at dynamic risk assessment.[13]

[59] Dr Harden addressed the respondent’s reluctance to undertake the HISOP with child sex offenders and declined to say whether or not the respondent’s concerns were legitimately held by him or not.  Dr Harden saw the benefit of such a group program as offering “an intense interpersonal experience in which it is harder for people to evade and deny and minimise.”[14]  Participation in such programs, given their intensive nature and the number of contact hours, was said to almost inevitably result in a greater amount of information about people’s psychological state and other dynamic variables.  Dr Harden stated that as a general principle group and family therapies tend to be more productive in a number of therapeutic contexts.  He was cross-examined by the respondent concerning research that was said by the respondent to not support the conclusion that programs such as the HISOP yield the results for which Dr Harden contends.  In fairness to Dr Harden, he did not come to the hearing prepared with such research and he fairly acknowledged that there are different views in the literature concerning the effectiveness of sexual offender programs.  The area was a difficult one to research because there were few properly controlled studies and it is difficult to undertake scientifically controlled studies in a correctional environment.  Dr Harden’s understanding of the literature was that participation in group programs did tend to show positive results.

[60] Dr Harden was of the view that it would be preferable if the respondent completed such a high intensity program prior to release, rather than in the community.  This preference was based upon what Dr Harden described as “gaps in understanding MrHynds’ dynamic risk”.  He recognised two significant possibilities if the respondent did the high intensity program:

“The one is that Mr Hynds engages wholeheartedly in the therapy, that they make significant progress, in which case sometimes people feel worse for a while and sometimes it increases the dynamic risk for a time, in which case it is better to be in a structured environment like custody, both for their own and the community's protection.  The other possibility is Mr Hynds doesn't engage in the process and ... he gains little from it and also little knowledge is gained about his dynamic risk factors.”[15]

[61] Having reviewed the affidavit of Ms Johnson, Dr Harden considered that there was a capacity for the respondent to engage in a therapeutic relationship. 

Professor James

[62] Professor James examined the respondent pursuant to s 29 of the Act on 20August 2010.  He produced a substantial report which was based upon a brief that exceeded 2,500 pages.  After helpfully summarising the respondent’s history, Professor James remarked upon certain diagnostic considerations that affect the ability of a psychiatrist to arrive at a diagnostic formulation that is both explanatory and predictive (for example with respect to the risk of re-offending).  Such a formulation was said to depend not only on the offender’s current mental status but also on, amongst other things, the nature of the offence, the indicators of the apparent mental state of the offender noted at or near the time of the offending, on his manifest behaviour in the time since the offence, his past personal and criminal history and on an understanding “of the psychodynamics which appear to underlie the offending behaviour”.  Professor James observed that:

“Many of these sources of information in the case of Mr Hynds have proved puzzling, complex, sometimes contradictory, and in part incomplete.  These difficulties have been apparent to the Judiciary as well as to Psychiatrists.  In the Court of Appeal on 04 June 1991 ...  His Honour Judge Mahoney referred to the inability of Expert Witnesses to provide explanation, and to the fact that “nothing has been put forward to suggest that what was done was other than deliberate wrong-doing”;  His Honour added that he, “like Matthews J….I wonder what happened.

...

I find no evidence that, prior to his 1987 offences, Mr Hynds had been an habitually sadistic person, in the sense of deriving any significant sexual or other comparable gratification from the infliction of pain on others in a business-like fashion, though in the case of his 1987 victim, he was allegedly also driven by rage.  As has been noted, however, collateral information regarding Mr Hynds’ past conduct is unavailable and seemingly likely to remain so.”

A major diagnostic issue according to Professor James is the degree to which the respondent’s offences should be attributed to a primary diagnosis of sexual pathology.  This was said to have important implications both for treatment and for risk management.  On the basis of the information available to the courts that tried the respondent he was a violent rapist and unequivocally a sex offender in respect of the 1987 offences.  The 1988 offences were less violent, possibly due to the fact that the victim did not respond to his behaviour with violent physical action.  However, certain versions given by the respondent explained that the sexual component of his behaviour was secondary to motivation to torture his victims, namely that it was an instrument of subjugation and that there was not a sexual motivation per se.  Professor James found no evidence that the respondent was habitually sadistic.  He did not fulfil the criteria for sexual sadism. 

[63] After canvassing the respondent’s version of events given after his trials, and reviewing the opinions of other examining psychiatrists, Professor James agreed with the diagnosis of an anti-social personality disorder.  He also commented upon the specific personality factor of the respondent’s capacity for “compartmentalisation”, namely his apparent ability to dissociate his emotions from his actions.  This was said to emerge from his debt collecting career and also may have been a psychological coping strategy developed during his training in the defence force.  Professor James remarked upon the respondent’s strong loyalty to his military group and his tendency to affiliate with a corporate culture, as reflected in the reports of correctional services staff. 

[64] Professor James considered it worthy of note, given the nature of the respondent’s offences, that the vast majority of favourable observations noted in prison records appear to have been compiled by female staff members.  Professor James concludes that if the respondent had been harbouring any significant degree of sexual chauvinism, he has been concealing it extremely well over many years.

[65] Professor James gave careful consideration to a diagnosis of post-traumatic stress disorder which had been mooted by the respondent based upon claimed military service in Afghanistan and the Mediterranean.  There is some dispute as to when the respondent first reported these traumatising experiences.  At the hearing before me he pointed to documents from 1997 in which a committee had recommended that he participate in a violence intervention program and that he may benefit from counselling from the Vietnam Veterans’ Counselling Service that has previously offered their services to Corrective Services.  I find this document slender evidence that the respondent had reported traumatic experiences encountered in Afghanistan and in Beirut in the early 1980’s.  Professor James has highlighted the absence of reference to such service in any account given to psychiatrists in the respondent’s employment history or in statements given by the respondent concerning his overseas postings.  Another psychologist had earlier reported upon the respondent’s tendency to not face unpleasant facts and to “retreat into fantasy”.  Professor James observed:

“7.Given what appears to be Mr Hynds’ facility for inventing narrative (at least two of the versions of his offending he has provided at various times must be false, though all appear to have been presented in quite plausible detail;  and in the account that Mr Hynds provided to me, he made references to his Service nickname of “Cookie”, because he could “cook things up to adapt to the changing requirements, needs, conditions and circumstances presented to us, i.e. his Service colleagues in Afghanistan, on a daily basis”), it is not impossible that Mr Hynds is inclined to fanciful invention in terms of his life experience – a condition known in psychiatry as Pseudo-logia Phantastica.

It has to be noted, on the other hand, that avoidance phenomena (including avoidance of talking about the traumatising experiences) is a prime feature of the DSM IV definition of PTSD;  and in the text of DSM IV, there is reference, under the heading “Associate Features and Disorders”, to “a change from the individual’s previous personality characteristics”.  Other texts also refer to profound personality changes that can follow prolonged exposure to trauma in adults.

Nevertheless, the number of occasions over twenty years on which Mr Hynds has failed to mention these issues would be most unusual;  and what would appear to be one of the most relevant personality characteristics in relation to Mr Hynds’ offences (his “compartmentalisation”, or dissociation, whilst inflicting violence) appears to have been manifest in his sideline activities well before he was exposed to the trauma of active service that he describes.

There are, of course, many reasons why such information may have been withheld or be unavailable, including those at a personal level (such as shame, guilt or fear);  at a Service level (such as operational sensitivity);  or even at a National level (involving National Security).

I thus do not consider that PTSD surfaces as having played a significant role in his offences;  nor in my opinion does it figure largely as a treatment objective.”

[66] Professor James applied a combination of actuarial and dynamic factors to assess the respondent’s risk of recidivism.  After summarising his findings, Professor James expressed the following opinions:

“1.My Hynds likelihood of re-offending violently and/or sexually would be quite unpredictable were he to be released from prison without a Supervision Order.  In my opinion the risk in terms of community safety in these circumstances would be high.  He is a person who exposes his thought processes, his feelings and his intentions, only to a limited degree;  and he has demonstrated a past capacity to plan, to deceive and to act violently.

2.I do not consider that Mr Hynds’ risk of re-offending violently and/or sexually would be significantly changed by his participation in a HISOTP.  He is not unintelligent, he is fully aware of right and wrong;  he has participated over two years in psychological dialogue on a one-to-one basis;  and he has also been examined in some depth by Psychiatrists on at least ten occasions.  Although these therapeutic and assessment experiences were not structured or targeted in the same way as would be the case in a formal HISOTP, they are nevertheless likely to have provoked considerable self-reflection;  I seriously doubt whether any of Mr Hynds’ remaining personal constructs would be susceptible to change as a result of his participation in a HISOTP.

3.Issues to consider if Mr Hynds were to be discharged under the provisions of a Supervision Order would be:

- His ability to withstand the inevitable frustrations involved in limiting and monitoring his activities.  He appears to have relished the institutional expectations of Naval life, though as noted, objective confirmation of that fact is not available.

He appears also to have adapted well to the relatively structured life of prison, but it is difficult to know how well that can be transferred to the expectations of supervised life in the community.

-The possibility of contact with past victims.  In my opinion this should be absolutely prohibited.  This may be very difficult to monitor, however, given the nature of contemporary communication systems;  and given Mr Hynds’ experience in the communications fields.

- The need to restrict his contact with other potential victims of sexual assault.  It is my opinion that Mr Hynds is not a sexual sadist;  and I consider that disclosure of his offending – but not restriction of his relationships – would be appropriate.

- Consumption of alcohol or other intoxicants.  This should also be strictly prohibited.

- The need to monitor the nature and modus operandi of any formal association or club with which Mr Hynds might seek affiliation, bearing in mind his apparent proclivity to group membership, and likelihood of adoption of the group mores or principles.  Given the value-laden judgments which may have to be made, this might pose considerable difficulty in definition and implementation.

- The need for long-term, regular and reasonably frequent psychiatric or clinical psychological oversight and treatment.  This would in my opinion be essential.  Mr Hynds himself appears to appreciate the need and potential value.  Communication between such a clinician and Corrective Services would have to be agreed in clear detail.

- I suspect that there are many issues that Mr Hynds would consider to be of a particularly confidential nature, and he would need to feel certain with respect to the defined circumstances which would lead to communication to other parties.

- The need for satisfying employment and the avoidance of boredom.

It is my opinion that provided a Supervision Order can be constructed in a way which accommodates the above, the risk of Mr Hynds re-offending sexually would be moderate.”

[67] In his oral evidence Professor James elaborated on the issue of unpredictability, including that the offences were unpredictable at the time, came “out of the blue” in which the respondent had no past history of offending.  The 1987 offences were “an eruption of something extraordinary” and involved great violence. 

[68] As against the element of unpredictability is the fact that the respondent’s behaviour in custody has been good particularly over the past eight to ten years.  Professor James recognised that the opportunity to offend whilst in custody was limited.  However, whilst in custody the respondent has had relationships that involve close personal contact including dialogues with psychologists each fortnight for about an hour over the last few years.  Professor James could find “no hint at all of any record of perceived menace or aggressiveness or chauvinism.”

[69] As to a supervision order in the context of unpredictability, Professor James remarked that there were a few “clear flags” that could be conveyed to correctional services officers supervising the respondent.  These included the abuse of intoxicating substances.  Otherwise it would be very difficult to know what might serve as alerts.  Professor James explained that the respondent was capable of careful advance planning and had an ability to deceive people in terms of his seemingly innocent intentions, as reflected in his offences.  I have quoted at the start of this judgment an important passage of evidence given by Professor James concerning the issue of unpredictability and the difficulty of predicting the respondent’s future behaviour because of a lack of knowledge of who the respondent is, how he behaves, risky situations and early warning signs.

[70] Professor James thought it unlikely that the respondent would get any benefit from undertaking a HISOP.  He doubted whether those who might supervise him in the community would gain a benefit from the exit reports following participation in such a course.  Professor James explained:

“I think if he were to go he would, as he has done in prison in general, he would collaborate to say what he is expected to say and I think there would be very little in the form of self-revelation.  I mean, I think that's not the setting or modality that is best used to explore what needs to be explored in Mr Hynds' case.”

[71] When asked about the best modality, Professor James stated that it would be individual therapy.  I shall quote his evidence, which I accept:

“The best modality would be individual therapy of an exploratory kind specifically devoted to exploratory kind.  If the witness undertakes the offender treatment program I appreciate it is not entirely restricted to matters of physical sexuality, I understand that.  But, I think there are many more issues to explore with Mr Hynds that would be better explored in, to use the word again, exploratory one-to-one psychotherapy.  There are issues that, for whatever reason, and I outlined some possible reasons in my report, that he does not want to reveal and would do so, in my view, better under the conditions of one to one therapy where he has worked out who can be trusted, what can be trusted and again, as I have put in my report, under conditions with a defined degree of confidentiality.  I think it doesn't have to be a total degree of confidentiality but at least one that is defined and that he would find acceptable before revealing whatever the things are that he doesn't reveal.”[16]

[72] Professor James supported the recent proposal that experienced psychologists provide therapy to the respondent at Borallon.  He described it as a very useful way to proceed if its aim was “specifically exploratory as opposed to didactic and rather rigidly cognitively based”.[17]  When asked whether such therapy should be part of a supervision order or something that took place prior to release on supervision Professor James stated:

“I think it would be better in terms of improving the degree of possible predictability if that happened before he left prison, or was at least started and reasonable progress made.”

Relevant legislation

[73] I respectfully adopt and reproduce from the judgment of P Lyons J the following summary of the statutory provisions regulating this review.

[74]  Section 27 of the Act requires an annual review of a continuing detention order made under s 13.  The review itself is regulated by s 30, which is in the following terms: 

“30 Review hearing

(1) This section applies if, on the hearing of a review under

section 27 or 28 and having regard to the matters mentioned in

section 13(4), the court affirms a decision that the prisoner is

a serious danger to the community in the absence of a division

3 order.

(2) On the hearing of the review, the court may affirm the

decision 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 affirm the decision.

(3) If the court affirms the decision, the court may order that the

prisoner —

(a) continue to be subject to the continuing detention order; or

(b) be released from custody subject to a supervision order.

(4) In deciding whether to make an order under subsection (3)(a)

or (b), the paramount consideration is to be the need to ensure

adequate protection of the community.

(4A) If the court makes the order under subsection (3)(b), the

supervision order must include the requirements mentioned in

section 16(1)(da) and (db).

(5) If the court does not make the order under subsection (3)(a),

the court must rescind the continuing detention order.”

[75] The reference in s 30(1) to the matters mentioned in s 13(4) makes it necessary to refer to that provision. It is in the following terms:

“(4) In deciding whether a prisoner is a serious danger to the

community as mentioned in subsection (1), the court must

have regard to the following —

(a) the reports prepared by the psychiatrists under section

11 and the extent to which the prisoner cooperated in the

examinations by the psychiatrists;

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

assessment relating to the prisoner;

(c) information indicating whether or not there is a

propensity on the part of the prisoner to commit serious

sexual offences in the future;

(d) whether or not there is any pattern of offending

behaviour on the part of the prisoner;

(e) efforts by the prisoner to address the cause or causes of

the prisoner’s offending behaviour, including whether

the prisoner participated in rehabilitation programs;

(f) whether or not the prisoner’s participation in

rehabilitation programs has had a positive effect on the

prisoner;

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

(h) the risk that the prisoner will commit another serious

sexual offence if released into the community;

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

risk;

(j) any other relevant matter.”

[76] When an application is made for an order under s 13, provision is made for the making of an order that the prisoner undergo examination by two psychiatrists. Section 11 then regulates the preparation of reports by the psychiatrists.  For a review, s 29 requires further psychiatric examination, unless the Court otherwise orders.  Notwithstanding the language of s 30(1), it is plainly the legislative intent that the reports of the psychiatrists who carry out an examination under s 29 are to be considered on the review.  The view taken by the parties seems to have been that the reports resulting from an examination under s 29 take the place of earlier reports prepared under s 11.

[77] The first question raised by s 30 is whether the respondent is a serious danger to the community in the absence of a Division 3 Order.

[78] A Division 3 Order is made under s 13 of the Act, and is either an order that the prisoner be retained in custody for an indefinite term for control, care or treatment; or an order that the prisoner be released from custody subject to the requirements the court considers appropriate, to be stated in the order.

[79] It will be apparent that s 13(4) poses the test for deciding whether a prisoner is a serious danger to the community by reference to s 13(1).  However, that in turn makes it necessary to refer to s 13(2), where the test is formulated as follows:

“(2) A prisoner is a serious danger to the community as mentioned

in subsection (1) if there is an unacceptable risk that the

prisoner will commit a serious sexual offence —

(a) if the prisoner is released from custody; or

(b) if the prisoner is released from custody without a

supervision order being made.”

Disposition

[80] As earlier identified, the first issue for my determination is whether there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody without a supervision order being made.  Having regard to the matters referred to in s 13(4) I conclude that there is such a risk.  The evidence, particularly the evidence of Dr Harden and Professor James, constitutes acceptable, cogent evidence that satisfies me to a high degree of probability to affirm the decision that the respondent be subject to a Division 3 order.

[81] The critical issue is whether he should be subjected to continuing detention or a supervision order.  Section 13(4) states that in deciding whether to make an order that a person continue to be subject to the continuing detention order or be released for custody subject to a supervision order, “the paramount consideration is to be the need to ensure adequate protection of the community.”

[82] This is a troubling case.  It is a very serious matter to continue the respondent’s detention in custody in circumstances in which he has undertaken a large number of measures directed towards his rehabilitation, has well-developed and realistic plans for his release, has family and financial support upon release, has advanced legitimate reasons to not participate in a HISOP at Wolston Park, has responded positively to sessions provided by probationary psychologists in recent years and is an exemplary prisoner who in custody has given no hint of “perceived menace or aggressiveness or chauvinism” (to quote Professor James).  It is also a very serious matter to order the respondent’s release (subject to a supervision order) in circumstances in which the respondent has given different and conflicting versions of what motivated him to commit the serious sexual offences with which he was convicted.  In the period of more than 20 years since those offences were committed courts, psychiatrists, psychologists and others have struggled to explain what triggered those offences and whether those triggers still exist.  If they still exist they may not be known or apparent to those with responsibility to supervise the respondent under a supervision order.  The distinct possibility exists that these triggers may never be known.

[83] The task of identifying them is not made any easier by the respondent’s uncorroborated claims to have been traumatised in Afghanistan and in Beirut in the early 1980’s.  I do not exclude the possibility that the respondent was deployed in these locations with US forces and was traumatised.  The absence of corroboration of such service, either in the form of Defence Department records obtainable on subpoena or from persons who served with the respondent at that time, casts doubt on the respondent’s claims.  So does the absence of any disclosure of such service to the numerous psychiatrists and psychologists who examined the respondent after the commission of the offences.  As presently advised and in the absence of corroboration for the respondent’s claims, I consider that his claimed service in Afghanistan and Beirut during the early 1980’s is an instance of the respondent creating an inventive, but false, narrative to suit his interests and to support a diagnosis of post-traumatic stress disorder and to claim that such a disorder played a part in his offending. 

[84] There may be reasons for the respondent’s alleged amnesia or inability to recall aspects of his offending.  The objective circumstances of his offending as reflected in the evidence presented at his trials is inconsistent with versions given by the respondent to the effect that there was no strong sexual motivation for his offences.  In circumstances in which the respondent has given conflicting versions of his offending, and in which the respondent has a capacity to invent and deceive, there is no assurance that any version that he gives to a psychiatrist or forensic psychologist will be reliable.

[85] The respondent is willing to engage in a therapeutic relationship with a suitably-qualified and experienced forensic psychologist.  Clear guidelines will be required concerning the extent to which his disclosures to such a person are confidential and the extent to which they may be reported in a summary form to the Court, to examining psychiatrists under the Act and to identified Corrective Services officers for the purpose of rehabilitation and plans for his release.  Under such conditions the respondent may be prepared to be open about areas of his life, including his career in the Navy, the true extent of violence inflicted by him as a debt collector, the circumstances of his sexual offences and what triggered him to commit them.  There is, however, no guarantee that accounts given by the respondent to an experienced forensic psychologist will be reliable.  The respondent’s interests would be well-served by his engaging legal assistance to make a formal application for release of records relating to his military service.  The disclosure of reliable information to an experienced psychologist providing individual treatment to the respondent may serve to fill significant gaps in information concerning the respondent’s life, his military service, the circumstances surrounding his offending, whether the matters that triggered his offending still exist and, if they do, how a supervision order might be framed to minimise the risk of such events.

[86] It is unfortunate that the respondent has not received such individual treatment in the last 12 months.

[87] If supervision of the respondent is apt to ensure adequate protection, having regard to the risk to the community by him, then an order for supervised release should, in principle, be preferred to a continuing detention order.  As the Court of Appeal explained in Attorney-General v Francis,[18] this preference is 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.” 

[88] Psychiatric opinion, including the considered opinion of Dr Beech in 2007, contemplated that the respondent might be released subject to a supervision order.  The two psychiatrists who appeared in the review before me addressed the issue of risk that would arise if a supervision order was made, and the terms of such an order.  Since reserving judgment I have reflected about whether adequate protection of the community can be ensured by a supervision order.  Based on my preference for the opinion of Professor James concerning the benefits that might be derived by the respondent and by the community by the respondent undertaking a HISOP in custody, I see no particular advantage in making a continuing detention order so that the respondent undergo the HISOP that remains on offer at Wolston Park.  Even if the respondent was persuaded to alter his firmly-entrenched resistance to undertaking that program at Wolston Park, I accept Professor James’ evidence that the respondent would not benefit greatly from it and exit reports from that program would add very little in the form of self-revelation.

[89] There is some prospect that the form of individual treatment program that is in prospect will be more productive of information.  The considered opinion of the professional therapist is likely to inform the assessment of the risk of re-offending if the respondent is released subject to a supervision order.  It might be possible for the respondent to receive one to one psychotherapy or other treatment in the community.  However, I accept Professor James’ evidence that it would be better in terms of improving the degree of predictability if the respondent started such treatment and made reasonable progress with it before he leaves prison.

[90] In summary, an individual therapy program received initially in custody carries some prospect that the respondent will be prepared to discuss aspects of his life that he has not been prepared to discuss with psychiatrists appointed for the purpose of the Act (which does not involve a therapeutic relationship).  The results of such an individual treatment program will inform the assessment of risk and assist those who may be required to monitor the respondent under a supervision order to detect early warning signs of re-offending.  It will assist the formulation of the terms of any supervision order to ensure that the respondent avoids triggers to re-offending (in addition to those already identified such as alcohol and drug abuse) and for those with responsibility to supervise the respondent under any supervision order to identify potential triggers.

[91] Such therapy should be undertaken for some period in custody. 

[92] The Act dictates that 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. I am not presently satisfied that a supervision order is apt to ensure adequate protection.

Orders

[93] As will be apparent from my reasons, I am satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act.  I affirm the decision made by P Lyons J on 9November 2009 that the respondent continue to be subject to a continuing detention order for his care, control or treatment.  As also will be apparent from my reasons, an important reason for my decision to order that the respondent be subject to a continuing detention order is so that he can receive the kind of individual treatment which Professor James considers appropriate, and that he be assessed by an experienced and suitably qualified forensic psychologist, as proposed in the affidavit of Joel Brady Smith filed 26 October 2010.  Because my orders are based upon the anticipated provision of such treatment to the respondent, being treatment to which he consents, I shall record the same in my formal orders.  I shall also make provision for liberty to apply.  Such liberty to apply may be resorted to by either party in the event that the respondent is not offered such treatment in a timely way, or declines without reasonable explanation, to receive such treatment. 

[94] I accept Professor James’ evidence concerning the importance of clear definition in appropriate detail of the nature and extent to which a clinician providing such treatment is at liberty to disclose the progress of such treatment.  Defined permissible disclosure might include disclosure to psychiatrists appointed pursuant to s 29, the respondent and his legal advisers, the legal representatives of the applicant and certain officers of the Department of Corrective Services for the purposes of the Act and the respondent’s rehabilitation.  I urge the respondent to obtain legal assistance in relation to the formulation of appropriate qualifications upon what would otherwise be confidential communications between the respondent and the professional therapist who provides the form of treatment that Professor James suggests.  I do not expect the Court to be involved in the process of resolving such matters.  However, if such issues arise in connection with the provision of treatment, such treatment being a key objective of the continuing detention order to be made, then one or both of the parties may activate the provision which I intend to include for liberty to apply. 

[95] The orders of the Court will be:

1.The Court is satisfied to the requisite standard that the respondent, Gregory Alan Hynds, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003.

2.Pursuant to s 30(1) of the Act the decision of P Lyons J on 9 November 2009 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed.

3.Pursuant to s 30(3)(a) of the Act, the respondent, Gregory Alan Hynds, continue to be subject to a continuing detention order for his care, control or treatment, and that such treatment include the provision as soon as reasonably practical of assessment and treatment by an experienced forensic psychologist of the kind stated in paragraphs 5-7 of the affidavit of Joel Brady Smith filed 26 October 2010, and individual psychotherapy of the kind proposed by Professor Basil James in his oral evidence given 29 October 2010 (transcript reference 1-41 ll 20-52).

4.That there be at liberty to apply upon the giving of 14 days notice in writing.