Attorney-General v Gilchrist[2012] QSC 271

SUPREME COURT OF QUEENSLAND 

1. This is an application by the Attorney-General under s 5 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for orders pursuant to section 13 of the Act. The effect of those orders is to subject the respondent, David Kenneth Gilchrist, to continued detention or release subject to supervision orders under the Act.

2. For the respondent it was submitted that Gilchrist should be released from custody subject to a supervision order in terms of the Draft Order prepared by the Applicant subject to any further condition deemed necessary by the Court, having regard to the evidence of the reporting Psychiatrists or submissions of the parties.

Background

3. The respondent was born on 9 September 1968. He is presently 44 years of age. The respondent is currently serving a cumulative sentence of 14 years imprisonment.

4. On 25 September 1998, the respondent was sentenced to 8 years imprisonment for five offences, namely burglary, attempted armed robbery, and three offences of indecent assault with a circumstance of aggravation, committed on 20 June 1995 (the “June offences”).

5. On 30 November 1998, the respondent was sentenced to 6 years imprisonment to be served cumulatively for six offences, namely abduction, unlawful wounding, attempted rape, indecent assault with a circumstance of aggravation, break and enter and receiving, committed on 30 August 1997 (the “August offences”).

6. The respondent is due to be released on 21 September 2012.

Respondent’s criminal history

7. Counsel for the Attorney General outlined at length the respondent’s criminal history in her written submissions. The accuracy of this outline was accepted by the respondent.

“8. The following table outlines the respondent’s criminal history in Queensland:

Previous offences of a sexual nature

9.On 14 October and 4 November 1986, the respondent committed two offences of aggravated assault on a female when he grabbed the breasts of the two female victims as they passed him on the stairs on the way to their units. The respondent did not live in the unit complex, rather he had gone there to swim in the complex pool. The respondent admitted to each offence stating that “it was just an impulse” and “because he felt like it”.

10.On 8 January 1987 , the respondent committed an offence of enter dwelling with intent and wilful exposure when he confronted the female victim on her return to her room in the nurse’s quarters at the Gladstone District Hospital. The respondent made suggestions to her such as “how would you like me to suck your tits?” and “if you want a thermometer in your mouth then suck my dick”. The respondent then exposed his penis to the victim before pulling his pants up and running away. When interviewed by police the respondent stated that he followed the victim into the nurse’s quarters the previous afternoon with the intention of asking her for sex. He said that if she refused he would have grabbed her on the breast and run off. He admitted walking through the open sliding door of the nurse’s quarters, seeing the victim and making obscene suggestions to her.

11.On 4 August 1994, the respondent committed an act of soliciting for prostitution when he approached a convert female police officer in the FortitudeValley area asking “how much for a handjob”.

The current offences
June 1995 offences

12.On 20 June 1995, the respondent was convicted for five offences all arising out of the same incident committed on 20 June 1995, namely burglary, attempted armed robbery and three offences of indecent assault with a circumstance of aggravation.

13.The factual circumstances at the trial were not in dispute.  The defence argued that it was not the respondent who committed the offences.

14.The victim was a 25 year old female not known to the respondent. On the day of the offence, the victim arrived home about 5.30pm locking the front screen door and closing the wooden door. Whilst cooking dinner, she opened the kitchen window which she later pulled closed but not latched. The victim showered about 9.30pm, dressed in a robe and returned to watch television for a short period.

15.The victim went back to the bathroom and as she attempted to turn on the light, the respondent came out from the shower, grabbed her and pushed her against the bathroom door asking for money. The respondent was armed with a six to eight inch knife which he held during the offending. The respondent wore a pair of black gloves fastened with a Velcro strap and attempted to conceal his identity by covering his head with a t-shirt that was tied in such a way that the victim could only see his eyes. The victim provided a physical description of the respondent and the clothes he was wearing at the time of the offence.

16.The victim told the respondent that she did not have any money and told him to check her wallet which was on the coffee table in the lounge room. They entered the lounge room and the respondent instructed her to close the curtains on the windows that faced into the complex courtyard. The respondent looked through the victim’s wallet and asked if she had any money in her bank account. Again said told him there was no money in her account as she lived pay cheque to pay cheque.

17.Still armed with the knife, the respondent asked the victim if she was hiding anything in her bedroom. She told him she was not. The respondent and victim walked towards her bedroom where the respondent went through the victim’s wardrobe, instructing her to pull out her dresser drawers and open her bedside table so he could have a look. The respondent asked the victim if a pair of earrings she had were of any value. When the victim told him they were not, he told her to go and stand near her dressing table by the window while he looked through the drawers on the bed and her jewellery boxes.

18.The respondent told the victim to take off her robe. She was not wearing any underwear. She was told to sit on the end of the bed. The respondent sat next to her, put his arm around her and used the knife to play with her nipple for a couple of seconds.

19.The respondent pulled a sheath from behind his back and put it on the floor with the knife. He took off his gloves placing them by the sheath. The respondent instructed the victim to undo his pants and pull out his penis. He stood up and instructed the victim to suck his penis. At the time he was running his hands down the victim’s back and pony tail. He said to the victim that “if she had money she would not have to go through this”. The victim complied as she was terrified.

20.The respondent asked the victim if she had a boyfriend. When she told him she did not, he instructed her to lie down on the bed where he opened her legs and licked her genitals for a few seconds. She was then told to sit up. The respondent stood between her legs at the end of the bed and he again told her to “suck it” placing his hand at the back of her head and forcing her mouth onto his penis. He then instructed that she put her hand on his genitals and he ejaculated in her mouth saying “oh baby” as he did so. The respondent told the victim to swallow and not pull away.

21.The victim recalled nearly vomiting and gagging and was terrified that he would have killed her if she did not comply. The respondent wiped himself on the victim’s robe. The forensic analysis on the robe was inconclusive.

22.The respondent pulled up his underpants and jeans asking the victim for the time. The victim recalled it being 10.17pm and she was instructed to remain until 10.30pm. He then said to the victim “do you love your mother” and “I know where you work” before leaving the room. He briefly walked back to check on the victim before leaving via the back door.

23.During the incident, the victim asked the respondent how he got into her unit and he told her through the kitchen windows, which she saw were now open.

24.The victim went to a friend’s house before going to the police station where she gave a statement. The incident was reported in the Courier Mail the following day.

25.In mid-1995, the respondent was with his partner looking at units for her to rent in Clayfield. As they passed a set of units in the street where the victim lived, the respondent informed his partner that they were easy to break into. He disclosed to her that “he had done a break and enter and the lady that was there did not have any money so he held a knife to her throat and made her give him a head job.” He further stated to his partner “that she could not identify him; the only thing was that he had auburn hair and she got that from the colour of his pubes and that it had been mentioned in the local paper.”

26.During submissions on penalty, his Honour Senior Judge Trafford-Walker remarked as to the seriousness of the respondent’s offending:

“How bad do you have to get it? Somebody comes into your house at night-time and it’s not an ordinary house; it’s a house that’s occupied or residence occupied by a young woman who was really defenceless and then the offender proceeds to try and obtain property by threatening her with a knife, holding a knife at her throat, and when that doesn’t happen he proceeds to insert his penis in her mouth again and on the second occasion he insisted that she swallow his ejaculate. Pretty hard to imagine much worse than that, isn’t it?”

27.In sentencing the respondent, his Honour stated:

“ The complainant in this case has suffered for years as a result of what you did to her on the night you broke into her unit. She feared for her life. Your treated her in an appalling fashion…

As you were unable to find anything of value, you had the girl remove her clothes and you had her suck your penis. In my view, that is a very serious offence and must bring a lengthy period of imprisonment. For that you are sentenced to a period of seven years imprisonment.

You then licked her vagina. I do not regard that as seriously as inserting your penis into her mouth. For that offence, you are sentenced to a period of six years imprisonment. I come then to deal with what I regard as the most serious offence. You again inserted your penis in her mouth. You had her suck it and you ejaculated and you told her to swallow it.

The complainant said she gagged and nearly vomited, and no doubt that has had an effect upon her for years. In my view, it is the worst offence that you committed that evening. You are therefore, on that offence, sentenced to a period of eight years imprisonment.”

August 1997 offence

28.On 30 November 1998, the respondent was convicted of offences of abduction, unlawful wounding, attempted rape, and sexual assault with a circumstance of aggravation whilst armed. All offences occurred on the morning of 30 August 1997.

29.The respondent was convicted on a second indictment for an offence of receiving and an offence of break and enter.

30.On the morning of the offence, the 18 year old female victim was travelling home by herself on the 12.30am train from BrisbaneCity to Caboolture.

31.The victim got off the train at Caboolture with a number of other passengers. She walked over the bridge on King Street and along the footpath. The respondent was walking two to three metres behind her. The victim noted what the respondent was wearing and felt uncomfortable so stepped from the footpath to walk on the road.

32.As the victim approached a motel on King Street, she sensed movement behind her and turned to see the respondent kneeling and facing towards a brick fence. She could not see what he was doing and kept walking. A short distance later, the victim saw a shadow at her feet and was grabbed around the neck by the respondent. As the victim twisted in an attempt to get away, she saw the respondent holding in his other hand a knife approximately six to seven centimetres in length to her face. During the struggle the victim received a cut to her thumb.

33.The respondent continued to hold the victim around the neck and during her struggles she started to scream out. The respondent said “don’t scream, be quiet” and she complied.

34.The victim was dragged off the footpath and over a brick wall. The respondent pinned her to the ground and used his hand to cover her mouth, again saying to her “don’t scream, be quiet”. The victim said “don’t hurt me, I am scared” to which the respondent replied “I am scared too, I should be doing this to my girlfriend, just do as I say.”

35.The respondent dragged the victim to her feet and pushed her towards a carport near a house. He told her to face the wall and not turn around as she was not supposed to see his face. He then said “I suppose you know what’s going to happen now?” The victim realised she was bleeding and said to the respondent “you’ve hurt me, you’ve cut me, I’m scared.”

36.Still holding the knife, the respondent took off the victim’s jacket, bra, skirt and underpants. He commenced kissing her and running his hands over her breasts. The respondent unzipped his pants and used his free hand to hold his penis which was not erect at this stage and rub it over the victim’s legs and bottom. He instructed the victim to get to her knees and keep her head to the ground whilst he rubbed his penis against her vagina. He then moved in front of her and asked if she had a boyfriend. When the victim said she did, the respondent said “you know what to do, suck me off and jerk me off at the same time.” The victim complied until the respondent told her to close her eyes whereupon he rolled her onto her back and placed her jacket over her face. The respondent attempted to insert his penis into her vagina.

37.After a short time, the respondent got off the victim and said that he would leave her clothes if she did not go to the police. The victim agreed. He then asked if the victim would tell her parents and she said “No. I’ll just go home and have a shower and tell no one.” She lay there and asked a couple of times if the respondent was still there. When she did not get a response she took the jacket off her face and got dressed.

38.The victim ran to a nearby Ampol service station and told the console operator who immediately called the police. The victim was examined at the CabooltureHospital. She had sustained a number of lacerations to her fingers, a small laceration under her left breast as well as scratches to her left upper chest and bruising and tenderness to her right knee, neck and back.

39.In March 1998, the surveillance footage from the Caboolture station was aired on television. Two men who got off the same train at Caboolture station on the night of the offence saw the footage and came forward to police. They recalled seeing the respondent watching the victim before walking past them and following the victim over the bridge onto King Street. They were able to give a description of the respondent’s clothing.

40.During a search of the respondent’s house on 26 March 1998, police located clothing matching the description given by the victim and witnesses. During the search, police located a number of electrical items reported stolen in May 1997.

41.The respondent did not participate in an interview with police after his arrest.

42.In sentencing the respondent, his Honour Judge Shanahan remarked:

“Your criminal history shows, in my view, a disturbing history of sexual assaults on women, particularly in their own residences and in that I am referring to the offences that you were convicted on in 1986 and 1987 which shows an escalating type of behaviour culminating in the offences of 1995 and 1997….

It is submitted on your behalf that you had been drinking on the night. That can be no excuse for this type of behaviour.

The Crown submit that the sexual offences should be declared to be serious violent offences. In my view that submission has great weight in that this offence, or these offences involved you attacking a stranger. You were armed. You forced that woman to commit various sexual acts with you and you, in fact, unlawfully wounded her with the knife. In my view it is appropriate to declare these offences to be serious violent offences…

It is also my view that extreme care should be taken upon your return to the community. If your history is any indication you are escalating in the serious nature of the attacks you are making upon women and whatever safeguards can be put in place upon your return to the community should be put in place.””

Drug and Alcohol History

8. The respondent’s drug and alcohol history was also not in contention between the parties. The respondent reported occasional use of cigarettes but no substantial drug use, only cannabis use as a teenage and one instance of amphetamine use.

9. The respondent reported drinking alcohol through his teens. During the period of offending he reported drinking three or more days a week, consuming up to 20 – 24 units of alcohol per occasion.

Medical and psychiatric history

10. The respondent recorded having muscle wasting in one of his legs. This was investigated and remained unexplained. The respondent has no other medical issues or psychiatric history.

Events in prison

11. The respondent’s institutional conduct and behaviour was described as acceptable. It was reported that he was “easy to manage, polite to both staff and other inmates, keeps to himself but is able to mix easily with others and maintains a positive attitude.” He has maintained a strong employment history working in a number of positions.

12. The respondent incurred one minor breach in October 1998 for refusing to obey a lawful direction and one major breach in February 2002 for disobeying a lawful direction. He has no recorded breaches since 21 February 2002.

Participation in programs

13. Upon recommendation, the respondent successfully completed the anger management program, the cognitive skills program, the substance abuse education program, the substance abuse preventing and managing relapse program, the getting started: preparatory program (“GS:PP”), and the high intensity sexual offender program (“HISOP”).

14. On 27 July 2006 the respondent completed the GS: PP. The exit report indicated that he was a quiet member of the group and needed encouragement to participate in group discussions. He made open disclosure to the group about his sexual offending, upbringing and relationship history. It was reported that the respondent entered the ‘contemplation stage’ demonstrating insight into the harm his offending caused to his victims and others and recognising that he would benefit from further treatment. It was recommended that he participate in the HISOP.

15. On 29 May 2008, the respondent successfully completed the HISOP. The exit report dated 18 June 2008 indicates that the respondent participated to the highest level in his written work and appeared to understand the central principles and strategies taught by the program. He was able to identify emerging themes in his life including intimacy deficits, avoidance coping, mistrust and sexualisation of women, double standards based on gender stereotypes and attitudes of entitlement in relation to both property and people.

16. The respondent developed a realistic and achievable New Future Plan which recognised his offending behaviour as not opportunistic but rather the result of a pervasive pattern that began in his adolescence. Facilitators noted that “Gilchrist demonstrated that he has good cognitive abilities which he is capable of utilising when he is alcohol free, and the program provided him with further techniques to enable him to use these more consciously.”

17. It was recommended that the respondent participate in the Sexual Offending Maintenance Program and if released to parole that his activities, relationships and life circumstances be monitored and he be encouraged to further develop support networks especially those that can assist with the monitoring and abstinence from alcohol as that was a significant part of his offending.

Applications for parole

18. The respondent made a number of applications for release to parole. He was eligible to be considered for parole on 25 July 2007. Psychological and psychiatric reports were obtained by the parole board in the determination of the respondent’s applications. In each instance he was refused parole.

19. The respondent filed an application for a statutory order of review in relation to two of the decisions of the Parole Board. The first application related to the decision of the Parole Board on 12 February 2010. Justice A. Lyons heard this application on 13 September 2010 and ordered the statutory review to be allowed and the decision on 12 February 2010 set aside and the respondent’s application referred to the Parole Board for further consideration

20. The second application related to the decision of the Parole Board on 1 April 2011. Justice Dalton heard this application on 4 October 2011 and dismissed the application citing the report and opinion of Dr de Leacy.

Psychological and psychiatric reports

21. The respondent participated in a number of psychological assessments and treatments programmes between November 2008 and August 2012. This included an assessment by Dr Eric de Leacy, consultant psychiatrist, who was commissioned by the Queensland Parole Board to asses the risks if the respondent were released on parole. In a report dated 24 November 2011, Dr De Leacy concluded, amongst other things, that that the respondent still remained a risk in terms of re-offending. He noted that the respondent has an ingrained pattern of offending and it is not possible to know how he would respond to temptation when released. However, Dr de Leacy opined that this risk could be significantly mitigated by supervision that would require regular reporting, monitoring for abstinence from alcohol and attend relationship counselling.

22. Dr Scott Harden, specialist psychiatrist, was instructed by Crown Law to assess the respondent’s risk of sexual recidivism in relation to a possible application pursuant to the Act. Dr Harden provided a report dated 11 December 2011, in which he reported that the respondent “was very cooperative with the interview. The respondent appeared to be calm, confident and emotionally controlled throughout the interview.” He appeared of average intelligence, spoke fluently despite having a minor speech abnormality and presented as giving a sincere and open perspective on his offences. He had adequate insights and judgments to appropriately manage day-to-day interactions, as well as having “a degree of insight into his own psychological functioning in general terms and with regard to his offending.” Dr Harden described the diagnostic tests he administered, and the respondent’s results. Dr Harden opined that the respondent did not meet the diagnostic criteria for the paraphilia of Sexual Sadism, noting however that this requires further exploration with his treatment provider given the degree of humiliation imposed on his recent victims.

23. Dr Harden noted that “there is an escalating pattern in terms of the type of sexual assault, the degree of violence and the increase in risk of detection over these crimes that is of concern.” From the actuarial and clinical assessment, he opined that the respondent’s future risk of sexual re-offending was high, stating that this risk would be very high if released without further monitoring or intervention. He observed that “this risk might not emerge for some time, but would be likely to be associated with alcohol use and probably some kind of negative emotional state.” Dr Harden thought that a high level supervision order and treatment in the community would reduce the risk to moderate.

24. Doctor Grant and Doctor Moyle were appointed by orders made under section 8 of the Act to provide a risk assessment reports in relation to the respondent.

The report of Doctor Grant

25. Dr Grant’s report, dated 11 July 2012, was based on an interview with the respondent on 5 July 2012 at the Capricornia Correctional Centre and copies of the filed affidavit material in this matter. After setting out details of the assessment tests performed, Dr Grant expressed the following conclusion:

In my opinion if Mr Gilchrist were released from custody he would represent a moderate to high risk of sexual re-offending. The risk would be increased to high if he was to resume abuse of alcohol or if he was involved in very stressful relationship problems (or a combination of the two). Risk factors primarily relate to social instability, relationship problems, failure to adapt to society and resumption of alcohol abuse.

Mr Gilchrist has undergone all indicated courses and treatments in the custodial environment. From the psychiatric point of view there would be no facility in keeping him in custody. In my opinion the risk of re-offending could be reduced to moderate or even low by the application of a suitable supervision order in the community.

Mr Gilchrist would benefit from ongoing counselling and support from an appropriate experienced psychologist, assistance with social issues such as obtaining employment, appropriate assistance with relationship counselling if he was to develop a relationship, and appropriate treatment to assist in maintaining abstinence from alcohol. He would also benefit from participation in a sexual offending maintenance program in the community.

If a supervision order is made, I believe it should have clauses that monitor Mr Gilchrist’s movements quite intensively initially but with gradual increases in his freedom of movement as dictated by his response to supervision. I believe a nighttime [sic] curfew would be indicated for a reasonably extended period of time. He should be subject to regular breath analysis or urine analysis to detect any resumption of alcohol or drug abuse (with the emphasis on alcohol as the problematic area with no strong history of past drug abuse). There is a history of use of pornography that has at times become rather obsessive and he should therefore be banned from accessing pornography in any form.

Mr Gilchrist has no history of any offences against children, nor does he report any paedophilic interests. There would therefore be no indication for a supervision order to contain clauses banning access to children. There would also be no need for clauses banning access to shopping centres, playgrounds or public parks.

Mr Gilchrist should be prohibited from attending pubs or nightclubs but his access to alcohol in other settings such as cafes, restaurants or social clubs could be monitored by breath analysis or urine drug screens rather than banning access to those venues.

Mr Gilchrist may need access to the internet for things related to social rehabilitation and employment or future study. In my opinion such access would be useful for him but he would need to understand that using the internet to access pornography was forbidden and would be monitored by his supervisors.

If a supervision order is made I believe it should be in place for a period of 10 years, given the chronicity of sexual offending and the relatively long term risk of recurrence. However, I would recommend that the degree of restrictions and monitoring over that period of 10 years could be gradually reduced in response to satisfactory progress and behaviour on Mr Gilchrist’s part, so that the order does not unnecessarily interfere with Mr Gilchrist’s social rehabilitation and employment.

The report of Doctor Moyle

26. Dr Moyle’s report, dated 8 August 2012, was based on an interview with the respondent on 11 July 2012 at the Capricornia Correctional Centre and copies of the filed affidavit material in this matter.

27. Dr Moyle expressed the following opinion:

In conclusion, Mr Gilchrist did show a series of escalating dangerous sexual offences likely to cause significant harm to others, particularly vulnerable adult females at night. It is my opinion that this risk has probably been moderated in a downward direction, based on his behaviour at least over the last 10 years in jail, showing no signs of impulsivity, irresponsibility, showing good attendance at programs, reasonable behaviour towards authority, an ability to make up his own mind as to how he will behave, acceptance of his offending, sentence and the assistance offered. There is no reliable way I can assess whether he will carry those skills into the community well or revert to secretive solo offending. I am reassured that he has never demonstrated a risk to children.

Therefore, I consider, weighing up all the recent positives and the seriously worrying behaviour from his teenage years until he was 28 when incarcerated, he may have reverted more to his reported childhood behaviours and attitudes giving a more positive prognosis.

On static factors, he would score a high risk of reoffending, but his behaviour over the past 10 years, I think, he has lowered that risk to high moderate, which is the maximum it can be lowered at this stage of his progress. At a high moderate risk, it is my opinion that he can learn no more by being in jail, that he has respondent positively to supervision and monitoring in jail, that there is a modest likelihood that he adhered in the past to most community sanctions and, if this is all accurate, then I would predict that, should he go out from jail, find work and reasonable accommodation, as well as a social network that is pro-social, non-substance-abusing, involves positive leisure activities and enjoyment, within five years we will be in a reasonable position to evaluate whether he needs to be continued on a Supervision Order.

It is my opinion that the only reason for detention would be for control, as he does not need detention in the interests of treatment or care.

It is my opinion that a Supervision Order that requires an initial curfew while he develops a social network, job and accommodation opportunities under the supervision of caring Correctional Officers, male and female, will soon allow us to assess whether he can adhere to abstinence from drugs and alcohol, sustain a reasonable employment, and develop a pro-social peer network, re-establishing a relationship with his mother and sister. I think that in the community there is more scope for frustrating relationships and availability of alcohol and secretive behaviours but I am aware he has the capacity to work with officials to his advantage and benefit. He should therefore be offered psychotherapy to assist him adapt to stresses he will face without regression to sexually sadistic or offensive behaviours and if his sexual arousal is high and becomes paraphilic again then medical and psychological treatment may assist him. After six months, I would suggest that the level of supervision, while he goes to social activities he has formed in the first six months, and work, can be relaxed somewhat, as he does not seem to have been using work hours to conduct his criminal offending, and most of the criminal offending involving intoxication was at times he ran out of money to afford the alcohol. The combination of intoxication and the paraphilia, in the absence of clear psychopathy, lowers the risk from high, in my opinion currently.

It is my opinion that we will learn whether this man can continue the positive jail behaviour into the community with gradual reintroduction to the community after 14 years of imprisonment. he will need the support of helpful agencies, such as Catholic Prison Ministries, Alcohol counselling and the advice of caring Correctional Officers, mental health professionals and Relationships Australia, and monitoring and supervising staff to ensure he can financially survive and seek work and recreational activities in the community. He is not to carry sharp implements on his person. I think the main risk is if intoxicated at night.

Oral evidence of the doctors

Each of Doctors Grant, Harden and Moyle gave evidence before me.  The cross-examination of the doctors went principally to one of the conditions which had been proposed as part of a draft supervision order, namely a condition limiting the respondent’s access to pornographic material.  Each was pressed to provide a definition of “pornography”.  Their answers, whilst helpful, were not consistent.  What was apparent, however, was their opinions of the desirability of restricting the respondent’s access to sexually explicit material, not normally available, which had sexuality as its predominant function.  Each of the doctors was also pressed as to his opinion as to the appropriate duration of a supervision order and, each conceded that, in the circumstances of this case, a duration of five (5) years was appropriate.

Order under Part 3 of the Act

28. In Fardon v Attorney-General for Queensland (2004) 210 ALR 50 Gummow J summarised the purpose of Part 3 as follows:

“[112]The purpose of Pt 3 ‘is to ensure that a prisoner’s continued detention under a continuing detention order is subject to regular review’: s 26. That statement of purpose guides the construction of the balance of Pt 3. That which is affirmed under s 30 is the primary decision ‘that the prisoner is a serious danger to the community in the absence of a division 3 order’ (emphasis added): s 30(1). The phrase ‘is a  serious danger’ involves the use of the continuous satisfaction by the means and to the degree specified in s 30(3), the prisoner presently is a serious danger to the community in the absence of a Div 3 order. Upon the reaching of that decision, the court may order further subjection to a continuing detention order or release subject to a supervision order (s 30(3)); in making a choice between those orders, the court is to have as ‘the paramount consideration …. the need to ensure adequate protection of the present to require a decision that, by reason of the attainment of community’ (s 30(4)).”

29. In relation to the present application, the scheme of the relevant provisions of the Act was outlined by the Court of Appeal in A-G (Qld) v Francis [2006] QCA 324 at paras 25-29:

‘[25]The order which may be made by the court under s 13(5) of the Act, and confirmed under s 30 of the Act, is, in terms, an order made for “control, care or treatment” of a dangerous prisoner.  By virtue of s 13(2) of the Act, such an order may be made only if the court is satisfied that a prisoner would constitute a serious danger to the community in the form of “an unacceptable risk that the prisoner [would] commit a serious sexual offence”.  As an alternative to a continuing detention order, under s 13(5)(a), the court may order, under s 13(5)(b), that the prisoner be released from custody subject to appropriate conditions.

[26]The objects of the Act are expressed in s 3 of the Act as being:

“(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.”

[27]Section 13(6) provides that, in deciding whether to make an order under s 13(5)(a) or (b), “the paramount consideration is to be the need to ensure adequate protection of the community”.

[28]Section 13(5)(a), in speaking of a continuing detention order as an order “for control, care or treatment”, identifies the three purposes for which an order may be made:  control of the dangerous prisoner, care for the dangerous prisoner, or treatment of the dangerous prisoner.  These purposes are identified as alternatives.  The phrase “control, care or treatment” must, as a matter of ordinary language, be read disjunctively.

[29]This disjunctive reading suggests that there may be cases where the basis for an order may be, either

• the control of an incorrigible offender, or
• the care of an offender whose propensities endanger the offender as well as others, or
• the treatment of an offender with a view to rehabilitation.

It will often be the case that more than one of these considerations will inform the making of an order.’

30. Counsel for the respondent conceded that the court would conclude:

“a. That the respondent is a serious danger to the community in the absence of a Division 3 Order, that is if he were released from custody without a Supervision Order being made.

2. that the evidence presented at the hearing is acceptable, cogent and to a high degree of probability is of sufficient weight to affirm that decision.”

31. Having noted that concession, I also record, lest there be any doubt, that the evidence before me is acceptable, cogent evidence which persuades me to a high degree of probability that the evidence is of sufficient weight to justify me making a decision under s 13(1) that the respondent represents a serious danger to the community within the meaning of s 13(1).

32. Counsel for the respondent pressed for the making of a supervision order. Counsel for the applicant conceded that it appears, having regard to the psychiatric evidence and other matters required to be taken into consideration under the Act that the risk that the respondent presents is capable of being managed by a supervision order.

33. In light of the expert psychiatric evidence before me, which I have detailed above, a supervision order is clearly the appropriate form of relief in this case. I reach that conclusion, noting that the paramount consideration is the need to ensure adequate protection of the community.

34. A supervision order has effect in accordance with its terms for the period stated in the order – s 15(b). A supervision order must be made for a definite term.^[1]  Having regard to the evidence of the psychiatrists, I am of the view that the term of the supervision order in this case should be for five (5) years.

35. Counsel for the parties, and the psychiatrists who gave evidence, had all considered a form of draft supervision order. At the end of the day, argument revolved around three of the proposed conditions.

36. First, the draft supervision order made provision for a condition in the following terms:

“[The respondent must] submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer;”

37. It was submitted for the respondent that this condition was too broad in its terms, and that it left open unknown possibilities in terms of the nature of the testing which could be required of the respondent in the future. I disagree. When one has regard to the psychiatrist’s reports, it is clear that alcohol and drug monitoring are necessary as an important part of the supervision regime. The form of condition proposed is appropriate.

38. Secondly, a draft condition which would operate as a blanket prohibition on the respondent visiting “hotels, clubs and nightclubs” was, in the course of argument, recast in a form which was acceptable to both sides to refer to “licensed bars, licensed clubs and licensed nightclubs”.

39. Finally, there was argument about a condition which, as drafted, proscribed access to “pornographic images” and “pornographic material”, but did not define either of those terms. I was assisted in that regard by the oral evidence of the psychiatrists (as referred to above), and in the course of argument with counsel an appropriate definition clause was drawn, which incorporates reference to the National Classification Scheme.

40. There will, therefore, be a supervision order, pursuant to s 13(5)(b) of the Act, in the terms set out in Annexure A to this judgment.

ANNEXURE A

THE COURT, being satisfied to the requisite standard that the respondent, David Kenneth Gilchrist, 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 (the Act), ORDERS THAT:

1. The respondent be subject to the following conditions until 21 September 2017:

The respondent must:

1. report to a Corrective Services officer at the place, and within the time, stated in the order and advise the officer of his current name and address;
2. report to, and receive visits from, a Corrective Services officer as directed by the court or relevant appeal court;
3. notify a Corrective Services officer of every change of your name, place of residence or employment at lease two business days before the change happens;
4. be under the supervision of a Corrective Services officer;
5. comply with a curfew direction or monitoring direction;
6. comply with any reasonable direction under section 16B of the Act;
7. comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;
8. not leave or stay out of Queensland without the permission of a Corrective Services officer;
9. not commit an offence of a sexual nature during the period of the order;
10. seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;
11. notify a Corrective Services officer of the nature of your employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed at least two days prior to the commencement or any change;
12. reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
13. if this accommodation is of a temporary or contingency nature, you must comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
14. not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer;
15. not commit an indictable offence during the period of the order;
16. respond truthfully to enquiries by a Corrective Services officer about your whereabouts and movements generally;
17. not to have any direct or indirect contact with a victim of his sexual offences;
18. disclose to a Corrective Services officer upon request the name of each person with whom you associate and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate had knowledge of his prior offending behaviour;
19. notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by you, whether hired or otherwise obtained for his use;
20. submit to and discuss with a Corrective Services officer a schedule of your planned and proposed activities on a weekly basis or as otherwise directed;
21. if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services Officer who may contact such persons to verify that full disclosure has occurred;
22. abstain from the consumption of alcohol and illicit drugs for the duration of this order;
23. submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer;
24. disclose to a Corrective Services officer all prescription and over the counter medication that you obtain;
25. not visit licensed bars, licensed clubs and licensed nightclubs without the prior written permission of a Corrective Services officer;
26. attend upon and submit to assessment, treatment and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;
27. permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;
28. attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
29. notify a Corrective Services officer of any computer or other device connected to the internet that you regularly use or have used;
30. supply to a Corrective Services officer any password or other access code known to you to permit access to such computer or other device or content accessible through such computer or other device and allow any device where the internet is accessible to be randomly examined using a data exploitation tool to extract digital information or any other recognised forensic examination process;
31. allow any other device including a telephone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer;
32. to advise a Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by you within 24 hours of connection or commencement of use and includes reporting any changes to mobile phone details;
33. not access pornographic images on a computer or on the internet or purchase  or obtain any pornographic material in any other format without the prior written approval of a Corrective Services officer in consultation with the treating psychiatrist or psychologist.  For the purposes of this requirement “pornographic” means sexually explicit material which is more explicit than would qualify it for classification under the National Classification Scheme at a rating of G, PG, M or MA15+ or as an unrestricted print publication;
34. notify the supervising Corrective Services officer of all close personal relationships entered into by you with a female.