Attorney-General v Hynds (No 3)
[2012] QSC 318
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- Appeal Determined (QCA)
- Attorney-General v Hynds (No 3)[2012] QSC 318
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Attorney-General v Hynds (No 3)[2012] QSC 318
Attorney-General v Hynds (No 3)[2012] QSC 318
SUPREME COURT OF QUEENSLAND
PARTIES: | ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v and KELVIN ANDERSON (as Chief Executive Officer of Queensland Corrective Services) (second respondent) |
FILE NO: | |
DIVISION: | Trial |
DELIVERED ON: | 19 October 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 – 14 February 2012; 17 February 2012; 2 March 2012; 21 March 2012; and 28 May 2012 |
JUDGE: | Fryberg J |
ORDERS: | 1. Rescind the continuing detention order made on 7 December 2007;2. Order that Gregory Alan Hynds be released from custody subject to the requirements set out in Schedule A to the order;3. Order that this order have effect for 10 years; and4. Stay the operation o f paragraph 1 of this order until Mr Hynds is released under paragraph 2; and5. Liberty to apply generally. |
CATCHWORDS: | Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Relevance of public expectations – – – – Continuing detention order – Review – Failure of State to provide judicially-specified treatment – – – – Supervision order – Acceptance of undertaking from related person – – – – – Requirements – Delegation of judicial discretion to Corrective Services officer Corrective Services Act 2006, s 341(3)(e)(ii) Dangerous Prisoners (Sexual Offenders) Act 2003, s 8A, s 13, s 27, s 29, s 30 Attorney-General for the State of Queensland v Francis [2006] QCA 324, considered Attorney-General for the State of Queensland v Hynds [2007]QSC 374, considered Attorney-General for the State of Queensland v Hynds [2009]QSC 355, considered Attorney-General for the State of Queensland v Hynds (No 1) [2012] QSC 55, cited Attorney-General for the State of Queensland v Hynds (No. 2) [2012] QSC 56, considered Attorney-General for the State of Queensland & Anor v Sambo [2012] QCA 171, followed Hynds v Chief Executive, Department of Corrective Services [2006] QSC 21, considered Regina v Gregory Alan Hynds (unreported, NSW Court of Criminal Appeal, Gleeson CJ, Mahoney JA and Smart J, 4June 1991, 1989/60573), cited The Attorney-General for the State of Queensland v Hynds [2010] QSC 436, considered |
COUNSEL: | A D Scott for the applicant S Ryan for the first respondent and on his own behalf S Hamlyn-Harris for the second respondent |
SOLICITORS: | Crown solicitor for the applicant Legal Aid Queensland for the first respondent Crown solicitor for the second respondent |
[1] FRYBERG J: By application filed on 21 November 2011 pursuant to s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the Attorney-General has applied for a periodic review of the detention order made by this court in respect of the first respondent on 7 December 2007. He seeks an order that Mr Hynds continue to be subject to the continuing detention order or alternatively that he be released from custody subject to a supervision order.
[2] At the outset of the hearing I raised one important matter relevant to public perceptions of the proceedings with counsel for the Attorney-General:
“HIS HONOUR: I should therefore say publicly that I am conscious that a week or so ago the Premier made a public statement saying that it was time the Courts took public expectations into account in deciding these applications. I am conscious of the degree of pressure that statements like that impose upon me. I would ask if the Attorney-General adopts the same attitude in this application as was reported to have been expressed by the Premier?”
After some ducking and weaving, counsel for the Attorney assured me that his client did not adopt the view that the law permitted me to take public expectations into account. After that assurance, counsel for Mr Hynds expressly agreed that I hear the matter notwithstanding the above disclosure. I have decided the case on the basis that public expectations are irrelevant.
[3] Notwithstanding the fact that the order first took effect in February 2008 this is only the third application for an annual review. The history of Mr Hynds' incarceration is somewhat unusual and it is desirable to record it in one place.
The original offending
[4] Mr Hynds' offending arose in the course of two separate incidents on 3 April 1987 and 9 December 1988. Until his conviction for the first of those incidents, he had no criminal history.
The first incident
[5] The events of 3 April 1987 led to eight charges in the Supreme Court of New South Wales, to which Mr Hynds pleaded not guilty. The charges were subsequently described by the sentencing judge:
“The most serious of the charges is that you attempted to strangle [the victim] with intent to murder her [ie attempted murder]. In addition, you were convicted of threatening to inflict actual bodily harm upon her by means of an offensive weapon with intent to have sexual intercourse with her, four further charges of having sexual intercourse with her without her consent, and one charge of attempting to have sexual intercourse with her without her consent. A further charge of attempted murder, involving the use of a knife, led to a verdict of acquittal.”
At the time of the offending Mr Hynds was serving in the Royal Australian Navy. The victim was the wife of one of his fellow servicemen. On the night in question the husband went clubbing with Mr Hynds, leaving his wife and baby at home. After saying he was going to the toilet, Mr Hynds left the club, went to the victim's house, tricked her into admitting him and then threatened and assaulted her in a manner described by the sentencing judge as “demeaning and humiliating in the extreme”. After he became concerned that the victim would report his conduct, “what can only be described as a struggle of quite amazing violence and ferocity took place”. It may be inferred that her life was saved only by the timely arrival home of her husband.[1]
[6] At the trial Mr Hynds claimed that he went to the victim's home because he had had a previous intimate relationship with her, that they were having consensual sex when her husband returned home and that it was he who had injured Mr Hynds and who must have beaten up his wife after Mr Hynds’ departure.
[7] At the time of sentencing at the beginning of December 1989, Mr Hynds was aged 28 and married, with one child and a stepchild. The sentencing judge was so shocked by the violence, both sexual and physical, which Mr Hynds displayed “to quite a frightening degree” that she concluded that it must have been indicative of a serious mental or emotional disturbance. She sought several psychiatric assessments during the sentencing process. They proved to be of little assistance due to Mr Hynds’ continuing insistence on his innocence. These assertions gave the judge the impression that Mr Hynds genuinely believed them. He was quite without remorse.
[8] The judge imposed cumulative sentences the total net effect of which was a minimum term of imprisonment of 12 years with an additional term of 2½ years.
The second incident
[9] The second incident occurred while Mr Hynds was on bail in respect of the first incident. Mr Hynds pleaded guilty to one charge of enticing away for an abduction [sic] and another of rape. He pleaded not guilty to threatening to inflict bodily harm by a knife with intent to have intercourse and to one count of oral intercourse. He was convicted on all charges.
[10] The offences had what the learned District Court judge who sentenced Mr Hynds described as “a disturbing similarity” to those of the first incident. They were the outcome of careful and deliberate planning over a period of some days. The victim was again the wife of a fellow servicemen who Mr Hynds knew was away on a course in Sydney. Her name was similar to that of the first victim. Mr Hynds or an accomplice telephoned the victim and told her that her husband had been involved in a motor vehicle accident, and that the Navy was arranging to fly her to Sydney. He then went to her home in a Navy vehicle, picked her up, drove her to a deserted and isolated airfield and committed the offences with the aid of a knife.
[11] For each of the four offences Mr Hynds was sentenced in mid-December 1989 to concurrent terms of five years imprisonment, to be served cumulatively upon the earlier term. Thus, his total period of imprisonment was 17 years with an additional term of 2½ years.
The appeal against sentence
[12] In June 1991 the Court of Criminal Appeal dismissed Mr Hynds' appeal against sentence. In the course of delivering the reasons for judgment of the court, Mahoney JA said:
“No explanation has been given by the applicant, by those who are associated with him in relation to the matter, or by the expert witnesses who have been asked to explain what he did. Nothing has been put forward to suggest that what was done was other than deliberate wrongdoing … .
Like Mathews J I wonder what happened. One can only hope that with some assistance whilst in prison the applicant may be able to make something of what may be left of his life after his release.”[2]
The interstate transfer
[13] In 1996 Mr Hynds was transferred to prison in Queensland from New South Wales in accordance with the Prisoners (Interstate Transfer) Act 1982 (NSW).
The application for remission
[14] In August 2005 Mr Hynds became eligible to be considered for remission under the Corrective Services Act 2000. His application for remission was refused on the ground that the decision maker was not satisfied that his discharge posed no unacceptable risk to the community. He applied to this court to have that refusal judicially reviewed. As the judge found:
“[9] The decision maker discussed a psychologist’s report dated 15 June 2005. He noted that according to that report, the applicant had claimed to the psychologist that his offences were not of a sexual nature; instead the applicant had said that he was motivated by revenge because of a betrayal in the context of illegal drug activity. He further noted that the applicant had told this psychologist that he could not say that if faced with the same circumstances he would not act in the same way. He noted that in an earlier psychologist’s report (2002), the applicant is recorded as having said that he would ‘react in a similar manner if faced with the same situation again’.”
This version of the first incident was, of course, quite different from the one which he gave at his trial.
[15] The court held that no ground for reviewing the decision had been demonstrated.[3]
The continuing detention order
[16] By mid-2007, Mr Hynds had served about 19 years imprisonment. In August of that year, the Attorney-General applied to this court for a continuing detention order under s 13(5) of the Act. As it happened, the application came before me.[4] On the evidence I found that Mr Hynds was a serious danger to the community in the absence of a Division 3 order. Indeed, Mr Hynds admitted as much. The issue was whether there should be a supervision order or a continuing detention order. In relation to the first incident, Mr Hynds now claimed that he himself had no direct contact with the victim, but rather forced her husband to perform a number of sexual acts upon her. He claimed to be unable to recall the events surrounding the second incident. He had completed a number of courses in prison, but not the Sexual Offenders Treatment Program, due to his refusal to admit guilt in relation to the first incident. In the circumstances I held that refusal was irrational. He had a minimal breach history and a low security classification. He was examined by three psychiatrists all of whom diagnosed Antisocial Personality Disorder notwithstanding his refusal to cooperate fully with them (he would not discuss certain areas of his life). Two of them thought it was not possible to formulate a set of conditions which, if Mr Hynds adhered to them, would provide adequate protection to the community. Mr Hynds' failure to give evidence at the hearing was a problem. I observed:
“He has chosen, quite deliberately, not to give evidence. I can only assume that nothing he has to say will improve his position in relation to these matters.”
[17] On 7 December 2007 I made a continuing detention order because I found that Mr Hynds’ risk of recidivism was unacceptable. As to the form of the order, I held:
“An order must therefore be made under paragraph (a). That order must be for one or more of the purposes of control, care or treatment. There is no evidence that Mr Hynds needs any care. That was common ground. Mr Hynds has persistently and consistently refused to undergo the SOTP course, and I see no prospect of his changing his attitude. There is no suggestion that any other treatment is necessary or desirable. There is, therefore, no point in my making an order for the purpose of treatment.
Adequate protection of the community can be ensured by ordering that he be detained in custody for an indefinite term for control.”[5]
That is the order now to be reviewed.
The first review
[18] In 2008 and 2009, s 27 of the Act provided:
“(1)If the court makes a continuing detention order, the court must review the order at the end of 1 year after the order first has effect and afterwards at intervals of not more than 1 year after the last review was made while the prisoner continues to be subject to the order.”
[19] Accordingly, on 11 February 2009 the Attorney-General filed the necessary application. In substance it sought the same orders as the present application. It did not come on for hearing until 5 March 2009. It was then adjourned until 16 July, when it was further adjourned part heard until 14 August. Judgment was delivered on 9 November 2009.[6] The reasons for judgment record what seems to have been Mr Hynds’ then-current version of his offending:
“[22]On a number of occasions, Mr Hynds 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. Mr Hynds 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. Mr Hynds 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 Mr Hynds, the drug dealer told him that the money had been given to the first victim’s husband. Mr Hynds 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 Mr Hynds, the wife was visiting neighbours. Mr Hynds 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.
[23] Mr Hynds 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 says that he has no memory of the events for much of the night of the 1988 offences.”
[20] It had been recommended that Mr Hynds undertake a High-Intensity Sexual Offenders Program, but he had not done so. The judge explained the reason which he advanced for that:
“The course is apparently only available at the Wolston Correctional Centre, and at the Lotus Glen Correctional Centre outside Mareeba. Mr Hynds 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 is, apparently, prepared to undertake the HISOP at Lotus Glen, but that facility is intended for indigenous offenders.”
[21] The judge summarised the evidence of the three psychiatrists at some length. It is unnecessary to repeat that summary. Two of the psychiatrists considered that Mr Hynds might well benefit from a treatment program. Dr Madsen, a clinical forensic psychologist[7], gave evidence of sex offender programs available outside prison.
[22] The judge rejected a submission that Mr Hynds' attitude to the program in prison reflected an attempt to manipulate the process. He held:
“[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.”
Nonetheless, in view of the fact that the program had not been undertaken and in the light of the two psychiatrists' opinions, his Honour ordered that Mr Hynds continue to be subject to the continuing detention order.
The second review
[23] By application filed on 11 October 2010 the Attorney-General again applied for a continuing detention order or in the alternative a supervision order in respect of Mr Hynds. That was just inside the period of 12 months after the delivery of judgment on the first review. The application was heard on 29 October 2010. For the purposes of that review Mr Hynds chose not to be legally represented. Again there was no real dispute that there was an unacceptable risk that he would commit a serious sexual offence if released from custody without a supervision order being made, and the judge so stated in a judgment delivered on 24 November 2010. Again the issue was whether there should be a supervision order or a continuing detention order. I shall refer to the reasons for judgment in some detail.
[24] Some things had not changed since the previous hearing:
“[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.”
[25] Two matters particularly concerned the judge at the second review. One was Mr Hynds' reluctance to undertake a High-Intensity Sexual Offenders Program as a group exercise in which other members of the group were child sex offenders with whom he did not wish to associate and reside. Mr Hynds' attitude had not changed since the first review. That was an aspect of the second matter, the need for immediate therapy “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”.
[26] Like the judge who conducted the first review, his Honour was not prepared to be critical of Mr Hynds' attitude toward undertaking the program. He observed that there was a difference of opinion between the two reporting psychiatrists, Professor James and Dr Harden, about the benefit that Mr Hynds would derive from undertaking the program at that stage. Professor James thought it unlikely that he would get any benefit and his Honour accepted that evidence in preference to that of Dr Harden.
[27] His Honour considered the evidence of the two psychiatrists at some length. I shall not attempt to summarise his discussion.[8] It repays careful reading. He accepted Professor James’ opinion about Mr Hynds’ unpredictability, a situation largely brought about by his unwillingness to be open and frank with the psychiatrists. He wrote:
“[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.”
[28] On that basis the question became how best to deal with the situation. His Honour wrote:
“[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.’
[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'. 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.’ ”[9]
[29] His Honour described the matter as “a troubling case”. He continued:
“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).”[10]
[30] Nonetheless he continued the detention order. He did so in part because Mr Hynds was willing to engage in a therapeutic relationship with a suitably qualified and experienced forensic psychologist. That was a reference back to what his Honour described as Mr Hynds’ acceptance of “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”. His Honour thought that desirable:
“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.”[11]
[31] In the course of the hearing, Mr Hynds had been critical of Corrective Services’ failure to provide such therapy in the past. His Honour accepted that criticism and found it “unfortunate” that Mr Hynds had not received such individual treatment in the preceding 12 months.
[32] His Honour summarised the reasons for his order:
“[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.
…
[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 9 November 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.”
[33] So far as is presently relevant, his Honour ordered:
“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 31 Professor Basil James in his oral evidence given 29 October 2010 … .”
[34] With the benefit of both hindsight and subsequent enlightenment from above, it can now be seen that there were three defects in that order.
[35] First, it assumed that the existing order was for “care, control or treatment” whereas in fact it was for control only. It contained no provision for care or treatment.[12] It might have been argued that his Honour's reasons were inconsistent with continued detention solely for that purpose. However Mr Hynds resisted his Honour's urging that he obtain legal representation, and such an argument was not raised. There was no suggestion before me that the Department's failure to provide treatment before or after the second review was the result of the terms of the detention order. On the contrary, departmental officers stressed the efforts which they had made in regard to the provision of treatment in accordance with his Honour's order.
[36] Second, it is now known that the court has no power to impose obligations on the Department of Corrective Services.[13] The order should not be construed as having done so. That does not materially affect the disposition of the proceeding before me. Departmental officers accepted that in the circumstances they should have provided the treatment to which the order referred. Speaking at a more general level, it is evident that the court is not without a means of remedying omissions to provide treatment:
“[24]There may be cases in which departmental recalcitrance, in relation to the rehabilitative treatment of a prisoner in continuing detention, will give rise to a question on subsequent review by the court as to whether the continued detention of the appellant is justified under the Act. It must always be borne in mind, in this regard, that one of the purposes of the regime of post-sentence detention established by the Act is treatment of the prisoner.”[14]
[37] Third, the order referred to the provision of assessment and treatment of the kind described in the affidavit of Joel Brady Smith filed on 26 October 2010. Mr Smith was employed in the High Risk Offender Management Unit (“the unit”), a section within Queensland Corrective Services. Prisoners detained under the Act are managed by the unit. Relevantly Mr Smith had deposed:
“7.Dr Madsen and Dr Palk have both indicated they would be able to attend upon the respondent at Borallan Correctional Centre for an initial appointment, with a view to undertaking an extended assessment process at which time a treatment plan will be recommended to QCS.”
His Honour referred to that evidence in his reasons for judgment[15], but it is quite clear that what he envisaged the psychologists doing was undertaking an assessment for a plan to be developed in the immediate future that would provide a structure for release on conditions.[16] Nothing in his reasons for judgment suggests that he envisaged the psychologists providing treatment save to the extent that therapeutic intervention was necessary in order to induce Mr Hynds to be frank and to reveal more about himself. He specifically accepted Professor James' evidence that the aim of any therapy should be “exploratory as opposed to didactic and rather rigidly cognitively based”.[17]
[38] Subsequent events have demonstrated that it was unfortunate that the order was not more precise.
Events between the second and third reviews
[39] The judge reserved his judgment at the end of the hearing on 29 October 2010. On 3 November 2010, while the decision remained reserved, Mr Smith contacted Dr Madsen by e-mail to ascertain his availability for a possible referral of Mr Hynds for individual treatment. According to the evidence of Ms Roberta Embrey Dr Madsen responded by e-mail on 9 November. That e-mail was not tendered in the proceedings before me. According to Ms Embrey’s affidavit, Dr Madsen advised
“that he would need to complete a full range of assessments on the respondent if he was to become the respondent's treatment provider. Dr Madsen indicated that the purpose of the assessment was to identify reasonable targets for treatment, and also potentially highlight a pathway to achieve such. Further in this correspondence, Dr Madsen advised that he was available and able to plan to commence the process from January 2011.”
[40] The judgment on the second review (and, presumably, the reasons for it) were received by the unit on the day on which they were published, 24 November 2010. The need for a psychological assessment of Mr Hynds to be arranged promptly ought to have been appreciated immediately. Unfortunately, the evidence of what happened thereafter was hearsay, unreliable, partly speculative and generally unsatisfactory.
[41] Ms Embrey did not identify in her affidavit precisely how the unit responded to the court's order. In oral evidence she claimed that it made a commitment with Dr Madsen “largely by telephone” that he would commence the process in January, or at least that “that was our understanding”. Dr Madsen denied that he made any such commitment. He said that he was overseas in January 2011 and that he would not have agreed to see Mr Hynds at that time.
[42] There are a number of difficulties with Ms Embrey's version. Mr Smith's approach to Dr Madsen was about a “possible” engagement. It seems unlikely that any firm arrangement would have been made before publication of the reasons for judgment on 24 November. Ms Embrey deposed that “records indicate” that Mr Smith contacted the general manager at Brisbane Correctional Centre to make arrangements for Mr Hynds' transfer to Brisbane Correctional Centre (for the purposes of the assessment). No such record was tendered and I note that the transfer did not take place until 24 February 2011.[18] Before me, Mr Smith gave no evidence about these matters, although his affidavit of 25 October 2010 was in evidence. In these circumstances I prefer the evidence of Dr Madsen. I find that no arrangement was made regarding when Dr Madsen would see Mr Hynds until February 2011.
[43] Dr Madsen interviewed Mr Hynds at Brisbane Correctional Centre at weekly intervals from and including 2 March 2011 to 6 April 2011, for a total of 8½ hours. He subsequently reported that he had been requested to address the following areas:
- the offender's profile;
- reason for offending;
- future risk;
- treatment needs; and
- likelihood of engagement in treatment.
That request was in terms much wider than was necessary to implement the court's order. It opened the way to a report which would undermine that order and the reasons for it. Mr Smith provided no evidence to explain this variation.
[44] Following the interviews, Mr Hynds was returned to Borallan Correctional Centre in April 2011.
[45] Dr Madsen delivered his report to the unit on 22 June 2011 (no one had suggested to him there was any urgency about it). I shall refer to it in more detail below.[19] He reported that he had read psychological reports made in 2002 and 2005, two psychiatric reports prepared for the original hearing in 2007, two psychiatric reports by Dr Sundin of 2007 and 2008 and two reports prepared by Dr Harden in 2009 and 2010. I infer that he was provided with these reports by Mr Smith. He was apparently not told that Dr Sundin's evidence had been rejected by the court (indeed, it is not too strong to say it had been discredited) in the first review. He was not provided with Professor James' 2010 report nor was he told that this report had been accepted by the court in preference to that of Dr Harden. Indeed, he was not provided with a copy of the court's reasons for judgment. Those omissions are astonishing. Neither the Attorney nor the Chief Executive led evidence explaining them.
[46] The substance of the report occupied 41 pages. It responded to all of the areas which Dr Madsen had been requested to address. It recommended against Mr Hynds' participation in any group based sex offender program. It recommended “that a treatment approach utilising both individual and group treatments staged in a sequential and graduated manner be considered”. Treatments recommended involved cognitive restructuring using schema and cognitive behavioural therapies, and in particular attending before his release the Cognitive Self-Change Program run by Corrective Services. The average time for a prisoner to complete that course is nine months.
[47] According to Ms Embrey the unit saw two difficulties with that report. The first was placing Mr Hynds in the recommended program. The second was whether the recommendations were inconsistent with those of Professor James. A month after the unit received the report, Crown Law referred it to Professor James. He was requested to provide an opinion as to whether the proposed treatment options adequately met the issues raised at the second review. He did so by a report dated 21 August 2011. Although he did not say so in as many words, he was plainly of the opinion that it did not, in that it did not address the issues which he had raised. He accepted that the results of the various psychometric questionnaires applied by Dr Madsen contained some important details relevant to the planning of treatment, and identified those details. However he challenged the theoretical basis, content and modus operandi of the recommended program. He also identified a number of issues which were less than optimally addressed.
[48] It is hardly surprising that Dr Madsen made the recommendations which he did and that Professor James responded as he did. Their approaches to therapy were fundamentally different. As Dr Madsen put it in his oral evidence earlier this year:
“Professor James made a recommendation regarding the kind of treatment that would be most appropriate for Mr Hynds. He described it as unstructured psychodynamic type of treatment. Through my assessment, I recommended a different type of individual treatment. This is something called Schema Focus Cognitive Therapy, and it is a different style. It has similarities to psychodynamic therapy, but it has got more of a focus, it has got more of a structure to it, and it is a type of one-to-one intervention approach that's complex to deliver, but is used in the UK and in America for individuals who present with complex difficulties and - like Mr Hynds. That's the approach that I recommended. I can't speak to Professor James' recommendation in relation to the unstructured psychodynamic therapy because I am not a psychodynamic therapist. We're different schools.”
[49] The problem was inherent in the form of the order made at the conclusion of the second review. That order did not accurately reflect the reasoning which underlay it. The difficulty was compounded by Mr Smith's failure to specify to Dr Madsen that what was required in accordance with the judge's findings was one-on-one psychotherapy of an exploratory nature and not cognitive behaviour therapy. Instead, Dr Madsen was invited to reconsider the whole question of treatment, in effect starting with a clean slate and disregarding the court’s reasoning. To make matters worse he was not provided with a copy of Professor James’ report which had been accepted by the court, nor with a copy of the reasons for judgment. Given their differing approaches to therapy, the disagreement was hardly surprising.
[50] I should add that the question whether Dr Madsen's proposed treatment options adequately met the issues raised at the second review was also referred to Dr Harden. Dr Harden's response addressed his letter of instructions literally. The focus was primarily on whether Dr Madsen's proposed treatment options met the issues raised at the review, not whether they conformed with the judge's reasons. He did however express the opinion that Dr Madsen's “schema focus cognitive behavioural approach would be as Professor James described it ‘an exploratory’ approach looking at the underlying beliefs and experiences”. That view would not seem to accord with those of the protagonists. Dr Harden expressed general agreement with Dr Madsen's approach.
[51] Mr Hynds did not submit that the process of briefing Dr Madsen was deliberately calculated to undermine the approach recommended by Professor James. I pass over whether the absence of such a submission provides some basis for not accepting Dr Madsen's diagnosis of paranoid personality disorder. No other professional expert made that diagnosis. In these circumstances it is unnecessary to reach conclusions about Mr Smith's state of mind at the time of the briefing.
[52] Notwithstanding its concerns about Dr Madsen's report, the unit seems to have decided to implement his recommendations. On 21 July it contacted by e-mail Ms Holly Rogers, a Senior Psychologist employed by SERCO, the private contractor operating the correctional centre. It drew attention to Dr Madsen's report, recommended that he be engaged to provide the individual treatment and further recommended that a QCS staff member work with Mr Hynds on a fortnightly basis to assist with his homework tasks and liaise directly with Dr Madsen. There was no response to that e-mail. In the event Dr Madsen was not prepared to undertake the work until the Department agreed to provide a place for Mr Hynds on the CSC program. No such agreement was forthcoming until 28 September 2011 when, it seems, the Department agreed in principle to allow Mr Hynds to attend the program. By that time the unit had Professor James' comments on Dr Madsen's report and was aware that the proposed treatment was inconsistent with the former's opinion and, therefore, with the judge's findings. At a conference held that day, Dr Madsen agreed to provide the treatment which he had recommended. No date for him to do so was fixed; the unit did not follow up an e-mail sent to Dr Madsen’s secretary requesting an appointment.
[53] By September Mr Hynds was becoming agitated at the lack of action. The case notes in his offender case file show that on 6 September he requested a lengthy entry be made as a case note. After referring at some length to the decision of the second review, he said:
“Now I am faced with a further inept failure by QCS to fulfil last year's – 2010 – court order in its entirety. It does not isolate those that are supposed to manage my detention, sentence management or the high risk offenders unit because both are part of QCS, both should be aware of the court orders and the forthcoming [review] in making sure that such orders are undertaken and fulfil as they do with other recommendations or orders of either the sentencing court or QC is that sells IDE – program participation that has been recommended. But the uniqueness of QCS and the stance they are above the court and do as they please, is further evidence at present because such orders of the court last November 2010 were expected to be fulfilled as soon as reasonably possible. Given it is now September 2011, the next review is late November, this expectation to have the orders fulfilled has been an utter failure by QCS to do so within the last 10 months. I cannot go out and fulfil them as much as I could and would if allowed to … . Via released into the community is reliant on these orders being carried out within a timeframe to allow the necessary psychotherapy to be undertaken prior to release as such psychotherapy would continue post-release.”
Mr Hynds' frustration is understandable.
[54] The Department's response to his agitation came on 15 September. On that day Ms Rogers and the manager of the offender management section had a discussion with Mr Hynds. He reiterated his refusal to transfer to Wolston and being amongst paedophiles in order to attend the High-Intensity Sexual Offending Program. It was decided that Ms Rogers would commence motivational interviewing that day and continue it every second Thursday (later changed to once a month). After the October meeting Ms Rogers noted, “He remains open in his disclosure and appropriate in his interaction.” Despite these meetings, nothing was then said to Mr Hynds about the decision to provide him with the therapy recommended by Dr Madsen.
[55] In early October Ms Embrey sent Dr Madsen the transcript of the proceedings and the reasons for judgment in the second review, Professor James' 2010 report and the commentaries on his original report which had been provided by Professor James and Dr Harden. She asked him to review Professor James' comments with a view to clarifying the issues which he raised. He wrote a response dated 30 October. He described at some length the differences between schema therapy and conventional cognitive behavioural therapy and dealt more briefly with other points raised by Professor James. He does not seem to have been influenced by the court's reasons for judgment, nor to have perceived the inconsistency between them and the treatment which he proposed. He again referred to the need for cognitive behaviourally based intervention to deal with Mr Hynds' anger and violence, noting specifically that this intervention was not particularly focused on gaining insight. He did not attempt to reconcile the group nature and the nine-month average duration of the proposed CSC program with the reasons for judgment. He reiterated his original opinion.
[56] Meanwhile, Crown Law had begun to focus on the next annual review, which under amendments to the Act was required to start “within 12 months after the completion of the hearing for the last review”.[20] It seems that the view was taken that the Act would be satisfied if an application was filed before 24 November 2011. In mid-August 2011 letters were written to Dr Harden and Professor James requesting them to provide updating risk assessment reports. Professor James examined Mr Hynds on 14 October; his report was received on 16 November. The application was filed on 21 November and set for a first hearing on 12 December. Dr Harden examined him on 26 October and his report is dated 28 November; presumably it was received before the return date of the application.
[57] Ms Rogers saw Mr Hynds for their monthly session on 16 November. Her case note of the meeting includes:
“Offender Hynds discussed his court assessment process and the summaries from reports he had been given copies and discussed his thoughts in relation to the updated treatment recommendations. He appeared motivated towards participating in a violence-based treatment program, however indicated he would much prefer the opportunity to [do] this in the community. He indicated he is receptive to ongoing therapy sessions, as proposed and identified that there are certain aspects he needs to work on.”
[58] Not until early December was an appointment made for Dr Madsen to see Mr Hynds; the appointment was set for 14 December. At this stage Mr Hynds had still not received a copy of Dr Madsen's report. The Department then indicated that it would offer Mr Hynds a place on the CSC program, but not until after he had seen Dr Madsen. Unfortunately Dr Madsen cancelled the appointment. (It was rescheduled but Dr Madsen again cancelled.). Mr Hynds was not told of the cancellation and turned up at Ms Rogers' office for the meeting. Ms Rogers noted:
“Offender Hynds discussed the outcome of his court appearance[21] and details of the affidavit and expected outcomes. He indicated he is willing to engage in one on one intervention with Dr Madsen and was able to articulate the benefits of this contact. He also discussed his thoughts in relation to the likelihood of being recommended for CSCP. Offender Hynds discussed his preference for completing proposed intervention in the community. He also discussed concerns in relation to his age upon release, due to the need to work and possible struggles of gaining employment if his release is continually delay. Offender Hynds was polite and open throughout the interview.”
[59] Mr Hynds' preference for doing the course in the community is understandable, given its duration. No doubt that explains why his solicitor notified Crown Law on 13 December that he would prefer to wait until the court had reviewed his detention before deciding about the course.
[60] Ms Rogers saw Mr Hynds on 20 December to ascertain his willingness to participate in the CSC program. He told her that he was willing to participate but did not wish to do so at that time. He saw Dr Madsen on the same day and again in early February 2012. Dr Madsen subsequently wrote:
"I met with Mr Hynds on two occasions (mid December and early February) regarding the treatment recommendations, partly to discuss these further with him, though also to determine the viability of working with him in regards to the identified individual work.
Broadly speaking, Mr Hynds was prepared 'in principle' to engage in individual therapeutic work, however, disputed the need to complete the group based interventions.
In terms of the individual work he was prepared to do 'schema therapy' though stated that he would prefer the treatment recommended by Professor James, and ideally would like to do this with him. He did recognise that this was unlikely to occur, and as such added, that he was 'happy' to work with myself. He stated that he was unprepared to commence the recommended group work, and stated that he would dispute this within the court. Mr Hynds appeared to hold the perception that Professor James was supportive of him being released and completing his recommended 'unstructured psychodynamic treatment' within a community-based context. In the second meeting that I had with Mr Hynds (2 Feb 2012), he again disputed the need to complete the group treatment and had refused the opportunity to commence the Violence program. He believed that he had satisfactorily completed his work within the Violence Intervention Program (VIP) that he done in the late 1990's. He reiterated his feelings of resentment, anger and mistrust towards QCS. Mr Hynds described wanting to 'go after me' in the court, by this he meant to challenge my conclusions and recommendations. Curiously, despite his adversarial position within our two sessions he stated that he would prefer to work with me if he returned to the community (rather than another psychologist or psychiatrist). When questioned on how he would cope with a release into the community he stated that he was unprepared to live at the Wacol prescient due to the belief that he could become violent if exposed to the individuals (i.e. child sex offenders) in this environment.
Clearly, I am not the best person to work with Mr Hynds at this time. Indeed the ongoing uncertainty regarding his circumstances and situation make any therapeutic engagement with anyone unlikely.
Mr Hynds does not believe that he needs treatment and whilst he consents to 'do treatment' his behaviour suggests that he is attempting to 'pick and choose' what this treatment should be. It is understandable that he would be in this ambivalent-hostile motivational stance towards treatment considering the ongoing court matters, and his perception that another expert holds an opinion that would allow him an earlier release from custody. Until there is clarity regarding these concerns he is unlikely to change this position. If he were required to commence the treatment whilst in custody, I would expect that he would hold me responsible for this outcome and likely experience strong feelings of resentment and anger. It would be difficult (likely impossible) to then also hold a therapeutic relationship with him."
[61] It seems that in January 2012 Crown Law belatedly recognised that nothing had been done since the second review to provide the psychotherapy recommended by Professor James. Letters were sent to the Professor and to Dr Harden seeking names of practitioners in Brisbane qualified to deliver the therapy, but no one had been engaged by the time the hearing commenced on the 14th of that month.
The third review hearing
[62] To understand the evidence which was led over the course of the hearing it is necessary to have some knowledge of how the hearing proceeded. The process, which took place within the applications list, was to say the least, fractured and unsatisfactory.
The first three days of the hearing
[63] When the hearing began, both the Attorney and Mr Hynds were represented by counsel. Two days were allocated for it, although counsel for the Attorney estimated it could finish in one. Following (or perhaps in the course of) the opening, counsel for Mr Hynds applied successfully for an order to add Kelvin Anderson, the Chief Executive, Corrective Services, as a respondent.[22] After the luncheon break, Mr Anderson appeared by counsel. By the end of the day, cross-examination of one witness, Ms Embrey, had been completed.
[64] On the following day cross-examination of the three expert witnesses (Dr Madsen, Professor James and Dr Harden) took place. The Attorney then closed his case. The hearing was adjourned for three days, because there was no spare time in the applications list until then.
[65] On 17 February the hearing was further adjourned until 2 March due to illness of counsel for the Attorney-General.
The fourth day of the hearing
[66] On 2 March things got off to a bad start when counsel for Mr Hynds sought leave for her and her solicitor to withdraw, having consulted senior counsel about the matter. Afterwards Mr Hynds informed the court that he wished to continue unrepresented subject only to a short adjournment. Leave was granted.
[67] When the court resumed counsel for the Attorney sought and was granted leave to reopen his case. He tendered what purported to be a certificate under s 8A of the Act. After hearing submissions I rejected the tender.[23] The case was again closed.
[68] Counsel for Mr Anderson then read his material. It included two affidavits sworn by Ms Embrey and one by Ms Phelan. Ms Embrey deposed that the unit had made contact with a psychologist, Dr Susan Boyce, who was willing to provide the treatment recommended by Dr Madsen. Mr Hynds cross-examined both witnesses.
[69] After Mr Anderson's case was closed, Mr Hynds read a number of affidavits, including some made by himself and one by Mrs M, his mother. The principal point of the latter affidavit was to provide evidence of Mr Anderson's agreement to have Mr Hynds reside at her residence should he be released on a supervision order. Mr Hynds was cross-examined by counsel for the Attorney and counsel for Mr Anderson. Counsel for the Attorney then stated that he required Mrs M, for cross-examination. It being nearly 5.00pm, the further hearing of the matter was adjourned to a date to be fixed.
The fifth day of the hearing
[70] The first available day for the resumed hearing was 21 March 2012. That date was selected well in advance but unfortunately, no notification of it was given to Mr Hynds. The first he knew about it was late on 20 March, when he was hastily transferred from the South Queensland Correctional Centre at Gatton to Brisbane Correctional Centre. He had no opportunity to notify his mother or to secure her attendance for cross-examination. Nonetheless, with the assistance of lawyers for the other parties Mr Hynds was able to contact her and she became available for cross-examination at about 4.15pm.
[71] In the meantime counsel for Mr Anderson sought and obtained leave to reopen his case to recall Ms Embrey. She testified in her evidence-in-chief that Dr Boyce had seen Mr Hynds two days previously and proposed to continue to see him either in prison or at her rooms on a fortnightly basis. She said that Dr Boyce also had the skills necessary to provide the psychotherapy as recommended by Professor James. The precise form of intervention would be a matter for the therapist's discretion.
[72] Ms Embrey also testified as follows:
“Now, are you aware of a proposal by Mr Hynds that he - if he's released that he reside with his mother?-- I am aware of that.
I think you gave evidence on the last occasion about the issue of a decision being made by Queensland Corrective Services about what is referred to as disclosure, that is, disclosure of some information about Mr Hynds to neighbours?-- That's correct.
Can you update the Court on what, if anything, has happened since the last hearing in relation to that?-- Yes, since that time a conversation has been had with a delegate regarding whether or not they would approve disclosure in this circumstance and the response was that disclosure would be - would occur for Mr Hynds if he were to reside with his mother.”
[73] That evidence was referable to the power of the Chief Executive contained in s 341(3)(e)(ii) of the Corrective Services Act 2006 to authorise disclosure of confidential information. I understood it, as did counsel for the Chief Executive and, I am sure, the other parties, to mean that the delegate had decided that if a supervision order were made, disclosure would occur.
[74] I shall refer to the cross-examination of Mrs M in greater detail below. For present purposes it is enough to refer to three questions:
“So it's the fact of your son's conviction for those offences being disclosed to your neighbours and the fact of him living at your residence, correct?-- Yeah.
If that information were to be disclosed to your neighbours would you still be willing for your son to reside at your home?-- No.”[24]
Counsel for the Chief Executive reinforced the position:
“MR HAMLYN-HARRIS: I just want to understand clearly your position, Mrs M. Again, it's not a criticism of you but I'd like you to make it clear. If the department's decision is that there must be disclosure for Gregory to reside with you - in other words, as a condition of him residing with you - what would be your attitude towards him residing with you?-- He wouldn't be able to.”[25]
[75] Mr Hynds had, and has, no alternative proposal for his accommodation. It was apparent to all that in terms of a possible supervision order, the issue of disclosure was a potential deal breaker.
[76] Mr Hynds then sought an adjournment of the hearing for 10-12 weeks in order to enable evidence to be given of his future interaction with Dr Boyce. There being no opposition to that application, the matter was adjourned to 28 May 2012. Before adjourning, I said:
“HIS HONOUR: Now, given the turn that the case has taken, I think it's necessary to give some thought to being prepared for what's to happen on the 28th of May. I'm not trying to hint at any view at all at the moment because I genuinely do not know whether I will order continued detention or supervised release. In the event that I order supervised release, and the prima facie view that I expressed to you earlier[26] is still maintained, it is likely that I will raise with Mr Hynds the question of an interim injunction. It would be helpful to know, in advance of the 28th, on what facts, the chief executive submits, it is in the public interest that this disclosure take place, so that (a) Mr Hynds can focus upon those facts, and (b) I can.
MR HAMLYN-HARRIS: Yes. Thank you, your Honour.”[27]
Counsel foreshadowed the possibility of an affidavit to address those issues.
The sixth day of hearing
[77] The matter was relisted for half a day on 28 May. At the outset of the hearing counsel for the Attorney sought leave to reopen his case in order to lead evidence from Dr Boyce. Mr Hynds did not oppose that application, leave was granted and an affidavit was read. Mr Hynds did not require Dr Boyce for cross-examination.
[78] Counsel for Mr Anderson then sought leave to reopen his case in order to lead evidence relating to Mr Hynds' accommodation. That evidence consisted of two affidavits. The first was by Ms Jenny Lynas deposing to the effect that there was no suitable accommodation for Mr Hynds known to the Department other than at his mother's residence. That was uncontroversial.
[79] The second affidavit was made by Ms Marlene Morison, Commissioner of Queensland Corrective Services. Ms Morison was Mr Anderson's delegate for the purposes of s 341 of the Corrective Services Act 2006. Ms Morison deposed that she had decided to authorise disclosure to be made to those persons who were neighbours of Mr Hynds' mother. That decision had been made earlier that morning. A copy of the decision and the reasons for it were exhibited to the affidavit, which had been provided to Mr Hynds only shortly before court began.
[80] Predictably, Mr Hynds objected to the use of that affidavit. He pointed out that I had specifically requested that he be given advance notification of the reasons for the decision. With considerable justification he characterised the lateness of the affidavit as delaying tactics. In the end I determined to admit the evidence. Also predictably Mr Hynds required Ms Morison for cross-examination. Despite the lateness of her affidavit she was not immediately available in person. She came to court after lunch and was then cross-examined. Addresses did not conclude until 5.10pm. Other litigants in the applications list were inconvenienced.
Mr Hynds' evidence of the offending
[81] On his evidence in this review Mr Hynds has not departed from the version of the offending which he gave for the two previous reviews. That version was summarised by Dr Madsen:
"42.Mr Hynds denies the 'official version' as detailed within Judge Smyth's sentencing remarks on the 15/12/1989. Instead he has described a complex build up wherein he proposes that a range of historical, contextual, interpersonal and intra-personal factors contributed to him offending in the manner that he did. Of these factors perhaps the most notable is Mr Hynd's belief at the time that Ian Whitehead (one of the victims in the initial offences) had 'cheated' him out of money. What follows is Mr Hynds' description to me of the build up to his offending.
43.As highlighted above Mr Hynds reported that his job as a debt collector had led him to also work as a drug courier for Alex. This started in 1982 when on his first overseas deployment he claims to have brought back 10 kg of hash. In 1986 or 1987 he attempted to import 30 kgs of cocaine form the United States and enlisted the help of his colleague (Ian Whitehead). The 'job' was successful, and Mr Hynds was to be paid $15000 from Alex (the supposed distributor). However, because Mr Hynds was in Melbourne at the time Ian was given the money to then pass onto him. However Ian is to have denied ever having received the money from Alex. Mr Hynds believed that Ian was lying and attempting to steal his money, and despite his attempts at resolving the issue was not paid 'his' money. In response Mr Hynds describe becoming increasingly agitated and angry by what he perceived to be disloyalty. When he returned from Melbourne he went over to Ian's house with a gun and assaulted him. He was motivated to gain revenge and get his money. He thought both of Ian and his wife (Robyn) were 'worthless pieces of shit' and described the motivation to 'degrade and humiliate' them both.
44.In terms of the actual offending Mr Hynds provided broad and vague details of 'torturing' Ian and then forcing the couple to engage in various sexual acts with each other. He stated that he wanted to humiliate and degrade them both. When questioned about the build up to his offending Mr Hynds reported that what had upset him the most was not the issue of the money however the perception of the lack of respect and loyalty.
45.In regards to the second offence Mr Hynds described a confusing story of having been stationed in Nowra where he was completing some training. He continued to feeling anger and resentment about being 'ripped off' by Ian and Robyn. At sometime during the year he claims that he found out the couple were actually going to be moving to Nowra as well. This information was to him particularly aggravating as it was like 'rubbing salt into the wound'. After finding this out he reported that he started planning his revenge on the couple for their 'disrespect'. He claims that when he targeted the second victim (a stranger sharing the same name) he had believed that it was Robyn, the victim in his initial offence. Mr Hynds refused or was unable to discuss the actual second offence.
46.Mr Hynds reported that he felt sorry for the second victim, however, less so for Robyn and Ian. He stated that some time later whilst in prison he found out that Ian had not received the money after all. He continued to bear a grudge against Ian and Robyn for approximately 10 years of his prison time."
[82] Mr Hynds was extremely evasive when cross-examined about the offending. It is instructive to consider his evidence regarding his alleged loss of memory.
[83] He claimed to have large gaps in his memory, particularly in relation to the second incident. However his evidence about what he could remember contained inconsistencies. For example:
“But, see, when I was asking you questions about what happened in that incident you agreed largely with what I put to you up to the point where I put to you that an - a sexual attack took place?-- Because my intentions were, and as I just stated, that my belief was that Ian and Robyn had come down against the bail orders, because I was not to go to Sydney unless it was for legal advice or a Court appearance, I had to stay out 50 kilometres outside of Sydney, and it was my belief that Ian and Robyn had moved down there, the people that I was supposed to stay away with, and I needed to deal with that.
And why did you want to murder Ian and Robyn, was it?-- Yes.
Why did you want to murder them?-- Because in October of that year after the committal offences Ian come down to Nowra to see me. He was down on an exercise at Nowra and he come to see me personally on the base and he actually made a threat to me and my wife and my children.
HIS HONOUR: Why did you go through the business of having a friend ring up and to see the woman who you were eventually charged in respect of?-- Because, your Honour, as I said I believed it was Robyn from the first offences and she would known my voice.
MR HAMLYN-HARRIS: All right. Mr Hynds-----
HIS HONOUR: So you remember doing all that?-- Your Honour, that was the plan right from the word go. It's just that when I got to the door and it was someone else I fucked up, if you pardon the expression.
But you remember everything up to that point?-- Look, I've read transcripts, you know.
Do you remember everything up to that point, do you?-- Your Honour, personally I hadn't but I need (sic) the evidence through the transcripts and that to embody meself with it.”[28]
Mr Hynds was here able to give a series of answers (emphasised above) related to his state of mind at the relevant time. When he was asked specifically about his memory, however, he sought to attribute his answers to a reading of transcripts. He did not point to any transcript capable of having informed him of his own state of mind.
[84] Mr Hynds was asked in effect at what point his memory loss ended:
“What is your first memory? Do you remember being arrested?-- Your Honour, I remember leaving and organising what I did with the person to ring who I believed Robyn up. I organised that-----
No, no-----?-- -----But after-----
-----I'm asking you do you remember being arrested?-- After the offence-----
Yes?-- -----the first thing I remember was being woken up in the mobile one vehicle down on the flight line at half past 6 in the morning.
Half past 6 in the morning?-- Yeah, by the Naval police dog handler.
And they came and took you to the-----?-- Guard house-----
-----guard house?-- -----that's right.
And there were New South Wales police there?-- They arrived about 10 minutes later.
And what happened after that?-- They took me to Nowra police shop.
And what time did you get there, roughly?-- Oh, probably half eight, quarter to nine in the morning.
And what happened while you were there?-- Nothing. They just took me through the process.
Locked you up and booked you and so on?-- That's right.”
These were things which he actually remembered. Shortly afterwards he claimed to be unable to remember a visit from his wife at the police station that afternoon. When it was pointed out to him that he had remembered events earlier in the day he claimed that his earlier answers had been based on transcripts. As the questions show, that was simply untrue. I infer that he lied in order to avoid having to answer questions about his conversation with his wife.
[85] Mr Hynds' then wife had provided a statement about her visit to him. It included the following:
“8.I remember the conversation clearly. I said, ‘I don't know what to say to you, I am totally confused, do you have anything to say to me?’
He said, ‘I guess I have let you down.’
I said, ‘Do you have anything to say to me?’
He said, ‘It's true I did it. I had intercourse with her, rape I guess you call it.’
I said, ‘But why?’
He said, ‘It’s the alcohol. I have a problem with alcohol and sex.’
I said, ‘I have been trying to tell you that for the past couple of years.’
He said, ‘I know, I know.’ ”
[86] It could not be suggested that Mr Hynds' words to his wife were the product of having read transcripts.
Mr Hynds' personal history
[87] I adopt Dr Madsen's report:
"18.Mr Hynds is the first born in a sibship of three in Goulburn. He grew up in the Mackay area after the family moved there when he was approximately 6 years old. He met his development milestones within expect times and generally recalled his childhood in positive terms. He depicted his parents as conservative and traditional, and generally described their relationship to be 'positive'. He claimed to be unaware of any immediate familial criminal history or mental health problems. He denied concerns with regards to physical or sexual abuse, neglect, substance misuse or violence within the family home. Previous reports have noted that Mr Hynds reported that his father was a violence alcoholic who regularly assaulted his mother.
19.Mr Hynds described himself as an 'active' child who from a young age was involved in a range of sporting activities. He reported frequently 'clashing' with his father because he was 'different' to his brothers. When Mr Hynds was approximately 13 years old his father became ill with what appears to have been lung cancer. He left the family home shortly after to join the Navy. His parents divorced when he was 21 years old, and his father passed away in the mid 1990's. Dr Harden's report indicates that Mr Hynds had described a conflictual and volatile relationship with this man until his death.
20.Otherwise Mr Hynds described a stable home environment that was reasonably organised with a structure to the evenings and weekends (i.e. dinner and bed time). Whilst it appears that Mr Hynds may have displayed features of oppositional defiance during his childhood, he denied exhibiting behaviours indicative of conduct disorder as a child or behaviours reflective of juvenile delinquency-type problems as an adolescent.
21.Mr Hynds described having 'strong family ties' however upon closer questioning it appears that he has limited to no contact with his family beyond his mother. At present Mr Hynds reported maintaining weekly phone contact with his mother, and intermittent contact with his two younger brothers. Collateral information indicates that his mother has visited him on seven occasions since his incarceration in 1989, whilst his brothers have never visited him in prison.
21.1Educational and Occupational History
22.Mr Hynds attended mainstream schools and described himself as an academically average student. He completed schooling to grade 10 though briefly attended grade 11 before leaving for work. Mr Hynds portrayed himself as a reasonably well behaved student, and denied getting into fights generally or bullying other students. The only time he would get in 'trouble' was when he was disruptive in his classes by talking to other students or not paying attention. He reported intermittently truanting from grade eight (8) onwards, and claimed that his parents were unaware of this behaviour. He denied ever having been suspended or expelled.
23.After school he reported that he worked briefly as a spare parts salesman before joining the Navy at about the age of 16 or 17 years. Notably Mr Hynds' account of this time has varied between interviewers. He has previously reported not joining the Navy until the age of 19 years (1980), and has also described having been unsuccessful in his first attempt to join the Navy due to some medical concern.
24.Mr Hynds spoke in extremely positive terms about his experiences within the Navy. He claimed to have achieved the rank of Leading Seaman and Provisional Petty Officer. He denied ever having been disciplined within the Navy for his conduct, and claimed to have received specialist training in communications and completed numerous overseas deployments. In this regard Mr Hynds described a number of somewhat extraordinary experiences. For instance, he reported that one of his overseas deployments had been in Afghanistan where he was embedded with a local tribe (the Pashtuns) to 'spy' on the Soviets. He described that whilst living with the Pashtun tribe he had observed conflict close at hand and had seen Soviet prisoners executed by the Afghans. Collateral indicated that he has also reported being stationed in Beirut where he witnessed conflict and bomb explosions. Overall, Mr Hynds tended to portray himself as a conscientious and reliable employee who was well regarded by his colleagues and superiors within the Navy.
25.Throughout his time in the Navy Mr Hynds disclosed also having worked as a 'debt collector' for a colleague (Alex) who ran some type of loan and drug dealing business. He started this additional work shortly after having joined the Navy in 1980. The debt collecting allowed him to work on a 'job by job' basis. Mr Hynds portrayed his role as a debt collector as a legitimate and necessary extension of a moneylending business, however, upon closer questioning it appears most of the people that owed money were individuals with substance abuse or addiction problems. Mr Hynds described how he routinely used intimidation and instrumental violence in this role to gain the monies owed. Collateral indicated that he has used weapons to hurt people (i.e. baseball bats) and described experiencing a thrill from the violence involved (i.e. 'enjoyed the violence' and 'testing out how far you could go'), though he denied this to me.
26.Within our interviews Mr Hynds alluded to having also regularly participated in drug couriering ('transport products') as part of his role as debt collector for Alex. He refused to elaborate further as he 'feared' that he could 'incriminate' himself in some way. Curiously Mr Hynds has spoken at length about his involvement in drug couriering at other times."
[88] Mr Hynds was born on 29 August 1961. He was married at the time of his offending, with one child and one stepchild. The marriage did not survive his imprisonment. He had been a binge drinker while in the Navy but had not been addicted to illicit drugs.
[89] The “extraordinary experiences” to which Dr Madsen referred were relevant to a possible diagnosis of Post-Traumatic Stress Disorder. That diagnosis was considered but rejected by Professor James in a report which he prepared for the second review. He pointed out that Mr Hynds had raised the suggestion of service in Afghanistan and Beirut very belatedly (in 2007) and had not mentioned it on a number of occasions when one would have expected it to have been mentioned. He reported:
“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 [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 experiences – a condition known in psychiatry as Pseudo-logia Phantastica.”
In his reasons for judgment the judge expressed scepticism about the war service and pointed out that Mr Hynds' service records might have been available by subpoena.
[90] That triggered a responsive affidavit from Mr Hynds[29] in the present review:
"4.In the review hearing before His Honour Justice Applegarth in October 2010, a number of claims, opinions, presumptions or beliefs were made, in written reports or in oral evidence, regarding the Respondent's conduct, behaviour and work ethics whilst a serving member of the Royal Australian Navy between 1979 and 1988.
5.These claims, opinions, presumptions or beliefs were made by the assessing psychiatrists or the Court in the written judgment and were, in effect, in opposition to what the Respondent had claimed to the psychiatrists in their interviews of the Respondent in August 2010.
6.The Respondent forwards certified copies of the copied military documentation he requested from the Department of Defence in December 2010, which was received by him in February 2011. Attached is the covering letter of Mercedes Rehak dated 08 February 2011 of this military documentations, marked 'GAH-100'.
7.Attached and marked 'GAH-101' is the enclosed letter of Major P.R.G. Baxter, dated 02 February 2011, atop of the requested documentation by the Respondent. This letter of Major Baxter deems all documented materials released to the Respondent were deemed to be 'unclassified' and appropriately 'security cleared' by the Defence Department prior to release.
8.Attached and marked 'GAH-102" is the certified copy of the copied documents 'Undertaking of Secrecy' which was read and signed by the Respondent on 04 February 1980.
9.The Respondent, by this document 'Undertaking of Secrecy', is duty bound to comply to that directed within this document, whereby it clearly states; 'any official information acquired by me in the course of my employment with the Australian Government' is such that 'if is my duty not to disclose, be published or communicated to another person in any form either or after my service in or with the Australian Government.'
10.The non-safeguarding of such official information is deemed, to be 'an offence' which 'renders me liable to proceeding under Australian Legislation' as outlined within this 'Undertaking of Secrecy' document.
11.The Respondent contends that he is limited to what he can or cannot disclose to any Court appointed psychiatrist, or legal person, because any breach or neglect on the Respondent's part to safeguard such information during the course of his employment with the Australian Government could lead to legal proceedings against the Respondent, even upon discharge of such service with the Australian Government.
12.The Respondent contends that given the implication he may be legally prosecuted if he does not safeguard the information obtained during his military service, including, the Respondent contends, deployments and exchanges of service with other military services overseas, the Respondent will remain with lips sealed and comply to the terms and conditions of the document 'Undertaking of Secrecy' which he agreed to and signed off on in February 1980 - 31 years ago because he has not been directed otherwise.
…
35.The Department of Veteran Affairs' letter validates the previous claims made by the Respondent in that he served in one or two 'hostile' environments in 'the 1980's whilst on exchange with other overseas military services' because the Respondent carries injuries from this period of service which he can received medical or hospital treatments for. These claims made by the Respondent have been made to all assessing psychiatrists over the past three years, including Professor James."
[91] The document purporting to be a letter from a Major Baxter of the Department of Defence Personnel Records Section contains the following paragraphs:
“The instructions I have been given is [sic] to inform you that the Australian Defence Department is not obligated to provide assistance to past, or present, members of its force in a civil court matter. This is particularly so when highly classified material is in question, as it is in this case.
As expressed to you and recorded on 31 January 2008, the information you are trying to ascertain cannot be released to you or to any other authority representing you in whatever capacity because of the sensitivities relating to these materials.
Sections of your documents have been sealed due to the security interests to [sic] the Australian government and to that of another foreign government back in 1982. These documents will not be released, or disclosed, in accordance to [sic] the high security classification placed upon them. They therefore they [sic] will remain permanently sealed. You are also reminded, at top of those documents lies a signed affirmation by you before the Chief of Navy and your Commanding Officer, at that time, that clearly defines your obligations in relation to this period of service (between April and November 1982) and the high security classification it holds.”
A Justice of the Peace had certified that this document was a true copy of a photocopy which he had sighted.
[92] There are a number of curious features about the get up and phraseology of that document. It is unnecessary to explore them fully; this is not a Royal Commission into its genuineness.[30] On 17 February 2012, I specifically drew the attention of counsel for Mr Hynds to the fact that records of the military service of Mr Hynds could be subpoenaed and foreshadowed that the absence of any genuine attempt on his part to obtain such records would reflect on his credibility. The evidence discloses no such attempt.
[93] On the balance of probabilities I am not satisfied that Mr Hynds had the experiences in Afghanistan or Beirut which he alleges.
Mr Hynds' conduct while in custody
[94] A periodic report by a Corrective Services officer on 29 January 2012 read:
“Offender HYNDS continues to display acceptable behaviour, he is always well mannered and polite when interacting with both staff and lenders and appears to have no negative compatibility issues within the residential complex at time of reporting. Offender HYNDS does not require prompting to attend musters and scheduled work sessions. Nil concern at time of reporting.”
That is typical of the entries over many years. He completed a violence intervention program in 1998. Otherwise it is unnecessary to repeat descriptions given in earlier reviews.
[95] In early 2011, Mr Hynds created a six-page document which he gave to Dr Madsen and which was subsequently seen by both psychiatrists. It reads:
"I believe with a few essential ingredients/tools (learnt through self development programs, counselling and co-facilitation of Young Offenders Program in 1995-1996 at Gatton (NSW) and Pre-Release Program at Borallon 2000-2003) a failure or mistake, made or undertaken, is never the end but actually a first step towards a new beginning because I've learnt (and continue to learn) that I've been reinvented because of my past failures and mistakes and thinking processes.
I believe I would not be the same person I now feel I am had it not been for the time spent incarcerated. Although I've had moments of discomfort and embarrasment along the way, the lessons I've learnt to change me are neither new or original - yet they have been lessons I'd not been aware of until presented to me during my imprisonment.
I have learnt the hard way, by fighting change, that such renewal is not about what I do or accomplish, its about who I hope to become as a person and what is needed to facilitate this growth. And this growth has been painful as there has been no magic steps and no simple formulas in the growing. Its simply been a willingness, eventually, to apply myself to the lessons and incorporating them into my own life.
I believe that being incarcerated was no accident. Call it what you will - an intuition, God's will, whatever - but my mistakes, my attitudes, my prior alternatives in life were instrumental in me being imprisoned and being sent where I needed to be sent to discover the power of accepting responsibility for my actions and the impact it had on others.
Nelson Mendela once said; 'One can mature once he has embraced the value of life's tribulations.'
By all accounts Mandela was an intense but angry man. And blinded by his anger he never saw that it diminished the influence he had on others. Yet imprisonment, and the isolation of that imprisonment, allowed Mandela to exit prison with a completely different demeanor.
And the lessons learnt reading the words from, and about, Mandela have been influenced in helping me embrace my own trials with a number of implemented principles -
LEARN FROM MY TROUBLES
- I do not focus on whether or not I consider my troubles fair or just.
- I do not worry about whether others have it 'easier' or why some get a 'good break' more than others.
- I gain strength and wisdom to overcome and rise above the limitations imposed upon me.
- I'm willing to admit and own my own frailties.
ACCEPT REALITY
- I don't put energy into making excuses or denying reality
- I embrace my troubles and invest myself in overcoming or raising above them.
- If I do not embrace my troubles, those troubles will own me.
- A good attitude will go a long way toward determining my connection to a community which will be sustainable.
- The more open and assertive I am in making a good attitude the more meaningful such a community will be to my life.
My life prior to my imprisonment could be seen as that being one where I rarely stopped to think who I was. If I was ever asked I would have said I was an aggressive, self-confident person. I was all about achievement. It was a self-image based on default based completely on performance - be it with the military or my working relationship with Alex.
Up until that time (my imprisonment) I had never taken the time to look at myself in the mirror and ask the tough deep questions of myself.
Once I took to processing this I realized that my own storey of injustice, hardship and irrational thought processes was not so unique to just me but a tale of each and every offender. I, like them, was serving a sentence because of a lack of character and integrity. I'd glossed over my own deficiences by adopting a fantasy image.
In my case, the logic has hit home. That is - 'that crime or criminal activity is the result of someone (me) elevating his (my) own needs above those of the people he (me) victimizes.'
This is because (as I've learnt) behaviour always follows beliefs and offenders generally believe that what they have done was right and necessary and seem to be incapable of seeing the errors of their ways because their frames of reference are personal. That was so true of me. I believe I was no different.
I believed the world revolved around me, my willingness to exploit people was my subconscious way of saying that my comfort and security mattered than anyone elses rights.
My sexual exploitation (through my travels with the military) of women with lust and selfishness, replacing love and commitment, was my way of taking care of me.
In my world, breaking the rules wasn't really wrong as long as I got away with it by demonstrating greater creativity more than the next guy possessed.
I believe that almost everything I did, prior to my imprisonment, emerged from inappropriate motivations.
The irony of that, and a contridiction too, is that every society has its code of behaviour, from tribal societies to highly developed nations. In most of these cultures respect is the most basic response you can give another person. When you steal someone's respect you have seriously injured that person.
That is what I felt in 1987 - that my own respect was taken away from me due to what I believed, and what I was lead to believe at that time, and I took measures to defend my dignity because it was such a precious commodity.
The contridiction to that is that I too lacked the respect toward others, or the respect others held and dignified ie: my work debt collecting with Alex, the respect Ian and Robyn (1987) held, and the respect Robyn (1988) held - the latter three victims of my offences.
Imprisonment has taught me, and empowered me, toward a more simple life. Such a simple life re-arranges my thinking. Reflection replaces constant talk. Authenticity becomes more important than image.
A simple life finds value in beauty, clarity and justice rather than wealth, comfort, productivity and consumption.
Being a good, or better, citizen takes precedence over maximizing individuality. Simplicity generates comfort in moderation rather than excess and it appreciates the mysteries of life rather than striving to solve them.
Most of all simplicity produces contentment in whatever circumstances I find myself in. When I was forcibly down-shifted in prison from the life I was leading, it was hard and painful as I felt I was missing out on all the wonderful and important things life offers.
Yet I've since discovered the most valuable insights: to surrender my past to more meaningful thoughts and experiences which an imprisonment term can actually offer like no other.
To surrender to my anger (my resentments, my desires for revenge) which provided me the energy and purpose in life, I had to make choices to deal with this anger, and the anger at the dysfunctions of my past.
By not doing so, I'd be, in essence, choosing to remain in my own personal prison.
I had to start to alter my ways in dealing with other people around me. I could choose to remain angry or I could choose to listen to others. I could choose to be disrespectful of others or I could choose to be more caring to others’ needs and attitudes and opinions (this is highlighted by my involvements in the Young Offenders Group in Grafton and the Pre-Release Program I proposed, implemented and co-facilitated at Borallon).
Once I learnt, and realized, that it wasn’t anyone else’s actions but my own attitudes that held me back it was much easier to move ahead.
In so doing, I’ve realized that sometimes there are people in my life who are not good for me and thus I set protective boundaries around my interactions with them and it is alright to do so.
I have a platform to keep improving myself. I will probably make mistakes, but it is empowering myself to not beat myself up over those mistakes and continue to learn and incorporate better alternatives for those poor choices I will no doubt make.
Like Mandela, I hope to transition from a hostile combatant of myself to a champion of reconciliation within myself and my attitudes towards others.
And in so doing, it is for my own sake and my own requirements and my own wishes – not for the sake of, or the requirement of, or the needs or wishes of, others."
It demonstrated that Mr Hynds had learned some things from his multiple interactions with psychologists and psychiatrists. It does not in my judgment demonstrate that those interactions have achieved their objectives.
Psychiatric and psychological evidence
[96] Evidence on this review came from Professor James, Dr Harden and Dr Madsen.
Professor James
[97] Professor James provided a report dated in November 2011. Under the heading “Background to the Examination” he wrote:
"Mr Hynds has been examined by some nine Psychiatrists as well as by several Clinical Psychologists since the commission of his offences, and the related reports leave no doubt that the offences themselves, and the psychodynamics which may have underlain them, are extremely complex; and explanatory formulations have begun to crystallise only very slowly. As I had made an attempt to describe these complexities in some detail in my report of October 2010, I have judged it unnecessary to replicate in particular the historical data; and I ask with respect that this present report be read in association with my two reports respectively of 03 October 2010 and 21 August 2011."
His earlier description is recorded at length in the reasons for judgment on the second review. I shall emulate his example by inviting attention to paragraphs [62] to [72] of those reasons.
[98] Mr Hynds has had a number of interactions with Professor James, who saw them as relevant to “the preferred nature of longer term psychotherapeutic engagement.” The latter also noted that Mr Hynds has been examined in some detail by at least nine psychiatrists and many psychologists during the almost 23 years of his imprisonment. He reported:
“I have noted elsewhere that although such examinations are not therapeutic in terms of their primary purpose and intent, nevertheless the effect of them is often to stimulate reflection and self-questioning in the examinee; and I consider Mr Hynds to be a person who has responded, over time, in this fashion.
I consider that his hand written document on 06 April 2011, to which reference has been made do [sic] genuinely reflect the nature of his self-examination.
In my view, the above observations are important and valid confirmations of my earlier expressed the opinion that Mr Hynds is capable of, and likely to benefit from, and individual psychotherapy, of a kind that I have described as ‘exploratory’.”
[99] Professor James placed considerable weight on that handwritten document. He wrote:
"In addition to the process of his (past, present and possible future) therapeutic reflections, I consider the content of his hand written document also to be reassuring with respect to Mr Hynds' potential risk of re-offending. It is congruent that what, in my opinion, has been a gradual elaboration and assimilation over time by Mr Hynds of a personal philosophy which now enables him to see his previous inclination to abiding anger and his urge for retribution, in a wider social and personal context, very likely in my opinion to provide him with a much more complex intra-psychic context, serving not only to dilute any potential vestiges of his earlier potential for abiding range, and his having felt compelled to act them out, but also to provide him with a range of alternative and more acceptable strategies for dealing with them."
He expressed the view that the mitigating effect of these “evolving intrapsychic processes” was likely to have been enhanced by the effects of “progressive biological maturation”. I take the latter phrase to mean “getting older”.
[100] The opinions which I have just quoted were supported in Professor James' opinion by Mr Hynds’ “quite impeccable behaviour during the last decade of his time in prison”. He reiterated the fact
“that there has not only been no suggestion of attitudes or behaviour antipathetic to females in his dealing with many female prison officers over this period, but, in addition, most of the favourable comments in the IOMS notations appear to have been written by female officers.”
[101] As to a diagnosis of Mr Hynds, Professor James expressed the opinion that the offending
“occurred in the context of a personality structure and lifestyle, both of which were rigid in nature, and at a time in his life where he was prone to abiding anger and the need for retribution when he felt betrayed. This appears to have characterised his conduct as an ‘enforcer’ for a debt collecting organisation, as well as for his first (1987) set of offences. I consider it likely that Mr Hynds’ long-standing abuse of alcohol may have made some contribution to the apparent confusion and perseveration which appear to have underlain his second (1988) set of offences.”
He adhered to his earlier diagnoses of alcohol abuse and antisocial personality disorder.
[102] Professor James abandoned his earlier concern[31] about Mr Hynds' lack of disclosure of previous life events, such as some aspects of his military history. He did so on the basis that the evidence (presumably Major Baxter’s letter) showed a real possibility that his operational activities were and remain officially secret. He found reassurance in other documents which tended to show there was no previously undisclosed offending in the course of Mr Hynds' naval service.
[103] Professor James concluded with the following opinions:
"1.Mr Hynds' offences in 1987 and 1988 were driven primarily by anger and the desire for revenge when feeling betrayed; and that notwithstanding the use of sexuality in commission of his crimes, I do not consider that he has any further or intrinsic abnormality of sexual impulses; in particular, there is no evidence of Paedophilia.
2.Changes for the better in Mr Hynds' personality have progressed to a point, and are sufficiently established, for the possible risk of any sexual re-offending to be manageable in the community, provided there were in place a Supervision Order under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003.
3.After such a prolonged period of incarceration (twenty-three years,) should Mr Hynds be released into the community without the structure of a Supervision Order, and without social support, the experience would prove very stressful, with consequences which are very difficult to predict. In such circumstances, the risk of his re-offending in general would be at least moderate; and the possibility of sexual offending could not be excluded.
4.Even in the presence of a Supervision Order, and notwithstanding the inevitable sense of restrictions involved, the transition from the structured environment of a prison will be challenging, and Mr Hynds would require positive social support during the first many months, including particularly with respect to his obtaining employment.
5.In my opinion the provisions in any Supervision Order should include particularly:
-a requirement for absolute abstinence from all intoxicating substances, including alcohol;
-the need to reside in an approved location;
-the necessity to undertake an occupation only when approved;
-a prohibition on contacting any previous victim;
-regular reporting to Correctional Services Authorities;
and
-the undertaking of long term psychotherapy. (I have noted on previous occasions my opinions with respect to the type of psychotherapy, the fact that it should be long-term, and that confidentiality issues should be clear and negotiated prior to the start of therapy).
6.There would be no need for restrictions of a kind which are placed specifically on persons convicted of crimes against children to be imposed in the case of Mr Hynds.”
[104] In his evidence-in-chief Professor James reiterated his concern regarding two remaining areas of uncertainty: the experiences which Mr Hynds underwent during his military service and the motivation for the second incident of offending. Nonetheless he thought that betrayal would be an important construct in Mr Hynds' thinking, capable of precipitating violence (albeit an ameliorated capacity) and a factor to alert his therapists and provide the opportunity for pre-emptive intervention.
[105] Professor James accepted that if the true description of Mr Hynds' offending was as set out above[32], it would throw doubt on everything that Mr Hynds had told him, upon which he had based his opinions. In that case he would be “struggling to make sense of it all”; it would throw his assessment into disarray.
[106] As to the possibility of participation in a group violence program as recommended by Dr Madsen, Professor James said he was not as sure as Dr Madsen that it was likely to be helpful. He did however think that it would be helpful to have components of Dr Madsen's program and the personalised psychotherapy of the kind which he himself had been advocating. It was important that this continue for more than a year or two – a number of years’ therapy would be necessary and continuity of the therapist would be paramount.
Dr Harden
[107] Like Professor James, Dr Harden referred back to his previous interview in 2008. He summarised Mr Hynds' description of the offending:
“He reported that he was incarcerated because of sexual assaults against two separate women which had occurred in 1987 and 1988. He was at pains to emphasise that the offences were driven by his anger and hatred towards Mr and Mrs B with regard to his perception that they had cheated him out of money, lied with regard to the circumstances of the first offence and then Mr B had allegedly threatened to harm to Mr Hynds' family.”
I shall not set out in full Dr Harden's report of what Mr Hynds told him (it occupies 15 pages), but I note that Mr Hynds “consistently denied that the offences he had been convicted of were sexual in motivation”; and, “He appeared to be trying very hard to minimise any sexual content to the previous offences and to see them as more violent offences.”
[108] Under the heading "Mental State Examination" Dr Harden reported:
"In 2008 he attempted to control both the interview process and content with his use of handwritten summaries of personal background information that he would only give the interviewer when that area was touched on in the interview.
At the interview in 2010 he was unhappy with my characterisation and interpretation of this behaviour as he saw himself as just being helpful.
In all the interviews he presented as a man with a significant sense of entitlement who wished to control the process. In 2010 he gave me a long lecture on the injustice of his position and tended to make sweeping pseudo philosophical statements such as in 2008 'I do not believe that rehabilitation exists in Queensland' and in 2010 that he 'posed a conundrum to them' (the prison authorities and counsellors).
He appeared to try very hard and in an interpersonally sophisticated fashion to present a favourable view to the interviewer as would be expected given his situation. It seemed in 2008 likely that he was possibly untruthful in a number of areas but had high-level communication skills and was able to cover for these inconsistencies at times. He was angry in 2010 that other people might say that he was not telling the truth at times. This unhappiness that other people might not trust was he said continued to be a theme in the 2011 interview."
[109] Dr Harden too placed weight on the six-page hand written document provided to Dr Madsen. He described that document as “quite reflective in tone” and expressed the opinion that the tone
“suggested that given time to reflect and consider at the very least he was able to intellectually understand and appropriate stance that might allow him to move forward in taking responsibility for his past actions and for his future.”
He made a diagnosis of probable Personality Disorder NOS and referred also to the strong history of alcohol abuse.
[110] Formal risk assessment instruments were described in some detail in Dr Harden's report. The instruments had been used on earlier occasions. Dr Harden re-scored the Stable 2007. Mr Hynds had a score of 11 out of a possible 24, which placed him in the moderate needs group in terms of sexual offender's dynamic risk.
[111] Dr Harden assessed Mr Hynds' future risk of sexual reoffending as high. He made the following recommendations:
"Recommendations
With regard to treatment I would strongly recommend consideration of the staged approach that Dr Madsen has suggested as this appears to me to provide hope of moving forward with intervention in My Hynds to decrease his future risk.
In my opinion Dr Madsen's proposed treatment options address some of the issues raised at the previous annual review hearing.
His therapeutic recommendations are individualised and targeted at the critical issues for Mr Hynds. His layout of the sequential nature of therapeutic intervention dealing with those issues first that interfere most with intervention is very sensible and appropriate.
His assessment of the possible responsivity issues and problems in therapy is realistic and helpful.
In my opinion, the schema focused cognitive behavioural approach would meet treatment needs as it is an approach looking at underlying beliefs and experiences. It would need to be delivered by an appropriately skilled practitioner.
I would recommend that interventions should begin while Mr Hynds is still in custody in order to better measure progress prior to consideration of his release into the community after such a prolonged period of incarceration.
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."
Dr Madsen
[112] As noted above[33], Dr Madsen, a “Clinical Forensic Psychologist”, interviewed Mr Hynds in March and April 2011. He administered a variety of psychometric tools and tests to evaluate various aspects of Mr Hynds' personality, attitudes and other factors related to risk of offending. In relation to impulsivity, he reported that the test results suggested that Mr Hynds was someone who was good at planning and delaying gratification. In relation to anger he reported that Mr Hynds did not appear to answer with the intention of providing a favourable impression. The result suggested that he experienced anger more intensely and for longer than other people.
[113] Under the heading “Clinical Observations” Dr Madsen reported:
"84.Throughout our interviews he seemed to answer questions in a candid and open manner. Nonetheless, he was a difficult man to interview. His responses were circumstantial and questions often needed to be re-phrased or re-stated to ensure that they were answered appropriately. At other times he refused to elaborate on specific areas due to his concerns about 'incriminating himself' or the belief that sharing the information would disadvantage him in some manner. I formed the view that he had discussed the issues covered within the assessment many times and his responses had a rehearsed quality to them. My impression of Mr Hynds' interactional style was that he was attempting to provide as comprehensive a picture of 'his side of the story'. Though his manner had the effect of controlling the interview process, making it at times difficult to structure and focus the interview, which consequently, increased the time required to complete this component of the assessment. It was noted that during his descriptions of various events and incidences, he was able to provide detailed rationalisations and justifications for his behaviour. He tended to portray himself as a victim and described incidences of being targeted by individuals, staff and the legal system."
[114] Dr Madsen diagnosed two disorders which Mr Hynds was suffering: alcohol abuse (in full remission in a contained environment) and Paranoid Personality Disorder with Schizoid Traits. He also noted that Mr Hynds displayed some features of Antisocial Personality Disorder, but reported that diagnosis could not be made because of the absence of Conduct Disorder as a child.
[115] Dr Madsen reported that static factors placed Mr Hynds in the moderate-high risk category for being charged or convicted of another sexual offence while dynamic factors indicated a moderate level of risk. Taking into account also his personality and behaviour he assessed Mr Hynds risk of sexual violence in the absence of therapeutic intervention as moderate-high.
[116] I have described Dr Madsen's treatment recommendations above.[34]
Further findings
[117] I have set out above[35] the descriptions of Mr Hynds' offending given by the judges who sentenced him. In my judgment those descriptions are probably correct. It should be remembered that for both incidents Mr Hynds pleaded not guilty to some of the charges. He was convicted of those charges after a trial. The jury had to be satisfied of the truth of the evidence of the complainants and, probably, the first complainant's husband. The judges' descriptions were based on that evidence. The complainant’s statements and evidence are before me and they are persuasive. Mr Hynds initially appealed against these convictions, but he abandoned that appeal before his case was heard.
[118] I am satisfied on the balance of probabilities that Mr Hynds' subsequent story about being a debt collector for sales of illicit drugs is a fabrication. So are his claims regarding events alleged to have occurred during service in Afghanistan and Beirut. Both stories are the product of fantasising, but Mr Hynds has sought to take advantage of them. He is an intelligent and calculating man who has a very high level of self-discipline. He was not unaware of the benefit which might accrue to him from a diagnosis of Post-Traumatic Stress Disorder. Indeed he seems to have learned a lot of psychology jargon and has developed the capacity to manipulate his responses when being interviewed. He has rightly been assessed as a manipulative and controlling person.
[119] I am also satisfied that Mr Hynds' claims of loss of memory in relation to the second incident are false. What he can remember and what he claims not to be able to remember are not consistent. I have referred to the evidence above.[36] Mr Hynds was an evasive witness. His claims of loss of memory are designed to cover up his refusal to acknowledge his sexual offending.
[120] Mr Hynds has emphasised the violence that was associated with his offending and the anger which he felt at the time and minimised the sexual component of his behaviour. In my judgment he has done so probably to maximise his prospects of release, but possibly also to maintain his mother's faith in him. The rapes were preplanned, on the second occasion well in advance. I am satisfied that Mr Hynds acted for his own sexual gratification. However that is not to say that the violence of his offending should be disregarded. On the contrary the offending disclosed a high level of alcohol-fuelled violence.
[121] All who have examined Mr Hynds have referred to his history of alcohol abuse. It is a history which occurred long ago but the risk of a relapse should not be disregarded.
[122] Professor James and Dr Harden initially diagnosed Antisocial Personality Disorder. After Dr Madsen pointed out that this diagnosis could not be made because of the absence of Conduct Disorder as a child, Dr Harden modified the diagnosis to one of Personality Disorder NOS with antisocial and narcissistic traits. Professor James wrote that Dr Madsen was technically correct, but for all practical purposes Mr Hynds has manifested the behaviour of “Antisocial Personality Disorder”. Their evidence was that while Mr Hynds has some psychopathic personality traits, he does not suffer a Paranoid Personality Disorder. Dr Madsen thought otherwise.
[123] The difficulty which I have in assessing these diagnoses is that all proceed on a foundation of accepting Mr Hynds' self-report to some extent. Professor James was initially sceptical, but that scepticism seems to have evaporated. In my judgment it was well placed. None of the professional witnesses expressed a diagnosis based on the view of the facts which I have found. None has relied on or even accepted as accurate the statements and testimony of the witnesses at the original trials. That makes it difficult to determine what treatment should be required for Mr Hynds.
[124] Whatever the correct psychiatric diagnosis, I am satisfied that Mr Hynds is a self-centred person who lives in his own somewhat unreal world. He is prone to fantasising and, I suspect, starved of love. He needs friends, but his controlling and manipulative characteristics would inhibit obtaining them. He is reasonably intelligent and above all has an unusually high level of self-discipline. He is capable of controlling any urge toward violence. Presumably the passage of time has diminished his libido to some extent.
Continuing detention, supervision or release unconditionally?
[125] There is a difficulty in the drafting of Part 3 of the Act. Section 30 seems to envisage that the court will affirm a decision that the prisoner is a serious danger to the community in the absence of a Division 3 order. The only such decision which could be relevant to the continuing detention order is the court's original decision that it was satisfied under s 13(1). It has never been suggested that the function of the court on a review is to reconsider the correctness of that decision, yet that is what the language of s 30 literally requires. Having regard to s 29 and to the fact that the obligation under s 27(1) is to review the order, I take it that the requirement is for the court to consider afresh whether the prisoner is a danger as described at the time of the review.
[126] An affirmative decision on this point may be made only if the court is satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to affirm (ie make) the decision. The Attorney-General carries the onus of proof.[37] In making the decision I must have regard (among other things) to the reports prepared by the psychiatrists and the extent to which the prisoner cooperated in the examinations by the psychiatrists.
[127] Mr Hynds did not suggest that any finding other than an affirmative one should be made. Indeed he urged that there was a need for him to be subject to a supervision order, something which could only happen after an affirmative finding. That conclusion also flows from his scores on the psychological tests administered to him and the opinions of the professional witnesses who have examined him, as well as from my own assessment of him. There were considerable similarities between the two incidents of offending, but his lack of offending before 1987 and his continued incarceration since then prevent any finding that a pattern of offending exists. He has not participated in all recommended rehabilitative programs, particularly those aimed at sexual offending, but there is little to be gained at this stage from requiring him to undertake any further group therapy. I take into account the horrendous nature of the original offending and what seems to me to be a degree of non-cooperation by Mr Hynds with the psychiatrists. Although he was polite and generally engaged with the doctors, he told them a series of false stories. I am satisfied that Mr Hynds is a serious danger to the community in the absence of a Division 3 order.[38]
[128] The order in the present case was expressed to be for control only, not for treatment. There may be a question whether expressing it in those terms was an error. Possibly the expression “control, care or treatment” in s 13(5)(a) of the Act should be construed as a unitary phrase, not disjunctively. However the Attorney-General made no such submission and did not oppose Mr Anderson’s application for the correction of the formal order under the slip rule. I must therefore proceed on the basis of the order as it was made.
[129] On that basis it is not open to me to order that Mr Hynds continue to be subject to the order for the reason that he needs to be detained for treatment. Only if he needs to be detained for control may the order be made. Of course if he cannot be controlled by means of a supervision order without first having treatment in prison, it would be open to make the order. That would be a difficult matter to prove.
[130] The Attorney submitted that Mr Hynds ought to undertake the Cognitive Self Changes: Making Choices program before his release. He relied on the evidence of Dr Madsen to that effect. However Dr Madsen did not go as far as saying that control by means of a supervision order would be unlikely to succeed in the absence of the program. Even if I accepted Dr Madsen's evidence, therefore, it would not be open to me to make the order which the Attorney-General seeks on this evidence.
[131] In fact I do not accept Dr Madsen's evidence regarding the necessity for the group program. Professor James did not think that program was likely to be helpful and Dr Harden did not regard it as essential to managing Mr Hynds’ risk. In addition to their evidence, I note that Dr Madsen proposed the program as a form of violence intervention. He did so in consequence of his assessment of Mr Hynds’ risk of sexual reoffending being a risk that he would commit a violent sexual offence. By implication his view was that the risk of sexual offending was reduced if the risk of violence were reduced. However Mr Hynds has completed a violence intervention program, albeit in 1998. He has manifested no sign of violence in the no doubt sometimes stressful environment of prison. I do not regard participation in the group program as essential.
[132] Even if that conclusion is wrong, it must be remembered that an order may be made only if there is an unacceptable risk that Mr Hynds will commit a serious sexual offence. In the absence of such a risk, there is no power under the Act to order continuing detention - even if the prisoner is likely if released to murder someone, for example.
[133] In the end, Mr Hynds sought no orders against Mr Anderson. For that reason, and in the light of the decision in Sambo[39], Mr Anderson should probably have been removed as a respondent. He sought no such order. In the event, he adopted the submissions made on behalf of the Attorney-General. It is unnecessary to consider whether he had any right to make submissions on the primary question. His continued representation in fact had a practical benefit in relation to the question of Mr Hynds' accommodation if released under a supervision order.
[134] The Attorney-General conceded that if I were not satisfied of the need for Mr Hynds to undertake the CSC program, the evidence pointed in favour of making a supervision order. He did not seek to rely on the evidence of Professor James that the individual psychotherapy which he recommended should commence before Mr Hynds' release. He was right in my judgment not to rely on that evidence. There are two reasons for this. First, Professor James relied fairly heavily on an acceptance of what he was told by Mr Hynds. He conceded that if the circumstances of the offending were truly such as I have found them to have been, his assessment would be thrown into “disarray”.[40] Second, in my judgment there is no prospect of Mr Hynds receiving that psychotherapy. It was recommended by Professor James in 2010 and in that year this court ordered that the treatment to be provided include the psychotherapy. For 14 months after that order the Department provided no therapy at all for Mr Hynds. In the whole of that time it did nothing to implement that order for psychotherapy. Rather it undermined it by engaging Dr Madsen to carry out a fresh assessment of Mr Hynds. Dr Boyce, who is the latest to be engaged as a therapist for Mr Hynds, works in the same practice as Dr Madsen and is implementing Dr Madsen's plan. I am satisfied that notwithstanding the Court’s reasons and order, the Department has no intention of providing the psychotherapy. It is a tribute to Mr Hynds' self-discipline that he has generally maintained his composure in the face of bureaucratic inertia.
[135] I am satisfied that adequate protection of the community can be ensured and can reasonably and practicably be managed by a supervision order. That is implicit in the Attorney's concession. In reaching that conclusion I have taken into account the evidence which I have described above. Without derogating from the width of that statement, I refer particularly to his age (51) and conduct during the 23 years of his incarceration. I have also taken into account Mrs M’s willingness to permit him to live with her and her willingness and that of her husband to give undertakings to the court to report any violation of the requirements of an order. The latter are matters which are in my view quite important. Because some controversy attended them, it will be necessary to refer to them in a little more detail.
Requirements of the order
[136] Mr Hynds recognised the need for stringent requirements to be imposed in any supervision order:
“Now, I've been listening to - in regards to the supervision order, and, your Honour, look, I have and I will always state that the more embodiment for constraints on me within the community is far more of approval from my perspective than meets the eye and-----
HIS HONOUR: What you're saying is you're pretty happy for me to be fairly fierce with the requirements of any supervision order; is that right?
FIRST RESPONDENT: Absolutely, your Honour, because at the end of the day, you know, we all know through oral evidence by the doctors first and foremost that I've got a distrust and suspicious personality disorder.”
[137] Counsel for the Attorney-General handed up a draft order which contained a number of “conditions” [sic; semble “requirements”] to which he submitted any supervision order should be subject. A number of drafting issues arise in relation to it, but they may be put to one side for the moment. There are three issues of substance which arise; they are emphasised in the next two paragraphs.
[138] Effective supervision of a person pursuant to an order made under the Act necessarily requires that those carrying out the supervision have a detailed knowledge of where the person being supervised is at any given time and with whom he is coming into contact. That entails among other things knowledge of where that person is living. Effective supervision also requires that those doing the supervising be in a position to identify conduct which may threaten the adequate protection of the community.[41] That is problematic when the place of residence is not a place under the control of the supervising authority. Mechanisms need to be developed for the identification of such conduct. Electronic surveillance and surveillance by police and corrective services officers are such mechanisms, but so is reporting of conduct by members of the public. An undertaking to report breaches of the order may in some circumstances increase one's level of confidence that threatening conduct will be detected and responded to promptly.
[139] It may also be appropriate that there be requirements in the order relating to Mr Hynds' treatment.[42] Whether there should be such requirements and what they should be depends upon expert evidence.
Residence
[140] Offenders released under supervision orders frequently spend the early part of their period of release in residence at the so-called Wacol precinct or its equivalent in other major cities. In this case nobody has submitted that the order should include a requirement for Mr Hynds to reside there. Mr Hynds submitted he should live with his mother at an outer Brisbane suburb; by implication he proposed a requirement to that effect in the order. He has no alternative accommodation and departmental officers were unable to identify any suitable alternatives. The question of the availability of this accommodation is therefore important.
[141] Mrs M deposed that she was willing for Mr Hynds to reside at her place, with her and her husband. She has agreed to take steps to ensure that if Mr Hynds were living with her, he would be unable to access alcohol, particularly a wine collection at the premises. She is however concerned that officers of the Corrective Services Department or police may disclose the fact that he has committed sexual offences to neighbours who know that he is living with her:
“I don't want the neighbours to know that there is a sex offender or a convicted sex offender living in the neighbourhood. It has been my experience that the public put sex offenders in one basket and that's paedophiles. Now, Gregory is not a paedophile for a start. Whether he has committed the sex offences that he's been accused and convicted of I really don't know and as far as I'm concerned there's only three people that will ever know the truth. However, I don't want my neighbours to know. We've only been there six months and we have fitted in with the neighbourhood quite well and I don't want that to be disrupted. I don't want to be ostracised by the people who live in the street or over the back or anywhere else.”
As the evidence referred to above[43] demonstrates, Mrs M said she was unwilling to have Mr Hynds reside with her if disclosure took place.
[142] The difficulty to which this gives rise is that Ms Morison, the Commissioner of Queensland Corrective Services, has decided that disclosure of confidential information under s 341 of the Corrective Services Act 2006 is to be made to individuals neighbouring his mother's property. The information to be disclosed is details of Mr Hynds' offending history and accommodation details. A factor in that decision has been Mr Hynds' failure to be frank with the psychologists and psychiatrists who have seen him. Ms Embrey suggested that if Mr Hynds were to live for some months in a facility such as the Wacol precinct and were to be frank with those assessing him, the delegate might gain sufficient confidence in him for disclosure to become unnecessary. Mr Hynds was resolutely opposed to doing this.
[143] The question is whether there should be a requirement for Mr Hynds to reside with his mother and her husband. It would seem to be futile to make a supervision order containing a requirement which Mr Hynds would be forced to contravene once his mother withdrew her consent. On the other hand, it may be premature to make a determination of futility at this stage. Mr Hynds may be able to obtain an injunction restraining Ms Morison and her officers from making disclosure if s 341 of the Corrective Services Act has not been complied with. If disclosure takes place Mrs M may change her mind, or alternative accommodation may be found. If all else fails Mr Hynds might change his mind and agree to spend some months at the Wacol precinct.
[144] The Attorney proposed different requirements in relation to Mr Hynds' residence. He proposed:
“xii.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.”
Such a condition would leave Mr Hynds' place of residence entirely to the judgment of departmental officers. The evidence presented on the last day of hearing was that despite their efforts earlier this year, the officers had been unable to find any other suitable place. There seems little prospect that a place which they would regard as suitable will be found.
[145] In these circumstances the requirement proposed by the Attorney is in my judgment inappropriate. Residence is an important consideration and where it is controversial, the court should not readily delegate the issue to a departmental officer. The Act confers the discretion on the court, not on the department. In a case such as this, where departmental officers have a less than glowing track record, the court should not avoid making a decision on a major issue itself.
[146] In my judgment there should be a requirement that Mr Hynds reside
“with his mother at her address disclosed in her affidavit filed in the Supreme Court on 1 March 2012 or at such other address (with or without his mother) as the court may approve.”
Approval may be sought pursuant to liberty to apply. I acknowledge that generally speaking it is undesirable to encourage continuing litigation about matters of detail in supervision orders, but the present case is exceptional.
Undertakings to the court
[147] In the course of the hearing I indicated to Mr Hynds that I felt a difficulty with his proposal that he live with his mother, namely, that the level of supervision available to the Department under such an arrangement might be inadequate. I suggested that this difficulty might be reduced if Mr and Mrs M were to give undertakings to the court to report any breach of the requirements of the order of which they might become aware. I made that suggestion because of the added level of security which the existence of such undertakings would provide.
[148] In her oral evidence Mrs M said that subject to resolution of some drafting issues, she would be willing to give such an undertaking. She said that she was sure that her husband would also give one, although she was reluctant to involve him. Before she gave that evidence she had obtained independent legal advice. The drafting issues were set out in a letter which she sent to the Crown Solicitor.[44]
[149] Ms Morison expressed the view in her written decision regarding disclosure that Mrs M “is not a certain ally in terms of risk management”. That is probably so. She displayed considerable difficulty in accepting the enormity of her son's offending. Nonetheless I formed the view that she was truthful and would comply with any undertaking. Such compliance would ensure that any known breaches were brought to the notice of the Department much more quickly than would otherwise be the case. Prompt reporting was a matter of concern to Ms Morison.
[150] The Attorney-General submitted that the existence of undertakings from Mr and Mrs M was not a consideration which should impact on whether a supervision order ought to be made. He submitted that that conclusion flowed from s 13(6)(b)(ii) of the Act[45], which requires the court to consider whether requirements can be reasonably and practicably managed by Corrective Services officers. He submitted that any undertaking would in effect involve Mrs M in managing the requirements of the order, something which the Act commits to the officers. I reject that submission. It involves a misconstruction of the Act.
[151] I shall accept undertakings which Mr and Mrs M might give to the court in the form described in Requirement 40. I shall endeavour to deal with Mrs M’s drafting issues in the formulation of the requirements of the order. There will be a requirement for Mr Hynds to file affidavits by them containing undertakings given after receipt of independent legal advice before his release.
Treatment
[152] I am not persuaded that Mr Hynds will gain any significant benefit from undertaking therapy. However all parties supported a requirement for him to continue individual therapy and there is no reason to think that it could do any harm. Professor James was anxious that it should continue for a number of years. I shall include such a requirement.
Duration of order
[153] Not much attention was paid to the duration of any supervision order during the hearing. Having regard to Mr Hynds' age I see no reason why it should continue for more than 10 years. Whether it should be for a period as short as five years is a more difficult question. One does not want to put the State to unnecessary expense by prolonging the period of supervision unnecessarily, nor to place an unnecessary drag on Mr Hynds' freedom. On the other hand the paramount consideration is the adequate protection of the community. That suggests one should err on the side of caution, and choose a period at the longer end of the available range. The power of amendment under s 19 is limited to amendment of requirements. That would not seem to cover amendment of the period for which the order is to have effect stated under s 13A.
[154] I shall fix the period of the order as 10 years, in accordance with the opinion of Dr Harden. Liberty to apply generally will be granted and that will enable an application to be made to vary the period of the order at some future time if either party thinks it appropriate to take the course.
[155] The requirements which I propose are set out in a schedule to these reasons. I shall discuss them with the parties before finalising the form of the orders.
Orders
[156] The order will be:
1. Rescind the continuing detention order made on 7 December 2007.
2. Order that Gregory Alan Hynds be released from custody subject to the requirements set out in Schedule A to the order.
3. Order that this order have effect for 10 years.
4. Stay the operation o f paragraph 1 of this order until Mr Hynds is released under paragraph 2; and
5. Liberty to apply generally.
Schedule A to
Supervision Order
GREGORY ALAN HYNDS
REQUIREMENTS OF SUPERVISION ORDER
Mr Hynds is required to:
- Report to a Corrective Services Officer at Capalaba within one business day of his release and advise the officer of his current name and address;
- Report to, and receive visits from, a Corrective Services officer whenever a Corrective Services officer reasonably directs him to do so;
- Notify a Corrective Services officer of every change of his name, place of residence or employment at least 2 business days before the change happens;
- Be under the supervision of a Corrective Services officer;
- Comply with a curfew direction or monitoring direction;
- Comply with any reasonable direction under section 16B given to the prisoner[46];
- Comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;
- Not leave or stay out of Queensland without the written permission of a Corrective Services officer;
- Not commit an offence of a sexual nature during the period of the order;
- Neither do nor attempt to do any intimidating act to any person;
- 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;
- Forthwith notify a Corrective Services officer of the name and address of his employer, the address of the premises where he is or will be employed, the nature of his employment and his hours of work each day;
- At least 2 days prior to the commencement of any change in the information notified under Requirement 12, notify a Corrective Services officer of the change and its details;
- Notwithstanding Requirement 2, reside with his mother at her address disclosed in her affidavit filed in the Supreme Court on 1 March 2012 or at such other address (with or without his mother) as the court may approve;
- Not stay at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer, and comply with all reasonable conditions upon that permission;
- Not commit an indictable offence during the period of the order;
- Respond truthfully to enquiries by a Corrective Services officer about his activities, whereabouts and movements generally;
- Not knowingly have any direct or indirect contact with a victim of his sexual offences;
- Disclose to a Corrective Services officer upon request the name of each person with whom he associates 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 has knowledge of his prior offending behaviour;
- Notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned or generally driven by him, whether hired or otherwise obtained for his use;
- Submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
- If directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and/or the nature of his past offences to any person with whom he associates[47];
- Abstain from the consumption of alcohol for the duration of this order;
- Submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer and authorise the test are to disclose the results of the testing to a Corrective Services officer;
- Disclose to a Corrective Services officer all prescription and over the counter medication obtained by him;
- Not visit premises licensed to supply or serve alcohol without the prior written permission of a Corrective Services officer unless he is accompanied throughout the visit by his mother or her husband;
- Attend upon and submit to assessment, treatment, individual program and/or testing by a psychiatrist, psychologist, social worker, counsellor or other professional mental health worker (“professional”) as recommended by that professional;
- Cooperate with and give truthful answers to any such professional;
- Permit any such professional and any medical practitioner to disclose any information relevant to his risk of re-offending and/or his compliance or non- compliance with this order to a Corrective Services officer;
- Develop a risk management plan in consultation with a treating psychologist or psychiatrist and discuss it as directed with Corrective Services officer;
- Except in an emergency, not use any telephone or other electronic messaging device not owned by or leased to him in his own name;
- Tell a Corrective Services officer the make, model and phone number of and the identity of the service provider for anytelephone or other electronic messaging device owned by or leased to him within 24 hours of becoming the owner or lessee there of;
- Tell a Corrective Services officer any other information requested by the officer about any telephone or other electronic messaging device owned by or leased to him and/or about any service provider and account for any such telephone or other electronic messaging device;
- Tell a Corrective Services officer of any change to any information referred to in Requirement 31 or Requirement 32 within 24 hours of the change happening;
- At any time, permit a Corrective Services officer to examine any telephone or other electronic messaging device owned by or leased to him;
- Authorise a Corrective Services officer to obtain any information about him or his use of a telephone, other electronic messaging device or Internet service from the service provider;
- Except in an emergency, use a computer only by means of a user account opened in his own name;
- Obtain and provide to a Corrective Services officer all permissions and authorities needed for that officer or a computer expert authorised by the officer to examine any computer used by him, including permission to enter upon the premises where the computer is and to copy any data, metadata or log relating to him;
- Provide to a Corrective Services officer all authorisations, passwords and usernames used by him on a computer or needed to access any data, metadata or log created or deleted by or relating to him on the computer;
- Not later than two business days before his release, file and serve herein affidavits by each of his mother and her husband deposing that
- the deponent has read and understood these reasons for judgment and this order, including these Requirements;
- the deponent has received independent legal advice about the Requirements, about giving the following undertaking to the Court and about the possible consequences of breaching such an undertaking;
- the deponent undertakes to report any breach of the Requirements of which he or she becomes aware to a Corrective Services officer immediately upon becoming aware of the breach.
Extract from the Dangerous Prisoners (Sexual Offenders) Act 2003 as at 22 October 2012
16B Other directions
(1)A corrective services officer may give a released prisoner a reasonable direction about—
(a) the prisoner’s accommodation; or
Example—
a direction that the released prisoner may only reside at a place of residence approved by a corrective services officer
(b) the released prisoner’s rehabilitation or care or treatment; or
Example—
a direction that the released prisoner participate in stated treatment programs
(c) drug or alcohol use by the released prisoner.
(2)A direction under subsection (1) may relate to a matter even though the relevant order imposes a requirement about the matter, either generally or specifically.
(3)However, the direction must not be directly inconsistent with a requirement of the order.
Footnotes
[1] The circumstances of both incidents are described in more detail in Attorney-General for the State of Queensland v Hynds [2007] QSC 374.
[2] Regina v Gregory Alan Hynds (unreported, NSW Court of Criminal Appeal, Gleeson CJ, Mahoney JA and Smart J, 4 June 1991, 1989/60573).
[3] Hynds v Chief Executive, Department of Corrective Services [2006] QSC 21.
[4] Attorney-General for the State of Queensland v Hynds [2007] QSC 374.
[5] Emphasis added. The engrossed form of order wrongly stated that he be detained for control, care or treatment. On 2 March 2012 it was corrected on the application of Mr Anderson under r 388 of the Uniform Civil Procedure Rules 1999.
[6] Attorney-General for the State of Queensland v Hynds [2009] QSC 355.
[7] Not a medical practitioner. “Dr” refers to his Ph D degree.
[8] [2010] QSC 436 at [51]-[72].
[9] Emphasis added.
[10] [2010] QSC 436 at [82].
[11] Ibid at [85] (emphasis added).
[12] Paragraph [17].
[13] Attorney-General for the State of Queensland & Anor v Sambo [2012] QCA 171 at [19].
[14] Attorney-General for the State of Queensland v Francis [2006] QCA 324.
[15] [2010] QSC 436 at [11].
[16] Paragraph [30].
[17] Paragraph [28].
[18] Exhibit RE-1 filed 21 November 2011.
[19] Paragraphs [112] ff.
[20] Section 27(1C); it was not submitted by Mr Hynds, either when he was represented by counsel or after his lawyers withdrew, that the jurisdiction of the court depended upon compliance with that section by 29 October 2011.
[21] On 12 December the application was adjourned for hearing on 13 February 2012.
[22] Attorney-General v Hynds (No 1) [2012] QSC 55; but see now Attorney-General for the State of Queensland & Anor v Sambo [2012] QCA 171.
[23] Attorney-General for the State of Queensland v Hynds (No 2) [2012] QSC 56.
[24] Transcript 5-31.
[25] Transcript 5-39.
[26] Regarding the interpretation of s 341.
[27] Transcript 5-45.
[28] Transcript 4-89 to 4-90.
[29] In it he referred to himself n the third person.
[30] At my request my associate had e-mailed the solicitors for all parties requesting that they “give consideration to whether the Commonwealth Attorney-General should be advised of this possibility [that Mr Hynds might be asked questions about where he had served] so that he has the opportunity to give notice under s 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004, with whatever consequences such a notice might produce (see e.g. Part 3A of that Act).”
[31] See para [89].
[32] Paragraphs [4]-[12].
[33] Paragraph [21].
[34] Paragraph [46].
[35] Paragraph [5]-[10].
[36] Paragraph [81]-[86].
[37] Section 13(7).
[38] Section 13(4).
[39] Attorney-General for the State of Queensland & Anor v Sambo [2012] QCA 171.
[40] Paragraph [104].
[41] Section 13(2)(a).
[42] Section 13(2)(b).
[43] Transcript 5-31.
[44] Exhibit 3.
[45] Probably the reference should have been to s 30(4)(b)(ii).
[46] A copy of s 16B is set out at the end of these Requirements.
[47] Note that a Corrective Services officer may contact such persons to verify that full disclosure has occurred.