Attorney-General v Willis[2012] QSC 52

SUPREME COURT OF QUEENSLAND

PHILIPPIDES J:

1. The Attorney-General seeks orders against the respondent, Robert Leslie Willis pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003.

2. It should be observed at the outset that although the originating application sought a continuing detention (an order that the respondent be detained in custody for an indefinite term for care, treatment and control) and in the alternative a supervision order (an order that the respondent be released from custody subject to such requirements as the Court considers appropriate), the Attorney-General does not now seek a continuing detention order.  Acknowledging that the expert psychiatric evidence does not support such an order, the Attorney-General does not argue that the adequate protection of the community can only be ensured by a continuing detention order. Rather this application proceeded on the basis of submissions that a supervision order would suffice to achieve that result. The respondent does not oppose the making of a supervision order as sought by the Attorney-General, nor the conditions as proposed in the draft order tendered on behalf of the Attorney.

Background to the Application

3. The respondent is presently 64 years of age, being born on 8 December 1947. The respondent’s criminal history, relating to sexual offences, dates back to 1970. The offending extended from 1970 to 1986.

4. The respondent’s criminal history of sexual offending is as follows. On 15 July 1970, the respondent was convicted of one count each of indecent dealing with a boy under the age of 14 years and carnal knowledge against the order of nature. He was sentenced to three years imprisonment, which was reduced to two years on appeal.

5. On 9 September 1975, the respondent was convicted of one count each of indecent dealing with a boy under the age of 14 years and carnal knowledge against the order of nature and sentenced to terms of 12 months and four years imprisonment respectively to be served cumulatively.

6. On 9 April 1981, the respondent was convicted of six counts of indecent dealing with a boy under the age of 14 years and one count of carnal knowledge against the order of nature and was sentenced to terms of three years and eight years imprisonment respectively be served concurrently.

7. On 27 April 1987, the respondent was convicted of one count of carnal knowledge against the order of nature, and eight counts of indecent dealing with a boy under the age of 14 years. He was sentenced to terms of imprisonment ranging between four and 10 years to be served concurrently.

8. On 12 January 2000, the respondent was convicted of two counts of indecent dealing with a boy under the age of 14 years and one count of carnal knowledge against the order of nature. These concerned conduct which occurred in 1971 and 1972. Two concurrent terms of imprisonment of two years and five years respectively were imposed, each wholly suspended for an operational period of five years. During this operational period, the respondent committed the offences of fraud and one count of possessing an objectionable computer game in breach of his suspended sentences. On 28 February 2007, he was sentenced to serve each of the suspended terms of imprisonment imposed on 12 January 2000. Separate terms of imprisonment, to be served concurrently with the re-activated suspended sentences, were also imposed in relation to the fraud and objectionable computer material offences.  

9. The respondent’s parole eligibility date was 28 August 2008. He was granted release to parole on 24 August 2011 subject to his locating suitable accommodation which required approval of a home assessment. As the addresses submitted were not found to be suitable no parole was accessed.

10. The respondent was due for release on 27 February 2012.  On 24 February 2012, the respondent’s release was made subject to the requirements contained in an interim supervision order.  That interim supervision order is due to expire today at 5.00 pm. Although the prisoner’s release date has passed, the making of the order on 24 February 2012, preserves the court’s jurisdiction over the respondent: s 43A(1) and (3) of the Act.

Personal History

11. The respondent does not suffer from any illicit substances or alcohol abuse problems and such issues have not featured in the respondent’s offending.

12. The respondent gave an account to the reporters of a history of sexual abuse commencing when he was 8 year old. He reported being raped on three occasions between the age of 8 and 12. The respondent also reported that when he was 14 years of age he had a sexual relationship with a male co-worker of the same age.

13. The respondent has suffered from depression for which he has been hospitalised and currently receives medication.

14. The respondent’s institutional behaviour has been satisfactory with no reported breaches.

Treatment Programs

15. The respondent completed the Sex Offender Treatment Program during a previous period of incarceration. The respondent has also participated in the following courses and programs while serving his current period of imprisonment:

●Transitions Program, completed on 24 April 2008;

●Getting Started: Preparatory Program, completed on 29 October 2008; and

●Crossroads: High Intensity Sexual Offending Program (HISOP), completed on 10 December 2009.

16. In respect of the HISOP, program facilitators reported that the respondent demonstrated a positive attitude to the program and that he had satisfactorily addressed his treatment needs. Program facilitators noted that as the program progressed, the respondent improved in his ability to express general empathy for others. They further noted that the respondent had identified how his low self‑esteem contributed to his feelings of being unwanted and lonely and that his fear of rejection led him to isolating himself and feeling depressed.  He was noted to be particularly fearful of disclosing his sexuality and his offending to others.

17. With regard to addressing his risk factors, the respondent was recommended to continue building upon the pro-social strategies developed during the HISOP, particularly those not reliant on others. The respondent was also recommended to continue to seek professional assistance to work on his emotional management, problem solving abilities, his ability to cope with life stressors and his self-esteem. On the basis of his participation in the HISOP, program facilitators recommended that the respondent be supervised upon release. The respondent was further recommended to complete the Sexual Offending Maintenance Program.

Psychiatric reports

18. Psychiatric reports were obtained from Dr McVie, Dr Grant and Professor Nurcombe. They examined the respondent and applied a number of actuarial instruments to assess the risk the respondent would present upon release. I note that the psychiatrists all agree that the respondent does not meet the criteria for psychopathy.

Report of Dr McVie, Psychiatrist

19. Dr McVie’s report dated 14 December 2010 was based on an interview with the respondent at Wolston Correctional Centre on 28 October 2010, as well as on extracts from QCS and ODPP files.

20. In relation to the offences for which he was convicted in 2000, the respondent reported that he met the boy through a woman who used to visit him on a fortnightly basis in prison. With regard to the possession of child pornography offence, the respondent reported that he only pleaded guilty because the images had been stored on his computer. He said otherwise, the child pornography was in fact his partner’s and denied accessing the material after his relationship with his partner ended. Of concern, the respondent denied any knowledge that his partner had been previously convicted of sexual offending against boys.

21. The respondent reported to Dr McVie that he “now has no interest in having sexual relationships with boys since he has been having sex with male adults” and that his sexual urges with boys are “almost gone”. He told Dr McVie that he regretted what he had done and he can understand what he put them through and “knows how they would be feeling”.

22. Dr McVie assessed the respondent’s risk of recidivism on the basis of formal assessments. On the Static-99, the respondent received a score of 7, indicating a high risk of future recidivism. On the Risk for Sexual Violence Protocol (RSVP), a checklist used to assist in predicting the risk of sexual offending and in identifying management targets, Dr McVie reported that the respondent’s sexual offending, while chronic and deviant, appears to be decreasing in frequency rather than escalating. She opined that the respondent’s cognitive functioning is suggestive of a very early dementia process which will require ongoing evaluation, but she had not formed a concluded view on that point.

23. Dr McVie reported that the respondent met the diagnosis for paedophilia. Dr McVie expressed concern in relation to his prognosis, as his diagnosis for paedophilia is that of a lifelong tendency.

24. Dr McVie noted that the respondent continues to avoid taking responsibility for his offending behaviour and continued to attribute some blame to his victims and reports that the boys wanted to be involved. Those views were noted to be in contrast to the High Intensity Sexual Offending Program exit report, which suggested that the respondent had developed empathy and was able to articulate his role in his offending. Dr McVie also remarked that “perhaps on a short interview he is affected to some degree by his fear of divulging the extent of his offending behaviour to persons he does not know for fear of negative emotional reprisal.” She noted that there had been “no convictions for offending for over 10 years other than the possession of the child pornography.”

25. Dr McVie recommended that a formal assessment of the respondent’s cognitive functioning occur, as during the interview he appeared to show some signs of early dementia. Dr McVie noted that this might account for the discrepancies in the respondent’s account to her of his attitudes to his offending, compared to that reported in the HISOP exit report. Dr McVie reported that while dementia may be a protective factor in the long term, in the short term, disinhibition may lead to an increase in the respondent’s risk of sexually re-offending against children.

26. Dr McVie reported that the respondent may sexually re-offend against children upon release, if his emotional state destabilises, he does not pursue paid employment and if his current relationship with his adult partner deteriorates. Those at risk were vulnerable. Dr McVie concluded that the respondent remains a long term risk of sexual offending and would require ongoing supervision and monitoring for “at least several years” after his release from custody. She noted his behaviour was characterised by “grooming” of his victims. She did not make any recommendation for a continuing detention order. However, she recommended ongoing supervision including ongoing counselling and participation in a Sex Offenders Maintenance Program.

Report Dr Grant dated 18 February 2012

27. Dr Grant diagnosed the respondent as suffering from homosexual paedophilia regarded as the non-exclusive type in that the respondent has also experienced sexual relationships with adult men.

28. Dr Grant noted that the respondent suffered an episode of depression requiring hospitalisation at the age of 18. He is currently medicated with antidepressants. Dr Grant characterises episodes of depression as recurrent adjustment disorders relating to circumstances in life rather than a major depression.  Dr Grant found no evidence of any other psychiatric disorder. Dr Grant considered the respondent’s underlying personality was of a dependent ineffectual person who experienced problems with self-esteem.  Insufficient traits were observed to warrant a diagnosis of antisocial personality disorder.

29. In respect of the actuarial instruments administered, on the STATIC-99 the respondent scored a total of 8 placing him in the high risk category. On the HCR‑20, this instrument indicated a level of moderate to high risk of future violence which in this case was sexual violence.

30. Upon the administration of the RSVP, Dr Grant rated the respondent as having a moderate to high risk of sexual reoffending. Any risk in the future would be the commission of offences against male children aged between eight to 14, driven by paedophilic drives. In the process of these offences the respondent might seek intimacy along with sexual satisfaction. The consequences, in terms of psychological harm, would be potentially serious but there would be minimal chance of physical harm to the victims. Any offences would be preceded by grooming and manipulation of the child’s parents. Offences could be potentially repetitive. The risk is long term. Monitoring this risk would be by restricting contacts with potential victims, providing supportive therapy and a maintenance sexual offender program. The respondent also required some ongoing assistance in terms of emotional and relationship deficits and social isolation would be a potential factor that might increase risk.

31. Dr Grant noted that the respondent’s history suggests a firmly established pattern of homosexual paedophilia, but Dr Grant also observed that in recent years the respondent, by his self-report, has become less interested in sex with young males and has been able to have a number of relationships with adult men. Dr Grant opined that the respondent had limited remorse and empathy in regard to his actions and the effect on his victims. It was unlikely that the respondent’s attraction to young boys had disappeared as those attractions have been entrenched over the years. The pattern in such matters was that such interests usually persist though they become more attenuated with age. Discrepancies in history and the limited gains from treatment did not provide assurances that re-offending will not occur.

32. Dr Grant considered the risk of re-offending against young males in the future without a supervision order was in the moderate to high risk range. Dr Grant did not advocate the making of a continuing detention order. He considered that the respondent has undergone all appropriate treatments in the custody and there was no indication for him to remain in custody. The effect of Dr Grant’s evidence was that the risk of reoffending could be adequately managed by the making of a supervision order which would reduce the risk to moderate. Dr Grant noted that there has been no “hands on” offences committed since 1986.

33. Dr Grant considered that a supervision order should be of 10 years’ duration. The most important features of such an order would be that there be no unsupervised contact with any male child. The respondent should not be placed in a situation where he has responsibility for children. The respondent should not be permitted to join clubs or associations which would involve him having close contact with children. His social contacts and networks should be monitored to avoid association with children. Any relationships he develops with women who have children should be monitored closely. Those women with whom he associates should be informed of his sexual offending history. Dr Grant also considered it would be wise that the respondent not frequent shopping centres or be near schools at a time when children might be around. I note that the conditions of the proposed supervision order tendered addresses these matters.

34. Dr Grant considered that the respondent would benefit from some ongoing therapy or counselling from an experienced psychologist or psychiatrist to assist in the behaviour of social adjustment and development with further insights into his past offending behaviour. He was of the view that the respondent ought to undergo a maintenance sexual offender program in the community which would reinforce and consolidate any gains made as a result of participation in previous treatment programs.

Report Professor Nurcombe

35. Professor Nurcombe compiled a report dated 11 January 2012 in which he also diagnosed the respondent as suffering from a paraphilia, being paedophilia of a type sexually attracted to males, nonexclusive. He also noted the presence of an adjustment disorder with depressed mood and a mixed personality disorder with avoidant and dependent traits.

36. In relation to the actuarial instruments, Professor Nurcombe noted that on the STATIC-2002, the respondent scored 13 out of 14 placing him in the group of offenders with a very high risk of sexual re-offending. On the Stable 2000, the respondent was found to lack significant social influences following discharge. There was strong evidence of emotional identification with children. There was no evidence of hostility towards women or a lack of concern for others. There was a strong sense of social rejection and inadequacy. The tests revealed that the respondent tended to revert to problematic sexual behaviour when attempting to cope with loneliness and rejection. He was only mildly preoccupied with sex at the time of examination. Professor Nurcombe noted deviant sexual interests but these are under control at the present time. He found no evidence of attitudes conducive to rape. Professor Nurcombe considered that although the respondent scored 10 out of 12 indicating a high risk of sexual reoffending, he would cooperate well with supervision. He was not impulsive but had poor problem solving skills and negative emotionality. The scores on the combined STATIC-2002 and Stable 2000 resulted in a classification of the risk of reoffending as high. On the Vermont Assessment of Sexual Offender Risk, the respondent fell into a group of prisoners whose likelihood of reoffending is “high”.

37. Professor Nurcombe noted the respondent closely identified with early pubertal boys. He has, in the past, seduced them with some sense of sexual entitlement. There is evidence of projection, rationalisation, minimisation and a degree of denial of his offences. Notwithstanding undergoing two courses of intensive sexual offender treatment, the respondent continues to be highly defensive, although some improvement was noted as a result of participation in these courses.

38. Professor Nurcombe identified the main risk factors as being inadequate community support, uncertainty about the durability of his current relationship, depression, sexual deviance and identification with male children stemming from unresolved conflict concerning his own sexual abuse. The respondent’s marked defensiveness toward the motivation and nature of his sexual offending was also seen as a risk, as was his personality which was characterised by passivity, avoidance and lack of trust. Professor Nurcombe considered the respondent’s relapse prevention plan is inadequate. He doubted whether the respondent has benefitted greatly from the programs that he has undertaken. He was highly institutionalised with low average intelligence.

39. Although Professor Nurcombe considered the respondent to be a high risk of sexual reoffending, he did not consider him to be resistant to continuing treatment or supervision. He opined that, if the respondent were to reoffend, the offence would most likely involve a male child between eight to 14 years of age with physical harm unlikely but psychological harm likely. The respondent’s offending involved ingratiating himself with families with vulnerable children and grooming the child by interesting them in pursuits attractive to young boys. Professor Nurcombe noted the evidence that the respondent had not reoffended sexually since he was 39 years of age and opined that as he is now 64 years of age, his sex drive is “probably weaker than before”.

40. Professor Nurcombe considered the respondent has received all the benefit he is likely to experience of a sexual offender group treatment but did not consider that there was any purpose in him remaining in prison.

41. The effect of Professor Nurcombe’s report was that the risk of reoffending could be managed in the community with an appropriately conditioned supervision order. The risk of reoffending could thereby be reduced from high to moderate. This supervision order should provide that the respondent remain at a distance from schools and have no contact with families or organisations in which there are underage males. He should avoid areas where children congregate. He would benefit from individual psychotherapy and mentoring. He should be helped to seek casual work. He should develop an intimate relationship if possible. He should not access pornographic material or computer images of under age children. Those matters are dealt with in the proposed conditions.

Statutory Scheme

42. The objects of the Act, as stated in s 3 are:

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

2. to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.

43. The Act establishes a scheme for the continued detention in custody or supervised release of prisoners who are deemed to be at risk of committing serious sexual offences if released at all, or if released without appropriate supervision. The primary orders which may be granted under the Act are "Division 3 orders", which are provided for in s 13 of the Act, which provides:

“13 Division 3 orders

1. by acceptable, cogent evidence; and
2. to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.

1. the reports prepared by the psychiatrists under section 112 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
2. any other medical, psychiatric, psychological or other assessment relating to the prisoner;
3. information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
4. whether or not there is any pattern of offending behaviour on the part of the prisoner;

5. efforts by the prisoner to address the cause or causes of the prisoner's offending behaviour, including whether the prisoner participated in rehabilitation programs;
6. whether or not the prisoner's participation in rehabilitation programs has had a positive effect on the prisoner;
7. the prisoner's antecedents and criminal history;

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

44. A “serious sexual offence” is defined in the schedule to the Act as an offence of a sexual nature, whether committed in Queensland or outside Queensland involving violence or against children.

45. As to the first matter for consideration, being whether the respondent is a serious danger to the community in the absence of a Division 3 Order, there is cogent evidence to the high degree of probability required, that if released without a Division 3 Order, the respondent presents as an unacceptable risk of committing a serious sexual offence.  That is made clear by a consideration of the matters listed in s 13(4) including the psychiatric assessments referred to already.  As counsel for the Attorney-General observed, all of the psychiatrists who have examined the respondent for the purpose of this application identify that he presents a high risk of reoffending.  The offences are likely to be committed against a male child aged between 8 and 14 and would be motivated by the respondent’s paedophilic drives.  The risk of psychological harm to any potential victim is significant but there would be minimal risk of physical harm to any victim.  The offences would be preceded by grooming and manipulation of the child’s parent or guardian and could be potentially repetitive.

46. The question then arises as to whether adequate protection of the community can be reasonably and practically managed by a supervision order (including the s 16 requirements) or whether a detention order should be made. In determining that matter, the paramount consideration is the need to ensure adequate protection of the community: s 13(6). Ultimately the purpose of the legislation is protective. The onus of demonstrating that a supervision order affords inadequate protection to the community is on the applicant: Attorney General for the State of Queensland v Lawrence [2009] QCA 136.

Determination

47. Counsel noted that the respondent has undertaken sexual offender treatment programs while he has been detained. Dr Nurcombe doubted whether the respondent has benefited greatly from participation in these programs. Both Dr Grant and Dr McVie noted that the respondent continues to avoid taking responsibility for his actions and still attributes some blame to his victims. However, the psychiatric evidence does not suggest that there is further treatment that can be offered to the respondent while in custody, although a maintenance program was recommended.

48. None of the psychiatrists who provided reports advocated that a continuing detention order is required. The tenor of all the psychiatric evidence, as the Attorney-General accepted in written and oral submissions, is that a supervision order will be sufficient to ensure the adequate protection of the community. The respondent is prepared to comply with the supervision order: see Attorney General for the State of Queensland v Fardon [2011] QCA 155, [29].  Counsel for the Attorney-General accepted that there was no basis to suggest that the respondent would not comply with the terms of any supervision order.

49. Bearing in mind the uniform nature of the psychiatric evidence, counsel for the Attorney conceded that “in all the circumstances, it cannot be demonstrated that the respondent cannot be adequately controlled to ensure adequate protection to the community by means of his release on a supervision order”. The ultimate submission on behalf of the Attorney was that “a supervision order which contains the limitations identified in the psychiatric evidence, especially that the respondent be closely monitored and supervised and that there be no unsupervised contact with male children would, on the psychiatric evidence presently available, appear to provide adequate protection to the community.”

50. As I have mentioned, the paramount concern in making any order under the Act is to ensure adequate protection to the community. I accept the submission made by the Attorney that the risk presented by the respondent’s release can, on the psychiatric evidence, be adequately managed by his release on supervision on the stringent conditions contained in the draft order.  As already stated, the respondent does not oppose any of the conditions contained therein.

51. I make orders in accordance with the draft provided for the supervised release of the respondent on the conditions specified therein for a period of 10 years, that is until 5 March 2022.