Attorney-General v Cobbo[2014] QSC 150

SUPREME COURT OF QUEENSLAND

1. This is an application by the Attorney-General for a Division 3 order to be made pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”).

2. The applicant contends that:

(a)the Court should be satisfied to a high degree of probability, by acceptable, cogent evidence, that the respondent is a serious danger to the community in the absence of a Division 3 order; and

(b)On the evidence, and having regard to s 13(4) and s 13(6) of the Act, the Court ought conclude that adequate protection of the community cannot be reasonably and practicably managed by a supervision order, and that a continuing detention order should be made.

3. It was argued for the respondent that:

(a)the evidence was not such as to be acceptable cogent evidence, to a high degree of probability, justifying a conclusion that the respondent is a serious danger to the community in the absence of a Division 3 order;

(b)alternatively there is no reason to believe that a supervision order will not be effective to manage any risk, the respondent having deposed that he will abide by any supervision order. 

4. The following summary of the respondent’s background, his criminal history, the circumstances of the index sexual offences, his drug and alcohol history, the background of events during his time in prison and his limited participation in programs was not in issue before me, save for the assertion to the Court made by the respondent, through his counsel, that he was innocent of sexual offending. I will refer to this assertion later.

Background

5. The respondent was born on 11 January 1987 in Cherbourg and is presently 27 years of age.  On 14 August 2008, he was convicted after trial and sentenced to a period of five years imprisonment for four offences of rape.  He was also convicted for an offence of carnal knowledge and sentenced to six months imprisonment. In addition to the sexual offences, the respondent was also sentenced to two years imprisonment for two robberies, that term of imprisonment to be served cumulatively on the sentence imposed for the rapes.  His full term release date is 25 June 2014.

Criminal history

6. The following table outlines the respondent’s criminal history and includes relevant convictions from Queensland:

The Index Sexual Offences

7. On 14 August 2008, the respondent was convicted and sentenced after being found guilty by a jury for an offence of unlawful carnal knowledge and four offences of rape.

8. The female victim was 13 years of age at the time of the unlawful carnal knowledge offence and 14 years of age at the time of the rape offences. The respondent and the victim were known to each other.

9. The four rape offences arose out of a single incident between 21 August and 4 September 2006.  The offending against the victim occurred in the public toilet facilities at Kurilpa Park and involved three offences of oral sex and one offence of sexual intercourse.  The respondent became angry and used force and threats when the victim resisted.  The victim was crying during the incident and was physically sick.

10. On 14 September 2006, the respondent was interviewed by police. He denied raping the victim in Kurilpa Park.  He initially denied knowing the victim but later admitted that in about May 2006 he met the victim in a park in Woodridge and had consensual sex with her.  He stated that he had not seen the victim between May and August 2006.

11. The offence of unlawful carnal knowledge occurred on a date between 31 May 2006 and 18 July 2006 at Woodridge and predates the rape offences at Kurilpa Park.  The respondent was told by the victim that she was thirteen years of age and a virgin at the time of the offence.

12. The offence occurred late at night in the grounds of a high school. The sexual intercourse lasted about five minutes and stopped when the victim pushed the respondent off. The respondent was found not guilty of rape (oral intercourse) arising from this incident.

13. On 17 September 2006, the victim participated in a pretext phone call with the respondent. During this conversation, the respondent repeatedly asked the victim to drop the charges.

14. The sentencing judge said:

“So far as the sexual offences are concerned they were the subject of trial before me. You were older than the victim of those offences. She was 13 for the unlawful carnal knowledge offence and 14 for the other offences.

And having heard the evidence and witnessed the proceedings I have no doubt that you exercised a position of dominance over her. Not surprisingly, those offences have had a significant effect on her and there is no indication of remorse on your part.

I have a very helpful report from a psychologist, Ms Perkins, which tells me a great deal about you.

I accept that you took little account of the feelings of that young lady and that, as the psychologist put it, it is likely that you were simply indulging in your own self gratifying sexual behaviour.

I accept generally her view that the influence of alcohol abuse and violence in your upbringing have played a part in your offending. To a large extent the origins of your present predicament probably lie in your upbringing.”

Drug and alcohol history

15. The respondent’s use of alcohol and substances began when he was 13 years old. Alcohol was his substance of choice and he was drinking heavily until his incarceration. During the period of heavy use, he would start drinking as soon as he woke up and would experience withdrawal tremors.

16. In his teenage years he experimented with marijuana and chroming but did not use either substance regularly. He has denied using amphetamines, but there is information in his prison file which reflects that the respondent reported daily alcohol and marijuana use and regularly using ‘speed’.

Events in prison

17. The respondent is classified as a high secure inmate and is currently incarcerated at Woodford Correctional Centre. Case notes indicate that the respondent has generally demonstrated poor institutional behaviour. He has displayed unpredictable behaviour, such as verbal abuse and a negative attitude towards staff, and non-compliance with the rules.

18. His violation history indicates that he has tested positive to illicit substances (cannabis, buprenorphine) and failing to supply a urine sample. He has been breached for diverting medication (Seroquel and Panadol), being abusive/threatening towards staff and other prisoners, and contravening the rules and regulations. Such contravention included an incident of inappropriate conduct in the non-contact visits area.

Programs

19. Corrective Services’ records indicate that in 2008 the respondent participated in the Literacy program. In April 2009 he commenced the Ending Offending program which he failed to complete, having only attended one session. He re-commenced this program in December 2011, which he successfully completed. He has completed some of the core modules of the Transitions Program. In 2012 he enrolled in TRACKS (Indigenous Tertiary Preparatory Program).

20. On 21 April 2009, the respondent participated in an interview regarding his willingness to participate in a sexual offending program. The interview process was aimed at ascertaining the respondent’s treatment needs. At the time, the respondent chose not to fully participate in that interview process. It was noted in that interview that he maintained his innocence for the index offending and stated that he was going to his full term. On the Static-99 component, the respondent received a score of 6 placing him in the high risk category. He was recommended to participate in the Getting Started: Preparatory Program (“GS: PP”).

21. The respondent was interviewed on 21 September 2009 and 17 October 2013 regarding his willingness to participate in the GS: PP. On both occasions the respondent declined placement. In 2009, the respondent told the interviewer that “he did not feel that he was at risk of re-offending”.

22. Between 14 October 2010 and 25 January 2011, the respondent participated in the Pathways program, completing 17 of the 21 sessions in Phase 1. He was permitted to exit the program at the end of Phase 1 due to family problems. At the time he expressed a willingness to finish the program at a later stage.

23. The exit report of the Pathways program, dated 16 February 2011, indicated that the respondent presented as ready and willing to participate in the program and was motivated to gain assistance with “how to control his alcohol abuse”. It reported that he was a reserved participant who required prompting from facilitators to contribute in the larger group processes. The respondent indicated that he was having difficulty understanding the language and terminology in the workbooks and attended additional tutorials to assist with this.

24. On 16 July 2012, the respondent commenced Phase 2 of the Pathways program. He attended four sessions before requesting to terminate. The exit report dated 24 October 2012 indicated that the respondent was unwilling to engage in the program.  He advised the facilitators that he “would attend class if it suited him”. Facilitators engaged the cultural liaison officer to speak with him regarding his poor attitude and reluctance to attend the program.  The respondent said that he “was not interested in participating” and facilitators noted that this attitude was reflected in his participation and engagement level throughout the sessions.  It was recommended that he participate in the program when sufficiently motivated.

25. On 26 August 2013, the respondent was interviewed regarding his willingness to participate in the Pathways program being offered at Woodford Correctional Centre. The respondent accepted a place on the program scheduled to commence on 1 October 2013.  On 8 October 2013, the respondent was removed from the program due to his behaviour and general lack of commitment. 

The respondent’s evidence

26. At the commencement of the hearing before me, counsel for the respondent made a statement to the Court on behalf of his client. Counsel for the respondent said that the respondent had instructed him to tell the Court that the respondent was innocent of the sexual offending for which he was convicted and that the respondent would not, under any circumstances, whether in prison or elsewhere, participate in a sexual offending program which requires him to admit guilt of sexual offending.

27. An affidavit by the respondent was also filed. In that affidavit, the respondent said that he understood that supervision orders contain requirements about how he can live his life if released from prison, and that he knows that if he does not obey the supervision order he can be returned to prison straight away. His affidavit set out a number of the conditions typically contained in a supervision order, and the respondent said that he is “ready willing and able to comply with all of the above conditions”. He also said that he was “ready willing and able” to comply with any further conditions that may be imposed. His affidavit then continued:

“5.There is one exception to my willingness to abide by a supervision order as I explain below. 

6. I am innocent of the four charges that I was found guilty of on 14 August 2008.  I am innocent of the four counts of rape and unlawful carnal knowledge. 

7. I will not do or participate in any course or treatment program that requires me to admit that I am guilty of those four offences because I am innocent.  I will not participate in a sham.  I refused to participate in such courses in jail for that reason.”

Psychiatric evidence

28. The respondent has been examined by three consultant psychiatrists, Dr Josephine Sundin, Dr Donald Grant, and Dr Michael Beech. Each of the psychiatrists provided written reports, and each also gave oral evidence before me.

Dr Sundin

29. Dr Sundin examined the respondent on 31 May 2013. The doctor’s report is dated 4 June 2013.  Dr Sundin set out at length the respondent’s personal history, as reported to her by him.  This includes the respondent’s reporting to Dr Sundin concerning the index sexual offences.  In short, the respondent blamed his convictions on his lawyers and said that the testimony of the complainant was false.  He told Dr Sundin that it was his intention to appeal that conviction but, as Dr Sundin also noted, he had in fact not sought any legal advice about an appeal and, in fact, he has not appealed.

30. Dr Sundin described the mental state examination of the respondent at the 31 May 2013 interview. Dr Sundin proffered the following diagnosis:

“113.In my opinion, Mr Cobbo meets the DSM-IV-TR criteria for Anti-Social Personality Disorder.  Additionally, as is discussed below, he meets the criteria for Psychopathy according to the Hare Psychopathy Checklist Revised (PCL-R 20).  In the past, Mr Cobbo has had evidence of Polysubstance Abuse (alcohol, cannabis and amphetamines).  These drug abuse conditions are in remission whilst he is prison, but I note his breaches for drug usage.

114. I found that while Mr Cobbo demonstrated a number of attitudes consistent with sexual entitlement and probable unacknowledged anger towards women; I found no evidence of a sexual paraphilia.

115. I found no evidence of a sustained mood disorder.  I note that Mr Cobbo would have met the criteria for Conduct Disorder in his youth and adolescence.”

31. Dr Sundin’s report then describes her administration of a number of risk assessment instruments. Dr Sundin noted:

“These actuarial instruments and physician assisted guidelines need to be used with some degree of caution as they have been developed from North American prison populations and as yet no comparable material is available from the Australian Prison population.  In particular, no comparable material is available from the Australian Indigenous population.”

32. With that caution, Dr Sundin then set out the results of the various risk assessment tools that she applied. On the Hare Psychopathy Checklist Revised, she found that the respondent met the criteria to attract a label of Psychopath. Dr Sundin then described the assessments undertaken pursuant to Static-99 (Hanson & Thornton 1999), the Sexual Offender Risk Appraisal Guide (SORAG), and the Sexual Violence Risk Scale (SVR-20). On the physician’s guideline, Dr Sundin assessed the respondent’s risk of future sexual offending as high. Dr Sundin commented:

“122.From a dynamic perspective, it is clearly evident that despite his disinclination to acknowledge his past history, Mr Cobbo has been subject to a prejudicial childhood and adolescence.  I note the observations of Ms Perkins that the Cherbourg area is one badly tainted by intra-familial violence, abuse of children and alcohol abuse.  This was undoubtedly disruptive for Mr Cobbo in relation to his object attachments and the models he integrated as to how to relate to others.

123. It was evident over the course of his interview with me that he was seeking to create a positive impression and to minimise the severity of his offences.  I note that the police material confirms Mr Cobbo’s awareness of his offending in relation to the complainant female in the index offences and his awareness of the wrongness of the act.  These records also indicate an awareness of the likely penal sanction for such offences.

124. His current denial and minimisation of his offence is of concern.  He is currently firmly entrenched in viewing himself as the victim and completely opposed to engaging in any form of sexual offending treatment programme.  I also have some concern about his history of having linked violence to sexual intercourse during an offence he committed as a 13-year-old child and in his subsequent prolonged assault linked to sexual entitlement against his de facto partner, which resulted in an assault occasioning bodily harm conviction.  I am of the opinion that Mr Cobbo has significant criminogenic treatment needs which as yet have not been the target of any programme, as a consequence of his denial of responsibility.”

33. Dr Sundin’s report set out the following conclusions:

“125.In my opinion, this is a young man whose unmodified risk of future sexual and violent recidivism is high.  At this stage, he denies responsibility for his actions, has sought to project blame on to the victim and has consistently sought to minimise his responsibility with regard to his offences.  As noted above, he is firmly entrenched in self as victim cognitions.  He has a substantial history of anti-social impulsive behaviour.  His criminal record dates back to his youth.  I note the history of multiple contacts with the Children’s Court.  I further note his history of violence and threats of violence as part of his patter of offending.  As flagged by my earlier comments, I am also concerned by two assault offences that had sexual entitlement overtones to them.

126. In my opinion, this man’s risk status renders him a danger to the community.  I would not recommend that he be released from prison unless he was subject to a rigorous, closely monitored supervision order.  I consider it necessary that he undertakes a Sexual Offenders Treatment Programme prior to release from prison.  He seems likely to be suitable either for the Medium Intensity Sexual Offenders Programme or if an IQ test proves him to be of quite low IQ, then the Inclusion Sexual Offenders Programme would seem appropriate.  It is also important that he completed the Pathways Programme.  While he had a good report of his participation in the initial course he did not complete the programme and given the close link between his alcohol and illicit substance abuse and his offending history this would seem to be a vital component of his rehabilitation.

127. I would therefore respectfully recommend to the Sex Offenders And Dangerous Offenders Assessment Committee that this is a young man who should be considered for further intensive treatment to address his outstanding criminogenic treatment needs and who upon release from prison should be subject to a very intensive supervision order which requires him to be closely monitored within the community and required to be abstinent from all mood-altering licit and illicit substances.  If such supervision order was put in place for this young man, I would recommend that it would need to be in place for a period of five to 10 years.”

34. In evidence before me, Dr Sundin confirmed that she was still of the opinion that the respondent’s unmodified risk of future sexual and violent recidivism is high. She said that if he was released on a supervision order, there would be a high likelihood that the respondent would breach in terms of either abuse of licit or illicit substances. She identified a concern that the respondent’s history suggests that intoxication and sexual violence go together and that she would be concerned that if he were released on a supervision order “that we could have an instance where he goes out, gets intoxicated and offends all in the same event”.

35. Dr Sundin was cross-examined on the applicability of the actuarial tools for an assessment of risk in the case of an Australian indigenous offender, and agreed that the actuarial tools probably overstate the respondent’s risk of re-offending sexually to some degree, but added a caveat namely that the respondent “did also score very highly on the psychopathy rating scale and that was a source of concern to me”.

36. Dr Sundin also confirmed that, when assessing the respondent, she gave consideration to the prospect of the respondent suffering from foetal alcohol syndrome. She also confirmed that, in her assessment of the respondent, Dr Sundin did not find any deviant sexual interests, and did not diagnose him as a paedophile.

37. In relation to the statement made by the respondent, through his counsel, to the effect that he was innocent of sexual offending and would not undertake any sex offending program which required him to admit guilt of sexual offending, Dr Sundin gave the following evidence:

“Yes, your Honour.  That assertion raises several issues for me.  Mr Cobbo has a history of two other incidents involving violence that had sexual overtones.  It does happen within Corrective Services that if a person is prepared to make partial admissions then they can actually be engaged in the programs.  So if Mr Cobbo was prepared to acknowledge the incident at 13 and then the prolonged violence towards his de facto in that subsequent episode, that may well be enough for him to listen to and engage with the programs as run by Corrective Services.  The Corrective Services are also prepared to engage in what we call motivational or encouragement counselling to get people to understand, and if he would acknowledge his involvement in those two incidents, that may be well enough to get him across the board, even while he maintains a stance of innocence toward the index offences.  My only other comment is that the hubris in that assertion goes along with my previous assertions with regards to his high level of psychopathy, which of course is itself a concern for future recidivism.”

Dr Grant

38. Dr Grant examined the respondent on 14 March 2014, and provided a report dated 19 March 2014. Dr Grant’s report also contains a lengthy recitation of the respondent’s history, as reported by the respondent. Relevantly, Dr Grant noted the following statement of attitude by the respondent towards any sex offender treatment programs or supervision:

“Mr Cobbo said that he doesn’t want to do a sexual offender program, largely because he sees himself as not being a sex offender who needs that kind of treatment.  He said “it’s for people who might grab some poor cunt and rape them against their will.  If I’d done that and raped a female, a woman who was the ‘giver of life’ then I’d want treatment too”.  He said there are many women in his family who he has a good relationship with, he thought that he’s been raised well and he had no urge to commit sexual offences.  He feels that he has been unjustly convicted of his rape offences.  He feels that he was not guilty but the trial was conducted badly.  He said he had no idea about his right to appeal within a particular timeframe and was not given adequate legal advice.

In regard to the prospect of him coming under the DPSOA he said “it’s a bit too much, I don’t know how to feel about it, it’s all too much for me, I just want to go home to my family, start my life again, teach my nephews and nieces to stay out of trouble, work as a ring-barker and find a beautiful woman to settle down with”.  He feels angry and disappointed, can’t understand his situation but says that he can’t express his anger in prison without being “locked up in the fucking hole”.

39. Dr Grant described the mental status of the respondent on presentation, and also provided some commentary on collateral material, including psychological reports, which had been provided to Dr Grant. Dr Grant gave the following diagnosis:

“Mr Cobbo has no evidence of any significant psychiatric disorder.  However, he has a significant personality disorder with immature and antisocial traits, and on the psychopathy checklist he scores highly, especially for a young man of his age, reaching more than the cut-off point for psychopathic personality disorder.

He has a diagnosis of chronic substance abuse, involving particularly alcohol and marijuana, which is in partial remission in custody, but his use of drugs in custody indicates that that issue is not resolved.

Despite the fact that Mr Cobbo’s victim was aged 13 and 14 at the time of the two offences, I do not believe that he suffers from paedophilia.  He was only 19 himself at the time.  His victim was post-pubertal and he does not express any ongoing current attraction for underage females.  He did have a relationship with an age appropriate female prior to the offences.  I do not feel there is sufficient evidence for a diagnosis of a paraphilia such as paedophilia or sadism.  I would see his sexual offending as a consequence of his psychoptathic personality, his negative attitudes towards women, his lack of concern for the effect of his behaviour on others and the disinhibiting effects of alcohol abuse.”

40. The report then sets out the results of the formal risk assessment instruments that Dr Grant applied to the respondent.  Dr Grant commenced this part of his report with a caveat similar to that given by Dr Sundin, namely:

“The instruments I have used have been developed in North America on groups of sex offenders to produce a statistical group risk for re-offending.  Those group risks have to be applied to individuals only with considerable caution.  These instruments have not been standardised for Australian populations, nor have they been standardised for indigenous populations.  Despite those limitations, they represent some assistance in an overall risk assessment”.

41. Dr Grant then described at length the results of the risk assessments he had undertaken, and concluded:

“In my opinion Mr Cobbo represents a moderate to high risk of future sexual offending, this risk primarily relating to his psychopathic personality traits, his lack of ability to empathise with others, his entitled views when it comes to sex with women and the disinhibiting effects of substance abuse, particularly alcohol.

In my opinion, it is necessary for Mr Cobbo to have treatment programs that address his substance abuse and his sexual offending, in order to reduce his risk.  He has, however, so far been resistant to completing a substance abuse programme and has flatly refused to undergo sexual offending programs.  He remains fairly insightless and in denial in regard to his offending and his risk of re-offending in the future.  He has a long criminal record and has demonstrated significant impulsivity and susceptibility to peer influences in the past.  In addition to his sexual offending there has been significant violent offending as well.

In my opinion Mr Cobbo should complete a sexual offending program prior to release into the community and he should also undergo an appropriate substance abuse program.  The choice of appropriate programs would depend upon a detailed assessment by the appropriate program officers.

If released into the community prior to completing such treatment, the risk in my opinion for future sexual re-offending will remain moderate to high and it is likely that that risk will be difficult to contain without an extremely strict monitoring and supervision program.  If he were to undergo treatment, the risk would hopefully be modified and a supervision program would be more targeted and more accepted by him.  Therefore, in my opinion, if released under the Dangerous Prisoner Sexual Offender Act he should be placed on a supervision order which would mandate abstinence from substances and appropriate individual treatments or maintenance treatment as required in the community, targeting risk for sexual offending and substance abuse.  If released prior to treatment programs, I believe that supervision would be quite problematic, as Mr Cobbo has negative attitudes and has failed to comply with community supervision many times in the past.  The risk of breach of his supervision order would therefore be very high.  Hopefully with more treatment and some development of more mature understanding of his problems the supervision order would be more effective when he is released into the community.”

42. In evidence before me, Dr Grant was asked about the application of the risk assessment instruments to indigenous populations, and noted that the instruments had not been formally normalised against Aboriginal populations in Australia, and this was a further cause for caution.  He said, however, that the instruments “form part of an assessment, but by no means all of the assessment of risk”.  Dr Grant also said that, whilst he found no evidence of paedophilia or sadism, the risk presented by the respondent arises from his psychiatric personality traits, his lack of ability to empathise with others, his attitude to women, particularly in regard to sexual relations with women, and the risk of the disinhibiting effects of substance abuse such as alcohol or illicit drugs. 

43. Dr Grant confirmed the opinion he had expressed in his report that the respondent should complete a sexual offending program prior to release into the community, and also that supervision, prior to completion of a treatment program, would be quite problematic because of the respondent’s negative attitudes and failure to comply with community supervision in the past.

44. Under cross-examination, Dr Grant was asked whether, if the Court found that the respondent was committed to complying with a supervision order, this would lower the respondent’s risk of re-offending sexually. He responded that he thought the supervision order would have “some potential to lower the risk, but the potential for lowering the risk would be considerably lower if [the respondent] underwent the initial treatment in custody before release”.

45. In relation to the commitment proffered by the respondent to abide by a supervision order, Dr Grant gave the following evidence:

“I think one would regard that undertaking with a degree of scepticism and caution, your Honour.  Given the fact that he has had so many breaches of bail, probation and intensive correction order programs in the community in the past that one needs to look at such a statement with caution.”

46. In relation to the respondent’s assertion that he was innocent of sexual offending and that he would not undertake any sex offending program which required him to admit guilt of sexual offending, Dr Grant said:

“I think that that statement indicates [the respondent’s] lack of understanding of his offence behaviour and his tendency to blame that offence on the victim and the circumstances, to deny the asperity of it.  Those are the sort of things that – those attitudes would be the sort of things that would be challenged as part of a high intensity sexual offender program.  And I think that’s really the very issue that needs to be addressed if he’s going to lower his risk of sexual offending in the future.”

Dr Beech

47. Dr Beech’s report dated 2 April 2014 followed an interview and assessment undertaken by Dr Beech of the respondent on 21 March 2014.

48. Dr Beech’s comprehensive report also set out a statement of the respondent’s background, as obtained from the respondent. In that part of the report dealing with the index sexual offences, Dr Beech noted the statements made to him by the respondent in which he denied having committed the offences. Dr Beech reported:

“Mr Cobbo said he has no understanding even how his conviction came about.  He offered that there could be a number of reasons for her false allegations and he cited for example jealousy.  Mr Cobbo said he has not read her statements.  When pressed he denied that he mistook consent; he was adamant that she was agreeable and the act was consensual.

...

Mr Cobbo said he was angry that he has been convicted of rape and this has seriously affected his life.  He said he now he wants to get on from the matter, get out of prison, and be with his family.  He said he hoped simply to return to work and have things back to the way they were prior to his arrest.

Mr Cobbo maintained his innocence of the charges.  He alluded to an appeal against the sentence at some point in the future.”

49. In relation to programs undertaken while in prison, Dr Beech records the respondent saying that he had not done a sexual offender course:

“He said simply that he could not admit to any guilt for something that he did not do.  He held strongly to his innocence and said he could not do a course because he believed he would be forced to say that he was guilty.”

50. Dr Beech said that he offered to the respondent that an admission that the respondent had been involved in an unlawful carnal knowledge might allow an entrée into the program. The respondent told him that, while the complainant was young she seemed older to him, and she was associating with older females. The respondent accepted that he should have asked her age, but he was unable to see how an admission to that offence would allow him to complete a program, because he simply denied the other offences and he believed that ultimately this would be a fatal stumbling block. The respondent said that even thinking about the course upsets him because of his innocence:

“It hurts him to think about it, and the nature of the offences cause him a lot of shame.  He had discussed these reasons for his refusal with the facilitator; he said he simply cannot admit to something he had not done and so he will not commence the course.”

51. After setting out a summary of other collateral material considered by the doctor in the course of his assessment, Dr Beech gave the following diagnosis:

“Adam Cobbo is a 27-year-old single man who was convicted at trial in 2008 of the sexual assault of a female minor.  He was 19 years old at the time, and he was serving an intensive correctional order, having breached bail and his second chance at probation.

There is a significant history of juvenile delinquency, which appears to have included an escalating pattern of violence into his early adult years.  In prison his behaviour has included a number of breaches and incidents.  In my opinion he has an Anti-social Personality Disorder.

This has arisen from childhood experiences at home possibly in association with schooling problems.  In the community it was probably perpetuated by his association with like-minded peers and substance abuse.

In the community he has had significant problems from a young age with alcohol and drugs and he has continued to abuse substances in prison.  In my opinion he has Poly-substance Abuse and Dependence that is in partial remission within a custodial setting.

What stands out is Mr Cobbo’s marked and almost pervasive tendency to minimise his problems, his crimes and his culpability.  This tendency was noted in his youth, at his sentence, and it has persisted into recent times.  It is accompanied by the way he glosses over his childhood antecedents, his violence, his own domestic violence, and his refusal to enter into or complete offender courses.

This denial is associated with his minimisation of his risk, and ambivalence towards further alcohol use, and limited preparation for release.

The sexual offences are in my opinion an extension of his anti-social personality, and together with the assault conviction they indicate his sexual entitlement, his lack of empathy, and his lack of remorse.  On the surface he denies any hostility towards women, but in my opinion it is likely that he harbours markedly sexist views, particularly regarding his attitudes towards perceived promiscuity.”

52. Dr Beech then reports on the various risk assessments that he applied, including the Risk for Sexual Violence Protocol. Dr Beech concluded:

“The Risk for Sexual Violence Protocol lists twenty-two items that are known to be dynamic factors associated with the risk for further sexual violence.  In my opinion, through his life Mr Cobbo has demonstrated the presence of many factors.  Many of these continue into his present circumstances.

I believe that the most pertinent factors at present are:

• Psychopathy.
• Criminality.
• The use of extreme physical coercion.
• Extreme minimisation and denial of the sexual violence.
• The possible presence of some continuing attitudes that condone violence.
• Deficits in self-awareness regarding his offending.
• Significant problems with substance use.
• A history of violent behaviour.
• Problems in intimate relationships.
• Refusal of treatment.
• Problems with supervision.

There are a number of absent risk factors and they include the lack of sexual deviance, the lack of mental illness, and the lack of chronic sexual offending.

Overall it is my opinion that Mr Cobbo is at high risk of further sexual offending if he is released into the community, notwithstanding that his conviction in 2008 was his first and only conviction for sexual assault.  I consider that his sexual violence is simply a reflection of his criminality and his psychopathy; Mr Cobbo has simply used violence in the past to meet his needs or to vent his frustration or anger.

The risk arises from his violent past and the way in which he has had difficulty settling into custody.  He has little insight into his sexual offending, and he has done little to educate himself about it or to reduce his risk of offending.  Instead he has refused to enter or complete courses that are designed to address substance use (a major risk factor) or sexual violence.

In my opinion a Supervision Order would not be sufficient to reduce the risk below moderate-high.  Mr Cobbo has continued to demonstrate poor behaviour.  He has abused substances in prison.  His history is littered with examples of poor compliance with supervised release orders.  I consider that he is at high risk of breaching a Supervision Order, of returning to substance use, and of returning to criminal behaviour.  He has no clear plan for his release, and no clear strategy for reducing his risk.  Under these circumstances I think that most of the risk reduction would be through the efforts of his case officers, with little assistance from Mr Cobbo to address his risk mitigation.

I would recommend that he complete a high intensity program to address substance abuse and that he demonstrates in custody that he can be abstinent.  In my opinion, he should complete a high intensity sex offender program so that he becomes aware of his risk factors and his antecedents, is able to develop strategies to manage the risk, and so that his supervising officers have a more informed idea about how he can be managed in the community.  He might then be suitable for supervised release.”

53. In evidence before me, Dr Beech confirmed his opinion that a supervision order would not be sufficient to reduce the risk presented by the respondent to something less than moderate – high. Dr Beech referred in particular to the respondent’s history of breaches and said that he thought that in the community “we would continue to see this type of behaviour and I can’t see the supervision order would act to moderate that very much”.

54. Dr Beech also gave oral evidence about whether there would be any warning signs of risk of offending if the respondent were to be released. He said:

“The thing I would add to that [i.e. the evidence of the other psychiatrists], I think, is that there are warning signs right now about his risk.  There is refusal to accept treatment, there’s his continuing misbehaviour in prison, and I think there’s an ongoing flavour of his beliefs around consent.  So I think there are already warning signs.”

55. In relation to the respondent’s proffered commitment to abide by the terms of a supervision order, Dr Beech was of the opinion that one could place very limited value on such commitment. Dr Beech said:

“He has committed, for example, to substance abuse programs, but he’s not completed them.  And I think it’s problematic to accept that he would commit to abiding by a supervision order when he’s not been able to abide by the general discipline of the prison regime.”

56. In relation to the respondent’s assertion of innocence of sexual offending and that he would not undertake any sex offending program which required him to admit guilt of sexual offending, Dr Beech gave the following further evidence:

“Your Honour, I think it – if you’ve seen the body of my report, I discuss that with Mr Cobbo.  I think it’s – that bold statement of his is probably a bit too simplistic.  He has, for example, an entrée into the program.  He doesn’t have to admit to the rape.  He could put that aside, if you like, and he could just simply admit to the unlawful carnal knowledge of a girl under the age of 13.  But he won’t even use that as an entrée into the program.  So – and there are other programs such as a substance use program that he started but hasn’t completed.  So I think it’s a general antipathy towards programs.  I think more problematic though, perhaps, for him is that he doesn’t understand the concept of consent and that’s probably why he doesn’t see that he is guilty of the rapes.  In the interviews, I think, with Meg Perkins near – pre – around sentencing, or, more recently, in front of the Parole Board – I think he has an attitude that unless a woman is kicking and screaming then she is somehow consenting.  And he sort of, perhaps, underplays the significance of psychological coercion.  Those distorted views need to be addressed before, I think, he should be released.  Now, he is psychopathic and it is possible that he won’t change his attitude towards this form of program and, you know, I everything else were equal, I could accept that maybe the individual program might be helpful to him, but everything else isn’t equal.  He’s got substance misuse programs, behavioural disturbances, and a very poor track record of delinquency.  So there’s actually not much going for him, really, I think, and he should complete the program.  It would use the benefit of the group, particularly indigenous males, to explain to him in clear terms what consent means and I think that message has to get across to him.”

Division 3 order

57. Section 13 of the Act provides:

“13Division 3 orders

(1)This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).

(2)A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence –

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

(b)if the prisoner is released from custody without a supervision order being made.

(3)On hearing the application, the court may decide that it is  satisfied as required under subsection (1) only if it is satisfied –

(a)by acceptable, cogent evidence; and

(b)to a high degree of probability;

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

(4)In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following –

(aa)any report produced under section 8A;

(a)the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

(b)any other medical, psychiatric, psychological or other assessment relating to the prisoner;

(c)information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

(d)whether or not there is any pattern of offending behaviour on the part of the prisoner;

(e)efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour including whether the prisoner participated in rehabilitation programs;

(f)whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;

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

(h)the risk that the prisoner will commit another serious sexual offence if released into the community;

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

(j)any other relevant matter.

(5)If the court is satisfied as required under subsection (1), the court may order –

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

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

(6)In deciding whether to make an order under subsection (5)(a) or (b) –

(a)the paramount consideration is to be the need to ensure adequate protection of the community; and

(b)the court must consider whether –

(i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and

(ii)requirements under section 16 can be reasonably and practicably managed by corrective service officers.

(7)The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

58. In Fardon v Attorney-General for the State of Queensland Gummow J summarised the purpose of Part 3 of the Act as follows:

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

59. In relation to the present application, the scheme of the relevant provisions of the Act was outlined by the Court of Appeal in Attorney-General (Qld) v Francis:

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

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

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

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

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

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

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

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

It will often be the case that more than one of these considerations will inform the making of an order.”^[2]

60. Clearly enough, the first question is whether I ought be satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order. That requires me to assess, under s 13(2) whether there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody, or if released from custody without a supervision order being made.

61. Importantly, s 13(3) sets out both the nature of the evidence required in order for me to be satisfied that the respondent is a “serious danger to the community”, namely “acceptable, cogent evidence”, and that I be satisfied “to a high degree of probability” that the evidence is of sufficient weight to justify the decision that he is a “serious danger to the community”.

62. The matters to which I must have regard for that purpose are enumerated in s 13(4).

63. Counsel for the respondent sought to argue that the cogency of the risk assessments performed by the psychiatrists was undermined because of the fact that the actuarial instruments are not correlated to the Australian indigenous population. It was submitted that, given this particular respondent’s background, application of the actuarial instruments inflated the assessment of his risk of sexual offending.

64. The respondent also pointed to the fact that Dr Sundin and Dr Beech had, in their reports, extracted an allegation that the respondent had assaulted a girl saying that he wanted to have sex with her, but the respondent was in fact convicted only of one count of common assault. The doctors were criticised, in the respondent’s submissions, for relying on that incident as indicative of an allegation of sexual assault. In fact, each of Dr Sundin and Dr Beech were cross-examined on their reference to that particular incident. Each of them confirmed that their reference to that incident could be completely disregarded, and their overall opinions with respect to the risk presented by the respondent would nevertheless be the same.

65. As appears from my discussion of the doctors’ evidence above, each of the psychiatrists acknowledged the necessary limitation of the application of the actuarial risk assessment tools to members of the Australian indigenous population. It is also clear, however, from the evidence of the psychiatrists that the results of the application of those actuarial tools represent only part of the assessment methodology undertaken by each of the psychiatrists.

66. It is of particular importance to note that, whilst there is no diagnosis, and indeed no suggestion, of the respondent being a paedophile or suffering from some other paraphilial disorder, he clearly suffers from a serious psychiatric disorder. The overwhelming evidence of the psychiatrists is that he is a psychopath, and has a significant adjustment disorder.

67. Despite the submissions made by counsel for the respondent, I am therefore satisfied that the expert evidence given by each of the psychiatrists is acceptable, cogent evidence, as required by s 13(3)(a) of the Act.

68. The psychiatrists’ reports and evidence are matters to which I must have regard under s 13(4). In addition, by reference to the matters enumerated in that subsection, I note:

(a)the evidence raises a clear risk of the respondent committing a serious sexual offence if he engages in the consumption of drugs or alcohol;

(b)whilst completion of the first phase of the Pathways program indicated some willingness by the respondent to address his drug and alcohol issues, and thereby address one of the causes of his offending behaviour, he refused to complete Phase 2 of that program;

(c)the respondent has refused, and continues to refuse to participate in a sex offenders rehabilitation program;

(d)his antecedents and criminal history demonstrate a propensity to engage in criminal conduct involving violence and he clearly has a relevant history of sex offending;

(e)the consistent psychiatric opinion is that there is, at least, a moderate to high risk that the respondent will commit another serious sexual offence if released into the community;

(f)there is already a need to protect members of the community from that risk.

69. The conclusions reached independently by each of the psychiatrists with respect to the risks presented by the respondent, together with the matters to which I have just referred, combine to persuade me to the high degree of probability required by s 13(3)(b) that the evidence is of sufficient weight to justify a decision under s 13(1).

70. Accordingly, I am satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order.

71. Having made that finding, it is then necessary to consider whether a continuing detention order or a supervision order ought be made under s 13(5). The decision under that subsection is guided by the considerations enumerated in s 13(6).

72. As to the first of the factors enumerated in s 13(6), namely “the paramount consideration is to be the need to ensure adequate protection of the community”, it is appropriate to recall the oft-cited observations by the Court of Appeal in Attorney-General (Qld) v Francis:

“The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise, orders under s 13(5)(b) would never be made.  The question is whether the protection of the community is adequately ensured.  If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject could be constrained to no greater extent than is warranted by the statute which authorised such constraint.”^[3]

73. Counsel for the respondent argued that there was no reason to believe that a supervision order would not be effective to manage the risk in this matter. It was said that the respondent has deposed that he will abide by any supervision order that is made.

74. In view of the respondent’s poor history of compliance, and having regard to the concerns expressed by the psychiatrists as to the value (if any) which I could place on that proffered commitment, I am not at all persuaded that any weight can be given to the respondent’s assurance of compliance with the conditions of any supervision order.

75. That conclusion is reinforced by the respondent’s “exclusion” from the terms of his commitment to comply. It is, objectively, a matter of concern that the respondent refuses to acknowledge that he has engaged in sexual offending, and resists the undertaking of any sex offending program which would require him to admit guilt of sexual offending. Again, each of the psychiatrists was adverse in their commentary on those statements made to the Court on behalf of the respondent.

76. In my view, on the evidence before me, it cannot be said that adequate protection of the community can be reasonably and practicably managed by a supervision order. For the reasons stated above, I have no confidence in the respondent’s commitment to comply with the terms of a supervision order. This is highlighted not only by the degree of risk that the respondent presents if released on a supervision order, but also by the prospect that, as appears from the psychiatric evidence, there is a risk that a breach by the respondent involving licit or illicit substances may lead, in the one incident, to sexual offending.

77. I am not able to ignore the consistent expert evidence of the psychiatrists to the effect that this respondent should not be released even on a supervision order unless and until he has completed an appropriate sex offender treatment program. Each of the psychiatrists emphasised the importance of him completing such a program. Apart from the rehabilitative impact of completion on the respondent, it is also directly relevant to the considerations required under s 13(6)(b)(ii) – completion of that program will provide information to enable Corrective Services officers to reasonably and practicably manage any requirements of a subsequent supervision order.^[4]

78. Accordingly, I conclude that the applicant has discharged the onus of proving that the respondent is a serious danger to the community and that it is appropriate in this case for there to be a continuing detention order under s 13(5)(a).

79. There will be the following order:

The Court, being satisfied to the requisite standard that the respondent, Adam John Cobbo is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003, orders that:

1. The respondent be detained in custody for an indefinite term for control, care or treatment.