Attorney-General v Pandelis[2014] QSC 73

SUPREME COURT OF QUEENSLAND

1. The respondent was born on 20 December 1956 and is presently 57 years of age. On 11 November 2008, in the District Court at Brisbane, he was sentenced to a period of six years and four months’ imprisonment.  His date for release from custody is 30 April 2014. 

2. As the respondent concedes, there is cogent evidence to the requisite standard that the respondent is a serious danger to the community in the absence of a Division 3 order. I am satisfied that such an order should be made.

3. The next issue is whether there should be a continuing detention order or whether adequate protection of the community can be ensured by a supervision order. The respondent concedes that adequate protection of the community cannot be ensured at this time by ordering that he be released from custody pursuant to a supervision order. Despite this concession, it is necessary for the Court to be satisfied of this, and to give reasons why a continuing detention order rather than a supervision order should be made.

4. The respondent suffered a homosexual rape at the age of eight and significant sexual assaults a few years later when he attended boarding school. These were significant traumatic events which he did not disclose until much later in his life. He has a criminal history dating back to 1974. The offences for which the respondent is currently serving a sentence involve one offence of unlawful sodomy of a person under 18 years and one offence of indecent treatment of children under 16 years.  These offences constituted a breach of an earlier suspended sentence which was reactivated by the sentencing judge.

5. On the day of the most recent offences were committed, the respondent met a 16 year old boy who was homeless. The respondent befriended him and drove him and his friends around for the day buying them alcohol.   The respondent then took all the boys back to his flat. He invited the victim to go for a drive with him.  Later that evening he drove the boy to a park and sodomised him.

6. In sentencing the respondent for these offences, O'Brien DCJ observed that there was “clearly a measure of predatory behaviour in your conduct”. His Honour sentenced the respondent to six years imprisonment for the offence of unlawful sodomy. He also reactivated the remaining four month period of the suspended sentence previously imposed on the respondent, to be served cumulatively upon the six year sentence.

7. Despite:

• some insight into the risk of further offending;

• acceptance of responsibility for his past offending;

• a recognition of the risk associated with ongoing attraction to adolescent males and the need to organise his life to avoid contact with potential victims;

• some basic plans for his future, involving returning to live with his elderly parents to support and assist them;

• a stated preparedness to comply with the conditions of a supervision order in order to live with his parents before they die (they are now in their late 80s),

the successful operation of a supervision order is undermined by a number of factors.  In a recent report, Dr Donald Grant identified them as including:

“•Practical issues arising from Mr Pandelis’ significant physical problems with caring for himself and being mobile enough to attend appointments and treatment programs.

•Mr Pandelis’ demonstrated difficulties with cooperating and engaging with supervision, as illustrated by his failure to maintain parole last year for more than a week.

•Mr Pandelis’ continuing failure to come to terms with the reality of his sexual offending behaviour and persisting cognitive distortions in that regard.

•Mr Pandelis’ failure to satisfactorily complete the HISOP.

•Mr Pandelis’ difficulties with open and honest communication in regard to his sexual attitudes and behaviour in the past and during the HISOP.

•The serious difficulty in preventing Mr Pandelis coming into contact with potential victims (adolescent males) in the community.

•Mr Pandelis’ personality disorder, with prominent anti-social traits and a sense of entitlement.

•Mr Pandelis’ poor emotional controls, as evident during the HISOP.”

8. For these reasons, Dr Grant is pessimistic that a supervision order would be adequate at this time, and is concerned that an early breach would most likely occur, either through lack of cooperation with supervision and treatment, or through acting upon attractions to potential victims, unknown to the respondent’s supervisors.  The expert opinion of Dr Grant and others is that the respondent should be detained in custody in order to undergo further attempts at treatment.  This should include repetition of the High Intensity Sexual Offending Program (“HISOP”) and individual counselling.  This would improve the respondent’s insight and reduce risk, so that a supervision order would be more likely to be successful. 

9. Dr Beech has also recently expressed the opinion that HISOP is the most appropriate intervention, provided it could be tailored to meet the respondent’s individual circumstances. Professor Nurcombe also shares the opinion that the respondent should repeat a HISOP because of his limited previous treatment gains and significant outstanding treatment needs and because a HISOP is more appropriate to a maintenance program. It is anticipated that a program be tailored to his individual risk and needs and that a place would be offered to him on the HISOP when a vacancy arises. This is likely to be in mid to late July 2014. He would complete the program inside of the typical nine to twelve month period and, provided he responded positively to it, would complete the HISOP by February 2015.

10. Professor Nurcombe’s report dated 29 June 2013 helpfully summarises the respondent’s problems as follows:

“He has marked problems with self-awareness and with coping with stress.  He continues to have problems resulting from child sexual abuse.  His predeliction for underage males amounts to a paraphilia.  He does not have Psychopathic Personality Disorder, major mental illness, problems with substance use, or violent or suicidal ideation.  He has problems with both intimate and non-intimate relationships and has had problems with employment.  He is probably not employable at the present time.  There is a past history of non-sexual criminality.  Mr Pandelis has a reasonable relapse prevention plan; however, he undertook High Intensity Sex Offender Treatment Program for the purpose of facilitating probation and was predominantly resistant to it (particularly when his ideas were challenged).  He says that he would be willing to accept individual psychotherapy following release.”

11. The expert opinions of Professor Nurcombe, Dr Grant and Dr Beech persuade me that a continuing detention order, rather than a supervision order, is appropriate at this stage.  The continuing detention order would be for treatment, rather than control or care.  As I emphasised during the hearing of this matter, in addition to participation in the HISOP, the respondent and the community would benefit if he could commence individual psychotherapy with a psychologist experienced in the treatment of sex offenders.  This was Professor Nurcombe’s recommendation in his recent supplementary report dated 11 April 2014.  Professor Nurcombe also recommended that the respondent be physically evaluated by a specialist physician with regard to his need for testosterone supplements.  Professor Nurcombe advised that the use of antiandrogens should be considered.

12. The respondent has chronic health problems and will have a need for social and other supports if released under a supervision order. Whilst he has the emotional support of his elderly parents and his siblings, he faces a number of challenges in living in the community. These include his institutionalisation for substantial periods. Presumably he has learnt an important lesson from a breach of a parole condition which led to him being returned to custody in 2013. However, unless and until his treatment needs are addressed, he is likely to have difficulties in re-integrating into the community and complying with a supervision order. An important practical issue is his ability to care for himself, avoid contact with potential victims and exhibit the emotional control necessary to observe a supervision order. It would be unfortunate if the respondent’s treatment, including the provision of individual psychotherapy, was delayed and that, through the passing of the respondent’s parents, he was unable to reside with them, support them as best he can and obtain the emotional support and the accommodation they are prepared to offer him.

13. The onus of demonstrating a supervision order affords inadequate protection to the community is on the applicant.^[1]  The applicant has discharged this onus.  At the present time a supervision order is unlikely to reduce the risk of sexual reoffending so that adequate protection of the community can be ensured.  The paramount concern in making an order under the Act is to ensure adequate protection of the community.  I am not persuaded that the risk of the commission of a serious sexual offence can be reduced to an acceptable level at this stage by the making of a supervision order.  For this reason, I made a continuing detention order on 14 April 2014. 

14. I have summarised above my reasons for doing so. The balance of these reasons includes additional information upon which I reached that conclusion. Some of this information is drawn from the written submissions of the applicant, the factual accuracy of which was accepted in the respondent’s submissions.

The legislation

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

“(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.”

16. The Attorney-General may apply for a Division 3 Order in relation to a “prisoner”, which includes a prisoner detained in custody who is serving a period of imprisonment for a “serious sexual offence”. A “serious sexual offence” means an offence of a sexual nature involving violence, or against children.

17. Section 13 of the Act applies if, on a hearing of the application, the Court is satisfied that the prisoner is “a serious danger to the community in the absence of a division 3 order.” It specifies the circumstances in which the Court may make an 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).”

18. A prisoner is a serious danger to the community within the meaning of s 13 if there is “an unacceptable risk that the prisoner will commit a serious sexual offence”, if the prisoner is released from custody, or if the prisoner is released from custody without a supervision order being made.^[2]

19. The Court may decide that it is satisfied as required by ss (13)(1) only if it is satisfied:

“(a)by acceptable, cogent evidence; and

2. to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.”^[3]

20. In deciding whether a prisoner is a serious danger to the community as defined in s 13 the Court must have regard to the following:

“(aa)any report produced under section 8A;

(a)the reports prepared by the psychiatrists under s 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.”[4]

21. The paramount consideration in deciding whether to make a continuing detention order or a supervision order is the need to ensure adequate protection of the community.^[5]  The Attorney-General has the onus of proving that a prisoner is a serious danger to the community in an application for a Division 3 order.^[6]

22. Subsection 13(5)(a) identifies the three purposes for which a continuing detention order may be made: control, care or treatment. In some cases, more than one of these considerations will inform the making of an order.^[7]

The respondent’s personal and sexual history

23. The respondent was the third of three boys to Greek-Cypriot parents.   He was close to both of his parents.  The respondent described them as very supportive and affectionate.  He described his parents as very close to each other with no periods of separation or domestic violence in their relationship.  He also described a close and loving relationship with each of his brothers.

24. The respondent reported that was anally raped at the age of eight by two adult men who were known to his family.  He was also the victim of forced oral sex and sodomy at the hands of four boys in his dormitory at his boarding school, when he was about 12 years old.  He later took revenge on one of the boys by assaulting and sexually molesting him.  As a result of this incident, the respondent was expelled from school.  He did not report these sexual assaults at the time.  These significant traumatic events in his childhood greatly affected him.

25. Dr Grant’s report dated 6 March 2014 gave the following account of the respondent’s sexual history:

“Mr Pandelis said that when he returned from boarding school and was living in Tully he had sexual interaction with another 15 year old boy involving oral sex and masturbation.  He then came to Brisbane and went to Kelvin Grove school and from age 16 started going out with other male friends.  He said he was introduced to the gay scene on the streets and in the clubs of Fortitude Valley.  He used to go to gay parties and he met older men and became involved in more homosexual activities.

At that age Mr Pandelis started drinking alcohol.  He tried marijuana but didn’t like it.  He used to drink at parties and it was after drinking and becoming drunk at a party that he committed his first sexual assault on the nine year old boy, using a pocket knife that he had with him to threaten the boy.

Mr Pandelis has subsequently had a diverse sexual history.  He was sexually active from his mid teens onwards with other young adolescents and adult men.  He has had quite a lot of sex with prostitutes – male, female and transgender.  He said over the years he was mainly interested in male partners but then became very interested in transgender people.  He said he developed something of a fetish for sex with transgender men who were transitioning to females.  He said that he likes being able to treat them as either male or female.  He is fascinated by the way in which they cope with their sexuality.  He finds transgender people more open minded than gay men and he believes that they know better how to give love than gay men.

Mr Pandelis has had a number of sexual contacts with females over the years and for one year was married to his wife.

Mr Pandelis met a transgender woman who was his last relationship prior to coming into prison on the most recent occasion.  She was 32 years old when they met in 2003 and they had a relationship on and off for about seven years.  He said for the first two years he would visit her every weekend and then he lived with her at her parents’ place at Park Ridge, then she moved in with him at his parents’ place for a few years.  They used to share a little dog.  When he was convicted and sent to prison Mr Pandelis’ family got his girlfriend a flat.  They had accepted her as a daughter when they were living together with the parents.  When Mr Pandelis’ parents went to pick up the dog one day they found another man at her flat and after that advised him to get rid of her, and the relationship broke up.  She later on returned to live with her parents again at Park Ridge.  He now has no contact with her.”

Criminal history

26. The respondent has an extensive history of sexual and violent offences. The following table outlines the respondent’s criminal history:

27. On 26 August 1974, he was sentenced in the Brisbane District Court to two and a half years’ imprisonment for the offence of carnal knowledge against the order of nature. The respondent had pretended to be a member of the police force. He had taken a nine year old boy from a railway station on the pretext that the boy could help him; “catch the man who was taking away little boys”. The respondent took the boy to a grassy area alongside a railway line and proceeded to sodomise him. The respondent was armed with a knife at the time. He threatened to cut the victim’s throat if he told anyone.

28. On 4 June 1976, the respondent was sentenced in the District Court at Brisbane to six months imprisonment for the offence of indecent dealing with a boy under 14 years.  The respondent was visiting the mother of a seven year old boy.  In the evening he suggested he could take the boy for a walk.  During the course of that walk, the respondent took the boy to an isolated area and proceeded to suck the boy’s penis.  He then pulled his own penis out and masturbated himself to a climax in front of the boy. 

29. On 27 June 1979, the respondent was sentenced in the District Court at Brisbane to two and a half years imprisonment for the offence of carnal knowledge against the order of nature.  The victim was a 12 year old boy who was waiting at a bus stop.  The respondent approached the victim and asked him if he would like to move a few boxes for him and be paid for his effort.  The victim went with the respondent to his house.  Once there, the respondent locked him inside and proceeded to sodomise him.  The respondent gave the victim a dollar and told him, “Don’t dob on me because you’ve been paid for this”.  A few months later the respondent tried to pick up the victim again from the bus stop but the victim refused.  The respondent gave the victim his name and telephone number so that the victim could make arrangements to meet with him on another occasion.  

30. On 14 December 1979, the respondent was sentenced in the District Court at Brisbane to a total of five years imprisonment for three counts of carnal knowledge against the order of nature and one count of indecent dealing with a boy under the age of 17 years.  These offences related to four separate occurrences against four boys, all aged 15 years.

31. The first victim met the respondent at a social event related to the respondent‘s wedding. On that occasion, the respondent was talking to the boy about sex. He then undid the zipper on the boy’s pants and fondled his penis. He then asked the boy if he would like to go to the movies the next day. The boy stated that he would. The next day, the respondent picked the boy up and took him to his residence, where he proceeded to sodomise him. He told the boy not to tell anyone about this incident.

32. The second victim was invited by the respondent to his residence to watch television. When they got to the respondent’s house, the respondent took the boy’s pants off and fondled his penis. The respondent then told the boy to lie down on his stomach on the bed, where the respondent then proceeded to sodomise him.

33. The third victim was also invited by the respondent to his house. The respondent said to him, “I’ll give you money if I can lay across your arse”.  The boy agreed to this, and lay on his stomach while the respondent sodomised him.   The respondent paid the boy $3 and drove him home.

34. The fourth victim was approached by the respondent at the Fortitude Valley Leisure Centre. The respondent asked him if he wanted a job as a carpenter. He replied that he did. The respondent took him to his friend’s house, and introduced the victim to his friend. The respondent asked the victim if he would like to look around the house.  He then locked him in a bedroom.   The respondent sodomised the victim and told him he would kill him, if he told anyone. The victim then escaped out of the house and ran away.

35. On 21 June 1985 the respondent was sentenced in the Brisbane District Court to two years imprisonment for the offence of carnal knowledge against the order of nature. The victim in this case was a young boy (it is difficult to determine his exact age from the records available) whom the respondent met in a pool hall. The respondent went to a room with the child and sodomised him.  He then proceeded to fondle his penis and testicles. He then performed oral sex on the child and masturbated in front of him.

36. On 6 September 1985, the respondent was sentenced in the Supreme Court of Queensland to four years imprisonment for attempted murder. The respondent convinced two boys to go to the railway tracks with a third boy with the intent of killing the third boy.  The boys attempted to do this by stabbing the victim in the back with a knife and then trying to cut his throat and kick his head.  The boys believed they had killed the victim but he survived.  The respondent was aware of the children’s intentions to kill the victim and had encouraged them in their endeavour.  Both children said that they had committed the offence on the instructions of the respondent.  When the children returned to the respondent and told him that they had killed the victim.  Upon returning to the scene, to make sure the victim was dead, it was found that the victim had left the scene.

37. The sentence was appealed by the then Attorney-General on the basis that it was too lenient. The appeal was allowed. The respondent’s sentence was increased to 10 years’ imprisonment for this offence.

38. On 23 September 1988, the respondent was sentenced by the Brisbane District Court to three months imprisonment for the offence of carnal knowledge against the order of nature. This offence related to apparently consensual anal intercourse with another prisoner at the correctional centre at which they were both incarcerated at the time.

39. On 26 March 1998, the respondent was sentenced by the Brisbane District Court to six years imprisonment for the offence of conspiracy to murder. The conspiracy involved three men, including the respondent and his then-boyfriend, who conspired to kill a nightclub owner. The nightclub owner owed $50,000 to one of the men. Originally the plan was to frighten him into paying back the money. However, the respondent came to believe that the intended victim had made unwanted sexual advances towards the respondent’s boyfriend and the plan became one to kill the victim. One of the men involved became uncomfortable with the plan, and told police who then arrested the respondent. The respondent was described by the sentencing judge as being the “principal person involved in the execution” of the plan.   The respondent appealed against the sentence.  The appeal was dismissed.

40. On 26 November 2004 the respondent was sentenced by the Brisbane District Court to six months’ imprisonment, to be suspended for five years after serving two months’ imprisonment for the offence of attempted indecent treatment of children under 16 years. The respondent was friends with the mother of a 13 year old boy.  He picked the boy up from school one day and took him to a park.   The respondent told the boy that he would give him $100 to “suck his dick”.  The boy refused.  The respondent then took him home.

41. I have earlier described the offences for which the respondent is currently imprisoned. In short, it involved a serious sexual assault upon a 16 year old homeless boy who he befriended one day.

The respondent’s medical condition

42. The respondent has the following conditions:

• Chronic obesity;
• Asthma;
• Post-traumatic stress disorder caused by childhood sexual abuse;
• Back pain;
• Arthritis; and
• Low blood testosterone for which he receives hormone injections.

The last condition warrants some mention.  Prior to 1986 the respondent underwent a biopsy of his testes and it was found that he had damaged testes, was infertile and was not producing testosterone.  It was thought that he may have had mumps at a young age that caused his infertility.  The respondent denies having had mumps and says that his testicular problem is due to having been assaulted by officers in Boggo Road Prison.  He was placed on testosterone injections to supplement his normal requirements for testosterone and has remained on those monthly injections ever since, save for one period in prison when he was taken off them.  He says that during that period he developed breast enlargement because of the lack of testosterone.  A psychiatrist’s report in 1993 stated that the respondent rejected the idea of taking anti-androgen drugs because he wanted to keep his sexual drive.  That, of course, was more than 20 years ago and in his most recent report Professor Nurcombe recommends that the respondent be physically evaluated by a specialist physician with regard to his need to testosterone supplements.  Professor Nurcombe says that the use of anti-androgens should be considered.

Custodial history

43. The respondent has a relatively breach-free history during his lengthy time in custody. He assaulted another prisoner in 1999. In December 2012 there was a major breach when he placed an amount of cleaning fluid into his bottle of milk in order to ascertain who was stealing his milk. Another prisoner ingested it and became sick.

44. The respondent completed the Getting Started : Preparatory Program and embarked upon the HISOP.  He was regarded as an active participant in the Getting Started Program, with insightful questions and no evidence of denial or justification.

45. The respondent participated in the HISOP from 8 August 2011 to 7 August 2012.  According to facilitators, the respondent’s overall level of commitment and participation in program processes fluctuated significantly. Facilitators noted that although he completed all program tasks and at times he appeared motivated to engage openly within the group context to gain insight into his offending, his predominant presentation throughout the program was one of disengagement, resentment and negativity.  He told program facilitators that he was motivated to complete the program so that he would be granted parole, as opposed to gaining insight into his offending behaviour and developing strategies to manage potential risk factors.  Facilitators noted that the respondent presented as hostile, intimidating and angry.  The group was reluctant to provide him with challenging feedback due to his attitude.

46. Facilitators considered that overall, the respondent did appear to benefit from undertaking the program as it provided him with an opportunity to begin to develop an emergent awareness of his entrenched cognitive distortions regarding his offending behaviour and the factors which contributed to this. He appeared to have ongoing challenges with processing and internalising program concepts. He was unwilling and/or unable to engage in a level of reflection which would enable him to gain a deeper understanding of his offending pathway and associated risks. His participation in the program demonstrated few, if any, significant shifts in relation to his awareness of his offending or his identified treatment needs.

47. The respondent’s high risk factors were identified as:

• Being with people under 18;
• Not getting sexual needs met;
• Poor communication;
• Stress and depression;
• Low self-esteem;
• Fantasies/inappropriate thoughts; and
• Use of sex as coping.

48. Facilitators recommended that the respondent would require ongoing assistance from an experienced practitioner to address his outstanding treatment needs and sexual deviancy. This would enable the respondent to build upon the minor positive shifts he achieved from the program.

49. Facilitators recommended that the respondent participate in a Sexual Offending Maintenance Program to continue to build on his ability to recognise and challenge the factors which contributed to his offending behaviour.

50. The respondent was released to parole by the Queensland Parole Board on 27 March 2013. On 4 April 2013 he was arrested for an alleged breach of parole conditions not to have contact with known sex offenders. On 23 April 2013 the Queensland Parole Board decided to cancel the respondent’s parole order, and he remains in custody.

51. The respondent reported to Dr Grant that the breach involved him making a phone call to another sex offender. He gave a similar account to Dr Beech. He had the phone number of a male friend whom he had known in prison. The man had been released. The respondent said that he did not know this person to be a sex offender, but subsequently found out that he was. When he made the call another man answered and talked to him. That man was a sex offender. The respondent said that he hung up and immediately told his parole officer what had happened.

52. The parole officer examined the respondent’s phone and found 60 phone numbers of male prostitutes. The respondent said that he had obtained these from newspapers and was going to look for a suitable male sex worker, but had not contacted any. All of the people were apparently aged over 18.

53. The respondent’s contact with known sex offenders led to the cancellation of his parole order. The respondent complained to Dr Grant that his parole officer was inexperienced and could have acted differently by cautioning him.

Psychiatric and psychological reports

54. I have had regard to psychiatric and psychological reports dating back to 1979. The most relevant reports are those compiled in recent times. These are reports prepared by Professor Nurcombe, Dr Grant and Dr Beech which were prepared for the purpose of the present proceedings.

Psychiatric Report of Professor Barry Nurcombe, Psychiatrist, dated 29 June 2013

55. The report was based on an interview with the respondent undertaken at the Wolston Correctional Centre on 26 June 2013, as well as extracts from the Office of the Director of Public Prosecutions files, Queensland Corrective Services files, the Queensland Parole Board file and transcripts of Queensland sentencing proceedings.

56. Professor Nurcombe applied a number of formal assessments of the respondent in order to assess the respondent’s risk of recidivism as follows:

• Psychopathic Checklist – Revised: Professor Nurcombe gave the respondent a score of 23 out of 40, indicating a moderate level of psychopathic traits, but falling short of a diagnosis of Psychopathic Personality Disorder. Professor Nurcombe observed that this score was about average for incarcerated criminals.
• STATIC 2002: the respondent scored a nine out of a maximum score of 14 on this risk assessment instrument. This placed him as a high risk of sexual recidivism relative to other adult male sex offenders.
• STABLE 2007: Professor Nurcombe noted concerns with regards to: capacity for relationship stability; sense of general social rejection; lack of concern for others; poor problem-solving skills; negative emotionality; reversion to sexual behaviour to cope with stress; sexual entitlement; and deviant sexual preference. On the other hand, he noted that the respondent would have significant positive sexual influences following release from prison, he shows no hostility towards women, he is not impulsive and he does not currently appear to be sexually preoccupied. Professor Nurcombe predicted that the respondent would comply with supervision.
• Vermont Assessment of Offender Risk: the respondent scored a total of 65 out of a possible 125 on the re-offence risk scale, and 50 out of 125 on the violence risk scale. The combination of those two scores indicated that the respondent was at high risk of sexually reoffending.
• SCR-20: Professor Nurcombe found that the respondent had the following risk factors for re-offending: sexual deviation; victim of child abuse; relationship problems; employment problems; past non-sexual violent offences; past non-violent offences; past supervision failure; high density sex offences; and uses weapons or threats of death in sex offences. On the other hand, there was no evidence of psychopathy, no major mental illness, no substance use problems, no suicidal/homicidal ideation and no extreme minimisation or denial of sex offences.

57. Professor Nurcombe diagnosed the respondent as having a Paraphilia (hebephilia, homosexual, non-exclusive type) and a Generalised Anxiety Disorder with Dysphoria. He also considered that the respondent has Antisocial Personality Disorder with psychopathic features, falling short of Psychopathic Personality Disorder. Professor Nurcombe also diagnosed obesity, asthma, chronic back pain, arthritis and urinary frequency.

58. Professor Nurcombe opined that the respondent is at a high risk of sexually reoffending against males aged 12 to 17 years. His history of sexual offending has been chronic but not diverse or escalating. Professor Nurcombe considered that the respondent minimises the sexual violence, but displays no attitudes that support or condone it. The respondent has marked problems with self-awareness and coping with stress. He continues to have problems resulting from childhood sexual abuse.

59. According to Professor Nurcombe, the most likely risk scenario, should the respondent reoffend sexually, would be the sexual molestation of a male aged 12 to 17 years. The respondent would be prepared to threaten violence to achieve his ends. Professor Nurcombe considered that the potential for psychological (but not physical) harm to victims would be high. He opined that there is a chance that violence could escalate to a life threatening level but that likelihood of that occurring is not great.

60. Warning signs that the respondent was at imminent risk of reoffending would include withdrawal, depression or dysphoria due to loneliness or isolation, or to rejection in an intimate relationship. Professor Nurcombe assessed this risk of reoffending as chronic, and the likelihood of this type of reoffending as high.

61. Overall, Professor Nurcombe considered that the best way to monitor these warning signs that the risk posed by the respondent was increasing would be supervision by a correctional officer and psychotherapy with an experienced psychiatrist. The respondent has unresolved conflict with regard to child sexual abuse which could be addressed in individual psychotherapy.  He also requires training in community survival skills.

62. Professor Nurcombe considered that the respondent is not a good prospect for treatment. Individual psychotherapy will not work and may not decrease the risk of reoffending. Group therapy does not appear to work. He also considers that a breach of a supervision order will not generally be detected. The respondent could not be relied upon to self-report as he is not sufficiently trustworthy and reliable.

63. In Professor Nurcombe’s view, the physical limitations observed would not greatly minimise the risk or reduce the respondent’s interest in sex.

64. Further, Professor Nurcombe considers that the respondent is at a high risk of reoffending even with a supervision order. Professor Nurcombe agrees that any future offence would create a high risk of significant harm to any victim. It appears that Professor Nurcombe does not perceive that a supervision order would adequately contain the risk that the respondent’s release otherwise presents.

Report Donald A Grant, Consultant Psychiatrist, dated 4 March 2014

65. Dr Grant records that the respondent reports ongoing attractions to adolescent males. Dr Grant also notes the respondent has had a diverse range of sexual relationships with adult females, homosexual and bisexual males, both adolescent and adult. He has also had a relationship with transgender individuals. Many sexual contacts have been casual. He reports having been in a relationship with a transgender person for several years. Dr Grant also records a history of violent offences. These have included armed robbery, intent to murder and conspiracy to murder.

66. The respondent has, for some years, been morbidly obese, weighing 149 kilograms. He has developed a number of medical conditions including asthma, type 2 diabetes, back problems with sciatica and a groin rash. Dr Grant records that the respondent has infertile testis producing no testosterone and has been on replacement testosterone injections. The respondent presents as significantly disabled.

67. The respondent described to Dr Grant a low sex drive but has some ongoing sexual interests involving thoughts and fantasies involving adolescent males or transgender males. He reports limits to his current sexual function.

68. Dr Grant notes the respondent has completed the HISOP but he did not “do well”.  Dr Grant observes the facilitators of that program indicated the respondent was poorly engaged, defensive, had limited insight and a continuing tendency to justify and minimise his offending.  The respondent displayed poor ability to control his emotions.  He became angry and often left the group for periods of time. 

69. In Dr Grant’s view, the respondent could not have been seen to have satisfactorily completed the course or to have achieved significant gains in terms of addressing future risk. Dr Grant notes that the respondent does accept some responsibility for his previous offending. He recognised the risk associated with ongoing attraction to adolescent males. He has some awareness of the need to organise his life so as to avoid contact with potential victims and the inevitable temptations that that would bring. His future plans are described as “basic”.  He wishes to return to live with his elderly parents to support and assist them.  However, the ability to support such people will be limited by his own ill health and pain.  Dr Grant reports that the respondent is prepared to live within the strictures imposed by a supervision order under the Act. 

70. Dr Grant also applied a number of risk assessment instruments. On the Static-99, the respondent achieved a score of 9 which placed him into the group at high risk of future sexual offending. On the Hare Psychopathy Checklist, the respondent scored 27, meaning that he has significant psychopathic traits which fall short of a diagnosis of psychopathic personality disorder.  The psychopathic traits will have a tendency of increasing risk of future offending behaviour.  On the HCR-20, the respondent achieved a score of 13 out of 20 on historical terms, 8 out of 10 on clinical items and a 7 out of 10 on risk management items.  This would translate to a high risk of future violent behaviour, both sexual and non-sexual.

71. On the Risk for Sexual Violence Protocol, the respondent scored positively for the following factors, promiscuity, psychological coercion in sexual violence, extreme minimisation of sexual violence in the past, attitudes that support or condone sexual violence, problems with self-awareness, problems with stress or coping, problems resulting from child abuse, sexual deviance, past violent or suicidal ideation, problems with intimate relationships, problems with non-intimate relationships, problems with non-sexual criminality, problems with planning, problems with treatment and problems with supervision.

72. Dr Grant considers that these factors indicate the respondent was at a moderate to high risk of future sexual violence. Dr Grant characterises the nature of that risk as being indecent dealing or sodomy of adolescent males, motivated by sexual drive and possibility of other emotional factors such as anger. Any such sexual offending will have potentially high psychological consequences. There is likely to be minimal physical harm to future victims. The imminence of such reoffending is hard to predict, according to Dr Grant, but could be seen soon after release from prison. There are likely to be attractions and temptations preceding such offending when contact is made with potential victims such as adolescent males. The risk of reoffending will be long term.

73. Dr Grant considers that the risk would be best managed by monitoring the respondent’s movements and associations, particularly any attractions and associations with potential victims.

74. Dr Grant diagnosed the respondent as suffering from a paraphilia probably best labelled as hebephilia owing to continued strong sexual attraction with adolescent males who are underage in terms of sexual contact. His hebephilia would be seen as of homosexual type and non-exclusive. Dr Grant also observes the respondent has a significant personality disorder with antisocial traits being prominent. Dr Grant also notes the respondent has a morbid obesity with a range of physical problems including asthma, diabetes type 2, spinal problems and back pain and hypertension.

75. Dr Grant assesses the respondent’s risk of sexual reoffending as moderate to high. The actual risk is high. Dr Grant considers that this risk is “moderated to some extent” by increasing age, the maturation of some of his personality aspects, increasing physical difficulty and more particularly his obesity. Dr Grant believes the high risk on actuarial instruments is now reduced to moderate to high.

76. Dr Grant also notes that the respondent has limited insight, he has a resistance to treatment and significant difficulties experienced in the past with supervision. Dr Grant notes the respondent’s release on parole in March 2013 lasted only one week in the community before being returned to custody because of a breach in his parole by contracting a former sex offender. There are also concerns about the level of sexual preoccupation. He reported attractions to teenage boys whom he saw in the community. He will act upon those attractions. Dr Grant notes difficulties with respect to supervision in the past which he suggests does not auger well for his positive engagement with future supervision under the Act.

77. Dr Grant considers that a supervision order under the Act has the potential to reduce the respondent’s future reoffending to a moderate level. The supervision order would need to provide strict monitoring of movements and associations. It would assist in containing the respondent’s risk if released in the community. Success, however, would depend upon the respondent’s cooperation and positive involvement in the supervisory process. Dr Grant notes that drug and alcohol issues do not appear to be matters which significantly affect the risk.

78. Any such supervision order should, according to Dr Grant, be in force for at least 5 years.

Report, Michael Beech, Consultant Psychiatrist, dated 28 February 2014

79. Dr Beech also undertook the administration of a number of formal risk assessment incidents. On the Hare Psychopathy Check List, the respondent was scored by Dr Beech at 23/40. Dr Beech notes this is higher than the average criminal but is not in the range of psychopathy. It does, however, represent moderate psychopathic traits. On the Static-99, the respondent achieved a score of 7 which takes into account his age. The score places the respondent as regarded as being of high risk of reoffending.

80. On the Risk for Sexual Violence Protocol, there are a number of significant factors indicating an elevated risk. He identified these factors as being, the persistence of offending over the years, despite several sanctions including incarcerations, sexual offending while on supervised release and subsequent breach of parole order, use of violence and probably psychological coercion, minimisation of sexual violence, some cognitions that seem to condone sexual violence, problems arising from sexual abuse, the presence of sexual deviance, history of violence, problems with employment, significant non-sexual criminality, problems with treatment and problems with supervision.

81. Dr Beech notes a long standing history of persistent sexual offending began when the respondent was a late youth. It continued up until the respondent’s return to prison in 2006. The offending has, for most part, involved sexual offences involving young males between the age of 13 and 17. The respondent’s offending has persisted despite a number of incarcerations. Dr Beech notes that the offending in 2006 occurred whilst the respondent was on a suspended sentence. Dr Beech also notes a breach of parole by showing evidence of sexual preoccupation by contacting two known sexual offenders.

82. Dr Beech considers the sexual offending has been facilitated by anger and resentment that stem from abuse as a child but has been facilitated by the respondent’s sexual deviance of hebephilia. The respondent has insight into the nature of his offending. He seems to have some insight into the dynamics of causation. However, there is evidence that he minimises, and even denies, the extent of the sexual violence and there are continuing distorted beliefs about his sexual offending.

83. Dr Beech also notes an extensive history of non-sexual criminal behaviour that includes accounts of attempted murder and armed robbery. Dr Beech considers that the respondent has significant psychopathic traits that indicate a propensity for callousness, lack of empathy, a refusal to accept responsibility for his offending and a manipulative predatory style.

84. Dr Beech considers that usually increased age would indicate the risk of reoffending was starting to reduce. However, the respondent remains “sexually preoccupied”. Dr Beech considers that this sexual preoccupation continues and the risk of reoffending has not substantially reduced despite the passage of time. He notes the respondent has not responded well to treatment. He has completed a HISOP, the report he received was not glowing. There seems to have been evidence of persistent cognitive distortions and denial, in understanding strategies and even hostility.

85. Dr Beech notes that on parole there was evidence of the respondent trying to test the limits of boundaries of parole from an early stage. Dr Beech considers the respondent to have been “particularly insightless” to contact sexual offenders and/or accrue telephone numbers of sex workers within a short period of time.

86. Dr Beech observes, “it is difficult to know to what extent there are positive factors in Mr Pandelis’ case which would act to lessen the risk of reoffending.” Dr Beech observes there are not many factors, such as stable employment, stable relationships and general engagement and other supports which would reduce the risk.

87. According to Dr Beech, the respondent is at high risk of sexually offending if he was to be released without supervision. Dr Beech notes any future victims would be likely to suffer the psychological effects of the assault. There is also a risk, although reduced, of actual physical assault and violence.

88. Dr Beech is “uncertain” as to what extent a supervision order would reduce the risk that is present. Dr Beech notes that some of the offending occurred opportunistically. Dr Beech says it is hard to imagine how supervision orders might reduce the risk. It would reduce the risk that any sexual offending would occur through long term grooming, such as when the respondent formed a relationship with a boy’s mother.

89. Dr Beech notes that the breach of parole and the breach occurring whilst on a suspended sentence are poor prognostic factors. The respondent does not seem to have done well on supervised release.

90. Dr Beech considers the respondent has been somewhat ambivalent in his reaction to parole supervision and is keen to press the limits. Dr Beech notes the respondent is manipulative and deceptive and is likely to deceive his supervising officers. These matters are aggravated by the fact that the respondent still seems to have some form of cognitive distortion. He does not really accept responsibility for his offending. There is a general sense that he is entitled or somehow condones what has happened, probably because of his difficulties from his own childhood. He has completed a High Intensity Sexual Offender Program but does not seem to have learned from the strategies and seems to have distorted some of the advice he was given.

91. Dr Beech considers that the respondent requires some further psychological behavioural strategies to address the cognitive distortions. Dr Beech considers a better assessment might be done of the respondent if he was to undertake a maintenance program, in prison. The courses facilitators could see to what extent his difficulties could be ameliorated and to what extent he would be able to get more concrete strategies for avoiding the supervision. Dr Beech considers that it would be “worthwhile” at that point in seeing whether individual psychological management might also assist the respondent to devise strategies and gain some insight into those actions that would decrease the risk. At that point the respondent might be more suitable for a supervision order.

92. Any supervision order would need to have stringent observations and monitoring to ensure that the respondent does not have access to victims. He would need to have continual psychological input and he would need to be very clear about the importance of cooperation, appropriate limits and restrictions.

93. Dr Beech notes that the respondent’s parents are frail and home assessment should be done to see what extent they could provide assistance and what other supports would be needed to be put in place.

Recent reports

94. I have earlier summarised Dr Grant’s supplementary report dated 9 April 2014. In that report Dr Grant considered that the risk of sexual re-offending is moderate-high and this has the potential to be reduced to moderate by the successful application of a supervision order.  However, the successful application of a supervision order was undermined by the factors that I have earlier identified.  Like Dr Grant, Dr Beech considered that the respondent would benefit from repetition of the HISOP. 

95. Professor Nurcombe provided a report dated 11 April 2014 which reviewed relevant files. Professor Nurcombe confirmed his opinion that the respondent is at high risk of sexually re-offending against males aged 12 to 17 years. The respondent was said to minimise the sexual violence involved in some of his previous offences. He has marked problems with self-awareness and with coping with stress. He has continuing problems resulting from his sexual abuse as a child. These include both intimate and non-intimate relationships. The respondent is probably not employable at the present time. Professor Nurcombe thought that the most likely risk scenario would be the sexual molestation of a male aged 12 to 17 years. Professor Nurcombe’s report concluded as follows:

“10.  Mr Pandelis has a confused sexual identity: at different times he has described himself as hebephile, heterosexual or homosexual or bisexual, or having a preference for transsexual people.  He has a long history of sexual offences against underage males and on several occasions has been violent towards his victims.  He received little benefit from the High Intensity Sex Offender Program.  He has little support in the community, few or no work skills, and little chance of forming a stable relationship with an adult male partner.  He tends to justify, minimize, and externalize the responsibility for his offending.  He is antagonistic to correctional officers and likely to challenge the conditions of a Supervision Order.  The likelihood of sexual reoffending is high and the potential for psychological harm to victims is high.  In the present circumstances, I do not think that any intervention or procedures in the community (e.g., curfews, tracking devices, supervision, or psychotherapy) could reduce the risk of reoffending from high to moderate.  For that reason, I cannot recommend that Mr Pandelis be released from prison at the present time.

11.  I recommend that he remain in prison.  He should undertake, again, the High Intensity Sex Offender Program.  It would be helpful if he could commence individual psychotherapy with a psychologist experienced in the treatment of sex offenders.  I recommend that Mr Pandelis be physically evaluated by a specialist physician with regard to his need for testosterone supplements.  On the contrary, the use of antiandrogens should be considered.”

The basis for a Division 3 order

96. There is ample, cogent evidence which satisfied me at the hearing on 14 April 2014 to the high degree of probability required by the Act that, if released without an order made pursuant to Division 3 of the Act, the respondent presents an unacceptable risk of the commission of a “serious sexual offence”. According to the opinions of the psychiatrists, the respondent has either a moderate or a moderate to high risk of sexually reoffending in the absence of a Division 3 order.

A continuing detention order or a supervision order?

97. If adequate protection of the community can be ensured by a supervision order, then such an order should be made in preference to a continuing detention order. However, I was not satisfied that, at this stage, a supervision order would ensure adequate protection of the community. The respondent may opportunistically resort to sexually abusing a teenage male, with potential significant psychological damage to any victim. The respondent should undergo further treatment. This may give him a greater insight into his condition and what he must do, if released into the community on a supervision order, to avoid sexual re-offending. The successful operation of a supervision order is challenged by the matters referred at the start of these reasons. It was appropriate for the respondent, through his counsel, to concede that adequate protection of the community cannot be ensured at this time by ordering that he be released from custody subject to a supervision order.

98. Further treatment is required to reduce the risk of the respondent re-offending if he is ever subject to a supervision order. It was for these reasons that I decided on 14 April 2014, having considered the parties’ written submissions and oral submissions, that the respondent should be subject to a continuing detention order for treatment.

99. I also made a direction for the provision of relevant reports for those with responsibility for the treatment of the respondent in order to assess:

(a)the provision of individual therapy by a psychologist experienced in the treatment of sex offenders, in addition to the respondent’s participation in the HISOP; and

2. evaluation by a specialist physician about his need for testosterone supplements and the use, instead, of anti-androgen medication.

Conclusion

100. The respondent seems to have a continuing strong sexual attraction to adolescent males. He has a range of physical problems and significant personality problems that appear to have their origin in traumatic sexual abuse of him as a child. He has limited insight into the nature of his offending and requires treatment. That said, the respondent has a stable and supportive family and he has no significant history of substance abuse. He has been institutionalized, having spent large parts of his adult life in prison.

101. A prisoner, who having served the full term of his sentence, is told that he must remain in jail and that this is a measure of social protection, not a punishment, might think he was being “tormented by a barren piece of conceptualism – though he might not express himself in that way”^[8].  The Act rests on the principle that detention beyond the term of a sentence is for the purpose of protection, not punishment. 

102. The treatment which the respondent receives pursuant to the continuing detention order which I made on 14 April 2014 should be informed by the fact that the respondent has served the period of punishment imposed upon him by law, and that his continued detention is expressly for the purpose of treatment. Such treatment, if successful, might reduce the risk of his offending to an acceptable level and permit him to be released pursuant to a supervision order. Whether the treatment has that result remains to be seen. My decision is simply to the effect that the respondent should not be released from custody subject to a supervision order at this time.