Attorney-General v S[2015] QSC 157

SUPREME COURT OF QUEENSLAND 

1. The Attorney-General applies for a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), which I will call the Act.
2. In May 2001 the respondent was sentenced to several terms of imprisonment amounting to a period of 16 years which expires on 10 June 2015.  He was sentenced to 10 years imprisonment for maintaining a sexual relationship with a child with circumstances of aggravation over a six month period in 1988-1999.  He was sentenced to concurrent terms of five and three years on a number of offences of assault occasioning bodily harm and the indecent treatment of a child who was under 12 years.  He was sentenced to a cumulative term of six years for grievous bodily harm.  Nearly two years of pre-sentence custody had been served.  He was declared to be a serious violent offender.
3. These offences were committed against the respondent’s then partner and her young son.  The offences were summarised by McPherson JA, in dismissing the respondent’s appeal against conviction and application for leave to appeal against sentence, as follows:^[1]

“The victim of the physical assaults was at the time his de facto wife.  Most of them took place after she had, at his insistence, performed indecent acts which the applicant filmed for the purpose of setting up a pornographic business.  Some of those acts consisted of performing acts of multiple sex with other adults.  The assaults, some of which involved the use or threat of use of a dangerous instrument such as a garden fork, were carried out by the applicant because he was dissatisfied with the standard of the complainant's performance during those indecent acts.

One of the persons with whom she was forced to commit some of the sexual acts was her own nine year old son, who was also the victim of the sexual offences committed against the child to which I have referred.  To crown this career of appalling behaviour, the applicant finally subjected the woman complainant to a prolonged and savage beating inflicting grievous bodily harm on her, including brain damage, fractures to facial bones and a severe injury to her left ear requiring plastic surgery.

In the course of his submissions in this Court the applicant, it may be noted, admitted that he had committed that assault causing grievous bodily harm.

…

He showed no remorse whatever for what he has done.  The learned sentencing Judge described his behaviour as depraved and despicable.  Those are strong words, but they are in my opinion fully justified.  In the 20 years in which I have been on this Court, I have not seen a case in which the conduct of the accused was worse than this.”

4. The respondent has always maintained that he did not commit sexual offences against the child.  He sought to explain his violent assaults upon his partner as attempts to protect the son from sexual misconduct by her.
5. He was born in 1973 and is now 41 years of age.  Prior to the matters already mentioned, he had a criminal history for offences of violence, dishonesty and breaking and entering a dwelling house, for which he received various terms, including one of three years imprisonment for which he was required to serve 12 months.  The offence of breaking and entering a dwelling house with intent was committed in October 1992.  The sentencing judge then remarked:

“I regard this as a very serious offence.  Here we have a decent woman asleep in her own home where she should be safe.  You come in the early hours of the morning and subject her to a terrifying ordeal.  You say you went there for money, but from what she tells the police even if that were so your mind changed towards sexual matters.  You told her to remove her knickers. She managed to escape you and she was punched as she eluded you.”

6. There are several recorded breaches during the respondent’s time in prison.  Most involved disobeying the lawful direction of a corrective services officer.  At least one involved an assault on another prisoner.  Another, in 2013, involved an assault on a visitor.
7. He has completed a number of rehabilitative programs as follows:

• Anger Management Core Program- completed 23 July 1997;
• Substance Abuse Education Program- completed 28 October 1997;
• Operate a Personal Computer- completed 9 December 2008;
• Operate a Word Processing Application - completed 5 January 2009;
• Operate a Spreadsheet Application- completed 19 January 2009;
• Operate a Database Application- completed 3 February 2009;
• Operate a Presentation Package- completed 20 February 2009;
• Transitions Programs- completed August 2011;
• Work Safely in the Construction Industry- completed 23 November 2011;
• Present a Positive Image - completed 5 November 2012;
• Apply Job Search and Interview- completed 29 October 2012; and
• Stepping Up Program - completed 15 April 2013.

8. However he has not engaged in programs to address his sexual offending.  If he is detained as a result of this application he will be waitlisted for the Getting Started: Preparatory Program (the “GS:PP”), which is described in the evidence^[2] as “a mandatory preparatory program designed to motivate offenders to participate and address their offending in a more intensive treatment program …”.  It is not a treatment program as such.  The records of Corrective Services indicate that in June 2012 he was offered a place in this program which he declined, stating that he was innocent in relation to his sexual offence convictions.  There is a further record that in March 2013 he began but did not complete the GS:PP.  There is also a record of the respondent being offered the GS:PP in May 2014, when again he maintained his innocence of any sexual offence and refused to attend any sexual offending programs.
9. Were he to complete the GS:PP, he could then be considered for what is described as an intervention program, such as the High Intensity Sexual Offending Program (HISOP), the Cognitive Self Change High Intensity Violent Offending Program (CSCP) or the Pathways High Intensity Substance Abuse Program.

The evidence of the psychiatrists

10. There is evidence from three psychiatrists, Dr Sundin, who prepared a report in April 2014 as requested by Crown Law, and Dr Grant and Dr Beech, who were appointed by order of the Court under s 8(2)(a) of the Act.
11. I go first to the report and evidence of Dr Sundin.  On 28 March 2014, Dr Sundin met the respondent at the Wolston Correctional Centre and spent an hour attempting to engage him in an interview, but the respondent refused to participate.  The respondent repeatedly asserted to Dr Sundin that he was completely innocent of all of his offences, particularly his sexual offences.  He said that his actions which constituted his non-sexual offences were a justifiable response of a young man subjected to a racist culture.
12. On 23 April 2014, Dr Sundin wrote her report, having reviewed the files of the Office of the Director of Public Prosecutions, Queensland Corrective Services and the Queensland Parole Board, as well as transcripts of the sentencing hearings.  She wrote that she had been hampered by being unable to interview the respondent, but had been able to provide an opinion by the breadth of the material supplied to her, which amounted to more than 5,000 pages. 
13. She wrote that in her opinion, the respondent clearly satisfied the DSMIV-TR criteria for:

“.Antisocial Personality Disorder, meets the criteria for Psychopathy

.Polypharmacy abuse (cannabis, amphetamines, heroin)

.Alcohol abuse/dependence …”

14. She continued:

“In addition I think it is highly likely that [S] meets the criteria for Sexual Sadism.  The material provided indicates that for a period of months and possibly even years, [S] engaged in sexually arousing behaviours which involved real acts in which the psychological and physical suffering (including humiliation of the victim) was sexually exciting to him.  [S] acted on these sexual urges with a non-consenting person and the sexual urges caused marked distressed and interpersonal difficulty.  My reading of the material suggests that [S] found the violence not only instrumental in its coercive component but also sexually arousing.”

15. Under the heading “Risk Assessment” Dr Sundin wrote as follows:

“181.From a risk assessment perspective, I am of the opinion that [S] represents a substantial risk of both sexual and violent offending.

182. On the Violence Risk Appraisal Guide (VRAG), I gave [S] a raw score of 17.  This places him in Category 7.  Offenders in this category are said to have a 55% risk of violent recidivism at seven years and a 64% risk of violent recidivism at 10 years.

183. On the Static-99 (Hanson and Thornton 1999) an assessment guide used to assist clinicians in identifying the risk of sexual recidivism for males over the age of 18 who are known to have committed at least one sexual offence, I gave [S] a raw score of five.  This places him in a moderate to high category group of offenders and suggests that he is at a moderate to high risk for future sexual recidivism.

…

185. In my opinion on all of these criteria, [S] is clearly a person of significant concern.

186. I disagree entirely with the opinion tendered by Dr Freeman to the Queensland Parole Board in his suggestion that [S] could be  released from prison without participation in a sexual offenders’ treatment programme.

187. In my opinion, [S] needs to participate in not only a High Intensity Sexual Offenders’ Programme but also in a Violent Offenders’ Treatment Programme.  He needs to participate in the Pathways Programme for individuals with significant adverse effects from substance abuse.

188. He is not a person who can be safely released into the community without the benefits of a very high level supervision order.  Such an order would need to be informed by information obtained from participation in such programmes.

189. Until [S] has participated in such programmes (hopefully with some degree of success) and gained some better insight into his own pattern of offending behaviour and his high risk factors then he is a person who in my opinion needs to continue to be detained in prison for the safety of the community.

190. Finally, I also flag that there are elements of sexual violence in this man’s history going back to 1992.  It was only through the courage and determination of his victim on that occasion that she was not the subject of a sexual assault.  This suggests to me that [S] has very longstanding issues in relation to his poor anger controls and his sexually deviant attitudes towards women .

191. Finally, I note with considerable concern the fact that as recently as late 2013, [S] deemed it not only appropriate to physically assault a visitor in prison but to continue to verbally assault a person with whom he maintained contact via the telephone.  To me this is indicative that there has been very little change in this man’s grossly disturbed cognitions and potential capacity for violence.”

16. In her oral evidence, Dr Sundin explained that one “great advantage” of participation in such programs as she recommended for the respondent would be that “the Department of Corrective Services staff will get a much greater sense of this man’s pathway to offending and, in particular, his high risk factors for future offending”, such that “precautions can be developed into a supervisory order to take account of those high risk factors”.^[3]  She was asked whether she was able to “contemplate a supervision order being fashioned to deal with his risks that he presents”, to which he answered:  “As things currently stand, no.  I don’t think that that would be adequate”.  She explained that this was because simply not enough was known about “the high risk scenarios and [S’s] pathways to those high risk scenarios, so there won’t be sufficient knowledge to craft a supervision order that takes account of that”.  Dr Sundin added that whilst the respondent continues to deny his responsibility for his offences, “it would be extraordinarily difficult to supervise him and engage him in what needs to be … a conjoint approach to successful placement within the community”.^[4] 
17. When asked about the relapse prevention plan which the respondent had prepared, Dr Sundin said that the plan was general and that she was concerned that in one section of it, the respondent had “continued to project blame for the offending onto his female partner”.^[5]
18. Dr Sundin was referred by the respondent’s counsel to a draft supervision order which was attached to his submissions and was asked whether there were any problems with the imposition of conditions of that kind.  She answered that her concerns did not go so much to the terms of the supervision order but were about the likelihood of compliance with them.^[6]  When it was suggested that sufficient community protection would be provided by the conditions because if a condition was breached he could be returned to custody, Dr Sundin said:^[7]

“The difficulties I would see revolve around this man’s demonstrated past history of both impulsive acts and anti-authoritarian attitudes.  My concern would be that this man will see his own opinion ahead of the opinion or the orders of the court, and will act as he sees best, rather than as has been directed by a court, and would thus breach the order, particularly in situations where even supervision requirements may not be effective.  For example, if he gets angry, chooses to start drinking alcohol, and then act in a violent fashion.  All of that can happen in a space of two hours, either in the middle of the day or at night, and that would not be picked up immediately at the time by the requirements of the supervision order.  It will be picked up after the event.”

19. Dr Grant interviewed the respondent on 23 April 2015.  It appears that the respondent did responsively participate in that interview.
20. Dr Grant’s diagnostic assessment was that the respondent does not suffer from any psychiatric disorder but has a serious personality disorder with narcissistic and antisocial traits.  His psychopathy check list score indicates to Dr Grant that the respondent reaches the criteria for psychopathic personality disorder.
21. Dr Grant wrote that he was unconvinced that the respondent suffered from any particular sexual paraphilia.  It was possible that he suffered from Sadism, if the behaviour towards his former partner in making her carrying out sexual activities and be recorded on film doing so, was done to produce sexual arousal in himself rather than for some commercial purpose in establishing some kind of business in pornography.  In his oral evidence, Dr Grant said “the whole behaviour suggests that there was more to it than [establishing a pornographic business] and that there was a sexual gratification going on by inflicting that sort of humiliation on those people” which “would amount to sadism”.^[8]
22. Dr Grant wrote that the respondent had a history of polysubstance abuse having in the past heavily abused alcohol and having been a consistent user of marijuana and a user of intravenous amphetamines. 
23. Dr Grant wrote that the respondent clearly demonstrated a very strong interest in sexual matters, pornography, group sex, lesbian sexual activities and recording sexual behaviour on film, all of which demonstrated “a degree of sexual deviancy and a high sexual preoccupation”. 
24. Dr Grant’s overall clinical assessment of risk included the following:

“[S] clearly represents a risk for non-sexual physical violence in the future.  His potential victims are likely to be females with whom he is involved and also potentially other males with whom he gets into various altercations.  That behaviour is likely to be driven by his narcissistic and psychopathic personality traits as well as by distorted attitudes, particularly to women.  The behaviour would also be facilitated by intoxication with substances such as alcohol or amphetamines. 

In regard to the specific risk for sexual violence in my opinion it is difficult to make clear predictions …  However, given the extent of his personality dysfunction and relationship difficulties, along with demonstrated high levels of sexual preoccupation in the past, I believe that there would be a moderate risk of a recurrence of such offending.  There might also be some risk of hands-on sexual offences with minors, but it is difficult to put a precise estimate on that risk, given the lack of any definite recorded history of any such behaviour.

One of the major concerns in this case is the fact that [S] gives a very inconsistent history, that he tends to minimise his previous behaviour and that he denies his guilt for the sexual offences for which he has been convicted.

…

It is difficult to see how he could be appropriately and positively supervised in the community under the [Act] when he holds such a degree of negativity, denial and minimization in relation to the offences which he has been convicted for. … Overall I would see the risk for future violent offending of a general kind to be high whereas the risk for future sexual re-offending is more difficult to predict but probably moderate.”

25. In Dr Grant’s opinion, the respondent ought to undertake the HISOP before release.^[9]  In his view, the respondent’s relapse prevention plan was puzzling because it talked about support from family and friends but the respondent had had no family visitors for almost the entirety of his period in prison.  There was a woman who had started to visit him but those visits stopped because of a conflict between them.^[10]
26. In his oral evidence, he described the risks of re-offending if the respondent was released under supervision:^[11]

“[T]he risks would be that he would maybe start getting into alcohol, particularly if he’s stressed, alcohol or drugs, but that he might meet a lady in the community and establish some sort of contact with her, and in that context the same issues might arise as to aggression and control and violence, supplemented, plus or minus, by drugs and alcohol, and that that would happen without - and could happen under the radar of the supervision order if he wasn’t reporting and being honest about where he was going, what he was doing.”

When asked whether it was his opinion that the respondent was “more likely to breach the order through non-compliance with a condition or difficulties with supervisors, rather than offending against the community”, Dr Grant answered:^[12]

“I think the two are linked.  I think that the supervision order is designed to prevent him from getting into situations and going to places or getting into relationships that are going to cause offending.  And so if he’s not obeying the order, then he’s getting into risk situations and that what’s I think would happen.”

27. When shown the proposed conditions of a supervision order by counsel for the respondent, Dr Grant agreed that “compliance with those conditions would help to prevent re-offending and assist with rehabilitation”.^[13]  But Dr Grant was doubtful that he would so comply.  In his view, the respondent’s ongoing denial of his offending was “a serious problem for him, and for future prospects”.^[14]  Dr Grant remarked “I just can’t see him coping on the supervision order”.^[15]
28. Dr Beech interviewed the respondent on 16 April 2015 for approximately four and a half hours over two sessions.  The respondent was apparently a cooperative interviewee.
29. In his opinion, the respondent has a severe Antisocial Personality Disorder.  Dr Beech expressed difficulty in interpreting the respondent’s offences.  He wrote:

“On the one hand they are callous and designed for pornography production, seemingly simply a commercial exercise.  However, their nature, the violence and the use of a child raised the possibility of Sadism and even Paedophilia.  It is impossible to explore this because [S] denies his guilt.”

30. Dr Beech’s report included these statements in his risk assessment:

“Apart from the passage of time, and the abstinence from substances in prison, he has not done anything to address his criminogenic needs, his sexual offending, and indeed his general violence.  He continues to protest his innocence, and there is nothing to indicate any sense of remorse or empathy, apart from some self-serving regret.  He has no social supports, and he has no practical release plans.

I believe that the risk of sexual violence is high.  There are a number of scenarios.  He could now settle down, remain abstinent, and while prone to some violence and general criminality, seek to find stability and work.  He is though I believe poorly prepared for this.  The other scenario is that he will enter into a domestic relationship, and there use violence to coerce sex.  His partner is likely to suffer emotionally and physically.  A third scenario is that he will attack a stranger and attempt to assault her; she too could suffer physical injury.  I believe that any child within a relationship would be at high risk of exposure to sexual violence.

There has now been 16 years since his arrest.  He is older, and he appears over time to have settled in that [t]here are now no major breaches, and he has been accommodated in the residential unit.  He has remained abstinent.  His risk could be lessened on a Supervision Order.  However, I have concerns about his ability to comply.  He has a poor history of compliance, many of his offences have occurred during supervised release, and he has no relapse plan.  In my opinion he is at high risk of breaching an order, and I am uncertain to what extent the order would therefore reduce the risk.

In my opinion he would benefit from an intensive program, and the development of a relapse prevention plan.  This would provide supervisors, and counsellors, with an insight into how they can monitor him, an understanding of risk factors around him, and a more fleshed out idea of the pro-social goals that he could aim for.”

31. In his oral evidence, Dr Beech explained that intensive treatment programs enable those conducting them to gain an understanding of the things which present risks of re‑offending in the community which allows them to advise those who would supervise a prisoner upon his release.^[16]  In his view, the respondent would not “cope very well with the conditions around” a supervision order,^[17] because the respondent is a “negativistic oppositional man with a sense of entitlement and aggrievement and resentment and he’s got particularly an anti-authoritarian stance”.^[18]
32. Dr Beech considered that it was possible that the respondent has a sexual paraphilia.  Or in other words that he is a psychopathic sadist, which he said would then put him into “one of the highest risk groups”.^[19]
33. Dr Beech was asked to consider the respondent’s proposed conditions of a supervision order.  He said that the proposed conditions were “fine” but there would be difficulties in the performance of them.^[20]

Consideration

34. The respondent’s counsel did not challenge the evidence of any of the psychiatrists and it is conceded on the respondent’s behalf that the court would be satisfied that the respondent would pose a serious danger to the community if released without a division 3 order.  But it is submitted for the respondent that adequate protection of the community could be provided by a supervision order. 
35. I am satisfied that the respondent is a serious danger to the community in the absence of a division 3 order.^[21]  It is clear, in my view, that there is an unacceptable risk that he would commit a serious sexual offence if released from custody without any such order.^[22]  The respondent’s offending behaviour, his antisocial personality, the possibility that there is in his case an element of sadism or paedophilia, his denial of his sexual offending and the fact that he has not engaged in necessary treatment programs together combine to present that unacceptable risk.
36. The question then is whether he should be detained or released under supervision.  Counsel of the Attorney-General cited a recent decision of the Court of Appeal, Turnbull v Attorney-General (Qld).^[23] In that case, as in the present one, the prisoner had not undergone the HISOP.  Morrison JA described evidence to the effect that there were “important gaps” in what was known of that prisoner’s motivations and desires and that more needed to be known before it could be said that “his risk is one that can be managed”.  In his conclusion, those “unknown factors” prevented “the conclusion that adequate protection of the community could be ensured under a supervision order”.^[24] 
37. Morrison JA (with the agreement of the other members of the court) said that before making a supervision order rather than a detention order, “the court has to reach a positive conclusion that the supervision order will provide the adequate protection”.^[25] 
38. Other judgments of the Court of Appeal have expressed the present question somewhat differently.  In Attorney-General (Qld) v Lawrence,^[26] Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof:^[27]

“[I]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney.  The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated.  The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.”

Similarly, in Yeo v Attorney-General (Qld),^[28] Margaret McMurdo P (with whom White JA agreed) said:^[29]

“[73]Under s 13(6), the paramount consideration in determining whether to order a continuing detention order or a supervision order is the need to ensure adequate protection of the community.  This requires the judge to make a value judgment based on the evidence.  It is impossible to eliminate all risk of criminal offending, including offending against children, from a community.  A judge must determine what is adequate protection of the community in all the circumstances (Attorney-General v Sutherland [2006] QSC 268, [28]-[30]; Attorney-General v DGK [2011] QSC 73, [28]).  The respondent has not persuaded me that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers.  It follows that I must release the appellant on an appropriate supervision order.”

39. It may be assumed that in Turnbull there was no intention to depart from those authorities because they were not cited.  And although counsel for the Attorney-General referred to Turnbull, it was not cited for a specific submission that the relevant onus was other than an onus upon the Attorney to establish that the community could be adequately protected only by a continuing detention order.
40. In Turnbull, as in the present case, there was uncertainty as to some material facts about the prisoner, an uncertainty which affected the question of whether a detention order was required to ensure the adequate protection of the community.  As Morrison JA said, in this context, there is a consideration “of what is known, as well as what is unknown, about the risk …”.^[30]  In the present case, there is uncertainty as to whether there is in his case sadism or even paedophilia.  As I have summarised, each of the psychiatrists recognises that as at least a real possibility.  Dr Sundin thought it highly likely that the respondent met the criteria for sexual sadism.  I could not make a finding that more probably than not there is that element in the respondent’s case.  But my task is to consider whether the community could be adequately protected only by a continuing detention order.  That involves a consideration of the nature and extent of risk, as well as the potential consequences of that risk eventuating, in order to assess whether the risk is acceptable in the sense of providing adequate protection to the community.  That risk has a content not only from what can be found as a fact about the prisoner, but also from what constitute real possibilities.
41. It was argued for the respondent that the effect of the evidence of the psychiatrists was that there was no unacceptable risk from the supervision order on the conditions which, during their evidence, he asked them to consider.  But that was not the effect of their evidence.  They were not critical of the conditions.  Their concern, in each case, was that the respondent would not comply with the order and that a serious offence might be committed before his non-compliance was detected and he was returned to custody.  In my view, that is a substantial risk.  It is a risk which exists especially from the likelihood, as the psychiatrists explained it, that the respondent would not engage with those supervising him and from the difficulties in supervising this prisoner without his having undergone what they regard as necessary treatment programs. 
42. In my conclusion, the Attorney-General has established that there could be adequate protection of the community only by a continuing detention order.  It will be ordered that pursuant to s 13(5)(a) of the Act, the respondent be detained in custody for an indefinite term for control, care or treatment.