Attorney-General v Henry[2016] QSC 158

SUPREME COURT OF QUEENSLAND

Background

1. On 30 May 2014 Daubney J, being satisfied that the respondent was a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003, ordered that the respondent be detained in custody for an indefinite term for control, care or treatment.  His Honour’s reasons set out the background to his making of the order.^[1] 
2. The respondent, on 31 May 2001, invaded the home of a 21 year old mother of a 10 month old baby and raped her several times.  He was then 18 years old and already had a significant criminal history.  A head sentence of 11 years’ imprisonment was imposed which was not disturbed on appeal.  He served that sentence and has continued to be detained in custody because of his Honour’s order.  He is now 33 years old, having been born on 15 February 1983.  He has been in custody all his adult life and had spent lengthy periods in custody as an adolescent between the ages of 14 and 17.  He is not likely to be well equipped yet to make the full transition into normal society. 
3. On 9 May 2016 Bond J reviewed the detention order, ordered that the respondent continued to be subject to the detention order made on 30 May 2014 and that the matter be listed for hearing on 18 July 2016.  At the time of that review of the detention order in May 2016, the respondent was undertaking, but had not completed, the Sexual Offender Program for Indigenous Males (SOPIM).  His failure to complete such a course obviously influenced Daubney J’s decision that he should be detained in custody.^[2]  He has now completed the SOPIM and the report relating to his completion of that program has been provided to Dr Sundin and Dr Beech for their consideration.

Evidence

4. The authors of the exit report concluded, amongst other things, that the respondent had retained very little from his participation in the program.  They said he lacked the cognitive capacity, abstract thinking and maturity to do so.  Their comments included statements such as:^[3]

“Prisoner Henry’s identification of emotions and emotional management remained basic, predominately (sic) parroting content from other participants and lacked insight into the relativity certain emotions held towards his sexual offending.”

5. A further assessment was:

“His inability to identify clear steps to undertake when facing situations in community and custody provided evidence for the treatment need of poor problem solving.”

6. He was able to recognise that excessive alcohol consumption contributed to the pathway to the offences he committed.  His capacity to retain information regarding his DPSOA restrictions and housing and his low level of comprehension regarding his obligations if placed under supervision indicated this need remained outstanding.^[4]  The authors considered that he would need a significant period of continued intervention and monitoring.  They recommended engagement with an intervention provider such as Alcohol, Tobacco and Other Drugs Services (ATODS).  They also recommended engagement with Relationships Australia and a community men’s group.  They suggested further assessments to determine the possible presence of a cognitive impairment and that his case manager monitor the areas associated with imminent risk of sexual recidivism. 

Dr Beech

7. Dr Beech considered Mr Henry’s situation in his report of 20 April 2016 before the exit report from SOPIM.  In his opinion, Mr Henry remained a moderately high risk of a return to violent sexual offending if he were released without supervision.  He said that if he had successfully completed the SOPIM, then, in his opinion, he could be managed in the community with measures “informed by the facilitators’ observations of his participation, and their exploration of the antecedents of his offending, and measures that need to be employed”.^[5]  On the assumption that he successfully completed the SOPIM and received favourable facilitator comments, then he thought that his change in thinking and greater understanding of his offending, commitment to abstinence and ongoing supervision would mean that his risk of offending would be significantly reduced to below moderate.
8. In his later report of 3 July 2016^[6] after he had reviewed the program completion report, he expressed the opinion that he would be at high risk of further sexual violence if he were to be released into the community without supervision.  He continued to express the view, however, that a supervision order would substantially reduce this risk and provide an ongoing structure for him, limiting his return to delinquent ways.  It would assist him with the transition into community living by ensuring stable accommodation and ensure ongoing counselling.  He believed this was very important given the limited gains that he had made generally and given his specific deficits around emotional understanding, impulsivity and problem solving.  It would ensure his participation in programs dealing with alcohol use and it would monitor and ensure abstinence.  Without such supervision and structure, he thought that the risk would remain moderately high for some years. 
9. In Dr Beech’s oral evidence he drew attention to what he perceived as a shift in Mr Henry towards co-operation with those treating him and the development of his understanding of the notion of consent and the realisation that “no means no” and that fear of being attacked can influence whether consent has actually occurred in the context of sexual assault.  Dr Beech also emphasised the significance of intoxication in influencing Mr Henry to re-offend. 
10. He particularly stressed the need to explain any supervision order simply, repeatedly and clearly to Mr Henry by giving concrete examples of potential breaches and eliciting by open questions a response from Mr Henry to make sure that he understood the effect of the order, not just that he had listened to the explanation of it.  He believed that, if a supervision order were made, Mr Henry would need a longer than usual introduction to it, at least a transitions program but probably more extensive than the normal program.  He agreed with Dr Sundin’s suggestion of psychological cognitive assessment and assistance from such a psychologist in the use of strategies to help him comprehend the nature of the supervision order.  He suggested that an occupational therapy assessment may be even more beneficial in dealing with the practical effects of his deficits. 
11. He believed that a supervision order would reduce the risk of re-offending by Mr Henry to a moderate or low level but maintained his view that the difficulties would lie in Mr Henry’s transitioning to a supervision order because of his problems in understanding how, precisely, it would constrain his behaviour.  He would need help in solving problems in that transition period and in developing strategies for coping with boredom, sadness and anger, in organising himself and in dealing with his propensity to engage in impulsive behaviour.  

Dr Sundin

12. Before Dr Sundin had had the opportunity to consider the exit report relating to Mr Henry from the SOPIM, she had formed the view that his unmodified risk for sexual recidivism was moderate to high and could be reduced to moderate with the imposition of a supervision order requiring him to be subject to curfews and abstinence from use of alcohol and drugs.  The conditions should also have the effect of monitoring both his movements and contacts. 
13. After she reviewed the exit report she expressed the view that the evidence of his individual attainments from the program suggested that he had gained little from his participation and that his recidivism risk as an individual remained unchanged although his participation in the program lowered his risk “at a group actuarial level”.^[7]  Her opinion was that he represented a substantial unmodified risk for future violent offending to the community.  If he committed offences they were likely to be associated with substance abuse but may occur quickly and impulsively.  She also said there was a risk of major physical harm to the victim and that flags of increasing risk would include general non-compliance with directions from probation and parole staff, expression of anti-authoritarian attitudes or “self as victim” cognitions, increasing sexual preoccupation or collapse of support systems.  She believed there was a considerable risk of him impulsively breaching supervision orders and ending up quickly re-incarcerated.
14. She suggested that, before he was released into the community, a clinical and forensic psychologist be engaged to assess him formally cognitively and that the psychologist be asked to identify strategies to assist Mr Henry to comprehend better the nature of any supervision order.  Such treatment is likely to be available at the Townsville contingency accommodation precinct into which Mr Henry would probably be released if I made a supervision order.^[8] 
15. She also suggested that he complete the Inclusions Sexual Offenders Program (ISOP) in the hope that he was better assisted to understand his pathway to offending and to develop a relapse prevention plan that he comprehended.  That possibility, according to the evidence of Ms Hogarth,^[9] is not now suitable for the respondent as he has already completed the SOPIM.  Dr Sundin believed that Mr Henry’s cognitive problems may have been better treated in the first place by the ISOP rather than the SOPIM.  He is, however, eligible, to be waitlisted to undertake a Sexual Offending Maintenance Program.  That is designed to assist sexual offenders who have completed a sexual offending program previously to maintain their gains from that intervention.  An assessment of his suitability to undertake such a program would occur within the first 12 months of his release if he were released from custody under a supervision order. 
16. In her oral evidence Dr Sundin, like Dr Beech emphasised the need to ensure that Mr Henry understood the terms of a supervision order.  She suggested that he be cognitively assessed by a psychologist because of her concerns that he may suffer from foetal alcohol syndrome affecting his ability to learn new information.  That was relevant to the need to ensure that he understood the order, which should be explained to him simply, with the explanation reinforced and tested by asking him to describe how the individual parts of the order operated.  Her overall view was that, if he were subject to a supervision order, the risk of him re-offending would be at least moderate and would increase significantly if he used alcohol. 

Submissions

17. The written submissions for the applicant, the Attorney-General, were that I should be satisfied to the requisite standard that the respondent remains a serious danger to the community in the absence of a Division 3 order under the Act.  I did not understand that to be resisted and I am so satisfied.
18. The question is whether he should be subject to the continuing detention order or be released from custody subject to a supervision order.  In that context, Mr Mumford said in his written submissions:

“3.Whilst a supervision order is likely to provide structure and supervision by way of external controls on his behaviour, the fact that the respondent seems not to have internalised basic principles from the SOPIM – for example, by “parroting” information conveyed to him – means that he has not:

(a)Developed an understanding why he has previously sexually assaulted someone;

(b)Understood how to deal with the issues that gave rise to his previous sexual offending, and deal with them in the future.

4. Moreover, it would seem that the respondent’s relapse prevention plan seemed to lack insight, possibly due to cognitive deficits in problem solving. Although his goals were considered prosocial, they were considered unrealistic, as he lacked foresight as to how an order under the Act might impact on his ability to achieve these goals. His plans on release are unsophisticated at best.

5. The apparent absence of internal controls in the respondent means that those responsible for supervising him will have little understanding or comprehension of the respondent's risk factors, limiting their ability to devise appropriate supervision or watch for appropriate risk factors. His supervisors would be limited to applying general restrictions, without understanding the nuances of the respondent's treatment needs. In those circumstances, the supervision order would become little more than a “control” order.

6. Despite the fact that the respondent has completed the SOPIM, the risk of further sexual violence remains high. His supervisors would have little in the way of information or insights obtained from his completion of the SOPIM, such that they are not presently in a position to practicably and adequately manage the conditions required under a supervision order.

7. For these reasons, and having regard to the paramount consideration to ensure adequate protection of the community, the applicant contends that adequate protection of the community cannot be reasonably and practicably managed by a supervision order, and that requirements under Section 16 of the Act cannot be reasonably and practicably managed by corrective services officers.

8. Accordingly, it is submitted that a continuing detention order is necessary to ensure adequate protection of the community.”

19. Mr Mumford conceded in his oral submissions that the possibility of psychological and other assistance in explaining the effect of the order to Mr Henry and in giving him strategies to cope with the problems he is likely to face under supervision and in setting and achieving goals may, with a lot of intensive work, help him to be more responsive to the proposed supervision order. 
20. Ms Boothman for the respondent, in her written submissions, argued that the risk, though real, was not unacceptable if Mr Henry were placed on a supervision order.  She relied on the observation in Attorney-General (Qld) v Francis^[10] that the liberty of the subject should be constrained to no greater extent than is warranted by the statute and argued that that proposition should apply equally to the unintelligent and the intelligent on the basis that, although the respondent’s difficulties may pose particular challenges for supervision, those challenges should be taken. 
21. She pointed to the difference between Dr Beech’s impression of the respondent’s intelligence as normal and that there had been a cognitive shift in his capacity to understand issues around consent and its contrast with Dr Sundin’s earlier written report.  Dr Beech conceded, however, in his oral evidence that he may have over-estimated Mr Henry’s intelligence before and that what may affect him more is his difficulties with “executive functioning”. 
22. Ms Boothman also submitted that the SOPIM exit report appeared to be at odds with progress reports noted in the case file and argued that the differences may be explained by the unremarkable circumstance that some psychiatrists and program officers were able to communicate more effectively with the respondent than others.  She submitted that the result of a supervision order would not be a mere control order but that, in particular, the issue was not whether a supervision order might resemble some other type of order, but whether an acceptable level of risk can be achieved through practicable measures. 
23. In commenting on the exit report, she pointed out that the signatories did not include the principal author of entries in the offender’s case file concerning the SOPIM in the period from 14 May 2015 to 22 January 2016.  She argued that there was an unexplained difference between the generally positive tone of the case file entries and that of the exit report which may reflect differences in rapport or communication.  She did not pursue that issue vigorously after Dr Beech gave evidence that he did not perceive significant differences between the case file entries and the exit report. 
24. She also pointed out that the respondent had participated in 118 sessions over the 12 month period of the program and she submitted that the question for the court was not whether continuing detention was the more attractive option, but whether it was necessary because adequate protection of the community cannot be achieved through a supervision order. 

Conclusions

25. The effect of the oral evidence of Dr Beech and Dr Sundin and the availability of appropriate psychological treatment if Mr Henry is released under a supervision order in Townsville have led me to the conclusion that his release under such an order is now appropriate. 
26. While his completion of the SOPIM did not produce a glowing exit report, to paraphrase Dr Beech’s evidence, he did show persistence in finishing it, after a more shaky start.  His risk of re-offending is likely to be reduced to a moderate level while under supervision.  The main worry is that he will have difficulty in understanding the effect of the orders but his liberty should not be constrained more than is necessary where a regime under the Act can be devised to address that problem.  The regime proposed seems to me to be one which adequately protects the community and can reasonably and practicably be managed by the proposed supervision order and corrective services officers; see s 30(4) of the Act. 
27. In that context may I re-emphasise the views of Dr Beech and Dr Sundin that it will be very important to explain any supervision order simply, repeatedly and clearly to Mr Henry by giving concrete examples of potential breaches and eliciting by open questions a response from him to make sure that he understands the effect of the order, not just that he had listened to the explanation of it.  He will most likely need a more extensive than usual transitions program.  He would also be likely to benefit from psychological cognitive assessment and assistance from a psychologist and an occupational therapist in the use of strategies to help him comprehend the nature of the supervision order and to develop strategies to cope with his problems and to set and achieve his goals. 
28. It is also relevant that Dr Sundin has identified flags of increasing risk for Mr Henry’s behaviour such as general non-compliance with directions from Corrective Service officers.  Such behaviour would also be likely to constitute a breach or breaches of the supervision order permitting early intervention to occur. 
29. I suggest that a copy of these reasons and of the oral evidence of Dr Beech and Dr Sundin be provided to the Corrective Services officers responsible for the supervision of the order I propose to make. 
30. In that context Dr Sundin suggested that cl 19 of the order requiring Mr Henry to submit to and discuss with a Corrective Services officer a weekly schedule of his planned and proposed activities be supervised with a view to developing his capacity to comply with the order, perhaps by commencing with a verbal review of his plans. 
31. Similarly Dr Beech suggested that cl 15, requiring Mr Henry not to commit an indictable offence during the period of the order would need clear explanation of the types of offences that constitute indictable rather than simple offences, particularly in the context of the risks posed by Mr Henry’s behaviour in the past. 
32. I endorse those remarks while recognising the difficulties in reframing the language of the order to simplify it for the needs of Mr Henry while maintaining its certainty and general applicability.

Order

33. Accordingly I shall make an order in terms of the draft which is exhibit 1 in this application.