Attorney-General v Buckby[2017] QSC 46

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant, the Attorney-General for the State of Queensland, makes application, pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) for an order that the continuing detention order in respect of the respondent, Desmond George Buckby, be affirmed, on the grounds he is a serious danger to the community in the absence of that order. 
2. [2]
   The respondent opposes the order contending that whilst he represents a serious danger to the community in the absence of an order under Division 3 of the Act, the adequate protection of the community can be met by his release subject to a supervision order. 

Background

3. [3]
   The respondent was born on 23 September 1947.  He is presently 69 years of age.  He has a significant past criminal history, having spent most of the past 20 years in custody following convictions for sexual offences against children. 
4. [4]
   The respondent’s last period of imprisonment was imposed in 2004.  Prior to his release in respect of that incarceration, the applicant obtained an order that the respondent represented a serious danger to the community in the absence of an order pursuant to Division 3 of the Act.  That order, made on 12 April 2007, provided for the respondent’s release, subject to a supervision order. 
5. [5]
   The supervision order was rescinded on 7 December 2007, at which time the respondent was ordered to be detained in custody for an indefinite term for care, treatment and control.  The rescission occurred in circumstances where the respondent had been found to have contravened a requirement of his supervision order, namely, that he not have contact with children under the age of 16. 
6. [6]
   The respondent’s continuing detention order has been affirmed on 9 June 2009, 21 May 2010, 16 May 2011, 18 June 2012, 30 September 2013, and 27 August 2015. 
7. [7]
   The current application is a further review of that continuing detention order.  The application was filed on 5 July 2016.  The initial hearing was adjourned to allow the respondent to undergo further treatment. 

Criminal history

8. [8]
   The respondent’s first conviction for a sexual offence was on 1 May 1981.  His first conviction of a sexual offence against a child occurred on 3 December 1990 when he was aged 43 years.  That offence, of unlawful and indecent dealing with a child under the age of 12 years, was committed on 6 January 1990.  The respondent was sentenced to 12 months imprisonment. 
9. [9]
   On 20 October 1995, the respondent was convicted of a number of sexual offences in relation to several children.  The sexual offences included carnal knowledge.  The respondent was known to two of the victims’ parents.  As a result of their friendly relationship he had taken the children on outings.  Some of the victims had slept in his caravan on many occasions.  The offending included showing the victims pornographic videos, attempting to administer a stupefying drug and sodomy in respect of one of the children who was aged 15.  The respondent was sentenced to an effective head sentence of 10 years imprisonment which was subsequently reduced on appeal to 7 years imprisonment. 
10. [10]
    In 2004, the respondent was convicted of further sexual offences against children under the age of 16.  The victims were female children aged 11 and 8.  Again, they had been permitted, as a result of a friendship between the respondent and their parents, to stay overnight with the respondent.  The offending included photographing the victims and fondling their genitalia after administration or attempted administration of drugs to alter their consciousness.  The respondent was sentenced to an effective head sentence of 4 years imprisonment. 

Division 3 order

11. [11]
    The initial finding that the respondent represented a serious danger to the community, in the absence of a Division 3 order, was made after the respondent had been reviewed by two Court appointed psychiatrists, Professor Nurcombe and Dr James.  There was other psychiatric support for that finding, including assessments by a psychiatrist, Dr Sundin and two psychologists, John Granville and Dr Barry Kidd. 
12. [12]
    In making that initial finding, Atkinson J observed:

“There is information indicating that there is a propensity on the part of the respondent to commit serious sexual offences in the future, both according to the actuarial scales and also by the clinical findings of those psychiatrists who examined him.  There has been a pattern of offending behaviour on the part of the prisoner which can be seen in his criminal history which shows repeated sexual offending against children.  There has been little effort by the prisoner to address the causes of his offending behaviour, including participation in rehabilitation programmes.  It is true that he has taken part in various programmes, but his denial of the many offences of which he has been convicted, many of which he pleaded guilty to, show that he has failed to address the causes of his offending behaviour. 

There is, of course, a real risk therefore that he will commit another serious sexual offence if released and the members of the community, particularly children, need to be protected from that risk.  The risk as expressed by Dr James is of his sexual offending against children in situations where he grooms children who are needy or vulnerable so that they have some degree of trust in him so that he can offend against them, and it is also necessary to reduce the risk that he engages in opportunistic sexual offending against children.” 

13. [13]
    Within months of being released into the community subject to a supervision order under the Act, the respondent contravened that order.  Relevantly, that contravention occurred in circumstances where the respondent had been given an express direction, in writing, to have no contact with children under the age of 16 years without written approval and shortly thereafter had been found in the company of five children.  The youngest, a six year old, was wearing a bikini. 
14. [14]
    The respondent’s risk, having regard to that contravention, was the subject of further reports by Professor Nurcombe and Professor James.  Both expressed the opinion that the respondent remained at a very high risk of sexual re-offending against children if released into the community.  Having regard to those opinions and the other evidence, White J ordered the supervision order made on 12 April 2007 be rescinded and the respondent be detained in custody for an indefinite term for care, control and treatment. 
15. [15]
    The subsequent reviews of that continuing detention order have each considered the contents of further assessments undertaken by Court appointed psychiatrists.  On each occasion, those assessments have confirmed that the respondent’s failure to engage in rehabilitation, his persistent re-offending against prepubertal girls, his lack of insight into the nature of his offending and his continued denials of guilt all rendered him unsuitable for a supervision order. 
16. [16]
    On each occasion, the Court was satisfied by acceptable, cogent evidence to a high degree of probability that the respondent remained a serious danger to the community in the absence of a Division 3 order and that no conditions could be imposed which would adequately address the risk such that there was a need for the respondent’s continued detention in custody. 

Application

17. [17]
    For the purposes of the current application, the respondent has been the subject of assessment by a forensic psychologist, Dr Madsen and two clinical psychiatrists, Dr Sundin and Dr Harden.  Each assessed the respondent’s current circumstances and any changes in his level of insight and the risks of future sexual offending against children. 
18. [18]
    In undertaking those assessments, each noted that whilst the respondent had been reluctant to undertake a High Intensity Sexual Offenders Programme, he had participated in such a programme for 12 months from 31 March 2014.  The exit report noted the respondent continued to deny any sexual offending or criminal behaviour and that he presented with significant cognitive distortions which constituted significant barriers to his engagement with the programme.  As a consequence, the respondent demonstrated limited insight into any factors contributing to his offending behaviour and was unable to demonstrate empathy towards the victims of his offences.  It was recommended the respondent participate in a sexual offender maintenance programme. 
19. [19]
    Dr Madsen, in his report dated 30 March 2016, opined that the respondent’s rigidity in thinking and interpersonal characteristics made treatment difficult.  However, research revealed that working with offenders with severe personality disorders, whilst challenging, can result in benefits if the treatment is focused and accounts for the individual’s personality related problems.  Dr Madsen recommended the respondent undergo forensic Schema therapy which was specifically developed for offenders with personality disorders, especially those with personality disorders which pose a high risk of recidivism, such as the respondent. 
20. [20]
    Dr Harden, in his report dated 9 July 2016, opined that the respondent was a high risk of sexual re-offending in the future outside a detention environment.  He recommended the respondent be offered individual psychological therapy focusing on his sexual offending in the form recommended by Dr Madsen. 
21. [21]
    Dr Sundin, in her report dated 21 June 2016, also recommended the respondent engage in the therapy suggested by Dr Madsen.  Dr Sundin said she would be “more confident that [the respondent’s] risk of re-offending had reduced somewhat” in the event he engaged meaningfully in that therapy. 
22. [22]
    As a consequence of those opinions and recommendations, the application for review was adjourned to allow the respondent to undertake that therapy.  However, in doing so Dr Madsen identified significant deficits in the respondent’s cognitive functioning and memory.  Dr Madsen’s observation was that the respondent often lost the thread of thinking and appeared confused by timing and sequencing of events in his life.  He often struggled to recall aspects of their sessions.  Dr Madsen arranged for a variety of tests to be undertaken to determine whether the respondent was suffering from dementia. 
23. [23]
    Those tests, performed by Vicki Kimlin, revealed that the respondent did have deficits in attention and recall suggestive of a mild cognitive impairment.  These findings were, however, inconclusive as to whether the respondent was suffering dementia.  Notwithstanding these findings, Dr Madsen opined that the respondent’s presentation and the results were consistent with a decline in general cognitive functioning and impaired memory which had practical implications for his capacity to engage in psychological treatment.  These deficits were consistent with the respondent’s poor performance on the programme, rendering future therapy of no practical utility.  Dr Harden and Dr Sundin concurred that the deficits rendered the proposed therapy no longer viable. 

Reporting psychiatrists

24. [24]
    Dr Harden prepared a supplementary report dated 13 December 2016.  In that report, Dr Harden noted the results of the cognitive assessment.  He also noted there were no identified deficits in the respondent’s ability to self-care or carry out his activities of daily living.  In Dr Harden’s opinion, the further material did not substantially alter his previous assessment of risk.  The relevance of the additional material was that psychological therapy was unlikely to be of further benefit to the respondent in reducing the future risk.  However, Dr Harden’s opinion was that diminution of risk was never likely to be associated with the psychological therapy.  Dr Harden noted that diagnostically, the more recent cognitive assessments were consistent with the respondent having longstanding cognitive impairment rather than being suggestive of a dementing process. 
25. [25]
    In his earlier report, Dr Harden had assessed the respondent’s future, unmodified risk of sexual re-offence as high.  Dr Harden noted the respondent’s continual denial of his offending and his very limited insight into his sexual offending.  Dr Harden also noted the respondent had a personality disorder with narcissistic and obsessive-compulsive and anti-social features.  The respondent also met the criteria for paedophilia, sexually attracted to females of a non-exclusive type. 
26. [26]
    Dr Harden opined that in respect of re-offending, the risk would most likely be in the context of forming a relationship with the care givers for prepubertal girls.  The respondent’s past behaviour is suggestive he was extremely adept at forming such relationships, consistent with a high level of interpersonal skills and ability to identify vulnerable adults and girls.  Dr Harden did opine, however, that the respondent had a much better understanding of his relapse prevention plan. 
27. [27]
    Dr Sundin also provided a supplementary report, dated 13 December 2016.  In that report, Dr Sundin noted that the cognitive testing indicated the respondent had mild cognitive impairment.  His score was only one score outside an age normative score that would consider dementia as being present.  Dr Sundin further noted that 50% of individuals with mild cognitive impairment will develop dementia in the next five years and that the observations about the respondent’s ability to self-care and undertake the activities of daily living were not unexpected in an institutionalised individual.  There had been no opportunity to assess these skills outside of an institution where the respondent would face more substantial challenges. 
28. [28]
    In her earlier report, Dr Sundin noted the respondent, despite undergoing various treatment programmes, had fairly consistently maintained an adamant denial of sexual offending against children in the past although he had at times admitted a degree of sexual attraction to prepubertal females.  The respondent’s level of insight and acknowledgement of his offending behaviour varied from minimal to superficial.  His offending also occurred in the context of considerable interpersonal deficits.  The respondent’s narcissism precluded him understanding the impact of his behaviour on his victims. 
29. [29]
    Dr Sundin opined that whilst the respondent had in the past evidenced improvement in insight, that insight did not appear to have been sustained with the respondent subsequently resiling from his previous acknowledgement of his sexual attraction to female children.  The respondent, instead, shifted to an assertion he was protecting those children.  Dr Sundin noted the respondent asserted he now understood he must not have contact with underage children or put himself in that situation but opined it was difficult to know how entrenched that insight would be, having regard to his extensive denials and rationalisations. 
30. [30]
    Dr Sundin repeated her concerns about the respondent’s continued pattern of rationalisation, minimisation and justification of his actions, which now incorporated heroic fantasies of himself as a saviour and protector of vulnerable children.  In her opinion, if the respondent re-offended in the future it was likely to be via a pathway of grooming the parents of prepubescent children.  Dr Sundin expressed considerable apprehension as to the confidence she would have in the respondent complying with a supervision order. 
31. [31]
    Dr Sundin opined that the respondent continued to pose an unmodified high risk of future sexual re-offending.  This assessment was based on a combination of clinical and actuarial assessments, reflecting both historical and current risk factors, and the more recent available material.  Dr Sundin recommended that should the respondent be placed on a supervision order, strict conditions be imposed in relation to the fostering of relationships and contact with children.  Further, ensuring the respondent was placed in a community residential setting where access to children is profoundly limited would reduce his risk for re-offending. 

Evidence

32. [32]
    Dr Madsen, Dr Sundin and Dr Harden each gave evidence at the hearing. 
33. [33]
    Dr Madsen opined that having regard to the respondent’s cognitive deficits, the respondent, if released into the community, would struggle to remember things and would need support and help in the community.  Dr Madsen noted that people with these kinds of difficulties can become more impulsive and erratic because of that process.  They may also perhaps become more disinhibited. 
34. [34]
    Dr Madsen accepted the respondent’s deficit in short term memory could be variable, having regard to how the respondent felt, his energy levels, his level of sleep and other factors.  However, it was likely the respondent would regularly struggle to remember anything that was not part of his routine.  The respondent performed well in custody because it has routine and structure.  As a result, he functions better than he probably is able to without such routine and structure.  In an outside environment he is likely to feel lost and confused and not remember things. 
35. [35]
    Dr Madsen opined that the respondent was very motivated to be released from custody and was motivated to stay out of custody.  The respondent now appreciated the link between having contact with female children and a return to custody.  That understanding was, to some extent, memory dependent and to another extent about cause and effect.  There was a risk if released on a supervision order that the respondent would not comply with a direction, either because of a lack of memory of the direction or because of the increased erratic and impulsive behaviour due to his deteriorating cognitive functions. 
36. [36]
    Dr Madsen did not consider that deterioration increased the respondent’s risk in that the respondent was not an opportunistic offender.  His risks related to the forming of relationships with the parents of female children.  The consequences of his deteriorating cognitive functions could, however, place children more at risk under certain circumstances if there was no disinhibiting influences around like parents or guardians.  In that sense, Dr Madsen could not be confident there would not be a change in the respondent’s pattern of future sexual re-offending as a consequence of the cognitive decline or dementing process. 
37. [37]
    Dr Sundin opined that the recent testing in respect of the respondent’s cognitive functioning raised her level of concern as to the risk the respondent poses to the community.  A deteriorating memory makes it less likely, rather than more likely, that the respondent would comply with any supervision order in the future.  The respondent has previously had difficulties complying with the supervision order before there was any evidence of memory impairment and mild cognitive impairment.  The chances of the respondent understanding the cause and effect and importance of the supervision order and the consequences of failing to comply with it were likely to be further adversely affected, not only by his pre-existing paedophilic drives and his personality disturbance but his cognitive memory impairment. 
38. [38]
    In Dr Sundin’s opinion, supervision orders require a degree of compliance and the respondent was likely to struggle with compliance because of memory disturbance and the risk he may act impulsively or in a disinhibited fashion.  Disinhibition goes with cognitive impairment and the dementing process.  The respondent’s continuing risk of future sexual re-offending, via the pathway of ingratiating himself on carers in order to gain access to female children, was likely to continue to operate in the future, and in the context of increasing disinhibition.  Dr Sundin noted that the respondent did not accept he was a sex offender or that he needed to be subject to a supervision order.  More recently he perceived himself to be a hero who stepped in to protect children at risk. 
39. [39]
    Dr Sundin opined that a degree of acceptance of responsibility is an important component in any compliance with a supervision order.  As such, the respondent continues to present a high risk of sexual re-offending, even in the context of a supervision order.  That risk remains because of his lack of insight, the pervasive and persistent nature of his paraphilic cognitions and his now reduced memory and cognitive impairment which will reduce his capacity to comply with a supervision order in the future. 
40. [40]
    Dr Sundin observed that any release with supervision would likely first place the respondent in the Wacol precinct, a semi-institutionalised environment.  That precinct is not intended to be a permanent place of residence for any of the sex offenders.  There is an expectation the offenders will move into the community.  The assessment presently undertaken of the respondent’s capacity to live independently has been undertaken within an institutional environment.  That is regimented and subject to strict routine.  Dr Sundin opined that it was a vastly different situation to move into the precinct and then negotiate public transport, shopping, banking and the other activities of daily living.  There has been no realistic chance to assess how well the respondent would cope with such activities outside of a highly institutionalised environment. 
41. [41]
    In Dr Sundin’s opinion, it is unlikely the respondent would be able to successfully negotiate life outside the prison walls without supported accommodation.  Significantly, Dr Sundin opined that moving into the community could have a destabilising effect on the respondent, triggering him to regress back into old patterns of behaviour increasing his risk to the community.  One possible scenario was that due to disorientation the respondent may seek the assistance of strangers who would co-operate as he would present as a bewildered and lost old man leading to the opportunity for a relationship and contact with a family with children. 
42. [42]
    Dr Sundin accepted the respondent presents with a motivation to be freed from custody and that he currently appreciates the link between his contact with children and a return to custody.  Dr Sundin did not, however, have a high level of confidence that the appreciation was entrenched in the respondent.  In her opinion the respondent, whilst appreciating the link, did not truly appreciate that what he was doing was wrong.  The respondent still presents with a series of rationalisations as to his innocence.  In those circumstances, it is difficult to give an accurate assessment of “where are the scales between fear of return versus persistent self-rationalisations, permission statements and paraphilic drives”.^[1]  Whilst risk decreases with age, paraphilic cognitions do not necessarily decrease with age. 
43. [43]
    Dr Harden opined evidence that having regard to the recent cognitive assessment it was less clear that a supervision order would reduce the risk of future sex offending to moderate.  The cognitive impairments make “the water much muddier”.^[2]  It was less clear to what extent the respondent would be able to cope in the community and comply with the supervision order.  There had been a significant decline in his cognitive functioning from testing many years ago.  This decline could make a supervision order a far less effective tool.  Dr Harden did not believe the internal changes in motivation in the respondent were likely to substantially alter his risk having regard to the respondent’s very rigid personality disorder and his significant cognitive problems.  These affect his insight and his interpersonal relationships with other people. 
44. [44]
    Dr Harden observed that the respondent’s insight into his offending behaviour in the past has fluctuated from accepting he has engaged in behaviour with prepubertal girls that was inappropriate to claiming he was generally misunderstood and just wished to help people.  Dr Harden accepted the respondent had been reasonably consistent in his appreciation of the need to avoid contact with children and families with children in the future but the cognitive impairment made it much more difficult to know how consistent he might be in that endeavor.  You could not rely on anything the respondent would do to limit his own behavior in the future.  Any containment of risk would depend entirely upon the adequacy of the supervision under a supervision order. 
45. [45]
    Dr Harden opined there was a risk of decompensation if the respondent found himself in a location within the community with a lack of sufficient support.  It was possible that decompensation could manifest itself by the respondent reverting back to his old habits but Dr Harden was not satisfied that it would necessarily be the most likely outcome.  The respondent may instead express his stress and frustrations in a range of ways with that being one of them.  Dr Harden accepted there was no data to suggest that if he did regress it would be other than reverting to his previous behaviours of relying upon a relationship with parents for access to children. 
46. [46]
    Dr Harden accepted the respondent appeared to be motivated by an understanding that if he had contact with children he would return to custody and that motivation was something he had maintained over the last two years.  That suggested a slow creeping compliance with the recognition that were he to do certain things he was more likely to be released from custody.  Dr Harden did not consider the respondent to be manipulative but noted he has in the past successfully obtained the confidence of people to allow him access to small children.  That suggested his interpersonal skills to convince others of his genuineness were quite high.^[3] 

Applicant’s submissions

47. [47]
    The applicant submits that having regard to the respondent’s past criminal history the opinions of the reporting psychiatrists and the risks shown by the respondent’s lack of insight into the nature of his offending behaviour, there is acceptable, cogent evidence to the high degree of probability required that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the Act.  The respondent presents as being a high risk of sexual re-offending in the future.  Any sexual offence would relate to prepubescent girls with an obvious risk of psychological, if not physical, damage. 
48. [48]
    The applicant further submits that whilst the Act indicates a preference for a supervision order over a continuing detention order, the evidence establishes that the adequate protection of the community cannot be ensured by a supervision order.  The respondent’s past behaviour, risks and cognitive deficits mean he presents as an unacceptable risk if released into the community on a supervision order.  Such an order is unlikely to be efficacious to constrain his behaviour as the respondent is unlikely to be able to comply with its conditions, either intentionally or unintentionally.  The respondent is an untreatable child sex offender with ongoing limited insight into his condition and deteriorating cognitive functioning which may increase disinhibition and impulsiveness. 

Respondent’s submissions

49. [49]
    The respondent accepts the evidence would satisfy the Court, to the requisite standard, that the respondent is a serious danger to the community in the absence of a Division 3 order.  However, the respondent submits his ongoing acceptance that he must not have contact with children in the future, together with his motivation to remain out of custody in the future, indicates the adequate protection of the community could be met by the imposition of a supervision order with strict conditions to ensure no contact with children in the future. 
50. [50]
    The respondent submits that given his offending pattern in the past has required the build up of a trust relationship, the imposition of strict conditions would ensure the authorities would have time to identify the clues to the risk of future re-offending so as to ensure the adequate protection of the community.

Discussion

51. [51]
    There is no doubt the respondent remains a serious danger to the community in the absence of a Division 3 order.  Despite participating in various programmes and having developed a level of insight into the nature of his offending, the respondent continues to present with persistent and pervasive attitudes of denial together with a disturbing trend to self-justification of the correctness of his prior offending behaviour.  The respondent’s expressed motivation to remain free from custody must be viewed in that context.  I accept Dr Sundin’s reservations as to the entrenchment of that appreciation having regard to the respondent’s ongoing lack of appreciation of the wrongness of his behaviour. 
52. [52]
    The respondent has now been subject to a continuing detention order for over nine years.  In recent times his cognitive functioning has declined substantially.  The cognitive impairments are significant, both in memory and practical functioning ability.  Those deficits are likely to present significant challenges for the respondent if released into the community without a high level of functional supervision on a daily basis.  Of particular concern is the consequences of these impairments on the respondent’s ongoing risks of sexual re-offending against children in the future. 
53. [53]
    Those consequences are twofold.  First, they severely limit ongoing compliance by the respondent with the terms of the supervision order.  The respondent’s lack of memory renders it likely the respondent could, and would, regularly fail to recall the terms of that supervision order.  These difficulties severely impact upon the practical utility of any supervision order, particularly having regard to the respondent’s entrenched views of the rightness of his prior behaviour. 
54. [54]
    Second, the respondent would have difficulty in functioning in the community on a day-to-day basis, in the absence of a high level of practical supervision.  He is as a consequence likely to be vulnerable.  There is also a likelihood of increasingly erratic and impulsive behaviour due to his deteriorating cognitive functions.  There is a significant risk that as a consequence the respondent could revert to his previous behaviours with a real opportunity to do so due to his likely non-compliance with the terms of a supervision order. 
55. [55]
    I accept the opinions expressed by Dr Sundin and Dr Harden as to the real likelihood that the respondent’s cognitive impairment will restrict his ability to comply with the terms of a supervision order.  Strict compliance with the supervision order is essential, having regard to the risk of sexual re-offending in the future posed by the respondent in the context of paraphilic, predatory, sexual offending which is highly entrenched longitudinally and accompanied by denial as to the nature and wrongness of his offending behaviour. 
56. [56]
    The opinions expressed by Dr Sundin and Dr Harden, when considered in the context of the finding that the respondent represents a serious danger to the community in the absence of a Division 3 order, satisfy me that a supervision order would not provide an adequate protection for the community from the risk of future sexual re-offending against children by the respondent. 
57. [57]
    The respondent’s past criminal history, together with the consequences of any future sexual re-offending, render the risk associated with non-compliance with the terms of a supervision order wholly unacceptable.  The fact the respondent’s past behaviour is premised on a period of grooming does not alter the unacceptable nature of that risk. 

Conclusions

58. [58]
    The accepted evidence is cogent and compelling.  It satisfies me to a high degree of probability that the respondent continues to present an unacceptable risk to the community of sexual re-offending against children in the future, in the absence of an order requiring his continuing detention in custody. 
59. [59]
    The continuing detention order is affirmed and the respondent is ordered to continue to be subject to the continuing detention order made on 7 December 2007. 

Orders

1. Pursuant to Section 30(1) of the Act, the decision, made on 12 April 2007, that the respondent, Desmond George Buckby, is a serious danger to the community in the absence of a Division 3 order be affirmed. 
2. Pursuant to Section 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 7 December 2007.