Attorney-General v Jackway[2017] QSC 67

SUPREME COURT OF QUEENSLAND

1. BROWN J: This is an application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for review of the continuing detention of Douglas Brian Jackway, the respondent.^[1]  The applicant seeks to have a decision made on 28 February 2012, that the respondent presents a serious danger to the community in the absence of an Order under Division 3 Order of the Act (Div 3 Order), affirmed and further that the respondent continue to be subject to a Continuing Detention Order pursuant to s 30(3)(a) of the Act. 

2. There is no contest by Mr Jackway’s counsel that there is acceptable cogent evidence which would satisfy the court to the requisite standard that the respondent is a serious danger to the community in the absence of a Div 3 of the Act and that the decision of O'Brien AJ of 28 February 2012 ought to be affirmed. That concession is clearly a proper one on the basis of the evidence before the court.

3. The respondent is a man of 40 years of age. He has a history of substance and alcohol abuse. This is his fourth review of a Continuing Detention Order.

4. The real dispute is as to what, if any, is the appropriate order to be made by the Court in terms of a Continuing Detention Order or a Supervision Order. The applicant contends that Mr Jackway should continue to be subject to a Continuing Detention Order whereas Mr Jackway’s counsel contend that he should be released from custody under a supervision order.

Background

5. Mr Jackway has a significant criminal history. In terms of the present review however, the relevant offences are one of rape that he committed against a female child in 1991 when he was 14 years old and a series of offences against a male child committed in 1995 when he was 18 years old.

6. While both offences are obviously serious ones, it is the offence committed when he was an 18 year old which is more significant in terms of indicating the risk presently posed by the respondent to the community in the absence of a Div 3 Order. The offences in relation to that matter were assault occasioning bodily harm; taking a child for immoral purposes with a circumstance of aggravation, three counts of indecent dealing with a child under 12; and two counts of attempted carnal knowledge by anal intercourse of a child under 12.

7. Mr Jackway had had a falling out with family members and had taken off in a vehicle. He was in a highly intoxicated state from alcohol and drug use when he saw three boys. He approached the young boys riding bicycles under the guise of asking for directions. After punching one boy, he manhandled another into his vehicle, drove a short distance, collided his car with a bridge and took the boy into a mangrove. He then stripped the boy, assaulted him, threatened the boy, and performed sexual acts upon him. As he had been observed by a witness taking the boy, the police found Mr Jackway at the time that he was about to commit the offence of anal intercourse. He was sentenced to eight years imprisonment and not released until 2003. Having been released he then returned to prison on remand in January 2004. In that interim period he had not committed any sexual offences but he had stolen a motor vehicle and had also committed the offences of dangerous driving, stealing, and wilful damage. He was sentenced for those offences at the same time he was dealt with for the 1991 rape. In 2005 he received a total term of imprisonment of seven years.

8. But for three or four months Mr Jackway has been in prison for his entire adult life. Mr Jackway’s conduct has changed for the better since the time that the matter came before O'Brien AJ in February 2012. He has now been in prison for some 22 years.

9. In the review of December 2013, Daubney J noted:

“I cannot avoid giving heed to the concern expressed by both psychiatrists that a relapse by the respondent into drug and alcohol use or catapult into a high risk of sexual offence category.  Despite the obvious and welcomed improvements in his situation since the time he was made subject to a Continuing Detention Order, I am not satisfied that he is yet at the stage where he is sufficiently able to manage the risk of exposure to drugs and alcohol and otherwise manage his violent behaviour.  That necessarily leads to my conclusion that he is not at the stage where I can be satisfied that, if released under a supervision order, adequate protection of the community could reasonably and practicably be managed by a supervision order.  If released on a supervision order, he is not in custody.  I am not satisfied that he yet has the personal skills to ensure ongoing abstinence from drugs and alcohol, which as I have already noted on several occasions, present on the common evidence as the trigger for him presenting a high risk of sexual offence.”

10. In a review on 9 February 2015,^[2] Mullins J was not satisfied by the psychiatric evidence that adequate protection of the community could be reasonably and practicably managed by a supervision order.  Her Honour noted, in particular, that he had not completed the Pathways course that was indicated when he was last before the court and that his behaviour in prison in the last 12 months was a relevant and different factor than his behaviour in the period leading up to the hearing before Daubney J.  In that regard and while her Honour noted that Mr Jackway had been subject to various stressors in that 12 months and particularly had been wrongly accused by another offender of murder, her Honour stated that:

“The fact that he has behaved with aggression and impulsivity in the prison environment, because of stressors for whatever reason, I consider it is a relevant factual matter to take into account in assessing the risks of re-offending outside the prison environment, if Mr Jackway were released on a supervision order.”

11. Holmes CJ reviewed the matter in 2016. By that stage Mr Jackway had completed the Pathways program, however a number of incidents had occurred during 2016 while in prison. In particular her Honour concluded that having taken into account that Mr Jackway’s last sexual offence was 20 years ago:

“[21] The question is whether a supervision order can effect adequate protection of the community against the risk which the psychiatrists identify. I cannot be satisfied that it would, in light of Mr Jackway’s inability to control his impulsive behaviours, even when it was so clearly in his interest to do so. It should be said that he has demonstrated considerable motivation to cooperate by undertaking appropriate courses and receiving assistance from Mr Smith; but he has not, to date, been able to consistently put what he has learned into practice. His acceptance of a ‘shot’ while still on the Pathways programme illustrates the gap between his ability to recognise strategies he should use in dealing with situations of risk and his ability to apply them. One could almost suspect that the events of February were a form of self-sabotage; but whatever the reason for Mr Jackway’s behaviour then, it augurs very badly for the prospects of a supervision order’s being effective. As Dr Grant said, such orders can work well, but not when the individual concerned does not have the capacity to control his impulses.

[22] The statute does not mandate an absolute guarantee of protection, of course, but in light of Mr Jackway’s recent history, one could have no confidence that he would not give way to irrational and impulsive behaviour, resulting in absconding and/or drug or alcohol use, with the outcome being further sexual offending. That could occur quite quickly and without sufficient warning to prevent it, notwithstanding the constraints of a supervision order.

[23] That is not to say that Mr Jackway might not in the future be able to demonstrate a level of stability which could give greater confidence about his ability to comply with a supervision order. Certainly his involvement with Mr Smith appears to have been beneficial and I would recommend that Corrective Services both ensure that he has regular sessions with Mr Smith (ideally, fortnightly) and give Mr Smith access to Mr Jackway’s conduct records, so that he has a full appreciation of what he is dealing with. Mr Jackway should also be given the opportunity, if he wishes, to try a course of anti-depressants, which might have a stabilising effect. But for the present, I am not satisfied that adequate protection of the community can be reasonably and practicably managed by a supervision order.

[24]  Accordingly, I affirm the decision of Acting Justice O'Brien made on 28 February 2012 that Mr Jackway is a serious danger to the community in the absence of a Division 3 Order and I order that Mr Jackway continue to be subject to the continuing detention order made by Acting Justice O'Brien.”^[3]

12. The submissions of Mr Jackway has continued to show some improvement and signs that his judgment and level of insight are increasing. The question however is whether on the evidence I am satisfied that adequate protection of the community against the risks identified by psychiatrists can be ensured by a supervision order.

Legal Framework

13. The submissions of the respondent’s counsel adopted the summary of the law in the applicant’s submission at [19] – [33].

14. The application for review is governed by s 30 of the Act. It provides, inter alia, that the court may affirm the decision that a prisoner is a serious danger to the community in the absence of a Div 3 Order, only if it is satisfied by acceptable cogent evidence and to a high degree of culpability that the evidence is of sufficient weight to affirm the decision.

15. In relation to such a review, arrangements must be made for the respondent to be examined by two psychiatrists.^[4]  In the present case, reports have been provided by Dr Grant and Dr Aboud. 

16. Relevantly the definition of “serious danger to the community” requires that there must be an unacceptable risk that the prisoner will commit a serious sexual offence^[5] if released at all, or if released without a supervision order. 

17. The term “unacceptable risk” is incapable of precise definition but requires the striking of a balance. The relevant risk is the risk of commission of serious sexual offences. The risk means the possibility, chance or likelihood of commission of such an offence. An unacceptable risk is a risk which does not ensure adequate protection of the community.

18. In determining the decision ought to be affirmed under s 30 of the Act, the factors mentioned in s 13(4) of the Act must be considered.

19. If the court, on a review hearing, affirms the decision that the prisoner is a serious danger to the community in the absence of a Div 3 Order, then the discretion granted by s 30(3) is enlivened.

20. Once the Court’s discretion is enlivened, the court may then order that the prisoner continue to be subject to the Continuing Detention Order or be released from custody subject to a supervision order. The onus lies on the applicant to satisfy the court that a Continuing Detention Order should be made. The starting point is the consideration of whether a supervision order can ensure adequate protection of the community.

21. The paramount consideration under s 30(4) of the Act is the need to ensure the adequate protection of the community in deciding what the appropriate order is to make. That requires the Court to consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order and the requirements under s 16 can be reasonably and practicably managed by corrective service officers.

22. That does not require the court to be satisfied that there is some absolute guarantee of protection. Ultimately however it must be open for the court to conclude that a “supervision order would be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences.”^[6]

23. In Attorney-General (Qld) v S^[7] the court stated that in determining whether the community could be adequately protected only by a continuing detention order required the court  to consider the nature and extent of the 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 content not only from what was found as a fact about the respondent, which constitutes a real danger to the community.

Psychiatric evidence

24. Two reports were obtained and prepared pursuant to s 29 of the Act by Dr Grant and Dr Aboud. Nicholas Smith, the respondent’s treating forensic psychologist, also has provided two reports. The respondent accepts the summary of the expert evidence in the applicant’s submissions at [34] to [115] is accurate. Having given leave to read and file both the submissions of the applicant and the respondent, I will not repeat at length the submissions made in those paragraphs.

Mr Smith

25. According to Mr Smith’s report and further report, Mr Jackway has continued to demonstrate positive engagement and an increasing willingness to reflect on his thoughts and behaviours. He has described ongoing positive experiences with custodial staff despite difficulties that he experienced in 2016. He reports that Mr Jackway has spoken a number of times about maintaining the long view and keeping his focus on returning to the community and how this focus has assisted him to see past his immediate situation and respond to challenges more appropriately on a number of occasions. He noted that Mr Jackway has completed the High Intensity Sexual Offending Program and the Pathways program in recent years and has also engaged with fortnightly psychological appointments with the aim of improving his emotional and behavioural regulation prior to a possible release on a supervision order.

26. Mr Smith noted that Mr Jackway’s ongoing risk of violence needs to be managed and monitored closely by all involved in the supervision and care and consideration for his substantial degree of institutionalisation and the impact of early, violent and traumatic experiences on his personality and his capacity to appropriately regulate both his emotions and his behaviour. He indicated that over the 2016 year Mr Jackway had continued to report an increased level of behavioural control and better management of emotional responses to frustration. He remains in active engagement in psychological intervention and he has demonstrated continuing improvements to his level of mood stability as well as describing significant improved responses to the challenges of custodial life.

27. In September 2016 Mr Jackway took methylamphetamines having been offered the substance repeatedly by another prisoner. The following day he refused to provide a urine sample due to the likelihood it would return positive results. According to Mr Smith Mr Jackway had acknowledged the use of methylamphetamines was a poor decision but failed to concede the consequences of using the substance. Mr Jackway had stated that he had other opportunities to use such a substance but had chosen not to.

Dr Grant

28. Dr Grant has seen Mr Jackway on a number of occasions and provided reports dated 5 November 2010, 27 November 2013, 3 December 2012, 19 October 2014 and 2 March 2016. As such Dr Grant has had the benefit of observing Mr Jackway’s behaviour over a period of time.

29. Dr Grant interviewed Mr Jackway as well as receiving his prison file. He provided a report dated 14 February 2017.

30. Consistent with his previous reports, Dr Grant diagnosed the respondent as having a severe anti-social personality. Using the psychopathic checklist he qualifies as suffering from a psychopathic personality. That anti-social and psychopathic personality is demonstrated by a very poor ability to empathise with others and over the years he has tended to show little remorse for his offending behaviour. While he noted the possibility that the respondent suffers from a sexual paraphilia specifically paedophilia and sadism, he considers that it is impossible to make such a diagnosis on the available evidence. Dr Grant considered it was more likely that the respondent’s sexual offences were motivated by his severe personality disorder, his impulsivity, his reactions to his own sexual abuse, and was facilitated by substance abuse and intoxication which was particularly evident in relation to the most severe offence of abduction and assault of the young boy.

31. He noted that Mr Jackway has had a number of behavioural problems throughout his life and was also the subject of sexual abuse according to the respondent. He has a history of serious problems with abuse of alcohol, illicit drugs and prescribed medications. Alcohol and drugs has always tended to make him more aggressive and disinhibited and more likely to indulge in offending behaviour. Dr Grant noted that in recent years Mr Jackway’s abuse of illicit or prescribed medications in custody appears to have been much less of a problem. In December 2015 he was breached for the alleged misuse of slow release morphine given to him on his birthday. He admitted to Dr Grant to having tried the drug commonly known as ‘ice’ in September 2016 and said that he was curious to see what it was like.

32. Dr Grant noted that there has been a violation history for the period of 22 March to 12 October 2016. In particular, there was an incident involving verbal assault by the respondent on another inmate who had abused him with names such as “dog”, but no violence ultimately occurred.

33. On 4 August 2016 he was subject to a breach for damaging prison property which occurred when a search of the cell found a torn pillow. Mr Jackway indicated that the breach was thrown out because he claimed the pillow belonged to his cell mate.

34. On 9 September 2016 Mr Jackway failed to provide a urine sample for drug testing. That resulted in a major breach which followed his use of ice. As a result of that breach he was transferred to Unit S7 in the Detention Unit. The most recent incident was on 25 January 2017 when he became engaged in a physical altercation with another offender in the S7 exercise yard. In that case, the other prisoner produced a shiv and Mr Jackway grabbed a mop bucket to separate himself from the other prisoners and the other prisoner then produced a broom stick and hit Mr Jackway a couple of times. Mr Jackway did not receive any further punishment as a result of the incident with the other inmate being transferred to the Maximum Security Unit.

35. When transferred to Secure Unit 4, over his objection after spending time in the Detention Unit, the respondent in November 2016 threatened to smash his cell and made threats to staff and was physically restrained in that Unit, but that later was resolved peacefully. He was subsequently moved to S3 on a Safety Order before eventually being transferred to his current Unit in S7, which he had expressed a preference to be placed in. The reports while he has been in S7 have indicated that he has been cooperative and that he has been employed as a cleaner and painter. In relation to his employment as a painter that is a position which requires him to use certain tools and as such is a recognition of the increasing trust being placed in him. Mr Jackway has indicated that he is getting satisfaction from the work he is doing. Dr Grant noted the majority of notes of the respondent’s behaviour reflected actual good behaviour and polite attitudes to officers.

36. Dr Grant opined that the incident of the use of ice indicates the ongoing vulnerability of Mr Jackway to give into the temptation to use drugs. Mr Jackway himself noted that staying away from future drug use was a major issue for him and indicated his method for dealing with the risk was to say no. Mr Jackway noted thatthe consequences of drug use if released were far greater than in jail. Dr Grant indicated Mr Jackway’s response is not terribly reassuring because the evidence says he is yet to learn in a consistent way to say no and resist that temptation.^[8]

37. Dr Grant indicated following his interview and in terms of his mental status examination Mr Jackway seemed to have a degree of insight into the risks that would present if he were to leave prison and be around drug use.

38. Dr Grant noted that intoxication was very relevant for his general offending and very relevant for the offence against the young boy. He indicated that there continues to be an underlying vulnerability to relapse into substance abuse despite having treatment with the Pathways course. In cross-examination, Dr Grant agreed that it was not uncommon for people who have had additions to have lapsed and to still avoid falling into a period of addiction. While that may be so, the fact remains that alcohol and drugs are one of the significant triggers which could give rise to his reoffending and committing a serious sexual offence.

39. According to Dr Grant risk assessment instruments put the respondent into high risk of future sexual offending. His assessment on the Static-99R was reduced to 9 down from 10 given his increasing age. He stated that that risk has been modified to some extent by a number of factors:

1. firstly, he has served some 22 years in custody and he is now aged 40;

2. it is in middle life that people with severe anti-social personality disorder begin to settle in terms of covert aggression and anti-social behaviour. There is evidence that such a settling process is beginning to occur;

3. his satisfactory completion of the HISOP and the Pathways courses and satisfactory engagement in individual psychological therapy with Mr Smith indicate that he is gradually increasing his understanding of his risk factors, his impulsivity, his affective dyscontrol, in the past.  This has enabled the development of insights, and strategies into how to avoid becoming involved in aggressive confrontations leading to violence;

4. he at least has an intellectual understanding of the risks with abusing substances in disinhibiting his behaviour in producing a greater likelihood of violence and sexual offending; and

5. his sexual drive appears to have reduced to a considerable degree but that could increase after his release into the community when different stimulation or opportunities present themselves. 

40. Dr Grant indicates that Mr Jackway’s main risk factors continue to be his severe personality disorder with anti-social traits, immaturity, poor problem solving, poor decision making and the lack of respect for authority and social mores. He indicates that there is no doubt that problems with impulsivity, emotional control and a lack of trust in others will persist and will need to be a constant source of focus for the respondent and those trying to assist him to rehabilitate. When under stress or provocation he is more likely to act in an anti-social manner or on impulse. In that regard given the period of his incarceration Dr Grant considers that the respondent is likely to find significant frustrations and stressors during that reintegration process.

41. He considers that drug and alcohol abuse remain a major risk factor in combination with his personality disorder. He states that if he becomes intoxicated with drugs such as methylamphetamines or alcohol that is likely to reduce inhibition and impair judgment and could produce offending behaviour. Dr Grant also indicated that institutionalisation is clearly a problem for the respondent and going into the community will mean a significant adaptation on his behalf and will take time, effort, and a lot of assistance to help him with that. He considers that when Mr Jackway is released that he would benefit from undergoing a sexual offender maintenance program in the community and also a drug and alcohol maintenance program.

42. Dr Grant considers that the risks presented by the respondent in terms of sexual re-offending are probably at a moderate level being reduced from the high level by the dynamic factors which he had identified. That moderate level of risk will be maintained if he is able to stay absent from alcohol and drugs and take advantage of therapy and supervision in the community. However if he were to resume alcohol and drug abuse and remove himself from the support of therapists or supervisors then the risk of further decompensation and sexual reoffending could rise to a high level.

43. Dr Grant considered that a supervision order would have the potential to contain the respondent’s risk of future sexual offending at a moderate level and that there are some indications that the respondent’s ability to cooperate with a supervision order has improved since he has undergone group treatment programs and individual therapy. He made various recommendations as to the terms of any supervision order if one was to be made. Dr Grant noted that there is quite a significant risk of breach by the respondent under a supervision order in particular non-sexual violent offending. He anticipates that under a supervision order a supervisor would likely detect a relapse into drug abuse at an early stage before sexual offending reoccurred.

44. In oral evidence, Dr Grant indicated that the respondent’s conduct in taking ice indicates that he has yet to learn in a consistent way to say no to drugs and alcohol and resist that temptation. If the respondent is in the community where drugs are freely available he may well fall into the temptation of using them even when he is not under stress, but particularly if he is under stress. In regards to the respondent’s impulsivity he noted that the respondent’s last use of drugs was in circumstances where he gave into an impulse, although he immediately saw that as being against his interests and recognised that he did not fully contemplate the effects of that behaviour on his future in terms of for example getting out of prison. He considers he still is not all that good in recognising the consequences of his behaviour.^[9]

45. Dr Grant considers that the respondent had not planned to sexually assault the nine year old boy and is of the opinion it happened because he was in a state of crisis and emotional upset, was very angry and intoxicated and it was an impulsive action. He noted that in that case of the offending, he had been taking drugs for some days or for a period of time. Dr Grant’s view is that the respondent’s risk of reoffending from drugs and alcohol would be more likely a build up over weeks rather than days, but it was possible it could be days.

46. Dr Grant agreed that there was considerable validity to the view expressed by Dr Aboud that the respondent could not be successfully managed in the community until he demonstrated a period of time in custody where he was able to cope with stressors in jail.

47. Dr Grant expressed the view that the fact that the respondent had gone to the Detention Unit to escape difficulties was a symptom of his difficulties with impulsivity and control. He considers it was a reflection of the respondent’s own difficulties in controlling himself and wanting to feel safe from his own feelings. It was also a reflection of the particular stressors that he might be under because of threats he has in the prison environment. In response to the proposition that although the respondent has improved he still hasn’t reached a stage where he can be confident that he can be managed on a supervision order without an extended period of blame free breaching, Dr Grant stated that:

“Ideally I’d like to see an extended period of good functioning, both interpersonal functioning and institutional functioning and work functioning, over a period of time, such as 12 months to demonstrate that he has the level of control and management of his own impulses and effects.”^[10]

48. Dr Grant indicated that at present he did not have confidence that the respondent would be able to live comfortably within the restraints of a supervision order without breaching it in some way such as using drugs.^[11]  Dr Grant further indicated that the respondent was definitely on an upward trajectory but that he was not quite at the point where Dr Grant could be confident that he would manage to stay breach free or offence free if he was released presently on a supervision order.^[12]

49. In cross-examination he considered that a supervision order had a good chance of detecting any relapse into drug use and hopefully any lapse into emotional instability but that would depend on his honesty and openness with his supervisor.

50. In response to a question as to whether a supervision order would be efficacious in preventing any serious sexual offending by the respondent Dr Grant considers that there is a high risk the respondent will find it difficult to live within the boundaries of the supervision order at this stage.^[13]

51. In Dr Grant’s view he considered that the risk would be significantly reduced if he was wanting to obey the order, and did in fact obey all of the conditions. While he considered a breach of the order is most likely to be detected before any sexual re-offending there is a risk it may all spiral out of control very quickly. He considers the maintaining of the risk of reoffending to a moderate level would be predicated on him actually obeying all the terms of any supervision order and not lapsing into drug or alcohol abuse or other things.^[14]

Dr Aboud

52. Dr Aboud also gave evidence. He interviewed the respondent for the first time on 13 January 2017. He reviewed the respondent’s history including his criminal history, educational and personal history. He noted that the respondent had a disrupted childhood and was the victim of abuse. He particularly noted the respondent’s pattern of anti-authoritarian behaviour both growing up and while incarcerated and his long history of drug abuse since a young age.

53. Dr Aboud expressed the view that the respondent suffers from an anti-social personality disorder with probable psychopathic traits. He considered that he had some emotionally unstable personality traits which are more pronounced when he is experiencing psychosocial stress such as interpersonal conflict, personal or social instability. At those times, there is a high risk of the respondent using alcohol or substances as a means for coping with his emotions. Dr Aboud does not believe that the respondent suffers from paraphilia of sexual sadism. He is unsure whether the respondent meets the criteria for a diagnosis of paedophilia. He considers however it is likely that he harbours an underlying paedophilic drive. Dr Grant considered that was a risk but did not diagnose it as such.

54. He considered that there were two pathways in which the respondent might reoffend. First, it is possible that the respondent will opportunistically attempt to coerce a vulnerable female into sexual activity, who may be a child or someone who is otherwise vulnerable. Secondly, on account of his likely related homosexual paedophilic drive, the respondent would be at risk of assaulting a male child in the context of disinhibition or psychological stress.

55. Dr Aboud considered that the respondent’s overall risk to be high in respect of sexual violence and general violence. In reaching this conclusion he particularly drew upon certain aspects of the respondent’s offending behaviour including his antisocial and borderline personality structure, his psychopathic traits, his significant alcohol and substance abuse and his underlying anger issues. He also noted the results of the actuarial assessments indicated that the respondent was high risk.^[15]

56. He considered that it is of great concern that the respondent engaged in substance misuse while subject to a detention order and in the process of undertaking the Pathways Substance Abuse Program. He also considered that it was of significant concern that the respondent chose to cease the recommended antidepressant medication since that may reduce the high levels of the respondent’s impulsivity. He accepted the fact that the respondent had suffered the side effects that arose from the particular antidepressant medication. He considered that the respondent could have explored alternative drugs without such side effects. Dr Grant did not express the same level of concern as Dr Aboud in that regard. He indicated the use of the medication was simply as a trial of an extra method of helping him control impulsivity.^[16] He noted that his impulsivity has been gradually improving over time. 

57. Dr Aboud considered that while it was evident that there had been some improvements in relation to the respondent’s general behaviour in prison, there remained clear examples within the last year of violent behaviour in terms of issuing threats and property damage as well as substance abuse.

58. While Dr Aboud considers that there is evidence of gradual personality maturation, he considers that there is still evidence of ongoing emotionally unstable impulsive and challenging behaviour.

59. Dr Aboud considers in the context of the supervision order the risk of reoffending sexually would reduce to moderate. However presently he is not confident that the respondent would comply with an order. He considers that given the respondent’s personality traits and impulsivity, that the respondent’s progression from stressful situations outcomes could be rapid. He stated that to be confident that the respondent would be successfully managed under a supervision order, it was necessary to see behavioural evidence that the respondent can manage his various stressors appropriately within the prison environment. In that regard, he considered that it was necessary for the respondent to demonstrate for a continuous 12 month period no physically violent behaviour, no threat of violence to an officer or inmates and no ingestion of contraband substances.

60. Dr Aboud considers that the time spent in a Detention Unit would not usually inform those observing the respondent as such environments are highly contained and relatively devoid of stressors. While he agreed that any environment in prison was an artificial environment, he considered that the environment in a detention unit is a more contained one. He considered that the respondent seeking to remove himself into such an environment was indicative of him seeking to remove himself from an environment where he had to cope with various stressors. That was supported by the entry in the prison file of 21 November 2016.^[17]  While he also accepted that some people adopt a strategy isolating themselves if there are people who wished them harm, he stated that his real point, is that the present prison environment is not testing the respondent out in terms of his interpersonal resilience and his ability to negotiate difficulties.

61. In cross-examination, he agreed that in terms of reoffending, the respondent would likely have to be in a distressed state, have resorted to drugs rather than seeking support to alleviate the distress and absconded effectively from supervision. He considered however that the worrying scenario was that those things could happen very quickly.^[18]  While he accepted that the risk could be modified by the fact that he would be wearing a tracking device, the respondent may be in a position where he did not actually care that he was being tracked or could remove the tracking device. People with anti-social personalities and who are emotionally unstable are such that once there is a lapse, it can all unravel very quickly and they can polarise to a negative place and cannot pull themselves back.

62. Dr Aboud considered that the respondent believes he is coping very well with stressors in prison but his subjective view is much more favourable than the objective view which is evident from the IOMS records. He noted that the respondent is able to project a very positive image. This particularly is demonstrated by the disconnect in the respondent’s behaviour observed by one officer’s experience as opposed to his involvement in a number of incidents which was noted in an officer’s entry of 3 January 2017 in the IOMS record. That disconnect between the face presented by Mr Jackway which doesn’t appear to include a self- awareness of his responsibility for anti-social conduct he engaged in is of significant concern in the context of reasonably and adequately managing adequate protection of the community under a supervision order.^[19]

63. Dr Aboud’s assessment is that the respondent would need to be successfully managed for a period of 12 months in custody, before he could be confident that he could be successfully managed under a supervision order. That would give confidence that he could continue such pro-social behaviour in the community where he is far less contained and in fact, far less controlled. Even though there is monitoring under a supervision order it is nowhere near the monitoring and supervision in prison.

64. He indicated however that the respondent needed to be assessed within reason. Any assessment would need to be discerning about what is realistic and whether or not he is the perpetrator of problematic behaviour given that he exists within a prison environment.

65. Dr Aboud pointed out however that all of the respondent’s behaviour cannot be excused by being in prison. The respondent’s taking of an illicit drug was nothing other than his choice.^[20]  Dr Aboud considered until one saw a period of sustained good choices by the respondent he could not be managed effectively outside under a supervision order.^[21]

Other matters

66. Mr Jackway wrote a letter to the court of 16 April 2017 in which he indicated that he is really trying to do the right thing with his behaviour in custody and acknowledged he had made some poor decisions. He indicated he would abide by any order that his release was made subject to and that he is not a risk to the community or to anyone. In this regard he identified members of his family, his psychologist and the prison fellowship as support people.

67. I have also had regard to the affidavit of Ms Bambrick who provides copies of the respondent’s prison file which were referred to by Dr Grant and Dr Aboud and the affidavit of Mr Tannock, the acting manager of the High Risk Offender Management Unit.

68. Mr Tannock addresses the extent to which QCS can reasonably and practicably administer a supervision regime for the respondent to afford adequate protection of the community. In particular he noted the capacity of QCS to minimise an offender’s risk to the community through the use of curfew is limited. He notes that GPS tracking may not be effective where there is offending in a rapid and opportunistic manner in a public place or other location where they have reasonable cause to be. At present accommodation at Wacol is limited^[22] and only available to prisoners with no suitable alternative accommodation.  There are presently no beds available save for a trundle bed in shared accommodation.  It is not a secure facility.  Offenders may leave the facility in accordance with their order and mix in the general community.  While there is some initial support offered by QCS it does not provide an intensive personal support program. He also deposes to the fact that the effectiveness of the respondent’s compliance with illicit drug and alcohol requirements will depend on the random nature of the system for regular testing being a sufficient motivation to the respondent to maintain his abstinence.  Testing is generally every few days.  I note the threat of testing proved not to act as a deterrent to Mr Jackway in September 2016, nor the fact that his actions were against his own interests.

69. Mr Tannock indicated that arrangements would be made to ensure the respondent had continued treatment by Mr Smith.

Consideration

70. The first question is whether the respondent is a serious danger to the community in the absence of a Div 3 Order under the Act. I am satisfied to a high level of degree of probability, that there is acceptable cogent evidence that has been presented to me, particularly by way of psychiatric evidence considered above, that the respondent continues to be a serious danger to the community in the absence of a Div 3 Order under the Act having regard to the matters which I am required to consider.

71. I am satisfied that the court should affirm the decision that the respondent is a serious danger to the community in the absence of a Div 3 Order.

72. Having affirmed the decision of this court of 12 February 2012 the question I have to then consider is whether the court may make a supervision order or Continuing Detention Order. In this regard the paramount consideration is whether adequate protection of the community can be ensured by a supervision order. The applicant contends it cannot and it carries the onus in that regard.^[23]  The respondent contends that the applicant has not discharged its onus.  As the respondent points out the court is not required to be satisfied that the arrangements under the supervision order are “watertight”.

73. A review of the previous decisions, medical evidence, prison file reports and the present psychiatric evidence, particularly that of Dr Grant, who has had the benefit of observing the respondent over a number of years indicates that the respondent continues to improve his capacity to modify his behaviour. However, even with a supervision order in place the psychiatric evidence is that the risk of reoffending is only reduced to a moderate level.

74. While I accept the evidence of both Dr Aboud and Dr Grant, Dr Grant has the advantage of having had the opportunity to observe the respondent over a period of time. In real terms however their evidence was relevantly not significantly different. Both had a level of concern that the respondent would not comply with a supervision order and a serious offence might be committed before his non-compliance was detected. Dr Aboud considers that the respondent’s behaviour could spiral very quickly into reoffending, if he engages in substances abuse, without the supervision order being sufficient to constrain him. Dr Grant agreed that the respondent’s behaviour could spiral out of control quickly and could occur in a number of days although he thought it more likely it would occur in weeks.^[24] The impulsivity of his actions would depend upon the extent to which he was spiralling out of emotional control. Both Dr Aboud and Dr Grant considered that the respondent needed to demonstrate that he could control his impulsivity and his response to the emotional stressors for 12 months while in custody, in order for Mr Jackway to be successfully managed in the community.^[25]

75. While Dr Aboud considered it would be ideal if the respondent could spend time in a residential unit in order to see how he is coping with the everyday stresses, Dr Grant didn’t appear to consider it was a necessary precondition to be satisfied he could cope with the various stressors he may be exposed to, given the various threats which the respondent faces, even though he agreed it was a more realistic environment.

76. I accept that the detention is not an environment which necessarily provides a sound indicator of how the respondent is able to manage his anti-social behaviour, impulsivity and emotional instability, given it is a very regimented environment. I consider in the present context, the more important factor in terms of whether adequate protection of the community can be reasonably and practicably managed by a supervision order is whether in such an environment the respondent is able to conduct himself in a way which consistently implements the strategies he has been developing to control his antisocial behaviour and impulsivity.^[26] While the number of his violations have reduced, the fact he still succumbed to the offer to take drugs and still responded with threats of violence^[27] when threatened and more particularly threatened to smash his cell when placed in a unit he did not want to be in, indicate he is unable to exercise control over his behaviour on a consistent basis.

77. The view of Dr Grant that a period of 12 months where the respondent successfully indicates he can control his anti-social and impulsive responses before one could be confident that the respondent could be adequately managed under supervision order is supported by the view of Dr Aboud. Good functioning, both interpersonal functioning and institutional functioning and work functioning, would demonstrate that he has a level of control and management of his own impulses such that one could then be satisfied that he could be adequately managed under a supervision order. I accept the force of that view.

78. While I accept that a number of the incidents referred to were not matters instigated by the respondent, his taking methylamphetamine to “see what it was like” in September 2016 is a matter of significance given that he knew that his matter was going to be reviewed for consideration as to whether the Continuing Detention Order had to be continued or he could be released under a supervision order. He did so, notwithstanding the court in 2016 had regard to the fact, inter alia, at the end of 2015 he took morphine on his birthday while still undertaking the Pathways program. That indicates he still is not able to consistently control his impulsivity. This is significant given the respondent’s taking of drugs is identified as one of the major triggers to his reoffending.

79. Similarly, his response to being moved out of the S7 unit and his response to the name calling by a particular prisoner indicated that his ability to control his antisocial behaviour and impulsivity and coping with stressors is still a work in progress. While I accept the respondent is really trying to do the right thing with his behaviour in custody as he states in his letter of 16 April 2017 and that he was not the perpetrator in a number of incidents in which violations occurred, the fact he has not been able to control his behaviour and impulses in such a regimented environment, indicates that the risk of reoffending is unlikely to be reasonably and adequately managed to ensure the adequate protection of the community by the terms of a supervision order where he will be mixing without constant supervision in the community.

80. On the basis of the evidence presently before me I am satisfied that the applicant has shown that adequate protection of the community cannot be reasonably and practicably managed by a supervision order. I consider that the respondent’s personality disorder has not yet settled with maturation to the point where the protection of the community from the risk that the respondent will commit a serious sexual offence is adequately ensured by the terms of a supervision order, albeit that its terms are comprehensive. This is particularly so given the respondent’s impulsivity and his vulnerability to alcohol and drug abuse. His vulnerability to drug use and his impulsivity is demonstrated by the fact he took ice in September 2016, notwithstanding the court in March 2016 found in his previous review that the taking of drugs at the end of the Pathways Programme augurs very badly for the prospects of a supervision order being effective.

81. While I accept Mr Jackway believes he can comply with the regime established by a supervision order he has not yet demonstrated an ability to do so. I have taken into account the period he has served in jail and the fact that the liberty of the respondent should be constrained to no greater extent than warranted by the legislation. The fact remains that there is a real risk that his inability to control his level of impulsivity and responses to emotional stressors, given his anti-social personality could rapidly escalate such that he would turn to alcohol and drug use to the point of reoffending notwithstanding the terms of the order, before detection.

82. As is evident from the affidavit of Mr Tannock while there will be various protective mechanisms and safeguards in place under the order, the respondent will not be subject to continuous supervision or testing. Even with proper enforcement of the supervision order, there is a real risk that Mr Jackway will feel emotionally unstable because of the stressors of adapting to community life, which may go unnoticed by supervisors or because he does not openly communicate with them. While he will have the continuing support of Mr Smith that will be periodic or dependent on his ability to contact him as well as having sufficient insight to do so. His impulsively turning to drugs and alcohol to deal with those stressors before it being detected is a substantial risk, with a significant risk that the outcome will be further sexual offending.

83. That is not to say that this will be the case in the future given Mr Jackway’s present trajectory if he continues to engage in therapy and to develop mechanisms to manage his personality traits, impulsivity and vulnerability to alcohol and drug abuse.

84. The respondent’s counsel submitted the goal posts have shifted insofar as the psychiatric evidence is indicating the need for a period of behaviour without breaches. However the need to demonstrate he could control his impulsive behaviour and his tendency to act in an anti-social way on impulse when stressed or provoked for an extended period of time was identified by Dr Beech prior to the last review as it was by Dr Grant and is supported by Dr Grant and Dr Aboud.

85. I would recommend that Corrective Services both ensure that Mr Jackway has regular sessions with Mr Smith (ideally fortnightly) and give Mr Smith access to Mr Jackway’s conduct records so that he can continue to have the full appreciation of what he is dealing with. There is no doubt that his work with Mr Smith is having a positive effect and is necessary to positively assist the respondent in reaching a point where he can demonstrate that he is able to comply with a supervision order.

86. Accordingly, I affirm the decision of O'Brien AJ made on 28 February 2012 that Mr Jackway is a serious danger to the community in the absence of a Div 3 Order and I order that Mr Jackway continue to be subject to the Continuing Detention Order made by O'Brien AJ.