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Attorney-General v Thompson QSC 79
SUPREME COURT OF QUEENSLAND
Attorney-General (Qld) v Thompson  QSC 79
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
SC No 13108 of 2016
Supreme Court at Brisbane
12 May 2017
8 May 2017
Criminal Law – Sentence – Sentencing Orders – Orders and Declarations Relating to Serious or Violent Offenders or Dangerous sexual offenders – Dangerous Sexual Offender – Generally– where there is an application pursuant to s 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order pursuant to Division 3 of Part 2 of that Act – whether the respondent is a serious danger to the community in the absence of a Division 3 order – where the respondent suffers from a severe personality disorder with a mixture of histrionic, narcissistic, antisocial and possibly dependent traits – where the respondent has a mixed sexual paraphilia which manifests in exhibitionism and paedophilia with an attraction to underage males – where the respondent has a long and prolific history of exhibitionism, indecent exposure and contact sexual offences in the nature of touching and fondling young males – where the court may order a continuing detention order or a supervision order pursuant to s 13(5) of the Act – whether the adequate protection of the community can be reasonably and practicably managed by a supervision order – whether the requirements under s 16 of the Act can be reasonably and practicably managed by corrective services officers if a supervision order is made – whether the adequate protection of the community can only be ensured by a continuing detention order
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 2, s 3, s 5, s 13, s 13A, s 16
Attorney-General (Qld) v Beattie  QCA 96, followed
Attorney-General (Qld) v Fardon  QCA 111, cited
Attorney-General (Qld) v Francis  1 Qd R 396;  QCA 324, cited
Attorney-General (Qld) v Kanaveilomani  QCA 404, cited
Attorney-General (Qld) v Lawrence  1 Qd R 505;  QCA 136, cited
Attorney-General (Qld) v Phineasa  1 Qd R 305;  QCA 184, cited
Attorney-General (Qld) v Sutherland  QSC 268, followed
Fardon v Attorney-General (Qld) (2004) 223 CLR 575;  HCA 46, cited
Kynuna v Attorney-General for the State of Queensland  QCA 172, cited
Turnbull v Attorney-General (Qld)  QCA 54, cited
J Rolls for the applicant
T Ryan for the respondent
Crown Law for the applicant
Howden Saggers for the respondent
- By an Originating Application filed on 16 December 2016, the Honourable Attorney-General for the State of Queensland seeks relief pursuant to the provisions of Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In particular, an order is sought that the respondent, Paul Thompson, be detained indefinitely for control, care or treatment pursuant to s 13(5)(a) or, in the alternative, that the respondent be released subject to a supervision order pursuant to s 13(5)(b).
- On the hearing of the application, the respondent’s counsel was instructed to dispute that the evidence was such as to justify a finding that the respondent represents a serious danger to the community in the absence of a Division 3 order. In accordance with those instructions, the respondent’s counsel therefore submitted that the respondent was not a person to whom the Act applies. Furthermore, the following instructions were recorded in the written submissions prepared by his counsel:
“In the event the Court were to be satisfied that he is a serious danger to the community in the absence of a Division 3 Order and in the event the Court decides against making no Order, the respondent’s instructions are to not contest the making of a Continuing Detention Order.
In the event the Court makes a Continuing Detention Order, the respondent is desirous of participating in individual psychiatric and/or psychological treatment in order to better prepare him for release under a Supervision Order in the future.”
- The respondent is 68 years of age. He has previous convictions for criminal offences in Queensland, New South Wales, Western Australia and the Northern Territory. He is currently serving concurrent periods of imprisonment that were imposed in the District Court at Southport after he pleaded guilty on 27 March 2015 to four counts of indecent dealing with a child under the age of 12 years. His full-time release date is 19 May 2017.
- The respondent does not suffer from any major psychiatric illness but he has been diagnosed as suffering from a severe personality disorder with a mixture of histrionic, narcissistic, antisocial and possibly dependent traits. He has a mixed sexual paraphilia which manifests in exhibitionism and paedophilia with an attraction to underage males. This condition is largely untreated. He has a long and prolific history of exhibitionism, indecent exposure and contact sexual offences in the nature of touching and fondling young males with a particular focus on young adolescents. Each of the psychiatrists who examined the respondent for the purposes of this application – Dr Grant, Dr Phillips and Dr Harden – expressed the opinion that the respondent’s unmodified risk of reoffending if released from custody is high. Each also expressed serious reservations as to whether the adequate protection of the community could be ensured if the respondent is released on a supervision order pursuant to s 13(5)(b). Indeed, the evidence taken as a whole does not support the conclusion that the respondent can be “reasonably and practicably managed” by a supervision order or the conclusion that the requirements for such orders specified in s 16 can be “reasonably and practicably managed” by Corrective Services officers.
- For the reasons that follow, I am satisfied by acceptable, cogent evidence and to the high degree of probability required by s 13(2) of the Act that the respondent represents a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Act. However, I am not satisfied that the adequate protection of the community can be reasonably and practicably managed by a supervision order. To the contrary, I consider that the adequate protection of the community can only be ensured by a continuing detention order. As such, it will be ordered that the respondent be detained indefinitely for control, care and treatment. Directions will be made to assist the treatment objective.
- The respondent was born in Sydney. He is the older of two children and did not report any difficulty in his upbringing. In fact, he described his early life as “glorious” and he was very close to both of his parents. After leaving home, he maintained a relationship with his parents and younger brother for a number of years. His parents are deceased. He has not had any contact with his brother for many years.
- The respondent did well at school. He was a good student and was actively involved in a range of sports. He excelled at cricket. After completing High School, he went to Teachers’ College and, after graduating, taught in the state system for a number of years before working in various private schools in Sydney teaching English and Mathematics and occasionally Music. He was able to keep his regular offending secret from the private schools over this time and, to cover up his absences when he was in custody, the respondent would make excuses about needing a break. He was last employed as a teacher in about 2003. Subsequently he earned money by trading on the stock exchange and through buying and selling cars.
- After completing Teachers’ College, the respondent entered into a de facto relationship which lasted 10 years. It resulted in the birth of two daughters but he has had no contact with either of them for over 20 years. He knows nothing of their current circumstances. His relationship with his de facto partner ended because of his repeated offending against the criminal law. Not long after their relationship broke down, the respondent escaped from lawful custody in Western Australia and fled to Indonesia. He remained there for several years. To support himself, he taught English and, drawing on his experience as a first grade cricketer in Sydney, coached the National team. His extradition back to Australia to face an outstanding prosecution was accompanied by considerable media attention.
- In more recent years, the respondent has struggled to live independently in the community. This is no doubt principally due to the effects of his mental disorders, but he has a strange sense of entitlement. For example, he told Dr Grant that he is reluctant to be released from prison unless he has a “decent lodge” to go to. He said that he would “need to be provided with meals” and that if he was in independent accommodation where he had to shop and cook for himself, he “couldn’t survive”. As Dr Grant remarked:
“All his life his basic skills have been taken care of by other people such as his mother, his defacto and people in Indonesia. He found life much easier in Asia where he could rent a small bungalow for $70 a month and buy cheap food at take-away eating houses”.
Medical and psychiatric history
- Apart from one voluntary admission to the Princess Alexandra Hospital for approximately two weeks in 2009, the respondent has never received any treatment for his disorders. He told Dr Phillips that he believed he was diagnosed about a year earlier as suffering from depression and was prescribed anti-depressants. He also received some counselling. He said that he had contact from time to time with the Prison Mental Health Service, but claimed that he did not receive much in the way of any treatment. He told Dr Phillips that he had never, for instance, consulted a psychologist or psychiatrist, other than for forensic purposes, that is to say, for the provision of a report to assist in mitigation of penalty at one or other of his sentences.
- When aged nine, the respondent was the victim of sexual abuse. He said that he was lured into a sewer pipe by an adult male aged approximately 20 years. He said that he was “searched” – that is to say, indecently touched and fondled – before being allowed to go on his way. He told Dr Phillips that he found this “very confusing … but didn’t do me any harm … didn’t hurt me”.
- The respondent enjoyed good physical health throughout his life until he turned about 60 years of age. At that time, he was diagnosed with vertigo. He was prescribed Stemetil. At around the same time, he was also diagnosed with peripheral oedema (fluid in the legs) and he also suffers from polyuria (frequent urination). Both conditions are considered to be related to his excessive intake of water during the course of the day. In general, he is prone to exaggerate the seriousness of his physical health conditions.
- He smoked cannabis regularly when at university and “on and off” over the years. He certainly continued to smoke cannabis when he lived in Asia. The respondent last smoked cannabis on the day of the index offences and, it seems, immediately prior to their commission. He denied any previous use of any other illicit substances.
Criminal history and index offending
- As already mentioned, the respondent has an extensive criminal history in Queensland as well as elsewhere in Australia. He has numerous previous convictions for acts of public exhibitionism such as “streaking” at sporting venues and in other public places, and an array of other convictions including for offences of dishonesty and relatively minor acts of violence. Of primary concern though on the hearing of this application are his previous convictions for sexual assaults on adolescent males. These offences followed a pattern – the respondent would contrive a scenario to justify searching the person of his victims and, whilst doing so, would indecently assault them. Each of these assaults involved sexual touching or fondling; none escalated to oral, vaginal or anal intercourse. The respondent was interfered with in the same way, and after the same pretence, when he was nine years of age. The respondent persists in euphemistically referring to his past offending in this regard as “searches” and has very little (if any) insight into the serious potential for psychological harm that can be caused by such assaults. For example, Dr Philips recorded this in her report of 23 April 2017:
“Mr Thompson stated that he had committed 32 ‘searches’ of males, but minimised the significance of this, saying that occurred over 50 years and so was ‘only 1 a year’ and the offending was ‘short lived’. He described his motivation as ‘I just wanted a few cheap thrills to alleviate the boredom’. He minimised the seriousness of his offending stating the ‘worst I did was search’. He admitted that he had been sexually attracted to underage and pre-pubertal boys, but stated that he was sexually attracted to males from the age of 10 to 25. He stated that typically the victim had been a ‘teenage lad’, some pre- and some post- pubertal. He stated that when he was younger that he would become sexually aroused during the ‘searches’, but not recently.
He was questioned about his use of the term ‘searches’ and Mr Thompson stated that he would search the victims for money he had lost. Mr Thompson admitted that this was merely an excuse to allow him to touch the victims. He admitted that sometimes he would touch the victim's genitals and buttocks. He minimised the seriousness of his conduct emphasising that the victim's clothes had remained on and that the ‘searches’ had been very brief. Mr Thompson repeatedly emphasised that he had never committed a sexual offence involving oral, anal or vaginal intercourse with a person under the age of 18. He repeatedly emphasised that he ‘didn't do any physical damage’. He emphasised repeatedly ‘I never forced anyone into it.’”
- That explained, the respondent’s Queensland criminal history is comprised of the following offences:
- A breach of the Child Protection (Offender Reporting) Act 2004 (Qld) (on 31 March 2009);
- Breaches of the Bail Act 1980 (Qld) (on 8 May 2009, 7 September 2009, 26 May 2010, 29 October 2010);
- Shoplifting offences (on 12 May 2009, 28 May 2009, 31 March 2010);
- Various street offences under the Summary Offences Act 2005 (Qld) (on 16 July 2009, 4 March 2010, 31 March 2010, 17 August 2010, 4 March 2011, 25 March 2011, 30 March 2011, 1 June 2011, 4 December 2013);
- Common assault (on 4 February 2010);
- Offences against the Transport Operations (Passenger Transport) Act 1994 (Qld) (on 26 May 2010);
- Offences against the Police Powers and Responsibilities Act 2000 (Qld) (on 29 October 2010);
- Assault occasioning bodily harm (on 29 October 2010, 10 May 2012);
- Serious assault (of a police officer in the lawful execution of his or her duty) on 10 May 2012;
- Indecent act in public (on 14 January 2013);
- Serious assault (on a corrective services officer) on 14 January 2013;
- Wilful exposure ; and
- Indecent dealing with children under 12 (on 27 March 2015).
- His criminal history in New South Wales is even more ubiquitous:
- Wilful and obscene exposure (on 26 February 1971, 28 November 1975, 24 March 1976, 29 April 1977, 15 April 1977, 11 November 1977, 13 September 1978, 16 May 1980, 1 March 1984, 21 September 1984, 9 July 1985, 12 March 1986, 22 August 1986, 17 March 1989, 8 October 1992, 24 May 1993, 27 April 1994);
- Commit indecent act on a male person (on 5 July 1971, 7 November 1975, 21 May 1976, 11 August 1978);
- Indecent exposure (on 8 December 1971, 20 May 1983);
- Indecent assault (on 1 December 1972, 11 August 1978);
- Stealing, goods in custody, possess driver’s licence calculated to deceive (on 7 June 1973);
- Common assault (on 13 December 1977, 24 September 1985);
- Cause serious alarm (undressing in a motor vehicle) on 16 May 1980;
- Cause serious alarm (exposing his penis) on 25 May 1981;
- Possess and smoke Indian hemp on 27 May 1986;
- Offensive behaviour (exposing his genitals) on 12 June 1986;
- Commit act of indecency on a person aged under 16 on 3 June 1992;
- Indecent act on 31 March 1994; and
- Assault a correctional officer on 17 June 1996.
- In Western Australia, the respondent has convictions for the following offences:
- Failure to comply with Child Offender reporting obligations on 21 September 2006;
- Escape legal custody on 22 March 2004;
- State false name on 6 February 1991;
- Seven counts of aggravated indecent assault on 6 February 1991;
- Breach of bail on 30 August 1990;
- Wilful exposure on 4 August 1989.
- In the Northern Territory, the respondent has convictions for indecent exposure, offensive behaviour in a public place, and indecently dealing with a child under 15 years of age, all offences being dealt with on 17 December 1996.
- The index offences were committed on 25 January 2013. It is necessary however to recount what preceded them.
- On 10 May 2012, the respondent was sentenced in the Brisbane Magistrates Court for one offence of serious assault on 5 January 2012 (assaulting a security officer at the RBWH) and one offence of assault occasioning bodily harm on 22 November 2011 (assaulting a nurse in the mental health ward at the RBWH). He was sentenced to 125 days imprisonment, with immediate release on parole. A total of 125 days of pre-sentence custody, between 6 January 2012 and 9 May 2012, was declared as time already served under those sentences. When the sentencing Magistrate informed the respondent that he would be released from custody that day, he removed all of his clothes and turned to a group of schoolgirls who were present in the gallery before saying, “Get a load of this, girls”. The respondent told Dr Grant that he acted in this way in protest at not being sent back to prison because he had nowhere to live if he was released. He then assaulted a Corrective Services officer to make doubly sure he achieved his objective. In consequence of these acts, the respondent was charged with one offence of committing an indecent act in a place to which the public have access and one offence of serious assault on a Corrective Services officer. He was remanded in custody. On 14 January 2013, he was sentenced for those offences in the Brisbane Magistrates Court. He was imprisoned for 12 months, suspended after serving 250 days, with an operational period of 18 months. A total of 250 days of pre-sentence custody (between 10 May 2012 and 14 January 2013) was declared as time already served under that sentence. He was therefore released from custody on the same day (14 January 2013).
- Eleven days later, the respondent was charged with three offences of wilful exposure so as to offend or embarrass. The circumstances of those offences were that, on 25 January 2013, the respondent exposed his genitals to three boys aged 10, 11 and 12 at a public swimming pool in Southport. On 4 December 2013, the respondent was sentenced in the Southport Magistrates Court for those offences. The suspended sentence imposed on 14 January 2013 was activated in full. He was sentenced to 12 months imprisonment with parole release on 4 December 2013. A total of 314 days of pre-sentence custody (between 25 January 2013 and 4 December 2013) was declared as time already served under the sentences. He was therefore released again from custody on the same day (4 December 2013).
- Within two weeks of his release, the respondent reoffended, and in a serious way. That occurred over two days (13 and 14 December 2013) when the respondent committed four offences of indecently dealing with two 11-year-old boys. The circumstances were these:
- On 13 December 2013, the complainant was with friends at the Broadwater Parklands. He was getting changed in a public toilet when the respondent asked to come in. The complainant opened the door for the respondent, who asked the complainant whether he had seen $5.00. The complainant replied that he had not. The respondent said “you look like a very honest boy” and asked whether he could search the complainant, who agreed. The respondent first searched the complainant’s pockets, then placed his hand inside the complainant’s shorts and squeezed the complainant’s bottom, tickling the complainant near his anus (Count 1). He then “went around the other side” and felt the complainant’s penis for about 10 seconds (Count 2). The complainant subsequently complained to a friend, as well as to his mother when he arrived home;
- On 14 December 2013, the second complainant was with friends at the Broadwater Parklands. He was in a public toilet when the respondent asked if there was any loose change. The complainant said there was none and, when he opened the door, the respondent blocked the complainant from leaving. The respondent told the complainant that he looked like an “honest person” and searched the complainant’s pocket. The respondent put his hand up the complainant’s left groin and squeezed the complainant’s bottom, feeling around his buttocks (Count 3). The respondent then squeezed the complainant’s penis (Count 4).
- The respondent was apprehended later on 14 December 2013 and placed under arrest. He declined to be interviewed. He was sentenced in the District Court at Southport on 27 March 2015 by her Honour Judge Dick SC. On each count he was sentenced to three years’ imprisonment, to be served concurrently, with a parole eligibility date of 20 June 2015. A total of 312 days, between 20 May 2014 and 26 March 2015, was declared to have been time already served under the sentence.
Progress in custody
- The respondent is currently incarcerated at the Maryborough Correctional Centre. He had previously been held at the Woodford Correctional Centre but had what he described as a “terrible time” because he was targeted by other prisoners. He is now more settled and claims to be getting on with the officers as well as his fellow prisoners.
- When at Woodford, he participated in, and completed, the Getting Started: Preparatory Program. Ever since, he has described this as his “first treatment program” when, at best, it was a program to assess his treatment needs. Nevertheless, he has proclaimed a number of times in the written material that he has generated in response to this application that, in consequence of undertaking the program, he can now appreciate that his “searches” were “disgraceful” and possibly “re-enacting” his own experience as a victim of sexual abuse when he was aged nine years. He claims to now know, again in consequence of undertaking the program, that his offending could have been the cause of psychological harm to his victims.
- The three psychiatrists who examined the respondent for the purposes of this application – Dr Grant, Dr Phillips and Dr Harden – produced written reports that were received in evidence. Each attended the hearing, gave oral evidence and was cross-examined.
- Dr Grant interviewed the respondent at Maryborough Correctional Centre on 21 March 2017. In his report of 28 March 2017, Dr Grant recorded this history:
“Mr Thompson said that his sexual offending began at aged about 20. He said that he believed this came about because he had a depressing realization that he wouldn't be able to achieve the aims that he had as a teenager and young adult. He had nursed ambitions to become a famous singer or a top cricketer. When he was nine he had accepted God and become a Christian at a Billy Graham crusade and he had hoped that God would help him achieve his aims to be famous and successful. However, for some reason at about 20 he realized that the things he wanted probably weren't going to be achieved and he found it a depressing realization that all of his hopes would die with him.
Mr Thompson said he then started offending by indecent exposure and exhibitionism. He said that he started "streaking" to the largest crowds he could find. He would go to all kinds of sporting venues such as the tennis, football and cricket and would strip off and run across the grounds. He would also similarly strip off and run along crowded beaches. He told me that he had 103 convictions for "streaking" over 50 years. He said some of these were multiple convictions relating to one event but he admitted that he had probably behaved in that way at least 100 times.
Mr Thompson said that he also used to expose himself to young people. He would be on a beach or at a swimming pool wearing just a towel and he would expose his genitals to young ladies or young boys. He described this as "playing visual games".
Mr Thompson said that the offending was to attract attention and he saw himself as an entertainer and a clown. He became very well known for his streaking behaviour and after such an event sometimes the police would phone him and say ‘Paul, you've been up to it again’ and ask him to come into the station. As part of his joking, he sometimes used to carry a packet of Weet-Bix when exposing himself to crowds and would subsequently call himself a ‘cereal offender’. He said he offended in this way all over Australia. After a streak he would usually escape and have an old car to escape in.
Mr Thompson said that his exhibitionistic behaviour under a towel would occur to adult males, young females and underage boys or girls. He saw it as something to seek attention and a power trip and an entertainment.
The other form of offending is referred to by Mr Thompson as "searches". He said that this would involve him approaching young boys or sometimes young men in a situation such as a change room or toilet and he would make up an excuse saying that he had lost some money and was looking for it. He would ask the male if he could search them and they would usually agree. He would then run his hands up and down, placing them inside the young males' clothing and touching their body including their buttocks and genitalia. He said most of these episodes were very brief and he wouldn't use any force. He claimed if the potential victim said no then he wouldn't proceed with his "search".
Mr Thompson claimed that these ‘searches’ didn't involve great sexual drive although it's clear that it gave him a pleasurable sensation. He thought the actions were driven more by despondency and boredom. He very much enjoyed touching the skin of the victim under the clothing. He denies that he had an erection during these episodes although he admitted that when he was younger he might have masturbated to fantasies of what he had done. However, he says this has not happened in recent years.
Mr Thompson claims that all of these ‘searching’ episodes were like a replay or modelling of an event that occurred to him when he was aged nine. A 19 year old man searched him and touched him in this way.”
- Based on his own clinical assessment as well as a range of risk assessment instruments that he administered, Dr Grant expressed the following opinions in his written report:
“In my opinion, Mr Thompson represents a high risk of future recurrence of offending behaviour similar to that which he has exhibited for over 50 years. He is likely to become involved in exhibitionistic behaviour or the touching of young males on the pretext of ‘searching’ them. His behaviour has become quite entrenched over many years and his insight into that behaviour and its origins remains limited. In my opinion, a Supervision Order would assist in reducing the risk to low-to-moderate. As part of that Order he should be engaged in some individual therapy with an experienced psychologist or psychiatrist to address his paraphilia and the current offending behaviour and try to help him understand the origins of that behaviour and strategies to control it. It remains to be seen whether he will engage appropriately in individual therapy.
The Supervision Order would need to try to address issues associated with social isolation, assist him in obtaining suitable, stable accommodation and try to assist him in finding some kind of rewarding activities to occupy his time. Monitoring would need to include observations as to his movements and he should not be permitted to attend activities or places where large crowds of people gather such as sporting events or beaches.
Mr Thompson should be prevented from having any unsupervised contact with underage males as far as possible. In particular, he should not be allowed to frequent parks or beaches where there are change rooms or toilets in which he could access possible victims.
As I have indicated above, I would recommend that it be determined whether Mr Thompson has had an appropriate organic screen to ensure that there are no treatable organic factors that underlie some of his more disinhibited behaviour and inability to cope in the community.
Mr Thompson has quite specific demands about what he needs in the community and this includes ‘half decent’ accommodation which provides him with meals. It is unclear to me whether he would be able to cope in a housing precinct where he was expected to do his own shopping and cooking. He would be likely to cope better in a supported hostel type situation where there is room and board provided for him.
From the psychiatric point of view there seems little facility in suggesting that Mr Thompson should remain in custody for further treatment, as he is unlikely to be suitable for any group programs. Individual treatment could be provided in the community as part of a Supervision Order.
Whilst the evidence would appear to indicate that the severity of Mr Thompson's offending is at the milder end of the range of sexual offending, the frequency of his offending and the fact that underage males are likely to be victimized, albeit not violently, means that Mr Thompson does represent a significant risk to the community, which in my opinion indicates the need for a comprehensive Supervision Order if he is released into the community.”
- Subsequent to the provision of his written report, Dr Grant was provided with access to the clinical files relating to the respondent’s past admissions to various hospitals as well as various records relating to his time in custody. The material obtained from the hospitals confirmed that the respondent had been the subject of a “whole range of investigations and assessments … over a number of years”. He was thoroughly assessed for any organic component to his illness but that was excluded. Similarly, several investigations for dementia were negative.
- Following a review of all of this material, Dr Grant gave evidence at the hearing. He maintained his opinion that the respondent presents as a high risk of committing a serious sexual offence in the future and revised the opinion he had expressed in his written report regarding the effect a supervision order would be likely to have on that level of risk. Dr Grant said in evidence that the opinion he expressed in his written report was “less firmly held”. Although, in theory, a supervision order could reduce the risk to “low to moderate”, Dr Grant believed that the “practicalities of a supervision order achieving that are enormous”. He said that “just simply trying to limit [the respondent’s] access to places where he might offend would be very difficult”. A “lead up or trigger” to any future offending would be unlikely and that presented particular problems for those assigned the task of monitoring his behaviour. A supervisor “would find it very hard to know what was going on in [the respondent’s] mind, and when he is likely to offend”. He otherwise lacks insight and craves attention. The respondent requires treatment – ideally, individual therapy – to make him “a better proposition for supervision”. In the end, and despite what he had previously said in writing, Dr Grant could not support the respondent’s release on supervision.
- Dr Phillips assessed the respondent at the Maryborough Correctional Centre on 28 February 2017.
- In her report of 23 April 2017, Dr Phillips recorded the following concerning the index offences:
“Mr Thompson reported that he had been recently released from custody prior to re- offending. He reported following release from custody he had been living at Cotlew Manner [sic] boarding house in Ashmore. However, he considered that he was ‘without status’ there, and also had trouble returning to that accommodation after spending his days busking playing guitar due to his vertigo (a medical condition characterised by feeling dizzy, as if the world is spinning around you). Instead Mr Thompson chose to live on the streets.
He initially stated ‘I just became extremely depressed that I couldn't teach in Australia after being so successful in Indonesia’. He stated that the index sexual offending occurred as ‘I have realised easier to survive in jail than out, in Australia’. Mr Thompson stated that he took his clothes off ‘because I was afraid to go free’ and he ‘wanted to go to jail’. He also stated that he had offended as he was ‘bored’ and he ‘needed something to do’. When specifically questioned, Mr Thompson denied that he was suffering from mood or psychotic symptoms at that time, and described his mood as ‘quite light hearted’ at that time. He admitted that he was intoxicated with marijuana and had ‘a few joints’ prior to the offences, but denied that he was intoxicated with alcohol or other illicit substances.
He described that the index sexual offences involved ‘2 searches’ of ‘lads’, each lasting approximately 30 seconds. He stated the offences involved ‘improper touch’. He denied that he had oral sex with the victim on the 14/12/2013, and emphasised that the charge relating to oral sex had been withdrawn. When questioned as to why that allegation was made, Mr Thompson suggested that the victim ‘might have wild imagination’ and maintained that oral sex had not occurred. He stated that the thought of oral sex made him feel ‘sick’. He minimised his offending stating that ‘I asked permission’ and he reported there were many people in the immediate vicinity so he considered the victims could have sought help if they wanted to.”
- After considering the results obtained after administration of a number of risk assessment tools, Dr Phillips offered the following opinion in her report:
“Taking into account the results of the above risk assessment tools, it is my opinion that Mr Thompson’s risk of future sexual re-offending falls in high range, if released from custody without a supervision order. His risk of future physical violence is in the moderate to high range.
It is my opinion that a supervision order would assist in reducing the risk of sexual re-offending by offering assertive monitoring and interventions to target dynamic risk factors for sexual offending. It is my opinion that if Mr Thompson were to be released from custody with a supervision order, in the context of individual sexual offending psychological therapy, abstinence from substances and robust supervision in the community, that his risk of sexually re-offending would be in the moderate range.
The risk of sexual re-offending would increase in the setting of victim access; rejection of supervision; increased sexual pre-occupation; or substance intoxication. In addition, the risk would increase with psychosocial stressors such as lack of stable accommodation or financial difficulties, particularly if Mr Thompson was again to perceive that his quality of life would be better in custody than in the community. The most likely future victims of sexual offending would be pre- or post-pubescent boys. Future offending would likely mirror past offending and include indecent exposure in public or contact sexual offending involving boys who were strangers to him, with inappropriate sexual touching of their genitals under the guise of performing a ‘search’ for money he claimed to lose. He would also be at risk of sexually offending against minors should he ever be allowed in a position of trust or authority with children, for example, if he were allowed to return to teaching or sports coaching, as he has requested. There is a risk of Mr Thompson also performing oral sex on the victims. More serious contact sexual offending is less likely.”
- However, like Dr Grant, since completing her report, Dr Phillips examined the medical and prison records reviewed by Dr Grant and, in consequence, revised her opinion. When giving evidence, she said:
“When I wrote the report I believed that the supervision order would reduce [the risk of sexual offences against boys] to some extent and I do believe that that is the case that you would hope that a supervision order would act in some ways to reduce it. I thought, when I wrote my report, that it would reduce to a moderate level, that meaning that even with the maximal supervision that could be put in place under a supervision order I couldn’t conceive that his risk could drop to a low level, but at best it would be in the moderate range. Having seen the extra materials though I – I, similar to Dr Grant, am much less optimistic that a supervision order can actually be effective at this stage and, rather, I think that it would be preferable to have a period of individual psychological interventions in custody and better exploration of his care needs, in terms of accommodation etcetera, to be able to be confident that his level … had reduced on a supervision order.
At this point I don’t think that he can be managed on a supervision order.
I think because of the unique nature of the challenges that he would pose to supervision and that, really, arises out of a combination of his really marked personality dysfunction, the sexual deviance that he has and his – the – the likelihood that he won’t comply with directions from those who are supervising him. He clearly has got difficulty in taking directions from authority figures and I think that’s been shown over a long period of time, both in custody and also out of custody. And I don’t think that that has been modified during this particular period of incarceration.”
- Dr Harden interviewed the respondent on 20 May 2016. In addition to his own clinical assessment, Dr Harden also administered a number of risk assessment instruments.
- In his report dated 24 August 2016, he expressed these opinions:
“At the time of assessment Paul THOMPSON was a 67-year-old man with a very prolonged history of numerous counts of indecent exposure and indecent touching of boys usually in the late primary school, early high school age range as well as general indecent exposure in public. His behaviour has not ameliorated with multiple charges, custodial sentences and similar sanctions over decades.
While he accepts that the behaviour is inappropriate and unlawful he minimizes the significance of it. He characterizes it as effectively minor lapses on his part. He does have some superficial ability to reflect on the effect on the victims. He has a number of cognitive distortions to justify this offending associated with beliefs about paedophilia being only a product of Western society and the proposition that nakedness and even minor sexual touching between adults and younger boys in non-Western societies is more generally accepted as I understand his argument.
He has undertaken sexual offending intervention in the form of a preparatory program. His participation in the group program was such that after further case conference it was decided he was not suitable for group programs because of his interaction with other group members. Further intervention on an individual basis has been recommended.
He has an additional extensive and prolific criminal history across at least four States of Australia characterised by a property offences, driving offences, some limited drug offences, offences fraudulent in nature and many breaches or fails to appear. He has apparently used a wide range of aliases. The only gaps in his criminal history seem likely to result from incarceration or periods he spent overseas in Indonesia or Thailand.
He has an unusual pattern of interaction with others including the prolific writing of letters and fixation with regard to various topics. Diagnostically this could represent a number of phenomena but on careful examination there is no evidence of a psychotic or delusional disorder. The beliefs are in my opinion not held with delusional intensity and are strongly held cognitive distortions that are largely self-justifying in nature regarding his offending behaviour.
He has a severe personality disorder and this results in a fixed, inflexible and highly maladaptive pattern of interaction with other human beings. This has been present for many decades and does not appear to have diminished in severity with time. This has led to the gradual loss of all of his community social supports all connections and a steady decline in his level of function over the last 2 to 3 decades.
He has a deeply unusual communication style characterised by a mixture of histrionic and narcissistic features and associated with frequent appeals against his convictions, prolific writing of multi-coloured letters to various authority figures and similar intellectually combative behaviour at interviews and in group programs.
His only strengths are his relatively good intellectual function and preserved physical health.
His short, medium and long-term prognosis from the point of view of interpersonal function and risk of reoffending is poor.
His ongoing unmodified risk of sexual re-offence in the community after considering all the available data is in my opinion in the HIGH range compared to the recidivism rate of sexual offenders generally.
His greatest risk factors are his paedophilic interest in boys, his impulsivity, and his fixed personality issues.
If he were to be placed on a supervision order in the community, in my opinion the risk of sexual recidivism would be reduced to low to moderate.
In my opinion he is like to be compliant with the strictures of a supervision order although a degree of preoccupation with detail is likely”
- Dr Harden also considered the additional medical and correctional material considered by Drs Grant and Phillips.
- When giving evidence at the hearing, Dr Harden was still of the view that the “unmodified risk of sexual re-offence in the community by contact offending against boys” is “high”. He was also of the opinion that a supervision order in the community would reduce that risk, but said:
“However, I do accept, particularly with the pattern of accommodation difficulties reflected in the medical records, that the supervision – successful supervision of Mr Thompson in the community might be very difficult, and that might make the supervision order less effective at reducing risk.
[My review of the records has] changed my view with regard to Mr Thompson’s compliance because my previous view was more that … he is organised in his own way, and I thought that quite possibly, given the organisational structure of a supervision order, that would assist him in structuring his life. However, the accommodation difficulties in these other places have been persistent and significant and do call into question how well he would cope on a supervision order in terms of living with other people, particularly in the precinct accommodation. I don’t know the answer to those questions, but I think it makes my view that the risk reduction is necessarily down to moderate less sure.
I think I’m probably slightly less pessimistic than both Dr Grant and Dr Phillips about the possibility of success on the supervision order.
I think the supervision order does still reduce the risk, I think, significantly. The structure makes it much more difficult for Mr Thompson to carry out offending. If Mr Thompson was to offend in order to go back to custody, I think it’s most likely he will commit some kind of easily committed violent or other offence and that it’s less likely that he would use a contact sexual offence as a way of going back to custody.”
- Lastly, although the respondent did not give evidence (and no evidence was called on his behalf), he made the following statement from the dock:
“I’d like to thank Queensland, sir, for that first ever treatment program which made me realise … how disgraceful my two indecent assaults were, and they’ll certainly never be repeated by me. But I know I need more time in custody and more treatment, which I hope you’ll grant me. And I’ll work as hard as I can to make sure I completely obviate this despicable type of behaviour from me.”
- The objects of the Act are to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community and to provide for the continuing control, care or treatment of such prisoners to facilitate their rehabilitation.
- To those ends, the Act provides for the continued detention in custody or supervised release of prisoners but only if the court is satisfied that they represent a “serious danger to the community” in the absence of an order providing for their continuing detention or supervision under Division 3 of Part 2 of the Act. The Attorney-General may apply for such an order, and bears the onus of proving that the subject of any such application is indeed a “serious danger to the community”.
- A prisoner is a “serious danger to the community” if there is “an unacceptable risk” that the prisoner will commit a “serious sexual offence” if released from custody or if released without a supervision order being made. A “serious sexual offence” means an offence of a sexual nature involving violence or against a child.
- On the hearing of the application, the court may decide that a prisoner poses a serious danger to the community only if it is satisfied by acceptable, cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight to justify the decision.
- The paramount consideration in deciding whether to make a continuing detention order or a supervision order is the need to ensure adequate protection of the community. In addition, the court must consider whether adequate protection of the community can be “reasonably and practicably managed by a supervision order” and whether the requirements for such orders specified in s 16 can be “reasonably and practicably managed by corrective services officers”.
- Section 13(4) provides that, in deciding whether a prisoner is a serious danger to the community, the court must have regard to the following:
“(aa) any report produced under section 8A;
(a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
(b) any other medical, psychiatric, psychological or other assessment relating to the prisoner;
(c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
(d) whether or not there is any pattern of offending behaviour on the part of the prisoner;
(e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
(f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
(g) the prisoner’s antecedents and criminal history;
(h) the risk that the prisoner will commit another serious sexual offence if released into the community;
(i) the need to protect members of the community from that risk;
(j) any other relevant matter.”
- Section 13(5)(a) then goes on to provide that, if the court is satisfied that a prisoner is a serious danger to the community in the absence of a Division 3 order, the court may order that the prisoner be detained indefinitely for control, care or treatment pursuant to a continuing detention order or released pursuant to a supervision order subject to such requirements as the court considers appropriate.
- In my view, the correct approach to a consideration of the issues arising under these provisions was explained by McMurdo J (as his Honour then was) in Attorney-General (Qld) v Sutherland as follows:
“No order can be made unless the court is satisfied that the prisoner is a serious danger to the community. But if the court is satisfied of that matter, the court may make a continuing detention order, a supervision order or no order. There is no submission here that if the prisoner is a serious danger to the community, nevertheless no order should be made. As already mentioned, it is conceded on behalf of the prisoner that I could be satisfied in terms of s 13(1) and that a supervision order would be appropriate.
The court can be satisfied as required under s 13(1) only upon the basis of acceptable, cogent evidence and if satisfied ‘to a high degree of probability that the evidence is of sufficient weight to justify the decision.’ Those requirements are expressed within s 13(3) by reference to the decision which must be made under s 13(1). They are not made expressly referable to the discretionary decision under s 13(5). The paramount consideration under [s 13(6)] is the need to ensure adequate protection of the community. Subsection 13(7) provides that the Attorney‑General has the onus of proving the matter mentioned in s 13(1). There is no express requirement that the Attorney-General prove any matter for the making of a continuing detention order, beyond the proof required by s 13(1). So s 13 does not expressly require, precedent to a continuing detention order, that the Attorney-General prove that a supervision order would still result in the prisoner being a serious danger to the community, in the sense of an unacceptable risk that he would commit a serious sexual offence. However in my view, such a requirement is implicit within s 13.
The paramount consideration is the need to ensure adequate protection of the community. But where the Attorney-General seeks a continuing detention order, the Attorney-General must prove that adequate protection of the community can be ensured only by such an order, or in other words, that a supervision order would not suffice. The existence of such an onus in relation to s 13(5) appears from Attorney-General v Francis where the Court allowed an appeal from a judgment which had made a continuing detention order upon the primary judge’s view that the Department of Corrective Services would not provide sufficient resources to provide effective supervision of the prisoner upon his release. The Court found an error in that reasoning because of the absence of evidence that the resources would not be provided. The Court observed:
‘The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principal, be preferred to a continuing detention order on the basis that the intrusions of the act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.’
Thus the absence of evidence of the inadequacy of resources was important because that matter had to be proved, as a step in persuading the court that only continuing detention would suffice.
The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made. What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression ‘unacceptable risk’ within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.
The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”
- Lastly, it does well to recall in a case such as this the following observations made by Keane JA in Attorney-General (Qld) v Beattie:
“For the appellant, it was argued that the expert description of the risk of the appellant’s re-offending as ‘moderate’ meant that the risk fell short of ‘unacceptable’. But this argument overlooks the point that whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising. In this regard, the appellant's likely targets are children, and especially street children: vulnerable members of the community who are likely to be peculiarly susceptible to his seduction techniques. The focus of consideration must, therefore, be upon the likely effect of a supervision order in terms of reducing the opportunities for the appellant to engage in acts of seduction of children to an acceptably low level.” [Emphasis added]
- As stated at the outset, the respondent’s counsel was instructed to dispute that the evidence was such as to justify a finding that the respondent represents a serious danger to the community in the absence of a Division 3 order but that, if the court was so satisfied, the respondent did not wish to contest the making of a continuing detention order. In that regard, he expressed a willingness to engage in “individual psychiatric and/or psychological treatment in order to better prepare him for release under a supervision order in the future”.
Is the respondent a serious danger to the community in the absence of an order?
- On the evidence before the court, it cannot be seriously doubted that the respondent is a person to whom the Act applies. He suffers from a severe personality disorder with a mixture of histrionic, narcissistic, antisocial and possibly dependent traits. He has a mixed sexual paraphilia which manifests in exhibitionism and paedophilia with an attraction to underage males. He has a long history of sexual offending against, relevantly, adolescent males. When released from custody on 14 January 2013, the respondent reoffended only 11 days later by exposing his genitals to three boys at a public swimming pool. After he was dealt with for those offences and released from custody on 4 December 2013, within two weeks he committed the index offences against two 11-year-old boys in a public toilet. His overall condition is, for all intents and purposes, untreated.
- Each of the psychiatrists who examined the respondent for the purposes of this application expressed the opinion that the respondent’s unmodified risk of reoffending if released from custody is high. As Dr Harden said, the respondent’s “short, medium and long-term prognosis from the point of view of interpersonal function and risk of reoffending is poor.” He lacks insight into the seriousness of his past offending and its impact on his many victims. At least until relatively recently, he was inclined to minimise the seriousness of his offending. Although I am prepared to accept that none of his past offences escalated to oral, vaginal or anal intercourse, each such offence had the real potential to cause serious and lasting psychological harm. Furthermore, the respondent has struggled in recent years to live independently and it remains very much in prospect that, if he is released into the community, he may well decide to commit another serious sexual offence in order to be returned to custody. He is impulsive and, to a significant degree, unpredictable.
- I am therefore satisfied by acceptable, cogent evidence and to the high degree of probability required by s 13(2) of the Act that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Act.
- The next question is whether, under s 13(5) of the Act, there should be a continuing detention order or a supervision order. Section 13(6) provides:
“(6)In deciding whether to make an order under subsection (5)(a) or (b) –
(a)the paramount consideration is to be the need to ensure adequate protection of the community; and
(b)the court must consider whether –
(i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and
(ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.”
- The need to ensure adequate protection of the community as required by s 13(6)(a) was explained by the Court of Appeal in Attorney-General (Qld) v Francis:
“The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise, orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”
- Each of Drs Grant, Phillips and Harden expressed reservations about whether the adequate protection the community could be ensured if the respondent is released on a supervision order pursuant to s 13(5)(b). Of them, Dr Harden was the least pessimistic. He remained of the view that a supervision order would significantly reduce the risk of reoffending because the structure of such an order would make it much more difficult for the respondent to offend. He also thought that, if the respondent was to reoffend in order to go back to custody, it is less likely that he would use a contact sexual offence as a way of doing so. On the other hand, Drs Grant and Phillips did not support the respondent’s release on supervision and, amongst other things, pointed to the practical difficulties that would stand in the way of enforcing a supervision order in this man’s case. To the extent that Dr Harden expressed a contrary opinion, I prefer the opinions expressed by Drs Grant and Phillips. To the point, I do not think that the respondent can be “reasonably and practicably managed” by a supervision order or that the requirements for such orders specified in s 16 can be “reasonably and practicably managed” by Corrective Services officers.
- It is hoped that the respondent is now prepared to accept the treatment that will be offered to him in custody. There are some positive signs that he may do so, one of which was his acknowledgement in open court that he needs treatment. That can only be in his best interests because it will probably only be through treatment that he can become a better candidate for release on supervision. In that respect, individual therapy under the supervision of a treating psychiatrist is, on the evidence before me, by far the preferred treatment method.
- I am not satisfied that the adequate protection of the community can be reasonably and practicably managed by a supervision order. To the contrary, I consider that the adequate protection of the community can only be ensured by a continuing detention order.
- Having been satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3, it will be ordered that the respondent be detained in custody for an indefinite term for care, control and treatment.
- To assist with the respondent’s future treatment, I recommend that he receives individual (as opposed to group) therapy and that his treatment is supervised by a psychiatrist. I will also direct that a copy of the reports prepared by Drs Grant, Phillips and Harden, together with a copy of the transcript of their oral evidence at the hearing as well as these reasons be provided to the psychiatrists, psychologists or other medical treatment providers who are, from time to time, responsible for treating the respondent.
 Respondent’s Outline of Submissions; pars 2-3.
 By the commission of a serious sexual offence, specifically, a sexual offence against a child.
 Section 3.
 Section 13(1).
 Section 5(1).
 Section 13(7).
 Section 13(2).
 Section 2 and the Schedule to the Act, being the Dictionary. See also Attorney-General (Qld) v Phineasa  1 Qd R 305;  QCA 184 at - per Muir JA; Kynuna v Attorney-General for the State of Queensland  QCA 172 at  per McMurdo P.
 Section 13(3).
 Section 13(6)(a).
 Section 13(6)(b).
 As to which, see Attorney-General (Qld) v Francis  1 Qd R 396;  QCA 324 at .
  QSC 268.
Fardon v Attorney-General (Qld) (2004) 223 CLR 575;  HCA 46 at , ; cf in relation to s 30 Attorney‑General (Qld) v Francis  1 Qd R 396;  QCA 324 at .
  1 Qd R 396;  QCA 324.
 Attorney-General (Qld) v Francis  1 Qd R 396;  QCA 324 at .
 Ibid .
  QSC 268 at -. See also Attorney-General for the State of Queensland v Kanaveilomani  QCA 404 at - per Morrison JA; Turnbull v Attorney-General (Qld)  QCA 54 at - per Morrison JA.
  QCA 96.
 Ibid .
 Respondent’s Outline of Submissions; pars 2-3.
  1 Qd R 396.
 Attorney-General (Qld) v Francis  1 Qd R 396 at .
- Published Case Name:
Attorney-General (Qld) v Thompson
- Shortened Case Name:
Attorney-General v Thompson
 QSC 79
12 May 2017
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 79||12 May 2017||Respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); respondent detained in custody for an indefinite term for care, control and treatment: Burns J.|
|Notice of Appeal Filed||File Number: Appeal 10881/17||17 Oct 2017||-|
|Appeal Determined (QCA)|| QCA 172||31 Jul 2018||Application for extension of time to appeal granted; appeal dismissed: Fraser and McMurdo JJA and Mullins J.|