Attorney-General v Guy[2020] QSC 288

SUPREME COURT OF QUEENSLAND

1. [1]
   By an application filed on 28 May 2020 the applicant, the Attorney-General for the State of Queensland, has applied for a review of the continuing detention of the respondent pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act).
2. [2]
   The applicant submits that, on the evidence, the respondent is a serious danger to the community in the absence of an order under Division 3 of the DPSO Act and, accordingly, the finding made on 27 March 2017 ought to be affirmed.  Further, the applicant submits that it is appropriate to order that the respondent continue to be subject to the continuing detention order made on 27 March 2017.
3. [3]
   On 27 March 2017, the Chief Justice found that the respondent was a serious danger to the community in the absence of an order under Division 3 of the DPSO Act.  A continuing detention order pursuant to s 13(5)(a) of the DPSO Act was made.^[1]
4. [4]
   On 9 August 2018, Davis J affirmed the finding made on 27 March 2017 and ordered that the respondent continue to be subject to the continuing detention order.^[2] 
5. [5]
   On 22 July 2019, Lyons SJA affirmed the finding made on 27 March 2017 that the respondent was a serious danger to the community in the absence of an order made pursuant to Division 3 of the DPSO Act.  Further, her Honour ordered that the respondent continue to be subject to the continuing detention order made on 27 March 2017.^[3]
6. [6]
   The statutory scheme requires that the continuing detention order be reviewed and the current application is made pursuant to the review process in Part 3 of the DPSO Act. 

The respondent’s position

7. [7]
   The respondent’s position is set out in the written submissions filed on his behalf as follows:

“5. It is conceded that the evidence supports a finding that the respondent is a serious danger to the community in the absence of a division 3 order and that the decision of the Chief Justice made on 27 March 2017 ought to be affirmed.

6. The respondent does not contest the applicant’s submission that he continue to be subject to the continuing detention order.”

8. [8]
   In these circumstances, the respondent does not contest to the orders sought by the applicant.  However, the making of the orders sought in the application requires the exercise of the Court’s discretion and a consideration of the relevant evidence.

Background

9. [9]
   The respondent is currently 67 years of age and has an intellectual disability.  Further, he has previously been diagnosed with Parkinson’s disease and now requires the assistance of a carer.  
10. [10]
    In February 1998, the respondent was sentenced to 10 years’ imprisonment in relation to 34 sexual offences against children, namely:

    1. (a)
       Indecent dealing with a child under 16 years with circumstances of aggravation (five counts);
    2. (b)
       Indecent dealing with a child under 12 with circumstances of aggravation (two counts);
    3. (c)
       Procuring a child under 16 to commit an indecent act and with circumstances of aggravation (one count);
    4. (d)
       Procuring a person to commit an act of gross indecency with consent obtained by threats and with circumstances of aggravation (one count);
    5. (e)
       Procuring a person without their consent to commit an act of gross indecency and with circumstances of aggravation (one count);
    6. (f)
       Wilfully exposing a child under 12 to an indecent video tape and with circumstances of aggravation (two counts);
    7. (g)
       Wilfully exposing a child under 16 years to an indecent act with circumstances of aggravation (one count);
    8. (h)
       Rape (17 counts);
    9. (i)
       Indecent assault with circumstances of aggravation (three counts);
    10. (j)
        Common assault (one count); and
    11. (k)
        Maintaining an unlawful relationship of a sexual nature with a child under 16 (one count).
11. [11]
    Further, on 25 April 2009 the respondent was sentenced to nine years imprisonment with parole eligibility fixed at 9 April 2012 in relation to the following offences:

    1. (a)
       Incest (two counts); and
    2. (b)
       Failing to comply with reporting (two charges dealt with under s 651 of the Criminal Code (Qld)).

Original continuing detention order 27 March 2017

12. [12]
    The original continuing detention order was made by the Chief Justice on 27 March 2017.  In making the order, the Chief Justice summarised the factual background and expert evidence at that time as follows:

“[1] The respondent is a 64 year old man. The applicant seeks an order for his detention in custody pursuant to section 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003. In 1998, he was sentenced to 10 years’ imprisonment for 34 sexual offences against children. One complainant was a young female relative with whom he maintained an unlawful sexual relationship over a six year period, beginning when the child was nine years old. The offences included 16 counts of rape. He was also charged with one count of rape and one count of indecent assault in the form of digital penetration, in respect of a 16 year old who lived in the same caravan park as him. He served most of that sentence before release on parole. Towards the end of the parole period, he committed incest with a young woman who was of extremely low intelligence. He was sentenced to nine years’ imprisonment, and at the same time, was sentenced for failing to comply with reporting conditions imposed under the Child Protection (Offender Reporting) Act 2014.

[2] The respondent appears to be of low intelligence. He has not been able to work for much of his life. Presently, he has Parkinson’s Disease and has required the assistance of a carer in custody. While in custody, he completed a medium intensity sexual offenders’ program in 2006, but subsequently declined to take part in sexual offenders’ programs of the type devised for persons preparatory to their release. Three psychiatrists have reported on the respondent: Dr Beech in May last year, and Doctors Grant and Arthur more recently. All three psychiatrists noted the respondent’s tendency to assault vulnerable victims and the callousness of his treatment of them. He had little insight; indeed, Dr Beech considered that he had less insight when he saw him than when he was released on parole in 2007.

[3] Given the respondent’s disabilities and his lack of supports or contacts outside prison, his placement presents a very considerable difficulty. He cannot live in any kind of independent accommodation. Dr Arthur and Dr Beech thought it likely that he would end up in accommodation such as a caravan park, where he would pose a risk to vulnerable victims, such as children or impaired adults. Dr Grant thought that he would need some sort of supervised accommodation, but placement in a nursing home would be problematic because of the risk of impulsive sexual offending against female residents. He considered also that there was a risk of the respondent’s reoffending in order to get back into custody. The respondent himself has expressed the view that he should remain in jail.

[4] Dr Beech considered that [the respondent] posed a high risk of re-offending, Dr Grant that there was an above average risk of his offending and Dr Arthur that he posed a moderately high risk. Doctors Arthur and Beech thought that if the respondent could be placed in supervised accommodation with a high level of support, that risk of offending would be reduced. As I have said, Dr Grant expressed concern that in a nursing home, there was a risk of impulsive sexual offending against female residents. Dr Grant considered that the difficulties in supervising the respondent and finding him appropriate accommodation would make it difficult to reduce the risk of his release to an acceptable level.

 …

[8] For the present, however, I conclude, firstly, that the respondent is a serious danger to the community in the absence of a division 3 order, and secondly, that adequate protection of the community cannot be ensured by his release on supervision, so that a continuing detention order must be made. I should note that the respondent does not oppose the making of that order or offer any submission against it. Accordingly, I will make the order for detention in custody as per the draft with which I have been provided.”^[4]

First review

13. [13]
    The first application for a review was heard by Davis J on 6 August 2018 with orders made on 9 August 2018.  Justice Davis ordered that the respondent continue to be subject to the continuing detention order made by Holmes CJ on 27 March 2017 and provided reasons which included the following:

“[14]  Dr Grant opined that the respondent represented a moderate or above average risk of sexually re-offending if released into the community. Dr Grant thought that there had been little change in the risk which the respondent posed in late 2016 when Dr Grant assessed him for the purposes of the initial application under s 13.

[15] Dr Grant thought that the respondent was ‘clearly institutionalised’ and may actually deliberately re-offend in order to return to custody. Importantly, Dr Grant thought that any release into the community would be problematic given the respondent’s need for care. Dr Grant opined:

‘[the respondent]’s physical condition is a major factor in terms of suitable placement. He is not able to care for himself and would not be able to live in any precinct accommodation. He would, in effect, require a nursing home style of accommodation and that would need to be an institution where he had contact only with male residents and male carers. The barriers to his satisfactory placement in the community are therefore very significant.’

[16]  Dr Arthur expressed the view that the respondent’s risk profile had not changed over the last 18 months. He thought the respondent’s risk of sexual offending was in the category of moderate to high. Dr Arthur also thought that if the respondent was released but was having difficulties coping in the community it was ‘not inconceivable’ that the respondent may re-offend with an aim to being returned to custody.

[17] Dr Arthur, like Dr Grant, recognised that there were problems with finding appropriate accommodation for the respondent if he were to be released from custody. Because of the level of care required, a nursing home-type facility was needed. However, as Dr Arthur observed, a conventional nursing home environment would provide the respondent easy access to victims. Dr Arthur concluded:

‘Ultimately, [the respondent] requires placement in a facility which can meet his medical and emotional dependency needs, whilst also restricting victim access.’

Conclusions

[18]  I am satisfied to a high degree of probability upon the evidence before me which I regard as acceptable and cogent that the respondent remains a serious danger to the community in the absence of a Division 3 order. There is no facility outside of prison which can provide the medical care which the respondent requires but at the same time providing the security necessary to ensure adequate protection of the community against the commission by the respondent of serious sexual offences.

[19]  Therefore, I will order that the respondent continue to be subject to the continuing detention order.

[20]  When making the continuing detention order, the Chief Justice said this:

‘It seems to me that a time will come when there are enough offenders in the respondent’s category of age and debility falling within the compass of the Dangerous Prisoners (Sexual Offenders) Act to require the setting up of supported accommodation for them. It is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option.’^[5]

[21]  I respectfully endorse her Honour’s comments. I specifically raised her Honour’s comments with Mr Rolls who appeared for the Attorney-General on the present application. Mr Rolls told me that her Honour’s comments had been brought to the attention of the Attorney-General but that in the respondent’s case particular difficulties arose because of his special needs. The state of affairs is nonetheless deeply troubling, as the Chief Justice observed.”^[6]

Second annual review

14. [14]
    On 22 July 2019 Lyons SJA heard a further application in respect of a review of the continuing detention of the respondent and ordered that the respondent continue to be subject to the continuing detention order made by Holmes CJ on 27 March 2017.
15. [15]
    The application by the Attorney-General was not opposed by the respondent.  For the purposes of the second review, the respondent was examined by two psychiatrists, Dr Michael Beech and Dr Ken Arthur, and reports were prepared.  The respondent did not agree to being interviewed by the psychiatrists and the reports for the second review were prepared on the basis of written material provided to the psychiatrists.  Accordingly, the second review was conducted without knowledge of the respondent’s circumstances or plans.
16. [16]
    Lyons SJA summarised the psychiatric evidence as follows:

“Dr Beech’s report

[16]  As I have already stated, Dr Beech prepared a Report for the purposes of this review. He considered his background of offending and his history in custody. In terms of his risk, he stated that his static factors have remained the same and place him in the slightly above average risk of re-offending in the community if he were to be placed unsupervised in the community. He stated that the dynamic factors are mixed. On the one hand, his increasing age, lack of sexual pre-occupation, evidence of institutionalisation and compliance would usually tend to reduce the risk but Dr Beech stated:^[7]

‘I agree with the earlier psychiatrists: [the respondent] is very settled in prison and a return to custody would not be a deterrent for him. I have not interviewed for this assessment, but I can accept that [the respondent] might offend simply to effect a return to custody, particularly if he felt vulnerable, unsafe or neglected in the community. His statements to Dr Grant and Dr Arthur in 2018 are worrying. [The respondent] seems to have proffered that he might offend, even in a nursing home, possibly influence the psychiatrists in their opinion that he should remain in custody.’

[17]  Dr Beech noted that one of the drivers for the respondent’s offending was the use of sexual offending to meet his emotional and social needs when he felt disadvantaged, unhappy or resentful. He considered there was a significant risk that he would return to that emotional state if he were to be released, particularly as that would mean he would be withdrawing from prison routines where he is settled and would be leaving the prison establishment where he feels comfortable and would then go into some form of community supported accommodation which might not be as amenable to him as his current incarceration. He noted it was difficult to determine whether he would carry out his implied threat that he would re-offend in order to return to custody.

[18] Dr Beech considered that if the respondent were to re-offend it would be to a vulnerable person who came within his purview. It might be an elderly woman in a nursing home or a family member he befriended, or simply a visitor to his accommodation. It is also notable he considered that the offending might go undetected. He also considered [the respondent’s second set of offending] in the past indicates that it could be sudden without warning and with coercion.

[19]  Whilst Dr Beech considered the risk could be managed in the community if a suitable placement could be found, that would mean accommodation where his physical and his emotional care needs are met, but where there are no females. He considered that that would mean he could not be placed in most nursing home settings. Dr Beech considered that an aged care assessment (ACAT) needs to be undertaken, even though he is in prison, to see what suitable facilities there might be for him where he can be supervised. In the absence of a suitable place he considered the risk remains at moderate or above with a concern that he might offend in order to return quickly to custody. He did not consider that much had changed since the continuing detention order in 2018 was re-affirmed.

 Dr Arthur’s report

[20] Dr Arthur also prepared a Report for the purposes of this hearing and noted the respondent’s criminal history and his clinical summary. He also noted a history of reactive psychological symptoms relating to various traumas and losses and considered that he has significant personality vulnerabilities resulting from his history of pathological attachments, which was evidenced by impaired self-regulation, social isolation, impulsivity and some non-sexual criminal behaviour. He also noted that he had suffered from a neurological condition as a child which had required neurosurgery and was associated with seizures. He noted that this was probably due to hydrocephalus but had seen no formal documentation to corroborate that. Dr Arthur also noted significant trauma as a result of domestic violence as a child. He did not consider that the respondent suffered from paraphilia but has previously shown to be an inconsistent historian by misreporting details of his relationship and omitting to acknowledge important aspects of his offending such as the use of physical force and threats of violence.

[21] In his report, Dr Arthur noted that the respondent appeared to be an elderly man of stated age who ambulated without assistance with no evidence of a stick or walking frame. He saw no obvious characteristics of Parkinson’s disease and particularly saw no evidence of Bradykinesia which is a movement which is typical in Parkinson’s disease. He stated that apart from a slightly abnormal gait, he saw no observable evidence of a worsening in his Parkinson’s disease. He noted that the respondent maintained his position of not wanting to leave jail although he was not able to clarify that with the respondent personally.

[22] Dr Arthur reviewed his history in custody. He noted that he had declined to take place in any programs and that he had also refused to take all medications since November 2018. He has also refused to have blood tests.

[23] Overall, Dr Arthur stated:^[8]

‘As previously noted, it appears that [the respondent] maintains a passive/avoidance stance regarding his future and shows little desire to make plans outside of custody. He has previously denied any aspirational goals apart from remaining in jail until he dies.

I have previously opined that he is highly institutionalised and displays dependent and entitled attitudes. The fact that he continues to voluntarily refuse his anti-Parkinsonian medications or attend medical clinics shows a willingness to maintain the sick role. It is not clear to me from the documentation whether his refusal of medication is episodic or consistent.

I have previously noted that [the respondent] is openly resisting any release from jail, suggesting incarceration would not be a deterrent for further offending. I am unaware of any new risk mitigation strategies. It is not inconceivable that if he has difficulty coping in the community he may reoffend as a way of returning to jail.

Because of his dependent/avoidant coping strategies and high degree of institutionalisation, he would require a significant degree of interpersonal support should he be released into the community. Even if he has the capacity (as I suspect) to live in a semi-supported environment, he is likely to resist such arrangements.

It is possible that [the respondent]’s dependence he needs could be met if he were placed in a nursing home that provided him with the same level of interpersonal support he is currently enjoying. This would include the provision of all meals, management of finances, full nursing care, on-site medical care and the provision of mobility aids if required. However, even in such an environment, there would still be some risk of sexual recidivism.’

[24] Dr Arthur also noted the respondent had not developed any further insight into his reason for sexual offences and it was noted to be impulsive. He mainly relies on avoidance of woman as a risk mitigation strategy. Dr Arthur noted that even if he were placed in a male only nursing facility it would be expected other residents would receive visits from family which would include women of all ages and children. Dr Arthur noted however, that despite his advancing age and increased physical fragility, he still had the capacity to sexually re-offend. He considered he had sufficient mobility to pursue victims and overpower a child or a physically frail woman.

[25] Dr Arthur noted:^[9]

‘He has shown to be impulsive, displays poor insight, impaired effect regulation and continues to avoid responsibilities for his offences. He has previously displayed a lack of sexual boundaries and may be potentially driven by issues of power and control in addition to sexual gratification. There is no evidence that these issues have been modified in recent years; he has not engaged in any treatment and does not appear motivated to do so.’”

17. [17]
    Lyons SJA was satisfied that the decision made on 27 March 2017 that the respondent is a serious danger to the community in the absence of a Division 3 order should be affirmed.
18. [18]
    Her Honour’s reasons outlined a number of enquiries that were then made in relation to suitable accommodation and the difficulties in identifying not only the suitable accommodation but appropriate supervision.  Her Honour concluded:

“[37]  It is clear that the onus rests on the applicant to establish that a continuing detention order is the appropriate order. For such an order to be made the applicant must demonstrate that the community will not be adequately protected by a supervision order. In this regard, I have already set out the relevant factual matters which were addressed in the affidavit of Ms Monson. I also note the submission by the applicant that it should be noted that when he was released on parole in 2007 the respondent was subject to reporting conditions pursuant to the Child Protection Act and he breached those conditions. I also note that he has previously disregarded conditions imposed on him to protect the community.

[38] Both psychiatrists indicate the respondent needs semi-supported accommodation but with the restrictions which would essentially be the restrictions that pertain to him in custody. He would need to be excluded from all females and children and could not leave the facility unsupervised. And no such supported accommodation outside custody has been identified.”

19. [19]
    In these circumstances, Lyons SJA ordered that the respondent continue to be subject to the continuing detention order.

Statutory framework

20. [20]
    Section 27 of the DPSO Act provides for periodic reviews as follows:

“27  Review—periodic

1. (1)
   If the court makes a continuing detention order, it must review the order at the intervals provided for under this section.

(1A)  The hearing for the first review and all submissions for the hearing must be completed within 2 years after the day the order first had effect.

(1B)  There must be subsequent annual reviews while the order continues to have effect.

(1C)  Each annual review must start within 12 months after the completion of the hearing for the last review under this section.

2. (2)
   span style="">The Attorney-General must make any application that is required to be made to cause the reviews to be carried out.”

21. [21]
    Section 30 of the DPSO Act directs the Court on the hearing of the review as follows:

“30  Review hearing

1. (1)
   This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.

2. (2)
   On the hearing of the review, the court may affirm the decision only if it is satisfied—

1. (a)
   by acceptable, cogent evidence; and

2. (b)
   to a high degree of probability;

that the evidence is of sufficient weight to affirm the decision.

3. (3)
   If the court affirms the decision, the court may order that the prisoner—

1. (a)
   continue to be subject to the continuing detention order; or

2. (b)
   be released from custody subject to a supervision order.

4. (4)
   In deciding whether to make an order under subsection (3)(a) or (b)—

1. (a)
   the paramount consideration is to be the need to ensure adequate protection of the community; and

2. (b)
   the court must consider whether—

1. (i)
   adequate protection of the community can be reasonably and practicably managed by a supervision order; and

2. (ii)
   requirements under section 16 can be reasonably and practicably managed by corrective services officers.

5. (5)
   If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order.

6. (6)
   In this section—

required matters means all of the following—

1. (a)
   the matters mentioned in section 13(4);

2. (b)
   any report produced under section 28A.”

22. [22]
    Section 30 incorporates the term “serious danger to the community” which in turn encompasses the notions of “serious sexual offence” and “unacceptable risk”.  This in effect mirrors s 13 of the DPSO Act.
23. [23]
    Section 13 of the DPSO Act provides as follows:

“13  Division 3 orders

1. (1)
   This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).

2. (2)
   A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—

1. (a)
   if the prisoner is released from custody; or

2. (b)
   if the prisoner is released from custody without a supervision order being made.

3. (3)
   On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—

1. (a)
   by acceptable, cogent evidence; and

2. (b)
   to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.

4. (4)
   In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

(aa) any report produced under section 8A;

1. (a)
   the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

2. (b)
   any other medical, psychiatric, psychological or other assessment relating to the prisoner;

3. (c)
   information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

4. (d)
   whether or not there is any pattern of offending behaviour on the part of the prisoner;

5. (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;

6. (f)
   whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;

7. (g)
   the prisoner’s antecedents and criminal history;

8. (h)
   the risk that the prisoner will commit another serious sexual offence if released into the community;

1. (i)
   the need to protect members of the community from that risk;

10. (j)
    any other relevant matter.

5. (5)
   If the court is satisfied as required under subsection (1), the court may order—

1. (a)
   that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

2. (b)
   that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).

6. (6)
   In deciding whether to make an order under subsection (5)(a) or (b)—

1. (a)
   the paramount consideration is to be the need to ensure adequate protection of the community; and

 (b) the court must consider whether—

1. (i)
   adequate protection of the community can be reasonably and practicably managed by a supervision order; and

2. (ii)
   requirements under section 16 can be reasonably and practicably managed by corrective services officers.

7. (7)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

24. [24]
    In the recent decision of Attorney-General for the State of Queensland v Anderson^[10] Davis J summarised the effect of s 13 as follows:

“[5] The effect of s 13 is:

1. (a)
   the court must consider whether the prisoner is a “serious danger to the community in the absence of a Division 3 order”;^[11]
2. (b)
   a prisoner is a “serious danger to the community” where there is an unacceptable risk that the prisoner will commit a “serious sexual offence” in the absence of an order;^[12]
3. (c)
   a “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence; or … against a child …”;^[13]
4. (d)
   orders under Division 3 are:

   1. a continuing detention order;^[14] or
   2. a supervision order;^[15]

5. (e)
   if there is a finding that the prisoner is a serious danger to the community in the absence of a Division 3 order, then the court may:

   1. make no order;
   2. make a continuing detention order; or
   3. make a supervision order;^[16]
6. (f)
   in determining what, if any order, to make “the paramount consideration is to be the need to ensure adequate protection of the community” from the commission by the prisoner of a “serious sexual offence”;^[17]
7. (g)
   if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;^[18] and
8. (h)
   if the adequate protection of the community can be ensured by a supervision order, then supervision ought to be preferred to the making of a continuing detention order.^[19]

[6] The process of the assessment of risk in terms of the DPSOA was explained by McMurdo J (as his Honour then was) in Attorney-General for the State of Queensland v Sutherland^[20] where his Honour said:

‘[30] 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.’^[21]”

25. [25]
    Further at paragraph 10, his Honour helpfully summarised the process that is to be undertaken under s 30:

“[10] The process under s 30 involves the following steps:

1. (a)
   determination of whether the respondent is a serious danger to the community in the absence of a Division 3 order;
2. (b)
   if so, the court must determine whether adequate protection of the community can be ensured by the respondent’s release on a supervision order;
3. (c)
   if so, then release of the respondent on supervision ought to be preferred to the maintenance of the continuing detention order; and
4. (d)
   if not, then the continuing detention order ought to be maintained.”

Further psychiatric evidence

26. [26]
    For the purposes of this review, two reports were prepared pursuant to s 29 of the DPSO Act:^[22]

    1. (a)
       The report of Dr Michael Beech, Consultant Psychiatrist, dated 20 August 2020; and
    2. (b)
       The report of Dr Ken Arthur, Consultant Psychiatrist, dated 20 July 2020.

Report of Dr Michael Beech

27. [27]
    Dr Beech interviewed the respondent on 24 July 2020 and the respondent cooperated in the interview.  Dr Beech had previously prepared reports dated 22 May 2016 and 30 June 2019.
28. [28]
    Dr Beech, in his report for the current review, concludes as follows:

“[The respondent] is a 67-year-old single man held on a continuing detention order since 2017.  He was convicted in 1998 on 35 charges. ...  The offending had involved physical and psychological coercion.  He was released on parole in 2007 but returned to custody the following year when he was charged with two counts of incest. …  He had also failed to comply with reporting conditions.  That offending involved some psychological coercion on an intellectually impaired person who was vulnerable from mental health issues.  During the first period of incarceration, he had completed an MISOP during which he reported some paraphilic sexual fantasies.  He refused interventions during the second incarceration and I think overall there is evidence that much of the insights into his offending that he may have gained through MISOP have now dissipated.

 [The respondent] has intellectual problems himself.  As a child, he was enrolled in an opportunity school.  He had limited employment after that and at an early age was placed on an invalid pension because of a brain tumour.  He has been generally socially isolated.  Although he has formed long-term relationships, I think there is evidence of poor boundaries, general difficulties coping with interpersonal relationships, and difficulties living independently.  His one long-term supportive partner passed away a few years ago and he now has no community supports.  Instead, in prison, he has developed Parkinson’s Disease and now requires a carer.  I believe that his earlier difficulties with independence have been severely exacerbated by the onset of Parkinson’s Disease and the development of severe institutionalisation.  He has in fact been in prison since his conviction in 1998 with only a brief period in the community during which he re-offended.

 In my opinion, [the respondent] has:

• Borderline Intellectual Functioning
• Dependent Personality Traits now aggravated by institutionalisation
• A possible Paedophilic paraphilia but this is now difficult to explore

His high risk for re-offending can be assessed actuarily [sic] with the Static-99R.  He has a score of 4, which places him in the group of offenders seen to be at moderate-high risk of re-offending.  I believe the risk has been substantially reduced by the passage of time, and his age.  He does not meet criteria for Psychopathy.  On the Risk for Sexual Violence Protocol, there are several dynamic factors associated with the offending.  Most notably, is the chronicity of the offending (both the seven years duration of the first tranche and the quick recidivism on release), the use of coercion against vulnerable victims, and the problems with stress and coping.  These days, I think he minimises the offending although he does not now condone it.  There are no immediate problems with stress of coping but I think it could be easily envisaged that a release from prison would destabilise him.  His problems with intimate relationships have now been exacerbated by the loss of all community supports.  I think he has problems with planning and has had problems with treatment.  To a large extent now, he has simply let those issues be taken over by others ― QCAT, guardianship, and carers together with institutionalisation into the prison routine.  Of concern is that in his last release he did not comply with reporting conditions and in fact does not appear to have done well independently.

I think his age is a significant risk-reducing factor.  His last sexual offence was in 2007 and he now denies any ongoing sexual fantasies, sexual interests, or sexual urges.  Against that is the simple fact that he has been in prison since 2007, with limited exposure to females and no opportunity to re-offend.  As well, one of the dynamic risk factors was the use of sex to cope with negative mood states of unhappiness and resentment, and so the more recent concerns about veiled threats that he might re-offend against a vulnerable person to the effect a return to prison if he were unhappy in the community.  I think the Parkinson’s Disease and his overall physical frailty reduce the risk of his ability to re-offend but his history is one of using both physical and psychological coercion against vulnerable females and I do not think that his disorders per se prevent him from offending against vulnerable females if the opportunity arose.

Overall, I think that the risk of re-offending has reduced to moderate if not lower.  Importantly, I think that the recent apparent volte fače and his apparent openness to considering release into a nursing home facility are significant factors that reduce the risk.  If his change of heart is accepted, and I think it is plausible, then I believe it reduces the acute concern that if he were released from prison unwillingly, he would immediately offend in order to return to custody.

The risk scenario is that in the community, once he has to deal again with the vicissitudes of even semi-independent living, he will struggle notwithstanding the supports and care out in place for him.  He will have difficulty making new friendships.  Life in a nursing home may not be as rosy and welcoming as he has been led to believe.  He will find some of the restrictions difficult and struggle with some of the other tenants, and find that the amenities are not what he thought they might be.  In this context, he will become unhappy, miserable and resentful.  As in the past, and admittedly it is now significantly in the past, he will start to use sexual thoughts and fantasies to deal with these aversive emotional experiences.  In order to feel better, when the opportunity arises, he will sexually assault a vulnerable person.  That might be an elderly, frail or impaired female resident.  It is less likely but possible that it could include a young female visitor.  His offending in the past, almost all of it, has been in an incest-type nature and circumstances but that may be because has allowed him the opportunity.

Against this worrying scenario is again his age, his articulated lack of sexual motivation, and his desire to be released from prison and stay out.

I think that this moderate risk of re-offending could be substantially reduced in the community with a supervision order that allows sufficient external monitoring and internal oversight of him within the institution in which he is placed.

That would require the administration and the clinical staff be fully aware of the risk.  It would require some form of enhanced internal supervision.

There would need to be some restrictions placed on his mobility within the institution.  I think that any offending is likely to be covert and so it could be disrupted by vigilant staff provided the environment is sufficiently structured to allow it.

To that end, it would be necessary to review any proposed accommodation and supervision.

Otherwise, I concur the evidence given by Ms Monson to Her Honour in 2019 that the usual monitoring by QCS under a supervision order would not in itself be enough to reduce the risk of re-offending within a nursing home style accommodation.”

29. [29]
    In summary, Dr Beech considers that the respondent has:

    1. (a)
       borderline intellectual functioning;
    2. (b)
       dependent personality traits aggravated by institutionalisation; and
    3. (c)
       a possible paedophilic paraphilia (that is now difficult to explore).
30. [30]
    Further, Dr Beech assessed the respondent’s risks on the STATIC-99 which gave him a score of 4.  This placed the respondent in a group of offenders seen to be at moderate risk of reoffending.
31. [31]
    Dr Beech considered the Parkinson’s Disease and the respondent’s overall physical frailty reduced the risk of his ability to reoffend.  However, this did not in itself prevent the respondent from offending against vulnerable females, should he be presented with an opportunity to do so.
32. [32]
    In these circumstances, Dr Beech considered the risk of reoffending is reduced to moderate, if not lower.
33. [33]
    However, another consideration is appropriate accommodation for the respondent.  The respondent indicated to Dr Beech that he sought to be released to a nursing home facility.  No such accommodation is currently available.  However, Dr Beech has provided an opinion that he did not consider that a supervision order would in itself be enough to reduce the risk of reoffending within a nursing home style accommodation. 
34. [34]
    Further, restrictions would need to be considered including a review of any proposed accommodation and supervision.  As no accommodation of this nature is available, this is just speculative at this stage as to how the risk could be managed within a nursing home setting.

Report of Dr Ken Arthur

35. [35]
    Dr Arthur interviewed the respondent on 21 June 2020 and the respondent cooperated in the interview.  Dr Arthur has previously provided reports on 13 January 2017, 4 May 2018 and 19 June 2020.
36. [36]
    Dr Arthur notes that the respondent did not agree to living in contingency accommodation and sought to be placed in a nursing home.
37. [37]
    In the report prepared for the current review, Dr Arthur states as follows:

“102.  Apart from his claims that he does not wish to die in jail, the reasons for this change in attitude towards release are not immediately obvious, although I note that he made frequent references throughout the interview to fears of being assaulted by other inmates. As such, it is possible that his change of heart is influenced by a desire to avoid further assaults or simply that he has become tired of the jail environment.

103. There is little evidence of any change in [the respondent]’s level of insight, attitude towards the offences, levels of remorse/empathy or coping strategies. He continues to engage in avoidant coping and refuses placement on a Sexual Offender Treatment Program; whilst he stated that this was predominantly because he believed this would make him a target of abuse, he also expressed the belief that such programs do not work for him. Whilst he indicated the possibility he might engage in individual therapy rather than group treatment programs, this was made in a non-committal fashion. He continues to underestimate his risk of reoffending, shows little awareness of the drivers for his prior offences and offers no reasonable risk mitigation strategies.

104.  Essentially, the only thing that has changed since my initial assessment in 2016 appears to be [the respondent]’s decision not to actively obstruct the progression to community treatment under a supervision order.

105.  Whilst I was unable to perform any formal cognitive assessments and have not been provided with any documentation pertaining to neuropsychological evaluations, medical treatment or occupational therapy assessments, there was no clinical evidence that [the respondent]’s cognitive status has deteriorated over the last few years.

106.  There is a history of irritable mood and vague paranoid ideation but no evidence of a major mood or psychotic disorder. He has a longstanding history of a severe personality disorder, predominantly antisocial. He appears to have become quite dependent on supports whilst in jail and shows a high degree of institutionalisation. He appears to have Parkinson’s disease which is slowly progressive. Whilst he has a history of sexual offending against children, there is no clear evidence of a Paraphilic Disorder.

RISK ASSESSMENT

107.  [The respondent]’s static risk factors remain unchanged. Based on the Static-99R, he is in the “risk level III” or “average risk range.” This places him in a group of offenders whose risk of reoffending is no greater or less than the average sex offender. As previously noted, this is a relatively low score given the nature and extent of his offences and modified significantly by his increasing age.

108.  Based on the most recent assessment, his rating on the Hare Psychopathy Checklist (PCL-R) remains within the range of the average incarcerated male and below the cut off level for a diagnosis of Psychopathic Personality. His dynamic risk factors remain essentially unchanged.

109.  Particularly in regard to manageability, whilst [the respondent] now expresses the desire to leave jail, he does not identify any goals or aspirations. There remain problems with treatment in that he is still intermittently noncompliant with medical management and at times hostile towards medical staff in jail. He refuses to engage in group Sexual Offender Treatment Programs, is avoidant of talking about his offences and ambivalent about further treatment, even on an individual basis. Whilst it appears that he is generally cooperative with prison officers, this is in the context of having a very reliable routine. He is now willing to comply with risk assessments, but there is no guarantee of ongoing cooperation once he is released into the community.

110.  I remain of the opinion that [the respondent]’s risk of sexually reoffending remains in the moderate to moderate/high category. Despite the mitigating factors of advancing age, the presence of Parkinson’s disease and the associated reduction in sexual functioning/interest, he remains highly institutionalised and displays dependent and entitled attitudes. Whilst at the current time he is motivated to be released from custody, should he find life outside of jail to be challenging or onerous, he may reoffend as a way of returning to the predictability of jail.

111.  Because of his dependent/avoidant coping strategies and high degree of institutionalisation, he will require a significant level of interpersonal support on release. Whilst I maintain the belief that he probably has the functional capacity to live in a semi-supported environment, he is likely to resist such arrangements and as such, the only practical accommodation is a nursing home.

112.  I think that [the respondent]’s dependency needs could be met if he were placed in a nursing home that provided him with the same level of interpersonal support he is currently enjoying, such as the provision of all meals, management of finances, full nursing care, onsite medical attention and the provision of mobility aids. However, risk management in such an environment will pose challenges.

113.  As previously noted, [the respondent] has very limited understanding and insight into the drivers of his sexual offences, has a history of impulsivity and relies mainly on avoidance of women as a risk mitigation strategy. Even if he were placed in a male only nursing home unit, he would still need to be excluded from women and children visiting other residents. This would require either physical isolation from all visitors (and possibly female staff members also) or alternatively, that he be under constant surveillance by staff who were aware of his offending. There would also need to be limits placed on his access to the community.

114.  Despite his advancing age and increased physical fragility, [the respondent] retains the capacity to sexually reoffend, particularly against vulnerable women or children. It is difficult to comment on the motivation for future sexual offences due to his lack of engagement in treatment; he has previously displayed a lack of sexual boundaries, may be driven by issues relating to the need for power and control or alternatively, may offend as a way of managing negative emotional states.

RECOMMENDATIONS

115.  I do not believe that [the respondent]’s risk of sexual recidivism has changed significantly since my initial assessment in 2016. Were he to be released from custody, the most relevant intervention would be his placement in appropriate supported accommodation, namely a nursing home unit with exclusively male residents and sufficient security to ensure he does not leave the boundaries of the unit unsupervised. He should be physically separated or kept under close supervision during visiting hours and all staff caring for him should be aware of his offences and risk of recidivism. He should not have unsupervised leave in the community.

116.  Whilst he continues to refuse group treatment programs, he has indicated the possibility of agreeing to individualised therapy, which theoretically may be useful in addressing issues relating to underlying self-esteem, maladaptive coping strategies and developing further awareness of the drivers for his sexual offending. Whilst this could be started in jail, I doubt that it will result in any significant attitudinal change or risk reduction in the short term.

117.  [The respondent]’s reports of side effects from the anti-Parkinsonian medication requires further investigation. Ideally, he should be reviewed regularly by a Neurologist; it might be useful to consider alternatives to Kinson or a trial of adjuvant agents. Parkinson’s disease is commonly associated with mood disturbance, cognitive impairment and behavioural problems. Patients may develop psychotic symptoms in the course of the disease or as a consequence of treatment. As such, it would be useful for [the respondent] to be under the care of a Psychiatrist who has some experience in the treatment of such patients, particularly in the context of medication changes.

118.  Whilst I saw no clinical evidence of a deterioration in cognition, I have not been provided with any formal assessments. Evidence of cognitive decline might be associated with an increased risk of recidivism through the mechanisms of impaired judgement, poor problem solving and perhaps organic disinhibition. Formal monitoring of his cognition is recommended.”

38. [38]
    Dr Arthur concludes that the respondent’s risk of sexual reoffending remains in the moderate to moderate to high category.
39. [39]
    Dr Arthur is of the view that the respondent would require a high level of care on release and, given the respondent’s opposition to semi-supported accommodation, the only practical accommodation option is in a nursing home. 
40. [40]
    However, given the identified risks, this would need to be a male only nursing home and the respondent would need to be excluded from women and children.  This would require constant supervision by staff and also restrictions on the respondent’s movements in the community.
41. [41]
    As previously identified, no suitable nursing home accommodation is currently available.

Applicant’s submissions

42. [42]
    In relation to the first question as to whether the respondent is, presently, a serious danger to the community in the absence of Division 3 order, the applicant submits as follows:

“62. The respondent has been assessed by the psychiatrists engaged under the Act as falling within the moderate to moderate to high range of sexual reoffence against a vulnerable female who may be a child.  The respondent had not undergone any, or any appropriate, treatment to deal with the risks that he otherwise presents.  The respondent has Parkinson’s Disease.  The respondent is also highly institutionalised, requiring a high level of interpersonal support, both in custody and outside it.  Dr Arthur also observed that the respondent is presently willing to comply with risk assessments, this was a change from when the continuing detention order was last reviewed.  Dr Arthur noted there is ‘… no guarantee of ongoing cooperation once he is released into the community’.”

43. [43]
    In these circumstances, the applicant submits that the Court should find that the respondent is a serious danger to the community in the absence of an order made pursuant to Division 3 of the DPSO Act and that the decision made on 27 March 2017, that the respondent is a serious danger to the community in the absence of a Division 3 order, ought to be affirmed.
44. [44]
    As previously indicated, the respondent concedes that the evidence supports such a finding.
45. [45]
    Further, in relation to the second question as to how the discretion conferred by s 30(3) of the DPSO Act ought to be exercised, the applicant submits that:

“66. The matters set out in s.30(4) of the Act are again relevant to the determination of this issue.   Accordingly, in deciding which order to make the paramount consideration is the need to ensure adequate protection of the community and, further, whether that adequate protection can be reasonably and practicably managed by a supervision order and whether the requirements of s.16 of the Act can be reasonably and practicably managed by Corrective Services.  There is no evidence that Corrective Services cannot reasonably and practicably manage the requirements under s.16 of the Act in this instance.

67.  The respondent does not wish to reside at the precinct.  He apparently has needs for care which would render such accommodation unsuitable.  The respondent has undergone an assessment by the Aged Care Assessment Team (ACAT).  He has been deemed eligible for such assistance. 

68.  Officers of Queensland Corrective Services have made contact with different accommodation providers but none meet the needs of the respondent.  The respondent has only recently articulated to Dr Arthur and Dr Beech a desire to reside in nursing home accommodation, however, such accommodation is not able to be identified by Queensland Corrective Services.

69.  Absent such accommodation being located, the risk the respondent otherwise presents is not able to be managed in the community.  Accordingly, the risk the respondent presents is not able to be met by a supervision order due to the absence of nursing home accommodation that he apparently desires and/or requires.  In those circumstances, the continuing detention order ought be affirmed.”

46. [46]
    In relation to the second issue, the respondent does not contest the applicant’s submission.

Consideration

47. [47]
    The position of the respondent has largely remained unchanged since the last review.  However, prior to the hearing of the application, the respondent had indicated a desire to move to suitable nursing home accommodation.  The submissions ultimately made on his behalf were perhaps reflective of the inability to find suitable accommodation with the appropriate level of supervision. 
48. [48]
    It is unnecessary to further consider that issue in relation to the current application as no suitable accommodation has been identified.  However, I note the previous comments made by the Chief Justice and Justice Davis in relation to the unfortunate reality of suitable accommodation for individuals such as the respondent.
49. [49]
    As identified in submissions by counsel for the applicant, enquiries as to suitable accommodation will continue and should suitable accommodation be identified then an application for a further review can be made to the Court and the relevant issues considered further at that stage.

Whether the respondent is a serious danger to the community in the absence of a Division 3 order

50. [50]
    Based on the evidence relied upon by the applicant, including the reports of Dr Beech and Dr Arthur, I am satisfied that there is acceptable cogent evidence which satisfies me to the high degree of probability required pursuant to s 30(2) of the DPSO Act that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act.
51. [51]
    The psychiatric evidence identifies a moderate to moderate-high risk of sexual reoffending against a vulnerable female who may be a child and the respondent has not undergone any, or any appropriate, treatment to deal with the risks that he otherwise presents.  In the circumstances, I am satisfied that the respondent presents as a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made on 27 March 2017 ought to be affirmed.

Whether adequate protection of the community can be ensured by the respondent’s release on a supervision order

52. [52]
    The evidence relied upon by the applicant, including the reports of Dr Beech and Dr Arthur, includes that:

    1. (a)
       The respondent has little understanding of what caused him to sexually offend.
    2. (b)
       He engaged in avoidant coping.
    3. (c)
       He refused to participate in sexual offender treatment programs.
    4. (d)
       He underrated his risk of reoffending.
    5. (e)
       He has a severe personality disorder, predominately antisocial and has a high degree of institutionalisation.
    6. (f)
       He would require a significant degree of interpersonal support on release.
    7. (g)
       He would require a level of care including provisions of meals, management of finances, nursing care, onsite medical attention and mobility aids.
    8. (h)
       He would need to be excluded from women and children and if he was in a nursing home environment, it would need to be male only and restrictions to be in place to avoid contact with women and children visiting other residents.
    9. (i)
       There would need to be a restriction to his movements within the community as he still has the capacity to sexually offend against vulnerable women or children.
53. [53]
    Based on the evidence, I cannot be satisfied that adequate protection of the community could be reasonably and practicably ensured by a supervision order. 
54. [54]
    In all of these circumstances, I am satisfied that an order pursuant to s 30(3)(a) of the DPSO Act ought to be made that the respondent continue to be subject to the continuing detention order made on 27 March 2017.
55. [55]
    Accordingly, the order of the Court is that:

THE COURT, being 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 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSO Act), ORDERS THAT:

1. Pursuant to s 30(1) of the DPSO Act, the decision made on 27 March 2017, that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSO Act, be affirmed.
2. Pursuant to s 30(3)(a) of the DPSO Act, the respondent continue to be subject to the continuing detention order made on 27 March 2017.