Attorney-General v HGD[2020] QSC 295

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application by the Attorney-General for the State of Queensland (the applicant) for orders in respect of HGD (the respondent) pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act).
2. [2]
   The originating application dated 6 February 2020 seeks orders that:

   1. (a)
      Pursuant to s 13(5)(a) of the DPSO Act, the respondent be detained in custody for an indefinite term for care, control or treatment.
   2. (b)
      In the alternative, that pursuant to s 13(5)(b) of the DPSO Act, the respondent be released from custody subject to such requirements as considered appropriate.
3. [3]
   The application was originally listed for hearing on 8 June 2020 but was adjourned to allow for:

   1. (a)
      A further neuro-cognitive assessment to be undertaken and a report to be prepared;
   2. (b)
      Further information on appropriate accommodation, related treatments and supports to be obtained; and
   3. (c)
      The psychiatrists to be able to consider the further material and provide supplementary reports, particularly considering the assessment and the available accommodation, treatment and supports.
4. [4]
   On 19 June 2020 Davis J ordered that pursuant to s 9A(2)(b) of the DPSO Act, the respondent be detained in custody until 4pm on 7 September 2020.
5. [5]
   At the hearing of the originating application on 7 September 2020 I ordered that pursuant to s 9A(2)(b) of the DPSO Act, the respondent be detained in custody until 4pm on 7 October 2020.

Factual background – criminal history and offences

Index offences

6. [6]
   The respondent is currently 41 years of age.  He is currently serving the following  terms of imprisonment:

   1. (a)
      three years for sexual assault and 6 months for an indecent act in any place with intent to insult or offend any person, to be served concurrently (sentenced on 16 December 2016).  Parole eligibility date of 27 February 2017.
   2. (b)
      six months for indecent treatment of children under 16 child under 12 (sentenced on 13 July 2017), to be served cumulatively with the sentence in (a).  Parole eligibility date of 13 July 2017.
7. [7]
   On 16 December 2016 the respondent pleaded guilty in respect of offences which took place on 11 October 2014 when the respondent was 35 years of age.  The offences concerned an adult female and occurred at a natural therapy centre, which was the victim’s shop.
8. [8]
   Clare DCJ in her sentencing remarks noted that the attack was “bold, it was persistent, and it was very forceful”.^[1]
9. [9]
   In relation to the circumstances of this offending, Clare DCJ describes the attack as follows:

“…you were drunk. When Mrs … left to have her lunch you followed, pretending to need the toilet. Mrs … was in the kitchen. You stood in the full view of her and exposed yourself.  Mrs … had no romantic interest in you at all. She had simply been kind to you. Your behaviour must have been both offensive and alarming to her. She moved from the kitchen to another room, a small back room with a therapy bed. She was trying to eat her lunch in peace. You found her. Your fly was still undone. You zipped it up. She tried to get rid of you politely saying she said she was tired but she would return to the shop shortly. But instead of leaving, you jumped on top of her. You straddled her back and pushed her head face-first into the mattress so she could not scream. You roughly groped and squeezed her body which painfully sketched the stitches in her chest. You were breathing heavily and simulating intercourse as you tried to pull down her jeans. She was fighting against you and you were rubbing your fingers between her buttocks. Eventually, she managed to lift her head and cry out for help. You got off the bed but as she cowered from you, you decided to push forward, so you pulled your penis out wanting her to take it. All of this while your sister and the other shop owner were in the front of the shop, Mrs … screamed and kicked. And finally, you left.

…… a victim in those circumstances would probably think that you were going to rape her. It would not only be repugnant to Mrs …. but terrifying - very, very frightening, as well as painful.”^[2]

10. [10]
    On 13 July 2017 the respondent pleaded guilty to the charge of indecent treatment of children under 16 child under 12 years.  The offending occurred on 7 November 2015 when the respondent was 36 years of age.  The offending occurred at Southbank Parklands and the victim was a 9 year old girl.  The girl was swimming at the Southbank Parklands and the respondent swam up to the victim and “tickled” her on the vaginal area before swimming away.
11. [11]
    At the time of the offending, the respondent was on bail for the offences for which the respondent was sentenced on 16 December 2016.
12. [12]
    In sentencing the respondent,^[3] Farr DCJ commented as follows:

“The offence that I am concerned with is serious.  You were a complete stranger to the young girl in question.  It is concerning behaviour, to say the least.  It was brazen; it was in public, and it was quite determined.  It required you to swim over to her and touch her in the way that you did.  Given the nature of that offending conduct in the context of your criminal history, which includes numerous offences, some of which are very serious, and include offences – sex offences as well as dishonesty offences and property offences and violence offences, results in this being a matter that would ordinarily, in my view, have resulted in a sentence being imposed upon you, were it not for the sentence imposed by Judge Clare, of something in the order of 18 months to two years’ imprisonment.  

That is not to say that you are being sentenced for your prior conduct as indicated on your criminal history, but that is, of course – those entries and your prior conduct is very relevant in determining the appropriate degree of leniency.  The fact that you were on bail for sex offences at the time is also an aggravating feature which this Court is quite entitled to take into account.

…

I note that you suffer from some intellectual problems, as indicated on prior occasions before the Courts; that you have a serious alcohol problem, and unless and until you overcome that alcohol problem, you are likely to keep coming back before the Courts, having committed criminal offences.  I am told that you do not want to be committing offences, and that you realise that you have to stop drinking for there to be any chance of that occurring.”^[4]

Previous offending

13. [13]
    On 28 November 1997, the respondent was sentenced to 4 years and 6 months’ imprisonment in respect of rape and 3 years’ imprisonment in respect of assault occasioning bodily harm whilst armed and in company, to be served concurrently.  Parole eligibility was set after 18 months’ imprisonment.
14. [14]
    At the time of this offending, the respondent was 18 years of age and the victim was [intellectually impaired victim] (aged 15 years) and it was committed in the presence of an 11 year old.  The offending included the use of a hot cigarette lighter that was used as a “form of threat so that [the victim] would not complain about what had happened”.^[5]
15. [15]
    On 28 February 2006 the respondent was sentenced to 6 years’ imprisonment in respect of procuring an intellectually impaired person to commit an indecent act and 8 years’ imprisonment in respect of indecent dealing with an intellectually impaired person and incest, to be served concurrently.  Time declared was 386 days and parole eligibility was set at 2 years and 6 months.
16. [16]
    At the time of this offending the respondent was 25 years of age and the victim, again, was [intellectually impaired victim] (aged 21 years).  Wolfe CJDC noted in her sentencing remarks that these offences were committed whilst the respondent was on bail but also:

“You are a violent man and an impulsive man and your family should be protected from you …

The domestic violence orders are in respect of your former girlfriend, your cousin and your cousin’s partner. ...

… you have been subjected to a considerable lengthy term of imprisonment before and you have obviously learnt nothing from that.”

17. [17]
    In addition to the offending outlined above, the respondent has a juvenile history which includes dishonesty, property and violence offences, with periods being served in juvenile detention.

Impaired capacity

18. [18]
    This application also has some further complicating features due to the respondent’s extremely low range full scale IQ, which is congruent with a mild intellectual impairment.  On 29 July 2020, the Queensland Civil and Administrative Tribunal was satisfied that the respondent met the DSMV diagnostic criteria for intellectual disability – mild to moderate severity and determined that the respondent has impaired capacity.  As a consequence of this, the Public Guardian was appointed as guardian for the respondent.^[6] 

History in prison

19. [19]
    The evidence relied upon by the applicant also outlines two issues in respect of the respondent’s time in prison:  his conduct, and that he has not completed a sexual offender treatment program.
20. [20]
    In respect of his conduct, the respondent has a violation history at the Wolston Correctional Centre as follows^[7]:

    1. (a)
       26 October 2018:

       1. Incident:  indecent acts on staff; and
       2. Breach: acting in an indecent or offensive way in someone’s presence, October 2018.  The respondent served 5 days in the Detention Unit for “attempts to lure an officer alone to his cell which culminated in him masturbating in front of the officer”.^[8]
    2. (b)
       28 July 2018 – Incident:  assault, prisoner on prisoner.
    3. (c)
       3 February 2018:

       1. Incident:  indecent acts on staff; and
       2. Breach: acting in an indecent or offensive way in someone else’s presence.  The report describes the respondent as exposing his penis and masturbating whilst looking directly at a female officer.^[9]
    4. (d)
       28 January 2018:

       1. Incident: offensive behaviour; and
       2. Breach:  acting in a way contrary to the security or good order of a corrective services facility.  The incident report described that numerous incidents of the respondent allegedly masturbating and touching his genitals while a particular female officer was walking past his cell had been reported in the respondent’s case notes.^[10]
21. [21]
    The case notes relevantly record the further details of the nature of these incidents/breaches as follows^[11]:

    1. (a)
       2 August 2016 – purposively exposing himself to an officer.
    2. (b)
       5 April 2017 – displaying predatory behaviour towards female officers.
    3. (c)
       1 January 2018 – reportedly watching female officers whilst touching his groin area.
    4. (d)
       25 January 2018 – allegedly making inappropriate comments about female officers.
    5. (e)
       28 January 2018 – fixating on an officer.
    6. (f)
       6 February 2018 – allegedly masturbating whilst in a group program.
    7. (g)
       11 July 2018 – allegedly making frequent sexual remarks about female officers and grabbing his genitals.
    8. (h)
       25 October 2018 – during medical rounds observed masturbating whilst naked.
22. [22]
    The applicant also identifies that the respondent has not completed any sexual offender treatment programs during his current period of custody.  In early 2018 the respondent was “exited” from the Inclusion Sexual Offender Treatment Program (ISOP) as a result of inappropriate sexual behaviour.
23. [23]
    Whilst serving previous terms of imprisonment, the respondent:

    1. (a)
       Completed the ISOP in 2010.  The Completion Report noted various factors including that he used entitlement as a justification for his offending and also recommended he participate in a Sexual Offenders Maintenance Program (SOMP).
    2. (b)
       Completed the SOMP in 2012.  The Completion Report again noted that he used entitlement as a justification for his offending and recommended professional support to assist him to abstain from the use of substances and develop further skills in communication, managing emotions and building social relationships.
    3. (c)
       Participated in the Wechsler Adult Intelligence Scale (WAIS IV) assessment in September 2010, which determined the respondent’s overall Full Scale IQ of 55, functioning within the high moderate – low mild range of intellectual disability.
24. [24]
    The respondent made applications for parole in 2017 and 2018. Both applications were declined:

    1. (a)
       In 2017, the Parole Board rejected the application due to outstanding treatment needs, poor institutional behaviour and conduct and an unsuitable relapse prevention plan.
    2. (b)
       In 2018, the Parole Board declined the application due to outstanding treatment needs, poor institutional behaviour and unsuitable accommodation.

Other background

25. [25]
    The applicant also identifies further relevant background, including the respondent’s:

    1. (a)
       Education and employment history: the respondent was expelled from high school for inappropriate sexual behaviour and criminal behaviour from approximately the age of 11 years (commencing with stealing and housebreaking).  The respondent has a limited employment history, supporting himself on a disability support pension.
    2. (b)
       Sexual history:  the respondent reported his first sexual contact at aged 9 years (with a girl aged 11) and then with female school mates from age 13.  He was introduced to homosexual practices whilst in juvenile detention but now avoids such behaviour.  As an adult the respondent reported he frequently used prostitutes.
    3. (c)
       Drug and alcohol history: the respondent reported a pattern of binge drinking, with abstinence when in custody.  The respondent acknowledges poor control over his drinking.  He has not completed any formal rehabilitation programs either in the community or in custody.  The respondent reported cannabis use since he was a teenager, which increased to a daily habit.  Further, the respondent reported experimentation with amphetamines and cocaine, but not as a regular habit.

Issues

26. [26]
    The issues for determination in respect of the application are as follows:

    1. (a)
       Whether the Court is satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order; and
    2. (b)
       If the Court is satisfied in respect of (a), taking into account the matters set out in s 13(6) of the DPSO Act, whether it is appropriate to order that:

       1. the respondent be detained in custody for an indefinite term for control, care or treatment; or
       2. the respondent be released from custody subject to the requirements considered appropriate.

Serious danger to the community

27. [27]
    Dealing with the first issue to be considered under the DPSO Act, it is necessary to make a determination as to whether or not the respondent is a serious danger to the community in the absence of a Division 3 order.
28. [28]
    Section 13(2) of the DPSO Act provides:

“(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.”

29. [29]
    Further, pursuant to s 13(3) of the DPSO Act, there is a mandated level of satisfaction required, namely:

“(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.”

30. [30]
    Section 13(4) of the DPSO Act outlines the information that the Court must have regard to in deciding whether a prisoner is a serious danger to the community. This includes any reports prepared by a psychiatrist under s 11 of the DPSO Act, any other medical, psychiatric, psychological, or other assessment relating to the prisoner, the prisoner’s antecedents and their criminal history.  It also includes, having regard to the risk that the prisoner will commit another serious sexual offence if released into the community, the need to protect members of the community from that risk and any other relevant matter.
31. [31]
    “Serious sexual offence” is defined in the Schedule to the DPSO Act as follows:

“serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—

1. (a)
   involving violence; or

2. (b)
   against a child; or

3. (c)
   against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”

32. [32]
    Section 13(7) of the DPSO Act provides as follows:

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

Which order, if any, should be made?

33. [33]
    If I am satisfied that the prisoner is a serious danger to the community, the subsequent issue to be determined is whether it would be appropriate to order a continuing detention order or, alternatively, a supervision order in respect of the respondent. Section 13(5) of the DPSO Act states:

“(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).”

34. [34]
    In determining what form of order should be made under s 13(5), it is necessary to consider the objects of the DPSO Act as set out in s 3 and also the considerations outlined in s 13(6).
35. [35]
    Section 3 of the DPSO Act provides:

“The objects of this Act are—

1. (a)
   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

2. (b)
   to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

36. [36]
    Section 13(6) of the DPSO Act provides:

“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

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.”

37. [37]
    Section 16 of the DPSO Act provides:

“(1)  If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner—

1. (a)
   report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and

2. (b)
   report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and

3. (c)
   notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and

4. (d)
   be under the supervision of a corrective services officer; and

4. (da)
   comply with a curfew direction or monitoring direction; and

4. (daa)
   comply with any reasonable direction under section 16B given to the prisoner; and

4. (db)
   comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and

5. (e)
   not leave or stay out of Queensland without the permission of a corrective services officer; and

6. (f)
   not commit an offence of a sexual nature during the period of the order.

3. (2)
   The order may contain any other requirement the court or a relevant appeal court considers appropriate—

1. (a)
   to ensure adequate protection of the community; or

2. (b)
   for the prisoner’s rehabilitation or care or treatment.”

38. [38]
    The Court of Appeal in Attorney-General v Francis^[12] stated:

“Insofar as his Honour was concerned that, if the appellant began to use alcohol or drugs, he might abscond, the risk of a prisoner absconding is involved in every order under s. 13(5)(b). 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.”

39. [39]
    Also relevantly, McMurdo J (as his Honour then was) in Attorney-General for the State of Queensland v S^[13] said:

“Other judgments of the Court of Appeal have expressed the present question somewhat differently. In Attorney-General (Qld) v Lawrence, Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof:

‘[I]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.’

Similarly, in Yeo v Attorney-General for the State of Queensland, McMurdo P (with whom White JA agreed) said:

‘[73]  Under s 13(6), the paramount consideration in determining whether to order a continuing detention order or supervision order is the need to ensure adequate protection of the community. This requires the judge to make a value judgment based on the evidence. It is impossible to eliminate all risk of criminal offending, including offending against children, from a community. A judge must determine what is adequate protection of the community in all the circumstances (Attorney-General v Sutherland [2006] QSC 268, [28]-[30]; Attorney-General v DGK [2011] QSC 73, [28]). The respondent has not persuaded me that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers. It follows that I must release the appellant on an appropriate supervision order.’” (Footnotes omitted)

40. [40]
    Chesterman JA, in Attorney-General for the State of Queensland v Fardon^[14] stated:

“The concern which the psychiatric evidence raises is whether the supervision order will be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences. The risk of those offences is rated “low to moderate” with the intervention of the supervision order, but whether that order will perform as intended, given the respondent’s stated attitude to it, and his inclination to disregard it or circumvent it, was not the subject of consideration by the primary judge. Accordingly there may be doubt about the conclusion that the adequate protection of the community can be ensured by release on a supervision order.”

41. [41]
    Further, in Turnbull v Attorney-General for the State of Queensland,^[15] Morrison JA, with whom Philippides JA and Douglas J agreed, stated:

“…The means of providing the protection, and avoiding that risk, is a supervision order. When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection.”

42. [42]
    The issue of whether a respondent will properly comply with a supervision order was considered in the case of Attorney-General for the State of Queensland v Fardon.^[16]  In that case, the Chief Justice, with whom Fraser JA and Mullins J agreed, said at [29]:

“These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control. Of substantial present concern is the respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that ‘there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order’.”

Expert evidence

43. [43]
    In respect of the application the relevant expert evidence is as follows:

    1. (a)
       Dr Michele Andrews, Neuropsychologist.

       1. An assessment report was provided dated 30 July 2020.^[17]
    2. (b)
       Dr Ken Arthur, Psychiatrist. 

       1. A report was commissioned by Crown Law for the purpose of a risk assessment in relation to a possible application under the DPSO Act.^[18]
       2. An initial report was prepared dated 26 July 2019, following an interview with the respondent on 26 July 2019.^[19]
       3. An addendum report was provided dated 17 August 2020.^[20]
    3. (c)
       Dr Ness McVie, Court-Appointed Psychiatrist.

       1. Appointed at the preliminary hearing for the purpose of a risk assessment report pursuant to s 11 of the DPSO Act.
       2. An initial report was prepared dated 25 April 2020, following an interview with the respondent on 7 March 2020.^[21]
       3. An addendum report was provided dated 24 August 2020.^[22]
    4. (d)
       Dr Josephine Sundin, Court-Appointed Psychiatrist.

       1. Appointed at the preliminary hearing for the purpose of a risk assessment report pursuant to s 11 of the DPSO Act.
       2. An initial report was prepared dated 13 May 2020, following an interview on 20 March 2020.^[23]
       3. An addendum report was provided on 25 August 2020.^[24]
44. [44]
    Each of the experts was required to attend the hearing in person to give evidence and to be cross-examined.

Evidence of Dr Michele Andrews - Neuropsychologist

Report dated 30 July 2020

45. [45]
    Dr Andrews’ opinion is set out from line 981 on page 24 of her report as follows:

“Opinion

… Throughout the interview he tended to minimise his sexual offending and highlight what changes he perceived he has made during his time in custody. With respect to the application for a supervision order [the respondent] was of the opinion that he did not require a supervision order and minimised any potential risk he may be to the community.

…

With respect to his formal cognitive testing [the respondent’s] Full Scale IQ fell within the extremely low range (FSIQ= 59 (56-64)) which is congruent with a Mild Intellectual Impairment. With respect to his cognitive skills, [the respondent] is functionally illiterate; he demonstrates a very minimal repertoire of sight words and his performance on a word decoding task indicated that he does not possess adequate basic word decoding skills. Similarly, his assessed level of receptive vocabulary was equivalent to an individual of 9 years and 4 months old. Therefore, [the respondent’s] basic reading and word comprehension skills are well below age expected limits. However, functionally, [the respondent] does demonstrate a level of comprehension of spoken language which appeared to exceed formal testing. In my opinion his comprehension and understanding appears to be more equivalent to early teenage years. Across broader neuropsychology testing [the respondent] demonstrated impairments across most cognitive domains including, verbal skills, auditory attention, working memory, processing speed and learning and memory for lengthy or complex material. He also demonstrated impairments in tasks of executive functions/frontal lobe functioning including planning, response inhibition, mental flexibility, abstract thinking, problem solving and self-monitoring. He demonstrated a personal strength in working with visuospatial information, however, his performance on these tasks still only fell within the borderline range (i.e. 2-5th percentile) when compared to similar aged peers. He performed best on a verbal memory task, which provided 5 trials of repetition of the same information (see above memory section) demonstrating and ability to encode, retain and recall a reasonable amount of information (low average range).

Overall, [the respondent] is an individual who functions well below age expected limits and demonstrates cognitive deficits across most areas of cognitive functioning. … In my opinion [the respondent] meets DSM- V diagnostic criteria for of Intellectual Disability- Mild to Moderate Severity. His formal intellectual capacity is well below age expected limits. Whilst it was not possible to complete an assessment of his adaptive functioning whilst he is incarcerated, based upon his history inclusive of, schooling within the special education system, illiteracy, lack of ability to acquire work, poor behavioural and emotional regulation, lack of age appropriate social/interpersonal skills, difficulties making and sustaining friendships, lack of pro-social leisure activities, need for external supports, lack of licence, management of finances by the Public Trustee, poor ability to comply with orders and impairments in moral reasoning and insight, highlight broad ranging deficits in his adaptive functioning across the conceptual, social and practical domains at a mild to moderate level.

…

In relation to the neurodevelopmental domains [the respondent] presents with clinically significant impairment across the domains of:

• Intellectual functioning- demonstrates a Mild Intellectual Impairment.
• Attention, processing speed, working memory and aspects of memory.
• Affect and behavioural regulation.
• Academic achievement
• Executive function and impulse control
• Adaptive Behaviour, Social skills or Social Communication.

…

The possibility of an underlying Learning Disorder was raised by Dr McVie. [The respondent] is functionally illiterate and as such he cannot read or write and has very limited mathematical skills. Essentially, he lacks the basic foundations of literacy and numeracy and as such has not acquired even basic academic skills. His difficulty in acquiring these skills was likely to be multifaceted including impaired intellectual functioning during schooling impacting upon the acquiring fundamental concepts and exposure early trauma and neglect impacting upon his behaviour and cognitive development. In my opinion [the respondent’s] learning difficulties are more appropriately subsumed under the auspice of his Intellectual Disability.

Regardless of the aetiology of his cognitive deficits, [the respondent] suffers from at least a Mild- Moderate Intellectual Disability and associated severe deficits across multiple domains of neuropsychology functioning and adaptive functioning. These deficits will have an ongoing impact in relation to his treatment within and outside of custody, his risk of sexually inappropriate behaviour in custody and sexual recidivism if released to the community.

In the context of his Intellectual difficulties, of most concern, is [the respondent’s] tendency to continue to engage in sexually disinhibited and inappropriate behaviour whilst in custody. These behaviours appeared in part to be triggered by his attendance at the ISOP, however they also continued after being exited from this program. His behavioural difficulties are underpinned by impairments in basic intellectual skills and in particular higher order executive functions such as inhibition, problem solving, social/moral reasoning, judgment and insight.

On formalised testing with the writer in a controlled environment with no arousing stimulus, [the respondent] struggled to inhibit inappropriate or pre-potent responses on tasks, and also made atypical and overfamiliar comments to the writer. Therefore, in more socially complex situations where there may be stimuli that he finds arousing (e.g. females in a public space) he is likely [to] struggle to inhibit inappropriate responses across time, and these difficulties would be exacerbated by any intoxicant. [The respondent] possesses the capacity to understand that behaviours such as staring at officers, masturbating or exposing himself in front of others or in a program setting is inappropriate. However, he appears to have continued difficulties inhibiting such responses, despite multiple reprimands. Such instances have been noted to occur up until 2019 (as documented in the psychiatric reports). His impulsivity and difficulties with disinhibition will continue to be a salient risk factors for sexually inappropriate behaviour or sexual offending and form an area of treatment need. Whilst engagement in psychological intervention to with a focus on impulse control and skill development may assist him to a degree, it is likely that supervision and support will be the main mitigating factors.

With respect to the issue of ongoing treatment, I agree with Dr Sundin, that it would not be appropriate to re-engage [the respondent] in the ISOP. He is a man who will struggle to participate in a meaningful manner. He is likely to struggle to inhibit inappropriate responses and engage in challenging behaviours. Additionally, [the respondent] is illiterate, has impairments in auditory attention, working memory, reasoning and memory. As outlined above [the respondent] demonstrates the capacity to learn with repetition, however, he requires around 4-5 trials of the same information in a consistent manner, to encode and reliably recall the information. This level of repetition will not be available or feasible in a group treatment program. Additionally, [the respondent] demonstrates limited insight into his offending and a limited ability to generalise information to his own situation, and therefore will receive little benefit from listening to other people’s experiences. [The respondent] appears to have gained very little from his previous programs (prior to 2018) despite positive reports, however, he appears to have presented himself in a reasonable manner in these programs to a level that he was considered to have completed the program. Given [the respondent’s] presentation and cognitive limitations he is likely to benefit from individualised intervention with an experienced psychologist, where intervention can be targeted and important points can be repeated to assist with consolidation. [The respondent] stated he is currently engaging with Dr. Luke Hatzipetrou for individual intervention and in my opinion he is likely to have a greater chance of therapeutic benefit for gain from individual therapy.

Within the psychiatric reports issues were raised in relation to [the respondent’s] ability to meaningfully instruct a solicitor and consent to anti-libidinal medications. Whilst I did not have the capacity to assess each of these areas in detail it is evident from his assessment results that [the respondent] will struggle with any comprehending complex information. He has very basic verbal expression and comprehension skills. He can interpret basic and literal information, however, due to his cognitive impairments he does not have the abstraction, reasoning or problem-solving skills to meaningfully analyse complex information or weigh up possible outcomes for himself or wider benefits in terms of risk reduction to others. When asked questions about the purpose of a DPSO Act supervision order, he had a very rudimentary understanding pertaining to the fact that he was deemed “a danger to society”. However, he also rapidly minimised the need for an order stating “I’m not waiting in bushes for kids or girls… I shouldn’t be on it…. I took drugs and was swimming and got too close I wouldn’t go out of my way to do it” (referring to offending by inappropriately touching the young girl under the water at Southbank). He was aware that if placed on a supervision order he would be accommodated at the Wacol Precinct, but could not provide any further information. With respect to court proceedings [the respondent] will struggle to follow the course of the proceedings due to his cognitive deficits. He will require extra time to consult with his solicitor and have information explained in a very simple manner. In my opinion he will require a reasonable level of support throughout the legal process. He will not have the capacity to comprehend or reason around points of legislation and weather they apply to him. With respect to consent to anti-libidinal mediations, again [the respondent] is likely to be able to develop a basic understanding of the effect of the medication (e.g. reduce sex drive). However, he is likely to struggle to appreciate the usefulness of such medication in relation to risk mitigation, understand the longer-term side effects and implications of non-compliance. Additionally I would be concerned about his ability to be compliant with a medication. He would need a very structured and more than likely supervised medication routine. [the respondent] appears to have limited external supports that could assist him and therefore an application to QCAT for a Public Guardian may be required.

If [the respondent] was to be released to a supervision order at some point in the future he will likely struggle with compliance with his order due to his cognitive deficits, impulsivity, and his lack of insight into his own risk factors and risky situations. The following may be useful should he be considered for release:

• Due to his cognitive difficulties he will struggle to remember details of his order, and he will require regular repetition of his order.
• He is also likely to have difficulties with compiling and remembering his pre-planned movements without a reasonable amount of support and is likely to deviate from his movements.
• He is likely to struggle with technology such as mobile phones and will require a level of coaching so he can be contacted.
• He will need a routine and reminding to charge his GPS device.
• Based upon his current presentation he will have limited insight into any risky situations and could not reliably implement risk management strategies.
• He will be at an increased risk of substance abuse due to impulsive behaviours and difficulties with consequential thinking.
• He will struggle to implement strategies across different environments without direct support and as such will likely require support workers in the community to assist him with everyday activities, planning and organisation and transport within the community.
• He will require support on a daily basis which is likely to best be met through NDIS funding. If he was to be provided with support workers I would suggest he only be provided with male support workers due to his sexualised behaviours toward females.
• [The respondent] tends to present himself in a positive manner and minimise his difficulties, as such support workers involved in his case need to be aware of positive impression management as do any QCS case managers.

Taking into account the outlined potential difficulties, it should also be considered that [the respondent] does demonstrate a capacity for learning. He has also held employment in custody. Therefore under the right conditions, that is, one to one supported intervention, supervision and support, he does have capacity to learn basic skills and improve his functioning. Whist this may not reduce his level of risk significantly, it would provide him with more meaningful engagement with people and activities, which if in the community would translate to more pro-social activities.

Finally due to his cognitive deficits and ongoing difficulties in custody, I would recommend that supports be put in place and a reintegration plan be developed prior to his release to a supervision order. This could include ongoing intervention with a clinician who he will also see when released from custody. Development of a basic risk management plan with [the respondent] prior to his release, and as much as possible, planning around NDIS supports that will be available when he is released.” (Emphasis in original)

Oral evidence

46. [46]
    At the hearing on 7 September 2020 Dr Andrews gave oral evidence in relation to the views expressed in her report.  Dr Andrews’ evidence in chief included the following:

    1. (a)
       “However, on the basis of my cognitive assessment as well, I don’t believe that he would be very appropriate for a group-based format, because of his cognitive deficits.  I think that he would get more therapeutic benefit in terms of individual intervention that could be targeted specifically to him.”^[25]
    2. (b)
       “So he gets interference effects with learning.  He learns slower.  He needs about four to five repetitions to get to what I would consider to be a low average level of learning compared to similar aged peers.  So whilst he has the capacity to learn, it’s reduced compared to people of his chronological age.  So he does, under supported, structured conditions.”^[26]
    3. (c)
       “So, initially, I think that he would require – if you would like specifics, he requires 24-hour supervision, initially.  There would need to be, I think, some improvements in his ability to regulate his sexual activities and that would also include, certainly, supervision and support whilst he’s in the community and around general community members.  And my recommendation there would be it should be male only, given his history of previous behaviour.”^[27]
    4. (d)
       “I think that he could understand the basics of that medication, that it reduces your libido or sex drive.  What I don’t believe he will really be able to understand or will – or will struggle to appreciate is that – that that medication is used to reduce risk and to reduce the risk of reoffending because, essentially, he doesn’t believe that he needs to be on a supervision order, nor that he would reoffend.  So his ability to appreciate why he needs to take that, why it needs to be consistent, why the levels need to be monitored, I don’t believe that he will – he will be able to appreciate that very well.  But I also don’t believe that he would be motivated to comply with that either.  I think that would be very difficult.”^[28]
47. [47]
    Further, at the hearing Dr Andrews was cross-examined by Counsel for the respondent.  This further evidence included the following:

    1. (a)
       “… that issue of impulse control and developing better skills to control them would be the subject of – you’d anticipate, of psychological intervention by Dr Hatzipetrou?‑‑‑Yeah, it would be the – so, yes, it would be the subject of the intervention in terms of skill development or strategy development.  Whether he is able to then apply that independently is a – is a different question, yeah.

…

In part, I think, also, because of his intellectual disability difficulties with executive function, he’s going to have significant difficulty transferring skills from one environment to another.  So if he does psychological intervention with Dr Hatzipetrou and they go through various strategies or whatever they may go through in terms of – to assist him, he then has to be able to take that and then transfer that to a different environment.  For example, it could be the community – so it could be from a therapy room regardless of whether community or custody, and then apply that in the community.  That’s more of an abstract process, and that will – he will have some level of difficulty with that.  So the supervision and support, really, are also to support in situation learning and corrective experiences in the situation; because we know that individuals with an intellectual disability with significantly struggle with generalisation of information.

So the in-situation learning that comes from someone – the imposition, say, of restrictions on activities that he can engage in and reinforcing that’s going to be a very important part of the process of rehabilitation for this man?‑‑‑It will – yes.  It will be part of it, yes.  Because I think that, in terms of skill development – and he even says this himself – he – you know, his literacy levels are extremely low, so the way he develops skills are by, for example, watching what’s going on.  So he really needs that one-to-one demonstration; this is what you do, this is what you don’t do.  Don’t engage in that, that’s inappropriate; this is why it’s inappropriate.  However, the difficulty is that, as I can see from him being in custody, he’s already got that in custody.  He’s been corrected and reprimanded for inappropriate behaviours and he continues to engage in them, so – but it does form a very important part, yes, in my opinion.”^[29]

2. (b)
   “… he has the capacity to learn;  however, he requires, usually, around four to five trials of repetition of information in a consistent manner.  So I’m actually referring to his process of learning on one specific task that I gave him.  So it’s a wordless task, and it looks very closely at how you acquire information with repetition.  And then I compare that to a task where he doesn’t have repetition and he just has a bulk of information.  So a small amount – or, well, a reasonable amount of information, but simple information.  He still requires up to four to five trials of that repetition, consistently.”^[30]

Evidence of Dr Ken Arthur - Psychiatrist

Report dated 26 July 2019

48. [48]
    Dr Ken Arthur, in his report dated 26 July 2019, provides the following opinion:

“233.  Although [the respondent] accepts a degree of responsibility for his offending behaviour, he displays incomplete insight into the harm caused to his victims, minimises his use of violence/coercion and continues to deny any sexual intent in relation to the most recent sexual offence. He engages in positive impression management. He does not believe that he requires a supervision order, but admits to some apprehension about how he will cope on release and whether he will be able to utilise supports to avoid reoffending. His risk management strategies rely heavily on support from other people and are poorly thought out. He has unrealistic expectations regarding his capacity to live independently.

234. He fulfils the criteria for a mild to moderate Intellectual Disability, with impairment in perceptual, social and practical domains. I have insufficient evidence to support a diagnosis of Attention Deficit Hyperactivity Disorder. He has a Substance Misuse Disorder, currently in remission in a controlled environment, predominantly alcohol but also involving cannabis and other drugs. Whilst the respondent] has a long history of sexual offending, it is difficult to place this into any one specific paraphilic category, although his behaviour in jail is suggestive of exhibitionism. Generally, his offences appear unplanned and opportunistic. The more recent offences occurred in the context of intoxication and were committed in public places with a high chance of detection.

235. Whilst [the respondent] reports feeling remorse for his offending, his emotional responses are shallow and lack authenticity. It is possible that this may be a reflection of his underlying Intellectual Disability.

RISK ASSESSMENT

236. Refer to Appendix A in relation to the assessments listed below.

• Static – 99R

 …

241. [The respondent’s] Static-99R score was 7 [which] places him in the ‘well above average risk’ group.

• The Hare Psychopathy Checklist (PCL-R)

 …

243. Utilising this instrument, [the respondent] achieved a score of 23/40 which is within the range of scores found in the general male prison population. As such, he did not reach the cut off for a diagnosis of Psychopathic Personality.

• RSVP

244. The RSVP (Risk for Sexual Violence Protocol) is a structured professional judgement tool that aids risk assessment of sexual violence. …

245. Utilising this instrument, I have identified the following factors relevant to  the future risk of sexual recidivism –

Sexual Violence:

• Chronicity
• Diversity
• Physical coercion

Psychological Adjustment:

• Attitudes supporting sexual violence
• Problems with self-awareness
• Problems with stress and coping

Mental Disorder:

• Problems with substance abuse

Social Adjustment:

• Problems with intimate relationships
• Problems with employment
• Non-sexual criminality

Manageability:

• Problems with planning
• Problems with supervision

246.  I have identified further possible risk factors of relevance –

• Extreme minimisation or denial
• Problems with nonintimate relationships
• Problems with treatment
• Sexual deviance

Risk Statement

247. [The respondent] is still a relatively young man who has a high sex drive and history of sexual preoccupation. He has offended against family members, both sexes and children. Although he reports a reduction in sexual preoccupation and frequency of masturbation whilst in jail, there have been multiple instances where he has been either admonished or breached for inappropriate sexual behaviour including masturbating in view of female officers, verbalising sexual fantasies about officers and allegations of exposing himself during group therapy.

248. It appears that substances such as alcohol and methamphetamine have a significant disinhibiting effect on him and were associated with the two most recent offences. He also claims to have been intoxicated during the second assault on his brother.

249. 249. Due to his inappropriate behaviour, he was exited from the Sexual Offender Treatment Program in 2018 as it was considered that he was not ready, willing or able to engage. He has previously completed a Sexual Offender Treatment Program and Substance Abuse Program with positive exit reports. However, he does not appear to have internalised much from these programs and continued to offend. His custodial record speaks to his limited capacity (and perhaps motivation) to regulate his sexual behaviour. His intellectual disability is likely to impact on his level of self-awareness and capacity to engage in treatment.

250. I strongly suspect that [the respondent] may struggle to live independently without significant interpersonal support. His identified supports consist of older women who may not be able to provide an adequate level of authoritative supervision required to reduce his risk of returning to substance use.

251. He has unmet treatment needs in regard to his sexual offending. Whilst he displays some acceptance of responsibility for his offending behaviour, he continues to engage in minimisation, denial and projection of blame.

252. He has a history of reoffending whilst on bail. As such, it is possible that he may sexually reoffend relatively soon after being released from custody. In the context of a high level of sexual preoccupation combined with a return to substance use, [the respondent] may engage in opportunistic and impulsive offending. This may involve inappropriate touching, exposing himself or public masturbation. Given the history of physical coercion and violence, it is possible that his offending may progress to more serious sexual assaults.

253. Based on his behaviour whilst incarcerated, he is at risk of offending even in the absence of intoxication should he find himself sexually frustrated.

254. Factors increasing his risk of reoffending include a return to substance use, sexual frustration, itineracy and a breakdown in his social supports.

255. It is difficult to identify a particular victim group.

256. Based on the available information, I believe [the respondent]’s risk of further sexual offending on release from jail is high.

Recommendations

257. [The respondent] has unmet treatment needs in regard to his sexual offending, particularly in relation to self-awareness, sexual preoccupation, denial/avoidance and sexual entitlement. Given his significant intellectual disability, the Inclusions Program would be most appropriate, as he may struggle with the comprehension and retention of written and verbal information. As far as I am aware, the Inclusions Program is only available to offenders whilst in custody. He also requires ongoing treatment addressing his risk of future substance abuse, and should complete a group treatment program such as the LISI.

258. A supervision order may reduce his risk of sexual recidivism.

259. He should abstain from all drugs of abuse including alcohol, with restrictions placed on his access to licensed premises. He should undergo regular breathalyser/urine drug tests and engage in ongoing drug and alcohol counselling.

260. Due to the variation in his victim types, reducing victim access may prove challenging. His access to the community should be closely scrutinised, with conditions in place to minimise contact with children. Any future relationships or friendships should be closely scrutinised and monitored.

261. [The respondent] would benefit from individual psychological treatment addressing issues such as self-awareness/regulation, sexual preoccupation and the development of adaptive coping strategies. Given his intellectual disability, he may require the provision of interpersonal supports in the community to facilitate independent/semi-independent living. This would most likely require a formal application of funding through the NDIS.

262. He may benefit from the use of libido lowering agents such as some SSRI antidepressants or anti-androgen medication. A referral to a Psychiatrist with experience in forensic populations and the use of anti-libidinals would be appropriate; particular care should be taken in gaining informed consent given [the respondent]’s apparent intellectual disability.

263. Due to the chronic nature of his sexual offending, his history of reoffending whilst on conditional release, the presence of a significant intellectual disability and apparent lack of social supports, I believe that the duration of a supervision order will need to be of sufficient length to ensure he is provided with a reliable social support structure, has time to internalise the relevant aspects of psychological therapy and show evidence of enduring behavioural change. As such, I would recommend a 10 year order be considered.”

Supplementary Report dated 17 August 2020

49. [49]
    Following the consideration of some further material, Dr Arthur provided a supplementary report dated 17 August 2020 which concluded:

“…

The relevance of the material for me was:

• His prior reports of psychotic symptoms were considered either pseudopsychotic or malingering. There is no evidence of an underlying major mood or psychotic disorder but clear evidence of chronic impairments in affect regulation and poor coping.
• He gives an inconsistent history of head injuries and perinatal trauma which requires corroboration.
• His earlier interactions with mental health up to 2004 indicate frequent non-attendances and patchy non-compliance as well as a history of significant interpersonal violence.
• He has previously been treated with SSRI antidepressants and Valproate (an anticonvulsant) to try and treat impulsivity and emotional dysregulation. It doesn’t seem to have helped that much.
• He has now been provided an Adult Guardian and Public Trustee.
• Michelle [sic] Andrews’ assessment of 30 July 2020 outlines the presence of significant cognitive impairment and diagnosed a mild to moderate intellectual disability. It was her opinion that [the respondent] would not be able to engage in group programs because of this and will have difficulty complying with the conditions of a supervision order. She recommended individual therapy with much repetition and a high level of supports provided to him at the time of release from jail.
• Prison records document ongoing inappropriate sexual behaviour in the form of touching his groin around female officers, inappropriate sexual talk and the used [sic] of sexual innuendo with female prison staff.

This changes my opinion in regards to further treatment and supervision needs as follows:

• Engagement in the Inclusions program and the LISI appear to be contraindicated, leaving individual therapy as the only viable alternative.
• Based on Dr Andrews’ report, I have significant concerns about [the respondent]’s capacity to cope outside supported accommodation. It seems that the precinct would be unsuitable because he does not appear to have the requisite skills to live independently, support staff could not assist him there and it is likely he would breach his order due to poor self-control and an inability to appreciate or remember conditions. As such, he will require the provision of supported accommodation with NDIS funded interpersonal supports. He should initially only have male support workers. His access to the community needs to be restricted. He will require a thorough functional needs assessment to determine the level of care required. Until suitable accommodation and trained support workers can be provided, I cannot see how he could be released under the auspices of a supervision order without a high risk of further inappropriate sexual behaviour or breaching his order conditions.
• I note Dr Andrews’ concern about his capacity to consent to antilibidinals. I am not sure that I wholly accept this, but I agree that this issue requires careful consideration.
• I remain of the opinion that he requires a 10 year supervision order.”

Oral evidence

50. [50]
    At the hearing on 7 September 2020, Dr Arthur gave oral evidence in respect of his report and some further issues.  His views included the following:

    1. (a)
       “Whilst he’s been in jail, I think he hasn’t had appropriate treatment for the sexual offending.  He was exited from the ISOP program.  I think the first program that he did, there’s not a lot of evidence that he took much away from that.  That’s probably due to a combination of factors.  So he essentially remains untreated.  He started individual therapy with Dr Hatzipetrou but he’s only just started that.  I think he’s only had one or two visits, so that’s very early days for this man.  And despite that, there continues to be inappropriate sexual behaviour.  So I have concerns that this man would be able to regulate himself if he was released.”^[31]
    2. (b)
       “So he certainly needs psychological therapy in order to address the – a better understanding, the drivers for his sexual offending, to develop a relapse prevention plan, all of those things.  I think, though, that this is a man who also needs some external regulation as well.  My recommendations for medication are really based on the fact that we have someone who can’t seem to regulate himself even in a highly controlled environment.  And in those cases, I would clinically recommend the use of medication to improve someone’s self-control but also reduce sexual preoccupation and libido.  So I think that medical treatments going to be very important for this man, as well as psychological therapy.”^[32]
    3. (c)
       “So I accept that group programs may not be appropriate for him.  So we’re left with individual therapy.  That’s going to take a long time, a long time.  This is a man who we’ve heard from Dr Andrews, he – he’s going to take some time to be able to take on board information and process it, apply that to himself and then generalise that to other aspects of his life.  So we’re looking at a very long-term process here.”^[33]
    4. (d)
       “What is his capacity to actually change.  We know he can learn.  We know that he can regulate himself to some degree.  But we don’t really know what his capacity for self-regulation is going to be into the community.  So for all of those factors I think it’s really important that he not only start treatment whilst he’s in custody, but that we actually see some benefit from that treatment.  We see some change which can give us, I suppose, comfort that, when he’s released into the community, there is a greater degree of self-control.”^[34]
    5. (e)
       “So SSRI or antilibidinal.  Is that what we’re talking about?‑‑‑Look, I think that they’re the two most obvious choices.  SSRI medication particularly, there are some that are more efficacious than others in regards to lowering libido.  Paroxetine is probably the gold standard.  And that does help a number of people to lessen their sexual preoccupation or the physical aspects.  People who use sex as a way of coping with negative emotional states, if we treat their anxiety and their depression then that may reduce sexual acting out.  So it can be helpful but it’s certainly not helpful for everybody.  It’s just that it’s a – it’s an option because there’s less side effects, less irreversible side effects or serious side effects and generally people have less opposition to taking it.

From the material that you’ve seen and according to the medical material in relation to [the respondent], has an SSRI been trialled in the past?‑‑‑Look, I understand it has.  I did review a – a large amount of material that was sent to me.  Unfortunately, I’ve made reference to it in my addendum but I don’t actually note which SSRI it was.  I don’t believe, from memory, it was paroxetine and I’m not sure about the doses and his compliance with that treatment.  So it’s – it’s hard to know how effective that’s been.

So it’s something that would still be a consideration at this point in time?‑‑‑Look, I would certainly recommend it and, in lieu of – of more definitive treatment with – with antilibidinals, it’s certainly an alternative.  Not as – not as – not as efficacious but it is an alternative.”^[35]

“So I think without a very thorough capacity assessment of his functioning, the risk is that he won’t be able to do these things very well.  That will increase his level of frustration and anxiety which may then lead to his sexual acting out, which is a concern.

…

Look, I think a functional capacity assessment would be very important, and perhaps if he had an assessment prior to being released, we would discover that he has really good living skills.  I don’t think so, but that’s a possibility.  So I think that would be really important to do regardless of whether he goes to the precinct, or whether he goes to supported accommodation, but on the basis of the neuropsychological evaluation and history, I don’t – I suspect very strongly he doesn’t have adequate living skills.  So supported accommodation in a place where he doesn’t have to be – he doesn’t have to rely upon himself to manage his finances, to manage his day to day cares, to manage paying bills.  That would be really, really important, and I think supported accommodation will give him that and it will allow NDIS staff to come into the home and support him with those aspects of his everyday life.”^[36]

6. (f)
   “So at this point in time for [the respondent] is the primary focus at this point in time that he needs to undergo some treatment?‑‑‑Look, I – it – as far as his risk, absolutely, yes.

And so he needs to commence individual – continue individual treatment with Dr Hatzipetrou for risk of sexual reoffending.  Should that also cover substance use?‑‑‑Look, I think substance use is very important.  It has been a common feature of [the respondent]’s adult life, and certainly it’s a major risk factor.  It adds a further level of disinhibition to someone who already has poor impulse control.  So, yes.  I think that would be very important. 

And that should occur prior to release to a supervision order?‑‑‑Certainly a thing that would be beneficial to occur prior to release and to continue on during his release in the community.  Yes.”^[37]

51. [51]
    At the hearing, Dr Arthur was cross-examined by Counsel for the respondent.  Dr Arthur’s evidence included:

    1. (a)
       “People who are impulsive, highly impulsive, people who have a poor self-awareness so that they may not necessarily recognise that the internal drivers for sexual offending are escalating, people who are antisocial – so people that aren’t – don’t usually follow the rules.  And so they may not be internally motivated to follow the rules unless it’s in their best interest as they see it, and people who tend to engage in non-planned offences.  So opportunistic offending.  So often what I’ve seen in my own personal experience in treating people like this is that people who are opportunistic, impulsive, let’s say random, they will offend randomly and you don’t predict it, or it can be difficult to predict until afterwards, and through the retrospective scope the psychologist like Dr Hatzipetrou can look back and say, “Well, what were you thinking and what happened and what was that situation?  Why did you do that?”, but unless the person actually has the capacity to be aware of the risk factors and to manage them appropriately, those communication requirements are of limited value.  They’re certainly more valuable later on in treatment when people are having – you know, are given a little bit more leeway, but certainly when they’re first released they’re of limited value, and I think the other points you make about having to attend treatment and doing what you’re told, yes, they’re all useful if someone complies with them, and I think the problem here is that there’s a concern that [the respondent] may not have the capacity to retain the information or to comply with or that his impulsivity will override that capacity.  So the concern is that he may not be able to comply with the order and the limitations of that order when he’s released without significant external support.”^[38]
    2. (b)
       “And at the moment he’s just started treatment; at the moment he has no external regulation as far as medication to assist him in that regard.  So I think that there is a significant question mark over how much benefit a supervision order would have on this man.  And, certainly, if he’s on 24-hour curfew, if he never leaves the precinct or his accommodation;  then, yes, his risk of offending against children will be low.  I think there’s a risk that he will still engage in inappropriate sexual behaviour because he continues to have a high sexual preoccupation and low self-control.  At some stage he has to go to the community.  And he’ll have NDIS funding and he’ll have NDIS staff to assist him; but we don’t know the training of these people, we don’t know how well they understand his risk.  And, so, I think in a very careful planning, this man may find himself in a position where he may offend.  And that’s my concern.”^[39]
    3. (c)
       “Well, ideally, [treatment with SSRI medication or anti-libidinal medication] should really start before he’s released.  Because we don’t know his response to it;  he may respond well to it, he may not.  He may not be able to tolerate the medication.  We may be able to start him on an SSRI in jail; although my understanding is that that’s going to be difficult, as the prison mental health service have, essentially, stated they don’t have the capacity to be involved.  And the office of the adult guardian has certainly made it difficult to look at antilibidinal; so I think that if he were started on the SSRI, he would need to be on it for a period of at least some months.  There would have to be some objective measures as to behavioural change as well as subjective measures through monitoring with Dr Hatzipetrou before we have some sort of sense of how effective that treatment was.  So it’s very important; but, again, it’s not a panacea, and it may not be helpful.”^[40]
    4. (d)
       “So SSRIs are a type of anti-depressant.  So they work mostly on regulating certain serotonin receptors in the brain.  The most focus has been on the frontal lobes of the brain;  and the frontal lobes are involved in behaviour and emotion.  So for people with depression, SSRIs tend to normalise changes in the brain that occur in people that are several depressed.  In people with anxiety, it tends to regulate certain frontal lobe circuits which basically normalises the way your brain works.  In people with intellectual disability or impulse control disorders, what we think happens is that the SSRIs improve their impulse control.  And, again, you know, the research on this is – is quite – is not – not comprehensive.  So we’re still dealing with empirical data here which is basically we see the effect it has on a person and we try and understand how it works.  What we think it does is, the similar matter, it helps people – their brains to work more efficiently.  So the people who have a – a normal level of inhibition, so I want to do this but I shouldn’t do it, so I won’t, people who are highly impulsive, a very low level of inhibition, and so the antidepressants do tend to improve that somewhat.  That’s dependent on dose, it depends on the person.  What we do see, though, is that this may take some time to gain full benefit.  So some people respond quickly, some people take some months, and the dose range is quite large.  Unfortunately, drugs like paroxetine have significant side effects, so you often have to balance out the benefits versus the risks.  So, therefore, you start very – at a low dose and titrate slowly and that can take time as well.” ^[41]
    5. (e)
       “And so it appears to me that individual therapy seems to be the best option at this point.

You seem to be saying, Doctor, that you would anticipate that there would – that [the respondent] would need to engage in treatment with Dr Hatzipetrou, so on a weekly basis, for a long period of time?‑‑‑Yes.

When you say that, are you meaning at least 12 months?‑‑‑I think he’s going to need treatment for a lot longer than 12 months.  And, again, you know, there are so many factors involved, it’s very difficult to predict how a person will respond to treatment.  It’s certainly – in the initial phases, it seems to be beneficial for people to start treatment in jail simply because other – other aspects of life are reasonably consistent and controlled which means that they can focus their attention on the therapy and that may improve, I suppose, their response to therapy in the early stages.  What I do see and when I read through the sessional summaries of people who have been treated in the community, that often the therapy tends to get hijacked a little bit.  So when people are in the community there are often interpersonal difficulties, there may be issues with their supervision, there may be other issues with financial matters.  And often therapists tend to have to then focus on putting out, if you will, the – the fires of the day rather than looking at their sexual offending.  Whereas when they’re in custody, those things usually aren’t so much an issue, so you can focus more appropriately on the sexual offending.”^[42]

6. (f)
   “Look, I think you can’t classify SSRIs and antilibidinals in the same class.  So SSRIs you can get relatively quickly, in psychiatric terms, which is four to eight weeks.  You can gauge the benefit, but with antilibidinals it can take a lot longer than that, and that depends on how long it takes to titrate the dose.  We have to measure – testosterone doesn’t change very quickly.  So I only measure testosterone on a monthly basis.  That’s about as frequent.  So we may be looking at six months before we ga – we get a person to the level of testosterone suppression that would be indicative of a response, and we would then have to assess from a psychological perspective whether there was evidence that that had changed.”^[43] 
7. (g)
   “In an ideal world with all things being equal, being able to control for those factors and just apply a treatment gives us the best chance of understanding whether it’s effective or not.  Of course, you know, if he starts treatment in jail that doesn’t mean that when he gets out of jail his behaviour will be the same.  I mean, we then have to see the additional stressors, but it’s still more useful for him to have been started on treatment and to have some idea of how effective it was prior to release.”^[44]
8. (h)
   “Now, he will have restrictions, but, of course, the other issue for [the respondent] is whether he can comply with those restrictions, and whether he has the cognitive capacity to comply without breaching and without causing more problems for himself, and I suppose that’s the other concern.  So that’s why this whole argument is around his level of support is necessary for him to be able to exist in the community in a way that he can comply with the restrictions of his order, as well as maintain a reasonable degree of safety.”^[45]

Evidence of Dr Ness McVie - Psychiatrist

Report dated 25 April 2020

52. [52]
    Dr McVie’s report dated 25 April 2020 states as follows:

“RISK ASSESSMENT:

PCL-R: ... I scored [the respondent] at 27 which is higher than the average offender but below the cut off score for psychopathy (30/40). This may indicate significant psychopathic traits or be an exaggeration based on his attempts at positive impression management.

Static 99R: … I have scored [the respondent] at 9, which is high and well above the average score for a convicted sexual offender. This score is based on the material which indicates at least ten charges and four convictions for sexual offences prior to 2014, a past history of convictions for violent offences, and victims which are male, female, family, and strangers.

Stable 2007: … [The respondent] has a range of outstanding treatment needs some of which have been previously identified by his participation in assessments and courses in custody. His problem areas include relationship stability, hostility towards women, poor cognitive problem-solving skills, sex drive preoccupation and cooperation with supervision.

RSVP: … [The respondent’s] high level of risk is confirmed by his sexual violence history with chronicity, diversity, probable escalation and coercion in offending; his poor psychological adjustment with minimization of his offending, attitudes supporting his behaviours, and problems with self-awareness; his substance abuse and psychopathic personality traits, poor social adjustment and history of significant problems with treatment and supervision.

HCR-20: … [The respondent] has a moderate to high loading of historical risk factors for violence and ongoing areas of concerns including his lack of insight into his offending and substance use and lack of engagement with treatment.

Summary

…

Previous psychology assessments have concluded he has at least a mild intellectual disability with most recent formal testing being in 2010, with results of a full-scale IQ of 55.

[The respondent] continues to report he has a high sex drive.

In terms of diagnosis he meets criteria for antisocial personality disorder and substance use disorder (alcohol and cannabis). He does report intermittent use of other drugs including amphetamines, with his last offence being attributed to ice or methamphetamine use.

I would also consider he presents with significant psychopathic traits though does [not] fulfil criteria for a diagnosis of psychopathy.

He does not appear to have any major mental illness or mood disorder.

His sexual behaviours could represent a variety of paraphilias though there is insufficient evidence to categorise these other than his continuing exhibitionistic behaviour.

Though previous testing indicates intellectual ability in the mild to moderate intellectually impaired range, my clinical impression is that he functions at a higher level. He has some understanding of his current situation, of information provided to him and has completed courses in the past, with seemingly good results.

Recommendations:

Assessment, actuarial and structured clinical, indicates [the respondent] is a very high risk of reoffending sexually if released from custody without a supervision order.

In view of his previous failures with less strict supervision and his continued sexual behaviours in custody, I would consider that his risk would currently still be high if released on a supervision order.

I would recommend he be required to complete the Inclusions Program prior to being released on a supervision order. I would recommend that he be commenced on one to one psychology therapy to assist him to manage his current problem behaviours and to prepare him for the group program.

Due to his continued demonstrated difficulty in managing his self-reported high sex drive, I would recommend he be referred to a qualified psychiatrist for consideration of commencement of anti-libidinal medication.

I would also recommend he be referred for further neuropsychology assessment regarding a possible underlying learning disorder and repeat testing including tests of effort.

He would also benefit from further programs to address his substance use disorder.”

Supplementary Report dated 24 August 2020

53. [53]
    Following consideration of further material, Dr McVie’s supplementary report sets out the following further opinions:

“Summary and Recommendations:

[The respondent] has a mild intellectual disability. He does not have any major mental illness or mood disorder.

Clinically he appears to function at a higher level. At interview he did display some understanding of his current situation, and he has completed the relevant courses in the past, with seemingly good results, though he has shown limited capacity to change his behaviours.

Assessment, actuarial and structured clinical, indicates [the respondent] is a very high risk of reoffending sexually if released from custody without a supervision order.

In view of his previous failures with less strict supervision and his continued sexual behaviours in custody, I considered that his risk would still be high if released on a supervision order.

I still recommend he be required to complete the Inclusions Program or to progress satisfactorily to an equivalent level in individual therapy prior to being released on a supervision order. His current treating psychologist would be best placed to advise as to his progress in current therapy.

I maintain my concerns about his difficulty in managing his self-reported high sex drive in custody and I would recommend he be referred to a suitably qualified psychiatrist for consideration of commencement of anti-libidinal medication.

He would also benefit from further programs to address his substance use disorder.”

Oral evidence

54. [54]
    At the hearing, Dr McVie’s oral evidence included matters set out in her reports and some further issues.  Her evidence included the following:

    1. (a)
       “It’s good that he’s started therapy with Dr Hatzipetrou who has a lot of experience, extensive experience in dealing with intellectually impaired sexual offenders and he clearly needs to continue the individual therapy. 

…

It’s much preferable that he completes a large portion of that therapy prior to being released because, once he’s released, there’ll be other factors that will impinge on that therapy.

…

I would say at least six months, preferably 12 months before he would be at a point where you might consider that, and I’d only consider that with a detailed report from his treating psychologist.”^[46] 

2. (b)
   “It’s not that common for people in custody to repeatedly act on sexual urges in front of correctional staff which [the respondent] h has continued to do even two years after he was exited from the program in 2018.  My assessment was that, considering he has some intellectual disability and an inability to contain his sexual urges, that an antilibidinal would be of benefit to him.  I understand the evidence in relation to the antidepressant medication and agree that it’s a much less – it’s a medication that’s less likely to cause serious side effects which antilibidinals do cause and would be preferable to start that in the first instance and trial that to see whether that has any effect on [the respondent].  Part of [the respondent]’s problem is impulsivity and the antidepressant medication would be – could potentially be very effective in managing his impulsivity, so it may be a better option for him.

…

Ideally, it should be commenced prior to release because we’ve got – got a man that continues to effectively act inappropriately in a custodial environment.  So it would be good to have a period of six to 12 months of him not acting inappropriately in that environment with medication and – well, he’s need psychotherapy, but I suppose psychotherapy could do it independently but psychotherapy plus medication is most likely to achieve that aim in a shorter period of time.”^[47]

55. [55]
    At the hearing, Dr McVie was cross-examined by Counsel for the respondent.  Dr McVie’s evidence included the following:

    1. (a)
       In relation to how the respondent would commence treatment on SSRI medication, “My understanding of how this has happened in the past is that a psychiatrist has been employed by Corrective Services specifically for the purpose of assessing and managing the person before they’re released from custody and that psychiatrist would go into the prison and assess the person’s need for medication and then recommend the medication and a dose and monitoring.  I – my recollection is that it was prison mental health that actually prescribed the drug, although the drug was managed by the independent psychiatrist coming into the prison.  So there would have to be a psychiatrist appointed.”^[48]
    2. (b)
       In relation to the “highly supervised structure” that would need to be in place around the respondent upon his initial release, “Those things would be in place, but this man needs something before he gets to that point.  He’s still way too high a risk to even be placed in that position under a supervision order.  I really think that [the respondent] would struggle to comply with conditions of a supervision order.”^[49]
    3. (c)
       In relation to the specific conditions that the respondent may struggle to comply with, “To understand why he needs to live where he’s told live, to understand why he needs to go to appointments when he’s told to go to appointments.  I just don’t think he’s got the capacity to understand those things, and has also been pointed out based on Dr Andrew’s [sic] assessment, [the respondent] really needs a comprehensive functional assessment to assess whether he’s capable of independent living before he’s placed in the precinct.”^[50]
    4. (d)
       “… what you’re talking about is an untreated sex offender going into an environment where he’s placed under what could be potentially much more stress, and as Dr Arthur pointed out, in custody if he’s getting psychological treatment, the psychologist can focus on his sexual offending.  Once he even gets into the precinct there are other pressures there, and the psychotherapy will get distracted by those pressures.  He needs intensive psychotherapy to address his sexual offending before he’s ready to transition even to what’s effectively a highly structured supervised environment at the precinct.”^[51]
    5. (e)
       “Look, potentially [a supported accommodation option] may be [a more promising prospect], but I’d really want to know where the location was, what the restrictions were, how many staff are available, what other people live in that area.  I just can’t see the NDIS funding what I would consider would be a satisfactory living environment, and he would need his own house, he would need at least two staff present for most of the day, and I can’t see that his level of intellectual disability is going to be sufficient for the NDIS to fund the level of supports that would be required to contain his behaviour.”^[52]
    6. (f)
       In relation to why an order prohibiting the respondent from using drugs or alcohol would not reduce his level of risk, “Because he’s still untreated and because he’s still displaying an inability to control his behaviour in a structured environment.”^[53]
    7. (g)
       “If he complies with the conditions of the order, it could reduce his risk.  But we haven’t seen any evidence of his capacity to comply with conditions of the order.  We haven’t seen any evidence of him having engaged in the relevant treatment programs in custody to decrease his level of risk.  He needs to do those things first.”^[54]

Evidence of Dr Josephine Sundin - Psychiatrist

Report dated 13 May 2020

56. [56]
    Dr Sundin’s report dated 13 May 2020 states her opinion as follows:

“SECTION C: DIAGNOSIS

Using the diagnostic and classificatory system of the American Psychiatric Association (DSM V), I consider that [the respondent] meets criteria for:

• Intellectual Developmental Disorder – mild to moderate severity
• Substance Use Disorder – alcohol and cannabis, in sustained remission whilst in a controlled environment
• Exhibitionistic disorder

I suspect he also has a deviant sexual fantasy regarding coercive sexual intercourse with a stranger female aroused by his exhibitionistic behaviour.

Section D: Risk Assessment

I assessed [the respondent] across a range of risk assessment tools which are considered to have moderate predictive capacity with respect to identifying risks for future sexual recidivism. This is a combination of actuarial instruments and physician assisted guidelines.

On the Static-99R (Hanson and Thornton, 1999; Helmus 2009) … I gave [the respondent] a score of 7 which places him in a group considered to be well above average risk for future sexual offending when compared to other offenders.

On the Hare Psychopathy checklist-Revised (PCL-R), I gave [the respondent] a score of 24/40 which is a moderately elevated score within the Australian Prison Population but is insufficient for him to attract the label of Psychopath.

With respect to the Risk for Sexual Violence Protocol (RSVP):

With respect to Sexual Violence, the following were present:

• Chronicity – duration/frequency;
• Diversity of offences; and
• Physical coercion.

I did not find any evidence of escalation of sexual violence or psychological coercion.

With respect to psychological adjustment, I considered that [the respondent] showed partial evidence of:

• Extreme minimisation or denial of the sexual offending and
• Expressed attitudes that were supportive or condoning of sexual violence,
• Had problems with self-awareness and
• Problems with stress and coping.

There was no evidence of problems resulting from childhood abuse.

With respect to the component of mental disorders, [the respondent] shows evidence of:

• sexual deviance with respect to his ongoing exhibitionistic behaviour and
• problems with substance abuse.
• suicidal ideation--partial.

I found no evidence that he met criteria for psychopathy and no evidence of a major mental disorder.

With respect to social adjustment, [the respondent] appears to have clear problems with:

• Intimate relationships,
• Non-intimate relationships,
• Employment
• Non-sexual criminality.

With respect to manageability, [the respondent] will struggle with:

• Planning,
• Treatment
• Supervision.

On this physicians guidelines, I would consider [the respondent] to be at high risk for future sexual offending.

Section D: Conclusions

[The respondent] is a 41-year-old single man with a lengthy history of impulsive, opportunistic sexual offences usually occurring in the setting of intoxication at a time of heightened sexual preoccupation. His sexual preoccupation was at times enhanced by engagement with pornographic material.

He has a considerable history of non-sexual offending including violence offences.

He has demonstrated heightened sexual preoccupation since the age of 9 and has acted without thought for the consequences of the victims. He has demonstrated quite limited empathy for the impact of his offending on his victims. He has persisted with the offending despite the protests of his victims. He has physically coerced two of his victims. Two of his victims were complete strangers.

He has a history of aggressive behaviour, some of which appears to relate to problems arising out of cognitive deficits and poor problem-solving skills.

Due to his significant cognitive impairments, he has very limited plans for the future and little idea as to how he will manage independently in the community.

He successfully completed the Inclusion Sexual Offending Programme in 2010 but re- offended despite completing the ISOP and a SOMP in the community.

He was removed from a repeat ISOP in 2018 because of sexual arousal leading to disinhibited behaviour. Contemporaneously, there was an escalation in previously noted inappropriate behaviour towards female staff which has been documented intermittently for a number of years within the prison. There appears to have been quite a clear escalation in his level of sexual preoccupation and acting out before he was exited from the Inclusion Sexual Offending Programme.

There does not appear to be any clear record that he has a major mental health disorder. He has threatened self-harm at times of frustration and stress in the past.

He has not completed any literacy programmes or any vocational training programmes.

Whilst I note that QCS has attempted to re-engage [the respondent] in a sexual offenders treatment programme specifically designed for prisoners with a low intellectual quotient, it was my impression in reading the material that [the respondent]’s level of mental retardation is such that he would not be able to participate satisfactorily in the Inclusions Programme.

It appears that the material addressed in the ISOP had the reverse effect and, to some degree, triggered a greater level of sexual preoccupation and acting out behaviour.

I do consider that [the respondent] has unmet treatment needs, but I do not think these will be able to be achieved through the Inclusion Sexual Offending Programme.

I would respectfully recommend that he be detained for treatment for a further 12 months and that during that period of time a clinical psychologist with experience in both the treatment of sexual disorders and intellectual disorders be engaged to undertake the components of both an Inclusion Sexual Offending Programme and the LISI one on one with [the respondent] . This in the hope that he can gain sufficient knowledge from this individualised treatment to be able to develop some insight into the unacceptable nature of his behaviour and develop a relapse prevention plan that potentially might succeed.

During that 12-month period of detention for further treatment, I would also recommend that Disability Services be engaged to assess his suitability for the National Disability Insurance Scheme and that the Public Guardian be involved to assist with legal and health decision making.

Ultimately, when he is released from prison, [the respondent] is an individual who will need a very high level of supervision. In my opinion, the level of supervision he requires is likely to be even higher than that which can be provided to prisoners within the Wacol Precinct. I anticipate that [the respondent] will need to be placed in a residential hostel for male individuals who suffer moderate intellectual disability and who have a 24-hour care package available through the National Disability Insurance Scheme. This would ensure that he is not left unsupervised at any time.

I would also recommend that before he is released from prison that an effort be made to see if the SSRI medication paroxetine can reduce his libidinal drives and that when he is released (provided the Public Guardian for health matters concurs), that an anti-androgen drug be considered and prescribed by a suitability qualified specialist.

Based on [the respondent]’s current status, until further treatment needs are met, I do not consider that he is a person who is suitable for release into the community, even under the auspices of a supervision order.”

Supplementary Report dated 25 August 2020

57. [57]
    Following consideration of further material, Dr Sundin’s addendum report dated 25 August 2020 provides an updated opinion as follows:

“I remain of the opinion that [the respondent] has unmet treatment needs, but I do not think these will be able to be achieved through the Inclusion Sexual Offending Programme. I note that Dr Andrews agrees me with respect to addressing treatment needs. I acknowledge that Dr Arthur and Dr McVie recommend he repeat the ISOP.

I continued to recommend that he undertake individual counselling with a clinical psychologist with experience in both the treatment of sexual disorders and intellectual disorders be engaged to undertake the components of both an Inclusion Sexual Offending Programme and the LISI one on one with [the respondent]. I understand that he has been receiving treatment from Dr Hatzipetrou who has specialised expertise with individuals like [the respondent]. This should continue.

I note that the Public Guardian was appointed by QCAT on 29th July 2020 to assist with accommodation, legal and health decision making. The Public Guardian will also assist with the providing of services, including in relation with respect to the NDIS.

Dr Michelle [sic] Andrews Neuropsychologist, in her report dated 30th July 2020 opines that [the respondent] does have an Intellectual Disability of mild to moderate severity with associated severe deficits across multiple domains of neuropsychological and adaptive functioning. Nonetheless she opines that he does have a capacity for learning and sets out her recommendations for strategies that could be put into place to support him in the community.

I remain of the opinion that [the respondent] is an individual who will need a very high level of supervision.

With Dr Andrews suggestions in place and given the lack of any likely suitable residential facility of the type I suggested in 2019 being found; I consider that a trial of placement at the Wacol precinct is reasonable with the following suggestions implemented. These suggestions have the potential to help contain the risk he poses to the general community.

With the imposition of a supervision order, in addition to the usual process of induction, the use of a GPS tracker and the imposition of curfews I recommend the following:

1. That a case conference take place involving QCS, Dr Hatzipetrou and the NDIS support worker to plan the steps and structure of [the respondent’s] release.

2. That a suitably experienced adult psychiatrist be engaged to provide psychiatric care in the community and oversee use of psychotropic and anti-libidinal drugs.

3. That all psychiatrist’s reports obtained for the Court be made available to his treating psychiatrist.

4. He should have all clauses of an order explained to him on a number of occasions by Dr Hatzipetrou before he is released.

5. Dr Hatzipetrou should be asked his opinion as to [the respondent’s] level of comprehension of the clauses of the supervision order before the prisoner is released.

6. If possible Dr Hatzipetrou should be asked to provide copies of the visual material he has used to educate [the respondent] to case officers, so that they can use these to reinforce the clauses of the supervision order.

7. That before he is released from prison [the respondent] be placed on a trial of the SSRI medication paroxetine to see if it lowers his libidinal drives and lessens the anxiety he is likely to experience upon release.

8. That the opinion of the Public Guardian be obtained prior to [the respondent’s] release with respect to the use of anti-libidinal medications to assist in containing the risk of sexual recidivism he poses.

9. That when he is released (provided the Public Guardian for health matters concurs), that an anti-androgen drug be prescribed by a suitability qualified specialist.

10. He must have a male case officer with whom he meets daily in the initial transition period of 3 months. He will need clear guidelines repeated on a daily basis repeating the key provisions of his order.

11. He should not have a female case officer or NDIS support worker managing him in the community.

12. He will need to be linked to a male support worker through the NDIS who can teach him activities of daily living including banking, use off [sic] mobile phones and access to public transport. That support worker could then over time engage [the respondent] in suitable recreational activities.

13. The support worker will need to be educated as to flags of rising risk for [the respondent].”

Oral evidence

58. [58]
    At the hearing Dr Sundin gave evidence in relation to the opinions expressed in her report and some further issues.  Her evidence included the following:

    1. (a)
       “Now, Dr Sundin, if I can take you to your initial assessment of [the respondent] for this matter.  You assessed him as being a high risk of future sexual recidivism?‑‑‑Yes, I did.  May I address two omissions from my original report, please?

Certainly?‑‑‑On page 28, I’ve listed the diagnoses.  But I failed to include antisocial personality disorder;  that should be there.  And under my discussion section as regards management, I also meant to include but didn’t that he should undergo an occupational therapy assessment to determine his functional capacities.  There is a degree of confusion as to how well this man actually functions.

Certainly.  So with having assessed him as a high risk in – for your initial report, you also then – in your recommendations – you talked about further detention for 12 months for the period of time for clinical – for the clinical psychologist to undergo treatment in relation to both components of the inclusion sexual offending program and the [indistinct] so ‑ ‑ ‑?‑‑‑Yes.”^[55]

2. (b)
   “In both my original report and in my addendum report, I talked about what I saw as being his treatment needs.  And in my addendum report – at the risk of sounding like a politician – I tried to set out what I thought could be a roadmap forward with this man.  I would concur with the advice of Dr Arthur and Dr McVie that he has significant unmet treatment needs.  I continue to be of the opinion that he needs to have intensive treatment with Dr Hatzipetrou, and that the opinion of Dr Hatzipetrou should be sought before he is released onto supervision so that we – the court has an awareness of Dr Hatzipetrou’s judgment about the progress he’s made in treatment and his likely appreciation of the supervision order and capacity to apply with that supervision order.  I also made recommendations around the pharmacological side of management for this gentleman.  And this is actually something that, clearly, the court has heard today is quite difficult;  but it’s not impossible in the first instance, whilst [the respondent] is still in prison, for QCS to engage an external private psychiatrist to attend him in the prison and provide a recommendation for the introduction of drug like Paroxetine, and for that external psychiatrist to review [the respondent] on three or four occasions before release is ordered to check that the dose is at a sufficiently high level and that it’s having some form of effect and is being tolerated.  That psychiatrist would then be able to follow up.  The – [the respondent] does have the capacity to give consent to a drug like Paroxetine without the involvement of the Adult Guardian.  However, the Adult Guardian would need to be involved if the antilibidinal drugs, which everyone has recommended, were to be introduced, and I continue to recommend they should be introduced.  But that would fall to his independent treating adult psychiatrist to take the step to make an application to QCAT for that drug to be introduced for treatment purposes and to help make it clear to QCAT that it is a treatment modality, not a chemical restraint;  that it is actually part of an overall plan of treatment.

…

So in the first instance, my roadmap was that he would receive treatment in prison;  both psychological and medical.  He would then spend a period of time in a Wacol Precinct, and then from there he would transition into – he would be placed in suitable accommodation under an NDIS supervision and accommodation package.  And there will need to be regular case conferences and coordination of all those relevant services and treatment providers in order for this to work.”^[56]

3. (c)
   “In effect, the Wacol precinct would represent a stepdown.  I would anticipate that he would possibly be ready – if all goes well and he is motivated, that he may be ready for a step from prison into the Wacol precinct somewhere in the next six to 12 months.  I would anticipate him spending a very highly supervised period of time in the Wacol precinct on stage 1 and stage 2 curfews but, certainly, stage 1 curfews for a good six to 12 weeks before he would then be able to meet his NDIS worker at the gate or down at the Wacol train station to then continue on with the activities that the NDIS worker would be involving him in.”^[57]
4. (d)
   In relation to whether the respondent will have daily supports available within the Wacol precinct, “… That’s one of the unknowns at this point which is why I think an occupational therapy assessment is so vital.  [The respondent] has survived in the community semi-independently and perhaps independently in the past.  We just don’t know – have enough information, though, about his functional capacities and that’s where, before he is released, an occupational therapy assessment will greatly inform planning going forward and will inform whether he really could manage independent life activities and self-care activities within the precinct.”^[58]
5. (e)
   “As I understand it, in the real world the greatest frequency with which Dr Hatzipetrou could attend this man in the prison would be fortnightly.  So my expectation would be that we would like to see a solid six months of fortnightly appointments with Dr Hatzipetrou and then an update from him at that point to get feedback from him as to the progress that this man has made as to whether the suggested steps for the transition into the community that I’m recommending could be made.  During that six-month period, I would very much like to see a private psychiatrist engaged to get the paroxetine started.  I think that Dr Arthur slightly underestimated the length of time it would take to establish paroxetine.  We usually increase in every two to three weeks and the minimum therapeutic effective dose that this man is likely to need is going to be in 40 to 60 milligrams and then you would want to watch him and monitor him for another three to six weeks afterwards and be checking for compliance to be able to judge efficacy.

So what would be the entire frame period of the initial [indistinct]?‑‑‑That’s really more like 12 weeks.

Now, if I read your reports correctly, you seem to talk about – so the paroxetine is the SSRI?‑‑‑Yes.

So you talk about trialling the SSRI first?‑‑‑Yes.

And then for a consideration of the antilibidinal.  Is that – am I reading – understanding that ‑ ‑ ‑?‑‑‑Yes, that’s correct.

So, again, you’re saying you want the SSRI.  How long would you then monitor on the SSRI before you would get – have the psychiatrist consider antilibidinals as a potential treatment?‑‑‑The psychiatrist would know within 12 weeks if it was – the paroxetine was proving effective by way of increasing the inhibitions on this man’s sexually dysregulated behaviour and lessening the anxiety that Dr Arthur thought might be relevant to the behaviour.  Thereafter, as a treating psychiatrist, if it was proving effective you would very – you potentially may continue on with that for another three to six months unless you started to see signs of sexual dysregulation, at which stage he would need to be started on an antilibidinal.   And if I was treating him, I would be starting the SSRI and simultaneously starting the process of making the application to QCAT.”^[59]

6. (f)
   “As things currently stand, the problems with [The respondent] are three-fold.  He has a significant intellectual disability.  He is quite sexually dysregulated and appears to have a heightened libido.  He continues to act out sexually inappropriately and indiscriminately within a highly supervised environment like a prison.  And these two factors occur against a man with an antisocial personality disorder who, by virtue of his personality disorder and his intellectual impairment, is a poor problem solver, is impulsive, is some – you know, genuinely antiauthoritarian and generally lacking in empathy.  So the challenge for Dr Hatzipetrou in treatment of this man is that there’s not only the need to address the issue of the sexual incontinence and probable deviance but the antisocial personality disorder and the latter is particularly hard to treat.  [The respondent], hopefully through motivational counselling, can be moved to the point where he can see the benefit to himself of complying with treatment and complying with expected behaviours, first, in a prison and, ultimately, once he was in the community.

So if we look at the first stage, currently, he requires treatment in custody?‑‑‑Yes, both psychological and medical.

Now, so that – and for the psychological, you’re saying potentially six to 12 months?‑‑‑Yes.

So at the end of that period when you get an updated assessment or report from Dr Hatzipetrou on progress ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ he would need to come back to the psychiatrists for consideration of whether sufficient progress has been made?‑‑‑Yes.

And then it would need another court hearing to consider whether or not he could be released to supervision?‑‑‑Yes.  Because, ultimately, the decision is the court’s.”^[60]

59. [59]
    At the hearing, Dr Sundin was cross-examined by Counsel for the respondent.  Dr Sundin’s evidence included:

    1. (a)
       “What does appear to be still problematic, however, is that, until he’s complete more medical and psychological treatment, the behaviour that’s been observed in prison is likely to continue to be observed within the Wacol precinct.  And Dr Arthur and Dr McVie I think wisely flag that there even may be an escalation of that as he feels more anxious in that less restrictive environment and under the pressures of other precinct residents.

So – and that really seems to be the predicating aspect of your opinion.  You say that, at this stage, his risk doesn’t reduce substantially until – substantially enough until he’s undergone this further period of treatment in prison with Dr Hatzipetrou, as I understand it?‑‑‑Yes.  That’s correct.”^[61]

2. (b)
   “My recommendation is that treatment needs to be intensive psychological and medical treatment needs to be undertaken first and then continued as that transition occurs to the Wacol precinct.”^[62]
3. (c)
   “He has got a very longstanding pattern of anti-authoritarian attitudes and general non-compliance with the rules.  He also has a very longstanding history of impulsivity.  So there’s a fairly high likelihood of breaching of the requirements of the order.  And you rightly said earlier, “Well, that’s likely to lead him straight back into prison”.  And yes, that – that’s definitely true.  But I think it’s – the – the way in which I’ve set out my recommendations was in the hope that we could increase this man’s motivation towards participation in treatment and compliance with an order if he sees a pathway out of prison.  And that would be a pathway that involved the recommendations I’ve already made to Ms Maloney about treatment with a view to moving into the precinct and then ultimately to some form of supported accommodation.  These things – I think he can be motivated to that if he sees it as being in his self-interest, but he has – we have to be confident that he’s finally started to realise that all of that is in his self-interest.”^[63]
4. (d)
   “… it’s important, actually, that he gets trained in the skills first and gets a chance to practice those skills within the custodial environment.  There are triggers for him within the custodial environment in that there are female Corrective Services officers.  So the very first step would be him demonstrating that he is actually able to inhibit his sexual acting out behaviour within the prison and has learned that skill and that self-regulation from Dr Hatzipetrou.  He – the next step then would be take it into exposure within the community, continuing his treatment with Dr Hatzipetrou but closely supervised by a QCS officer.”^[64]
5. (e)
   “If he were to be released tomorrow under a supervision order in the terms that I have read, I don’t consider that that supervision order would contain his risk.  And that’s simply because at the moment his treatment needs are unmet.  If he was on a supervision order at some stage in the future after this process that I’ve recommended has occurred and has been proven to be at least moderately successful, then a supervision order and the plan I’ve set out has the potential to contain the risk.”^[65]
6. (f)
   “To be absolutely frank, as a clinician who has treated a number of intellectually disabled people, the language the Public Guardian uses, at times, can be very difficult.  Someone like [the respondent] does show evidence of anxiety.  He does show some signs of distress around consequences of his behaviour.  Clinically, SSRI is rarely prescribed on that foundation alone.

…and, in my opinion, he has sufficient capacity for consent to – consent to a drug like Paroxetine, because the side effects are really quite limited.  They’re nowhere near as potentially problematic long-term as an antilibidinal drug.  I don’t think he’s got the capacity to consent to that;  and that’s why I’ve said the Adult Guardian or QCAT needs to be involved at that point.  But, certainly, in the first instance, I think that an SSRI could be instituted on a therapeutic foundation without involving the Adult Guardian at all.”^[66]

7. (g)
   “Anybody who’s going on an antilibidinal drug has to have a series of baseline blood tests done;  they need review by an endocrinologist and they need to have a bone scan done for density.  And I usually get the opinion of an endocrinologist.  Testosterone levels vary on a diurnal pattern;  so we need to plot out a process of how the drugs will be prescribed and how the testosterone is monitored.  All of that, really, can only be done outside of [prison].  It can’t be done within the prison.  And, as I understand it, QCS is prevented from prescribing those sorts of drugs anyway.

… The tests of renal and kidney function – sorry, renal and liver function are undertaken, the prolactin level is assessed, the serum testosterone level is assessed and bone density is done as a baseline.  And then, after that, on a monthly basis prolactin and testosterone levels are checked and the dose modified accordingly.”^[67]

8. (h)
   “If he’s completed medical and psychological treatment or is continuing to receive medical – that’s better said.  If he’s continuing to receive and psychological treatment, and he’s completed a program of treatment before he’s released, and then we have all these other things in place, then that would reduce his risk to something less than high;  provided, of course, he’s motivated to comply, as you said.”^[68]

Other evidence

60. [60]
    The applicant relies on a number of affidavits filed in support of the application.  I do not refer to all the evidence in these reasons but have taken the evidence into account.  Below I note a few key aspects addressed in the affidavits.

High-Risk Offender Management Unit, Queensland Corrective Services

61. [61]
    Mr Daniel Bear’s affidavit sworn on 3 September 2020 addresses a number of issues including:

    1. (a)
       Managing the relevant risk through a supervision order;
    2. (b)
       Suitable accommodation;
    3. (c)
       NDIS funding; and
    4. (d)
       Anti-libidinal and/or SSRI medications, including availability of psychiatrists to prescribe and/or oversee and issues of consent.
62. [62]
    Mr Bear states in his affidavit that, given the identified risk, “QCS contend that a supervision order cannot be reasonabl[y] or practicably applied to manage the identified risk posed by the respondent.”^[69]  Mr Bear identifies the practical and operational limitations in resources to manage offenders the subject of supervision, including detecting compliance and/or breach behaviour.  Further, Mr Bear identifies that “QCS holds concerns regarding the respondent’s ability to comply with any order made by the court to adequately mange his risk to the community.”^[70]

Public Guardian

63. [63]
    The affidavit of James Houghton affirmed on 2 September 2020 sets out the evidence relevant to the  role of the Public Guardian in respect of the respondent, current NDIS funding and support, and the issues concerning the use of anti-libidinal medication. 
64. [64]
    Mr Houghton deposes that if the treatment is for the primary purpose of “managing behaviours” and not related to his physical or mental condition, then it is not a health care matter for which the Public Guardian currently has decision-making authority.  Mr Houghton also outlines that in certain circumstances the Public Guardian could be appointed as a restrictive practices decision maker.

Applicant’s position

65. [65]
    The applicant’s position is that the Court should make a continuing detention order pursuant to s 13(5)(a) of the DPSO Act on the basis that:

    1. (a)
       There is acceptable, cogent evidence which would satisfy the Court, to the high degree of probability required, that the respondent is a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act.
    2. (b)
       The psychiatric evidence identifies the risk of sexual reoffending is very high and would remain high with a supervision order. 
    3. (c)
       Further, the respondent’s offending history shows a lengthy history of impulsive, opportunistic sexual offences usually occurring in the setting of intoxication at times of heightened sexual preoccupation.
    4. (d)
       The applicant points to a range of factors which contribute to the high risk of reoffending including:

       1. the respondent’s intellectual impairment;
       2. use of intoxicating substances including alcohol;
       3. a high sex drive and high level of sexual preoccupation;
       4. a varied history of victim type;
       5. continued denial and minimisation of responsibility for his offending;
       6. unmet treatment needs;
       7. a history of reoffending while on bail; and
       8. a continued demonstration of inappropriate sexualised behaviour while in jail.
    5. (e)
       The applicant relies on the evidence of all three psychiatrists in support of the respondent remaining in custody to undertake individual treatment^[71] to address those issues, also further substance abuse programs need to be undertaken. All psychiatrists agree that such treatment should occur in custody before release to a supervision order.
    6. (f)
       Further, all three psychiatrists are of the opinion that the respondent requires a high level of supervision and support if released to a supervision order.
    7. (g)
       The respondent’s current NDIS plan does not include funding for the level of support required.  In any event, the necessary support would not be able to be provided at the Wacol precinct and no alternative supported accommodation is identified and available.
    8. (h)
       On all of the evidence, it cannot be found that adequate protection of the community is ensured by the respondent’s release on supervision.
66. [66]
    There is an additional issue in respect of additional forms of treatment through a SSRI and/or anti-libidinal medication to lower the respondent’s libidinal drive and anxiety, including whether there should be a trial treatment with the drugs prior to release to a supervision order.  This is considered further below in considering the expert evidence.

Respondent’s position

67. [67]
    The respondent’s submissions identify the “primary issue” as “whether the adequate protection of the community can be ensured by the making of a supervision Order in circumstances in which the respondent is yet to undertake treatment by way of SSRI medication or anti-libidinal medication before his release from custody.”
68. [68]
    The respondent’s submissions recognise:

    1. (a)
       The respondent’s intellectual capacity is “well below his age expected limits.  He cannot read or write.”
    2. (b)
       The impairments to his “working memory and reasoning” means that he will “require a level of repetition to encode and reliably recall information.”
    3. (c)
       The respondent “would be likely to benefit from individual treatment by an experienced clinical psychologist such as Dr Hatzipetrou.”
    4. (d)
       The respondent “does demonstrate a capacity for learning” and “will require structure to his life, including supervision of his medication regime.”
69. [69]
    In relation to the possible treatment of the respondent by SSRI medication or other anti-libidinal medication, the respondent’s submissions note that the respondent has not yet been assessed or prescribed such medication.  Further, the Prison Mental Health Service is unable to provide such treatments.  There is an additional issue as to whether there would need to be an amendment to the respondent’s Guardianship Order to enable the Public Guardian to participate in the respondent’s decision making regarding the use of anti-libidinal medication (if they are properly regarded as a restrictive practice).
70. [70]
    The respondent’s position is:

    1. (a)
       The respondent’s risk of sexual reoffending can be adequately met by the restrictions that would be placed upon him under a supervision order, in combination with a form of treatment that reduces his sexual drive.
    2. (b)
       The respondent’s intellectual disability is not “insurmountable” in respect of a supervision order.

Consideration

71. [71]
    The expert evidence is lengthy and detailed, particularly given the range of issues that need to be considered in respect of the respondent.  However, the relevant factors established on the expert and other evidence include the following:

    1. (a)
       The respondent’s risk of sexual reoffending is very high and would remain high with a supervision order.
    2. (b)
       The respondent has unmet treatment needs. 

       1. This includes individual treatment to be provided by an experienced psychologist, such as Dr Hatzipetrou.
       2. This treatment should occur, at least for an extended period, prior to release on a supervision order.
    3. (c)
       The respondent requires a high level of supervision and support if released to a supervision order.
    4. (d)
       No suitable accommodation has been identified.

       1. Accommodation in the Wacol precinct does not enable the required level of support to be provided.
       2. The current NDIS plan does not include funding for supported independent living.
       3. There is currently no alternative suitable supported accommodation available.
    5. (e)
       Further consideration should be given to a further form of treatment to lower the respondent’s libidinal drive and anxiety. 

       1. This may be through the use of an SSRI and/or anti-libidinal medication.
       2. A trial treatment in respect of one or both medications should ideally take place prior to release on a supervision order.
       3. Further consideration needs to be given to the nature of this treatment and, given the respondent’s intellectual impairment and the role of the Public Guardian, the appropriate approach to this treatment, including consent.

Serious danger to the community

72. [72]
    In light of the evidence relied on in support of the originating application, and, in particular, the expert reports and the evidence given orally at the hearing, and having regard to the submissions made by the parties, I am satisfied by acceptable, cogent evidence and to the high degree of probability required by the DPSO Act that the respondent is a serious danger to the community in the absence of a Division 3 order.
73. [73]
    Accordingly, I find that the applicant has established, to the high degree of probability required, that if released without a Division 3 order, the respondent presents an unacceptable risk of committing a “serious sexual offence” as defined by the DPSO Act.

Protection of the community

74. [74]
    Consistent with the statutory scheme and the case law, the relevant question is whether the protection of the community can be adequately ensured.  An order for supervised release should, in principle, be preferred to a continuing detention order if the supervision is apt to ensure adequate protection.
75. [75]
    The risk being protected against is the risk of the respondent, if released, committing a serious sexual offence and that risk must be of an unacceptable magnitude.  The legislative scheme must accept that some level of risk is acceptable, consistent with the concept of adequate protection of the community.
76. [76]
    The assessment of that risk and what terms of order would provide for adequate protection of the community is not a matter for expert, particularly psychiatric, opinion.  It is a matter for the Court.  As recognised by McMurdo J (as his Honour then was) in Attorney-General for the State of Queensland v Sutherland,^[72] the exercise requires a “value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”
77. [77]
    The applicant has the onus of demonstrating that a supervision order does not afford adequate protection of the community.  If, on all the evidence, a supervision order would be likely to reduce the opportunity for the respondent to engage in sexual offences to an “acceptably low level”, then the supervision order should be made: Attorney-General for the State of Queensland v Beattie.^[73]  This is subject to there being some evidence that the respondent would be likely to comply with it:  Attorney-General for the State of Queensland v Fardon.^[74]

78. [78]
    On the evidence presented to the Court, and particularly the expert evidence, I am satisfied that a continuing detention order ought to be made.  This is particularly taking into account the need to ensure adequate protection of the community and also to enable the respondent to undergo the recommended treatments.

Interim detention order

79. [79]
    Given that a continuing detention order will be made it is appropriate that the interim detention order made on 7 September 2020 be dissolved from today. 

Conclusion

80. [80]
    In summary, I have made the following findings:

1. I am satisfied by acceptable, cogent evidence and to the high degree of probability required by the DPSO Act that the respondent is a serious danger to the community in the absence of a Division 3 order.  Accordingly, the applicant has established to the high degree of probability required that, if released without a Division 3 order, the respondent presents an unacceptable risk of committing a “serious sexual offence” as defined by the DPSO Act.
2. I am not satisfied that adequate protection of the community can be reasonably and practicably managed by conditions in a supervision order.
3. The respondent be detained, pursuant to s 13(5)(a) of the DPSO Act, in custody for an indefinite term for control, care or treatment.

81. [81]
    Accordingly, I order as follows:

THE COURT, being satisfied to the requisite standard that the respondent, HGD, 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. The order made on 7 September 2020 pursuant to s 9A(2)(b) of the DPSO Act that the respondent be detained in custody until 4pm on 7 October 2020 be dissolved from today.
2. Pursuant to s 13(5)(a) of the DPSO Act, the respondent be detained in custody for an indefinite term for control, care, or treatment.