Attorney-General v Henry[2020] QSC 296

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application by the Attorney-General for the State of Queensland (the applicant) under Part 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSO Act) for a review of the continuing detention order made in respect of the respondent.
2. [2]
   On 24 September 2018, his Honour Justice Martin found the respondent to be a “serious danger to the community” and ordered that the respondent remain in custody for an indefinite term under a continuing detention order for control, care and treatment.^[1]
3. [3]
   This is the first annual review under the DPSO Act and, in order to comply with s 27(1A) of the DPSO Act, the hearing and all submissions are to be completed within two years, calculated from 24 September 2018.  The hearing proceeded on Monday 14 September 2020 and the hearing and submissions were finalised on that day with judgment being reserved.

Statutory scheme

4. [4]
   Section 27 of the DPSO Act provides for periodic reviews as follows:

“27  Review—periodic

3. (1)
   If the court makes a continuing detention order, it must review the order at the intervals provided for under this section.

3. (1A)
   The hearing for the first review and all submissions for the hearing must be completed within 2 years after the day the order first had effect.

3. (1B)
   There must be subsequent annual reviews while the order continues to have effect.

3. (1C)
   Each annual review must start within 12 months after the completion of the hearing for the last review under this section.

3. (2)
   The Attorney-General must make any application that is required to be made to cause the reviews to be carried out.”

5. [5]
   Section 30 of the DPSO Act directs the Court on the hearing of the review as follows:

“30  Review hearing

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

3. (2)
   On the hearing of the review, the court may affirm the decision only if it is satisfied—

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

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

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

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

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

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

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

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

2. (b)
   the court must consider whether—

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

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

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

3. (6)
   In this section—

required matters means all of the following—

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

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

6. [6]
   Section 30 incorporates the term “serious danger to the community” which in turn encompasses the notions of “serious sexual offence” and “unacceptable risk”.  This in effect mirrors s 13 of the DPSO Act.
7. [7]
   Section 13 of the DPSO Act provides as follows:

“13  Division 3 orders

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

3. (2)
   A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—

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

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

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

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

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

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

3. (4)
   In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

(aa)  any report produced under section 8A;

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

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

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

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

5. (e)
   efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;

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

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

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

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

10. (j)
    any other relevant matter.

3. (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).

3. (6)
   In deciding whether to make an order under subsection (5)(a) or (b)—

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

1. (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.

3. (7)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

8. [8]
   In the recent decision of Attorney-General for the State of Queensland v Anderson^[2] Davis J summarised the effect of s 13:

“[5] The effect of s 13 is:

1. (a)
   the court must consider whether the prisoner is a “serious danger to the community in the absence of a Division 3 order”;^[3]
2. (b)
   a prisoner is a “serious danger to the community” where there is an unacceptable risk that the prisoner will commit a “serious sexual offence” in the absence of an order;^[4]
3. (c)
   a “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence; or … against a child …”;^[5]
4. (d)
   orders under Division 3 are:

   1. a continuing detention order;^[6] or
   2. a supervision order;^[7]

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

   1. make no order;
   2. make a continuing detention order; or
   3. make a supervision order;^[8]
6. (f)
   in determining what, if any order, to make “the paramount consideration is to be the need to ensure adequate protection of the community” from the commission by the prisoner of a “serious sexual offence”;^[9]
7. (g)
   if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;^[10] and
8. (h)
   if the adequate protection of the community can be ensured by a supervision order, then supervision ought to be preferred to the making of a continuing detention order.^[11]

[6] The process of the assessment of risk in terms of the DPSOA was explained by McMurdo J (as his Honour then was) in Attorney-General for the State of Queensland v Sutherland^[12] where his Honour said:

‘[30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.’^[13]”

9. [9]
   Further, his Honour helpfully summarised the process that is to be undertaken under s 30:

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

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

Previous offences

10. [10]
    The applicant identifies offending in September 2006 as relevant background to the application.
11. [11]
    The respondent was 17 years old at the time and pleaded guilty to a charge of an indecent act which involved the respondent removing his pants before masturbating at an intersection in view of passing vehicles and later in front of a house in sight of women and children.
12. [12]
    The respondent then entered a residence which was occupied by a 75 year old female and her son.  When the respondent entered through the front door, the female questioned what the respondent was doing and repeatedly asked him to leave.  He was holding a soft drink bottle containing paint and did not respond.  The respondent grabbed at the female’s dress and she pulled away at the same time as calling out to her son, who was in the shower.  At this time, the respondent went to the kitchen and returned with a paring knife which he held above his shoulder as he stood in front of the female.
13. [13]
    The female’s son then came out of the bathroom and the respondent darted towards him swinging the knife and saying “You’re going to die.”  The knife made contact with the son’s right palm.  Subsequently the son managed to grab the respondent, hold him down and disarm him.  The respondent was laughing and saying “You’re going to die.  I’ll meet you on the trail of retribution.”  The police were called.  As the respondent was apprehended, he continued to struggle and make threats.
14. [14]
    The respondent was interviewed by police and he stated that he had been drinking in the park with his parents and he bought a spray can of paint which he transferred to a soft drink bottle from which he was sniffing.  He denied exposing himself and thought he was at his aunt and uncle’s place.  When questioned about the knife, he responded “What’s the knife?”
15. [15]
    Her honour Judge Bradley, in sentencing the respondent, accepted that the respondent’s behaviour was explained by alcohol consumption and paint sniffing.  However, her Honour noted that the respondent knew from previous experience that these issues would lead him to trouble.
16. [16]
    Her Honour Judge Bradley reflected in her sentencing comments the gravity of the offending as follows:

“Your behaviour was very disturbing. You started off by masturbating in public and masturbating in front of women and children. You then followed that by entering a home of people who were complete strangers to you. You grabbed the dress of the elderly lady who was simply sitting in her lounge room watching television, you obtained a knife from the kitchen in that house, and then when the lady's son came out of the shower you advanced upon him and threatened to kill him.

In fact, you did swing the knife and you did cause him to be cut on the hand. He was able to disarm you, but you continued to make threats and continued to struggle, even after the police had arrived and were attempting to handcuff you.

Even without the victim impact statements from the lady and her son, it is clear that that would have been an absolutely terrifying experience for them, and the victim impact statements confirm that. It was of particular concern for the elderly lady because she does have a medical condition, and she and her son were concerned that she could have had a heart attack during that incident. Her son has suffered emotionally and psychologically quite significantly as a result of this incident.”^[14]

Index offences

17. [17]
    Six days after he was re-released on parole for this sexual offending committed in September 2006, the respondent committed further offences.
18. [18]
    The respondent pleaded guilty to three offences of rape, committed against a 19 year old female victim in her home on 28 February 2008.  He was sentenced in the District Court at Cairns on 24 June 2010.
19. [19]
    At the time of the index offences the respondent was 18 years of age.
20. [20]
    The relevant facts of these offences are as follows:

    1. (a)
       The respondent was invited into the complainant’s home by her cousin, with whom she lived.
    2. (b)
       After entering the unit, the respondent went to the complainant’s bedroom where she was lying on her back asleep on the floor.
    3. (c)
       The complainant woke to find the respondent on top of her with his hands around her throat and holding a kitchen knife.  The respondent made threats to kill her when she resisted and applied pressure to her throat with his right hand, while holding the knife in his left hand.
    4. (d)
       When the complainant stopped resisting he ripped off her clothing, touched her breasts and again threatened to kill her if she did not keep quiet.
    5. (e)
       The complainant pleaded with the respondent not to hurt her as she had a young child.
    6. (f)
       The respondent responded with “I don’t give a f..k” and removed his clothing, before vaginally raping her for several minutes.  During the rape he told the complainant to “Stay there and let me f..k you.”
    7. (g)
       When the complainant requested to use the toilet she was forcibly taken to the toilet by the respondent who locked them both inside.  At that time he told the complainant to bend over the toilet where he unsuccessfully attempted to sodomise her but she blocked him with her hands.
    8. (h)
       The respondent then proceeded to vaginally rape the complainant for several minutes before dragging her into the lounge room.  Then, whilst she was lying on the floor, he forced her legs apart and again vaginally raped her for a short period.
    9. (i)
       When the respondent attempted to pull the complainant on top of him, the complainant resisted.  At that point the respondent stopped, got off the complainant, dressed and offered her a cigarette.
    10. (j)
        The complainant then ran to her neighbour for help.  She was able to call the police from a nearby service station and waited for the police to arrive. 
21. [21]
    The respondent was located by police on 3 March 2008 and he was taken to hospital for medical attention as a result of alcohol consumption and petrol sniffing.  Following his release from hospital, he was arrested for this offending but declined to participate in an interview. 
22. [22]
    His Honour Judge Harrison, in sentencing the respondent, noted the serious nature of the charges and in particular the threats of violence whilst armed.  In this regard, his Honour noted:

“I understand that you are a person who has a very long history of abuse involving glue sniffing and petrol sniffing and that you have also had a lot of problems stemming from the death of your mother and to the extent that you may even blame yourself for what happened to your mother. It is very disturbing that you were so affected by the substances you were sniffing on this occasion that you have no recollection of these events and I understand that you have pleaded guilty and accepted that what the young lady has said is true.

Your situation is made worse by the fact that you were dealt with by her Honour, Judge Bradley on 12 December 2007 … A release date was fixed and these offences were committed, as I understand it, in a very short time after your release on parole for those offences.”^[15]

Continuing detention order

23. [23]
    Following an application by the Attorney-General, his Honour Justice Martin, on 24 September 2018, declared the respondent to be a “serious danger to the community” and ordered that the respondent remain in custody for an indefinite term under a continuing detention order for control, care and treatment.
24. [24]
    Justice Martin’s reasons for decision state as follows:

“It is further conceded that the evidence is sufficient to support (a) a finding that there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody, and (b) the making of an order that the respondent be detained in custody for an indefinite term for control, care, or treatment.  Consistent with that, no submission is advanced by the respondent in opposition to the making of a continuing detention order. 

The concessions by the respondent are, in the circumstances of this case, well founded, but they do not relieve the Court from being satisfied, to the necessary extent, of the identified matters in the Act.  …

There are three reports from consulting psychiatrists, which I will only touch on, given the manner in which the application has progressed.  Dr Timmins says that she is of the opinion that the respondent will be at a high risk of reoffending in a sexual manner if released into the community at this time.  He represents an unacceptable, unmodified risk to the community for serious sexual offending.  Dr Timmins diagnosed the respondent as suffering from psychopathy, antisocial personality disorder, polysubstance use dependence, and the presence of exhibitionism, although that required further diagnostic clarification.  All the tests performed by Dr Timmins supported the conclusion that she reached.

She also expressed the opinion that he is also at risk of reoffending if he faced with any stressors, as his ability to manage his emotional state is poor and he is impulsive.  He is likely to act out in a sexual way if distressed, lonely, or angry, as a way to get his needs met by others or to manage his affect.  Victims are likely to be adult [fe]males.  His behaviour is escalating, which is concerning.  He has poor insight into his sexual behaviour;  he does not show a deep understanding of either himself or his offending behaviours.  He shows denial of his sexual behaviours, and consistently refuses to engage in a treatment program which may assist him.  I repeat that that attitude has, on Mr Whitton’s instructions, now changed.

Dr Beach [sic] described the respondent as suffering from psychopathy, antisocial personality disorder, and substance abuse disorder.  He believes that he is relatively insightless into his risks on release, particularly because he says that he will return to alcohol use in the community.  He concludes:

At present, Mr Henry falls into a group of offenders who are at high risk of reoffending within five years of release.  He has no set relapse prevention plan, he has limited insight into the factors that have led to his offending, and he has poor awareness of his ability to manage his substance use.  The preference would be for him to undertake a sexual offender treatment program, such as the Sexual Offender Program for Indigenous Males, so that these issues could be explored, risk factors could be clearly identified, and strategies could be put in place for him to manage them.

Dr Harden diagnoses the respondent as suffering from antisocial personality disorder with psychopathic features, polysubstance abuse but in remission, and possible but unconfirmed exhibitionism.  He concluded:

The actuarial and structured professional judgment measures I administered would suggest that his future risk of sexual re-offence is high – well above average – in the absence of a supervision order.

He went on to say:

It would be preferable for him to undertake treatment interventions while still in custody, as he has had no treatment for his sexual offending.

I am satisfied on the basis of all the evidence – only part of which I have referred to – and the concessions by the respondent, that there is an unacceptable risk that the respondent will commit a serious sexual offence if released without a division 3 order.  I conclude that the respondent is clearly a serious danger to the community in the absence of an order under that division.  The unanimous assessments of the three psychiatrists compel such a finding.

Of paramount statutory consideration is the adequate protection of the community.  I am satisfied that this is a case in which a supervision order would not afford adequate protection.  The consistent diagnoses of the psychiatrists, and the refusal to date by the respondent to undertake any sexual offender programs, support the conclusion that the respondent has unmet criminogenic needs that require treatment in a custodial environment, before he is released into the community.”^[16]

Further psychiatric reports

25. [25]
    For the purposes of this application:

    1. (a)
       Dr Josephine Sundin, Consultant Psychiatrist, examined the respondent by video-link on 4 June 2020 and provided a further report on 2 July 2020.^[17]
    2. (b)
       Dr Eve Timmins, Consultant Psychiatrist, examined the respondent by video‑link on 12 June 2020 and provided a report on 22 August 2020.^[18]
26. [26]
    Dr Timmins had previously examined the respondent in 2017 and had prepared a report dated 13 September 2017 for the Division 3 final hearing.

Dr Sundin’s report

27. [27]
    Dr Sundin’s report dated 2 July 2020 includes the following opinions:

    1. (a)
       Dr Sundin diagnoses the respondent as suffering from Anti-social Personality Disorder and Substance Use Disorder (inhalants, alcohol; in sustained remission whilst incarcerated).
    2. (b)
       In this regard, Dr Sundin notes:

“Given the limitations of a video interview, it was not possible to make an adequate assessment with regard to the presence of psychopathic personality traits but from the history obtained he showed clear history of the following:

• Criminal versatility;
• Revocation of conditional release;
• Juvenile delinquency;
• Irresponsibility;
• Impulsivity;
• Early behaviour problems;
• Poor behavioural controls; and
• Need for stimulation/proneness to boredom.

He showed partial evidence of:

• Glibness/superficial charm;
• Grandiosity;
• Pathological lying;
• Conning and manipulative;
• Lack of remorse;
• Shallow affect;
• Lack of empathy;
• Parasitic lifestyle;
• Past promiscuity; and
• Failure to accept responsibility for his own actions.”
  3. (c)
     Further, Dr Sundin undertook assessments of the respondent and her report outlines the following results:

     1. Static 99-R:  score of 8, placing the respondent in the “well above average” risk category;
     2. Risk for Sexual Violence Protocol:  the respondent scored positively for the following dynamic risk factors which indicate to Dr Sundin “a heavy dynamic risk load:

     • Diversity of sexual violence;
     • Escalation of sexual violence;
     • Physical coercion in sexual violence;
     • Reduced self-awareness;
     • Problems with stress and coping;
     • Problems arising from childhood abuse;
     • Probable psychopathy;
     • Problems with substance abuse;
     • Violent ideation;
     • Problems in sustaining relationships;
     • Absence of employment history;
     • Diverse criminality;
     • Problems with planning;
     • Problems with treatment; and
     • Problems with supervision.”
  4. (d)
     Specifically, in relation to the question of risk and future management of the respondent, Dr Sundin states as follows:

“The collateral material suggests that Mr Henry has particular problems with poor problem solving, emotional dysregulation and impulsive behaviour. These problematic behaviours are aggravated by the presence of intoxicants such as alcohol or inhalants.

The risk in the future is that as with the rape offences, that Mr Henry will become overwhelmed, emotionally dysregulated and respond in an aggressive manner such that he will act out sexually and assault an adult female. Use of illicit substances will also increase his risk of non-sexual criminal offending.

At the time that I interviewed Mr Henry, he had not completed the Sexual Offenders Programme for Indigenous Males. He is not likely to have completed this until October 2020.

The early indications are that he is doing well in this programme and certainly he would appear on interview to have made some gains and achieved a degree of insight not previously evident on earlier assessments.

The concerns I have arising from this current interview are that he had what would be best described as an aspirational relapse prevention plan rather than a well formulated plan for avoiding risks of recidivism and problematic behaviours which would increase that risk. I am hopeful that by the time he has completed the SOPIM that he has developed a more detailed risk management plan.

I would be happy to provide an updated report when the exit report becomes available.

In the meantime, it is my opinion that Mr Henry represents a high, unmodified risk for sexual recidivism. ”

5. (e)
   Dr Sundin’s report also outlines the following clinical recommendation in relation to the ongoing care and treatment of the respondent:

“If he were to be placed on a supervision order, his risk would be reduced to moderate by the presence of clauses which sought to decrease his capacity to access intoxicants through imposition of curfews, association clauses, and exclusion zones where he would be at risk for resumption of intoxicants. A supervision order would assist him by way of linking him to supports including professional counsellors, QCS case workers and both a Sexual Offenders Maintenance Programme and a drug and alcohol relapse prevention programme within the community.

Mr Henry is a highly institutionalised individual. He will require a high level of support and supervision upon release into the community to best manage and reduce his risks for recidivism both by way of general offending and more specifically by use of intoxicants which would increase his risk of sexual offending.”

Dr Timmins’ report

28. [28]
    Dr Timmins’ most recent report includes the following:

    1. (a)
       Dr Timmins diagnoses the respondent as suffering from Anti-social Personality Disorder with Psychopathy Traits, Paraphilia of Exhibitionism (requires further explanation), Polysubstance Use Disorder and Low-Average Intellect.
    2. (b)
       Further, for the purposes of her report, Dr Timmins undertook an assessment and in the report records her results as follows:

       1. Static 99-R:  score of 8 placing the respondent in the “high” risk category.
       2. Hare Psychopathy Checklist:  scored 32 out of 40 which is above the cut-off criteria for a formal diagnosis of Psychopathy.
       3. Risk of Sexual Violence Protocol identified the following dynamic risk factors:

“I consider Mr Henry to have positive scored for the following relevant items:

• Chronicity of Sexual Violence
• Diversity of Sexual Violence
• Escalation of Sexual Violence
• Physical Coercion in Sexual Violence
• Extreme Minimisation or Denial of Sexual Violence
• Attitudes that Support or Condone Sexual Violence
• Problems with Self-Awareness
• Problems with Stress or Coping
• Problems resulting from Child Abuse
• Psychopathic Personality Disorder
• Problems with Substance Abuse
• Violent or Suicidal Ideation
• Problems with Intimate Relationships
• Problems with Non-Intimate Relationships
• Problems with Employment
• Non-sexual Criminality
• Problems with Planning
• Problems with Treatment
• Problems with Supervision

I consider Mr Henry to have partial/possible scores for the following items:

• Sexual Deviance

He does not have evidence of:

• Psychological Coercion in Sexual Violence
• Major Mental Illness.”

3. (c)
   In relation to the issue of risk, Dr Timmins’ report notes as follows:

“Mr Henry was initially incarcerated in the Capricornia Correctional Centre on three Rape charges committed two weeks after being released from prison for serving six weeks for breaching his parole order in 2008. He was on parole for a number of other violent offences committed in 2006 against an old lady and her son in addition to committing an indecent act in public whereby he masturbated in front of general members of the public. This is on a background of various offending behaviours from his early teenage years. As an adult he has spent only a matter of weeks in the community.

He has a significant history of substance abuse from the age of approximately eight years old. This has been a factor involved in his offending history. Substance use has also continued in the custodial environment with his last positive urine drug screen being in August 2019 when he was found to have used buprenorphine.

…

Since the court hearing in September 2018 placing him under a Continuing Detention Order, Mr Henry was transferred to Lotus Glen in order to commence sex offender programs to address his sexual offending. He completed the Getting Started Program in June 2019 and after a delay due to his grandfather’s death, commenced the Sexual Offending Program for Indigenous Males in November 2019. At the time if writing this report, he continues to engage in this group program.”

4. (d)
   Further, Dr Timmins in her report sets out clinical recommendations as to the ongoing care and treatment of the respondent as follows:

“Overall, according to the risk assessment tools, Mr Henry continues to score at a HIGH risk of re-offending in a sexual manner if released into the community without a DPSOA Community Order.

He is now in the process of completing the SOPIM to address his sexual offending needs and appears to have engaged well and learnt to a degree his pathways to sexual offending, thus is in a better place to move forwards.

If the court is of a mind to release Mr Henry to the community, he will require ongoing support from a forensic psychologist to treat his sexual offending and explore the possibility of a paraphilia in individual sessions.

He may also benefit from a Sex Offender Maintenance Program which could be done in custody or the community.

He needs to maintain abstinence from illicit substances and alcohol as this will raise his risk of sexual offending significantly. He will require treatment and support in order to maintain abstinence from using substances as he has used substances for a long period of time. He will require regular urine drug screens and breath testing.

He should engage in work and have suitable accommodation. He should engage in appropriate activities and pro-social relationships, both male and female, which will require monitoring especially any intimate relationships for any violence or stress. He could engage with aboriginal Elders in his community for extra support from his culture.

His risk may be modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003. He would most likely fall into a Moderate risk category. It is recommended the Community Supervision order be in place for 10 years given that Mr Henry is still a young man, has psychopathic personality traits, has a history of breaching orders and has spent much of his adult life in the custodial setting. It is likely to take significant time for him to settle and engage in managing his risk of sexual re-offending to the community.”

Further affidavits

29. [29]
    The applicant relies on the affidavit of Daniel Bear sworn 8 September 2020 and an affidavit of Niclaire Byrne sworn 26 May 2020 in relation to the application.
30. [30]
    The affidavit of Ms Byrne relevantly outlines the programs undertaken by the respondent while he has been in custody.  In particular, I note that, between 15 April 2019 and 18 June 2019, the respondent participated in the Getting Started: Preparatory Program at the Lotus Glen Correctional Centre.  Further, on 2 September 2019, a completion report was provided.  Ms Byrne, in her affidavit, also addresses the Sexual Offending Program for Indigenous Males (SOPIM).
31. [31]
    Paragraph 16 of the affidavit of Ms Byrne describes the SOPIM as follows:

“The SOPIM is a rolling program that incorporates both high and medium risk Indigenous offenders into the one program.  The rolling format allows offenders to remain in the program for the required amount of time, according to their assessed risk level.  The SOPIM is specifically designed to accommodate cultural, custom or language considerations relevant to Indigenous offenders.  The program uses a cognitive behavioural approach to change anti-social attitudes and behaviours, and to promote a holistic pro-social lifestyle and helping offenders to avoid re-offending.”

32. [32]
    Initially, when interviewed on 11 July 2019 in relation to undertaking the program, the respondent declined the offer of a placement in the program due to his family circumstances at the time.
33. [33]
    Further, on 23 September 2019, the respondent was again interviewed in relation to his willingness to participate in the SOPIM and was offered a place in the program.
34. [34]
    On 7 November 2019, the respondent commenced the SOPIM at the Lotus Glen Correctional Centre.
35. [35]
    The affidavit of Ms Byrne identifies that the respondent has completed only part of the program at the time of swearing the affidavit and that it was expected that the respondent would complete the 351 hours of the SOPIM on 26 October 2020.  This was assuming no further delays due to the COVID-19 pandemic.
36. [36]
    Submissions on behalf of the applicant and respondent were provided in relation to the application.  In the respondent’s submissions, it was identified that some issues in relation to the SOPIM required further clarification in evidence.  In particular, the respondent’s submissions noted as follows:

“20.  Though both psychiatrists appointed for these proceedings identify the completion of the SOPIM program as important, neither explicitly opine that it is a precondition for his release on a supervision order. This is also a matter that requires clarification in evidence.

21. At the time of writing it is unclear as to exactly what the respondent would be unable to complete in terms of the content delivered in the SOPIM course if he were to be released from custody, and whether this content could potentially be delivered by some other means in the community while subject to supervision.”

37. [37]
    A supplementary affidavit of Niclaire Byrne sworn on 8 September 2020 was filed in relation to these issues.
38. [38]
    The supplementary affidavit relevantly states as follows:

“7. The respondent completed 234 hours of the program on 25 August 2020.  At this time, the program facilitators conducted a review of the respondent’s participation and his progress in addressing his identified areas of risk and need.  Given the respondent has made solid gains with his sexual offending treatment, it was determined he would benefit from completing approximately 109 sessions of the program, equating to 327 hours, rather than the full dosage of 351 hours.

8. Further to the information deposed in my previous affidavit, I can provide the following information on the respondent’s participation to-date in the program:

1. He participates at a high-level during sessions and consistently presents as motivated and engaged in program content.
2. He completes all program module work and has continued to seek out and complete out-of-session work which is in addition to the requirements of the program.
3. He consistently provides support and encouragement to other program participants.
4. He demonstrates a sounds intellectual understanding of program concepts and has made gains in addressing the treatment areas identified in the STABLE-2007 assessment.
5. He has recognised the instability of his life prior to his incarceration and demonstrated a strong ability to engage in perspective-taking and consequential thinking.
6. He has demonstrated increased emotional intelligence, specifically with regard to recognising emotions in himself and others, and an improved his ability to implement healthy coping strategies.
7. He has been successfully utilising newly developed skills to manage his behaviour in his interactions with correctional staff.

9. I am informed and believe that at the time of swearing this affidavit, the respondent has completed 79 sessions of the SOPIM, equating to 237 hours of treatment.  The respondent has completed the following program modules:  Autobiography, Disclosure, Map of Offending, Consequences and Managing Emotions modules.  The respondent has two program modules outstanding:  Intimacy, Sexuality and Attachments and the New Future Plan.

10. The Intimacy, Sexuality and Attachments module is a significant aspect of the program as it requires participants to explore their childhood experiences and past relationships and link them with their offending behaviour.  This module aims to foster an understanding of intimacy and attachment in relationships, explore connections to land, country, and community, and uncover negative or unhelpful attitudes about sex.

11. The New Future Plan is an integral part of the treatment program as it consolidates a participant’s learning throughout their time in the SOPIM in a solid, practical safety plan.  It requires participants to identify their risk factors for sexual re‑offending and detail realistic and effective interventions and strategies to manage their risk.  The New Future Plan also identifies pro-social goals and plans that support an offence‑free lifestyle.

12. Program records available to me indicate that given the respondent’s lengthy period of incarceration, he finds the prospect of being released to community quite confronting and has been observed to struggle with developing plans for the future.  As such, the respondent will require significant support with his risk management and reintegration planning to maximise his chances for successful release to the community.  If the respondent were to be released prior to his completion of the SOPIM, he will be denied the opportunity to develop a New Future Plan with the assistance of his fellow program participants and program facilitators.

13. Based on current projections, it is expected the respondent will complete 327 hours of the SOPIM and all program modules, on 16 November 2020.  Please note that unplanned operational impacts have not been factored into this timeline.

14. In the event the respondent is released to the community as a result of his Annual Review on 14 September 2020, he will be exited from the SOPIM prior to his completion of the program.  Research shows that sexual offenders who drop out of treatment typically have higher recidivism rates than those who complete treatment and higher rates than those who refuse to enter into a treatment program at all (Abel et al., 1988; K. D. Browne et al., 1998;  Cook, Fox, Weaver, & Rooth, 1991;  Hanson et al., 2002; Lee, Proeve, Lancaster, & Jackson, 1996;  Marques et al., 1994; McGrath, Cumming, Livingston, & Hoke, 2003;  Miner & Dwyer, 1995 cited Marshall, W.L et al., 2011, p,116).

15. Should the respondent be further detained in custody as a result of his Annual Review on 14 September 2020, he will be able to complete the SOPIM as per his projected hours and completion date.  Upon the respondent’s completion of the SOPIM, the program facilitators will complete a report detailing the respondent’s participation and progress addressing his identified areas of risk and need.  The program completion report is typically available four weeks after the program finishes.  However, given the respondent’s circumstances, the program facilitators will endeavour to complete the respondent’s report within two weeks of his completion of the program.”

Oral psychiatric evidence

39. [39]
    Both Dr Sundin and Dr Timmins gave further oral evidence at the hearing.  The primary focus of the oral evidence was to address the supplementary affidavit of Ms Byrne and, in particular, the view of the doctors as to the importance of the respondent completing the SOPIM before release.
40. [40]
    Dr Sundin’s evidence in chief at the hearing included the following:

“Yes.  I wanted to make a comment [in my report] about the presence or absence of psychopathy because it’s highly pertinent to risk assessments.  Because of COVID restrictions I was only able to interview this gentleman via video, which in my clinical experience makes it impossible to fulsomely do an assessment for psychopathy, so I was reliant principally on the collateral material, which from all of the material that was supplied to me to make an assessment, the indications are that he does meet the criteria for psychopathy, but I couldn’t give a confident assessment just on a video interview alone. 

I understand.  You continue on, I think, at the bottom of page 18 and 19, to indicate what he does show partially and fully.  And that includes revocation of conditional release, juvenile delinquency, so forth and so on?‑‑‑Yes.

Do those traits or personality structures have implications for the management of risk in relation to sexual offending?‑‑‑Yes.  And I refer you to line 673 to 675 of my report.  The material shows that Mr Henry does have a set of problems that are specific and relevant in his management.  These include problems with poor problem solving, a pattern of emotional disregulation, impulsive behaviour.  And we know in addition from the collateral material from the Corrective Services, that he also has – is vulnerable to aggressive outbursts.  All of which are relevant to the potential for him decompensating and having an increased risk for sexual recidivism once he is released from prison.  I would also add to that that he was a very young man when he first entered prison.  He’s now been in prison for a very long time.  As a consequence of that he is, to a fairly significant degree, institutionalised, and if I combine poor problem solving, impulsivity, poor problems with behavioural controls and institutionalisation, he is a person who is going to need to have a very well-developed relapse prevention plan for when he is released from prison, and someone who has very high levels of support during that transition from prison so that he doesn’t decompensate and commit a further serious sexual offence quite quickly. 

Is there a link between his sexual offending and decompensation?‑‑‑Yes.  We know that the index offences occurred in a setting of really very significant emotional disregulation, which was understandable at the time, in the sense that he was dealing with a very major psycho-social stressor in the context of the murder of his mother, but he responded to that by getting highly intoxicated, being unable to reason with a modicum of sense or composure as a result of that level of intoxication, combined with his background of poor problem-solving and a proclivity to anti-social actions, and in that setting he committed three very serious sexual offences. 

It might be appropriate just at this point for me to ask you whether you’re able to indicate how the risk might manifest?‑‑‑The most likely scenario that I would anticipate for this man, if we take where he is now, is that upon release he will be overwhelmed by the demands of even semi-independent living, presuming he will be placed in one of the precincts when he’s first released from prison.  But having become overwhelmed, that he will breach by way of use of intoxicants, and in that setting would commit a serious sexual offence.  Any factors which promote the use of intoxicants would further increase his risk.  And one of the concerns that I had when I first assessed this man was that whilst I thought he had made – he showed signs of having made good progress, he still had what was best called an aspirational relapse prevention plan and he had no really solid plans as to how he was going to manage alcohol when he left the community, other than to say that he thought he could drink with a modicum of restraint.  He wasn’t really sure how he was going to handle Sorry Business into the future, and that would be one of the risk times for him.  That in the setting of Sorry Business, that he used intoxicants, became emotionally disregulated, and again, acted out in a sexually violent manner. 

How important and what is a relapse prevention plan and what would you want to see Mr Henry achieve in terms of a robust plan?‑‑‑Okay.  A relapse prevention plan is absolutely vital.  The way that a relapse prevention plan is developed through programs like the sexual offending program for indigenous males or the equivalent which is the HISOP, is that a lot of time is devoted by the facilitators to working with each individual member doing the program to help them to look forward into life after release and to anticipate potential scenarios where they might encounter difficulties.  So things like I’ve just raised.  Sorry Business.  How will you deal with Sorry Business?  What are your alternatives?  Who are your pro-social supports who will help you through that period of time?  How will you say no?  And then within the group these things will be practised.  So that the person gains some confidence that when the time comes and they are in the community, they’ve got some mental templates that they can use and put into place as a way – for example, in a [indistinct] situation – of how to say no to alcohol.  There’s all sorts of other aspects to a relapse prevention plan that are also developed.  So what are you going to do for recreation?  How are you going to deal with boredom?  How might you access service providers to help you with psychological services, employment services, indigenous support services?  All those things are contemplated and worked through in the development of a robust relapse prevention plan.

…

[Ms Byrne’s supplementary affidavit shows] [h]e was gaining a lot of insight.  He was being well-supported.  He was – having refused the program previously, was actually seeing a lot of benefit in the program.  So I would like to see him have the – I think it’s excellent that QCS have responded and have extended the program for him, to give him a chance to consolidate the acquisition of knowledge and skills to manage life in the community outside of the prison.  And, you know, they’re clearly recognising this issue around institutionalisation in someone who was very young when they first came into prison and who has got limited supports when he leaves prison.  So that they’re setting him up for success.  That’s the big thing, I think, that’s terribly important, that he’s set up for success, he’s not set up for failure. 

…

He is still showing some signs in prison of having difficulties with emotional self-regulation and containment of aggressive outbursts.  So all these things need to be consolidated and improved before he is released, so that he doesn’t rapidly decompensate and act out in a sexually violent manner.

…

And I think you’ve indicated that if he was released at – and I don’t know if I understand this correctly – released now on maybe a supervision order, that risk would be reduced to moderate, or were you signalling something else in your report?---Okay.  Honestly, I don’t think I was signalling anything in my report, other than I thought he had a high unmodified risk, and that I thought it was vital that he had a chance to complete the SOPIM before he is released.  Based on the additional material supplied to me in the affidavit of Ms Byrne, if he were to be released now, even on a supervision order, without having had the chance to complete his new futures plan, I’m not confident that a supervision order would be adequate to contain his risk.  Ms Byrne, in her affidavit, has highlighted that he is having difficulties, that he is struggling, and, I mean, we – it may be that he goes out, decompensates and simply breaches his order in order to get back into prison.  And it might just be simply by way of breaching.  And that would probably be the least worst case scenario.  But I think that that would be a terrible impost on this man, where with a little bit more time and trouble we actually have the potential to consolidate on the gains he’s made thus far and set him up for success, rather than for failure. 

…

Doctor, just so that we cover everything, if her Honour is minded to release Mr Henry, how long should a supervision order be for?‑‑‑Ten years.”^[19]

41. [41]
    Counsel on behalf of the respondent cross-examined Dr Sundin.  Relevantly, Dr Sundin provided further views in relation to the respondent completing the two outstanding modules of the SOPIM and also other courses that should be completed prior to his release into the community as follows:

“There are two modules outstanding, according to Ms Byrne.  They are intimacy, sexuality and attachments?‑‑‑Yes.

And the other is the new future plan?‑‑‑Yes.

If I understand your evidence correctly, you would say that the completion of both of those modules would be essential?‑‑‑Yes.

And, as you understand it, this course is not available outside the prison setting?‑‑‑No.

Are there other courses similar to this that could be done outside of the prison setting?‑‑‑There’s the medium intensity sexual offender’s program is run as a community-based program.  That’s certainly available.  As I understand it, through the high risk offender management unit in Townsville.  I’m not sure if the parole office in Cairns runs one.

All right.  There is some planning that if he were to be released, it would be in Rockhampton?‑‑‑And they definitely don’t have a high risk offender management unit, to the best of my knowledge.

…

Yes.  Finally, would you suggest that it would be important that he do the sexual offender’s maintenance program?‑‑‑Once he’s in the community, yes, that would be very beneficial.  That will consolidate a lot of the benefits that he has had from the SOPIM, and it puts him into – that and any other group program is going to consolidate the benefits he has actually found in a group program, which itself is very helpful going forward because it helps him to consolidate the realisation that talking to others and seeking advice is an alternative to impulsively acting out distress.

But the maintenance program could be easily done within the community?‑‑‑Yes, once he’s completed the sexual offenders program for indigenous males, the SOPIM, yes, he can do the maintenance program in the community at any time.  And, in fact, quite frequently you will find that offenders in the community will do that on a number of occasions, just to consolidate their gains.

Yes.  Especially over a lengthy period of supervision?‑‑‑Yes.  And one of the things that I would anticipate that this man would also be referred to to do in the community would be some form of substance intervention maintenance program as well, either through QCS or through the local alcohol and drug service program.”^[20]

42. [42]
    Dr Timmins gave evidence in chief at the hearing in relation to similar issues as follows:

“And that report is dated the 27^th of July 2017.  As I understand it from looking at the judgment of his Honour Justice Martin, that Dr Beech, Dr Harden and you all indicated to the court that it was critical for Mr Henry to undertake a high risk sexual offenders program, either the HISOP or the SOPIM.  Is that your recollection?‑‑‑Yes, that’s correct.

Doctor, why was it felt by the psychiatrists to be so important that Mr Henry undertake this sort of program?‑‑‑At the time he had a large amount of unmet treatment needs relating to his sexual offending and had very poor insight into his offending pathway and emotional state and how to manage himself.  So he had also refused sex offending treatment programs on a number of occasions and it was just felt that in order to assist him in reducing his risk to the community of sexual reoffending, that he needed to undertake some treatment.

Is it fair to conclude that the reasoning that the three of you had was that undertaking this sort of program would have positive effect in lowering his risk of serious sexual offending back in the community?‑‑‑Yes.

…

What is a dynamic risk factor and how does that relate to Mr Henry’s risk?‑‑‑So dynamic risk factors largely represent opportunities for change.  And if we address those risk factors then the person has a much higher chance of being able to manage themselves better and thus the risk reduces. 

Were you able to see any change in those risk factors as a result of him undertaking this course or this program when you last examined him?‑‑‑So I think compared to my previous assessment almost three years ago, he did seem to have made some shifts forward.  And according to the RSVP I did identify a couple of items that potentially may have had some shifts, but of course, I didn’t have any exit reports from the SOPIM program so I couldn’t sort of categorically say that he has been able to do that.  And those items was the minimisation or denial of sexual violence, the attitudes that support or condone sexual violence, problems with self-awareness and problems with stress or coping.  So there indicated at least a minor shift perhaps in the right direction, that I could consider changing those scores, but I think he really needs to finish the SOPIM in order to – for me to be able to say yes, there has been any shift.

…

And I don’t mean to be repetitive, but it really seems to be set out in paragraphs 9, 10, 11 of that [supplementary] affidavit [of Ms Byrne].  And you’ve heard me read paragraph 12 to Dr Sundin.  There are two modules that are left to be done.  The first is intimacy, sexuality and attachments.  And the second is the new futures plan.  From your perspective, clinically, how important is it for Mr Henry to complete those modules?‑‑‑Very important.

Why?‑‑‑Because you have a young man who has difficulties with his personality traits, such as impulsivity and difficulties at regulating his emotional state.  And that still continues in custody with some violent incidents that have occurred.  You also have a fellow who has difficulties with his cognitive skills.  He has been assessed as a low below average intelligence in a – I think it was a psychologist’s report in 2016 for the Parole Board.  He also has shown difficulties with problem solving and consequential thinking.  You also have a fellow who has a long history, since he was about eight years old, of substance use, and he has used that on a number of occasions in the community, but also in custody, and he admitted to me that it was at least once a week he still uses substances in order to deal with his emotions and stress and ‑ ‑ ‑

That’s in custody?‑‑‑That’s in custody.

Yes?‑‑‑He admitted to me once a week, yes.  And so – and that remains an outstanding treatment need as well.  You know, he hasn’t – he has only done an Ending Offending program in 2011 of one month’s duration.  So it really doesn’t sort of substantially sort of address that aspect to his risk.  He also has a – quite a high sex drive, with masturbation once a night in custody, according to his self-report.  So that indicates to me that there’s still quite a high sex drive that is there that needs to be, you know, looked at and addressed, which will assist with, you know, understanding and lowering his risk.  He also has a pattern of reoffending very quickly after release.  And that is a very big concern if he’s released at this time.  So my concern with releasing him now, before he has stopped – finished the SOPIM program, is that all of these factors are still a concerning picture that could raise his risk.

Should we understand these last modules as really being the capstone of the SOPIM program?‑‑‑Yes, exactly.  So, in particular, the new futures plan, which is like Dr Sundin said, basically a risk management plan, will help him consolidate and manage all of these factors, such that he can reduce his risk himself. 

One of the concerns that Dr Sundin told us about was that she felt that at this point the relapse prevention plan that Mr Henry had was aspirational.  Do you share that concern?‑‑‑I think – in my mind, compared to when I had seen him before, three years ago, to now, there had been some shifts in him considering, you know, a release plan, at the very least, but that doesn’t mean he’s looking really clearly and solidly at relapse prevention.  And it’s a concern that he can’t identify his risk factors and then put in place plans to not have those risk factors impact.

It’s probably then appropriate that I ask you this question, given what you’ve just said.  How important from a risk management perspective is it for Mr Henry to complete SOPIM, before consideration of release to a supervision order is given?‑‑‑I think it’s very important.  Again, the factors that I’ve outlined previously.  I think it’s premature to release him at the moment.  I think we would potentially be undermining all of the progress that he had done to date.  And releasing him, a highly institutionalised man, with only a few weeks in the community as an adult, and someone who’s very anxious about release and has no real plans for his release, I think we’re setting him up for failure. 

How would the risk manifest?‑‑‑So he would exit the custodial setting and there is a concern that he would become very overwhelmed very quickly and have a lot of negative emotions come up.  His go-to has been substances, so he would then seek out and use substances, and his risk of sexual reoffending would escalate very rapidly after that.  He would potentially rape an adult woman and cause some serious harm. 

So similar offences to the offences we’ve seen previously?‑‑‑Yes.  Yes.”^[21]

43. [43]
    Further, in cross-examination Dr Timmins also gave her views about completion of the SOPIM and additional programs as follows:

“Now, you’ve already been taken to the items on page 3 of Ms Byrne’s affidavit.  And, in particular, the paragraphs 9 to 11, where she speaks of how much of the course he has completed and what’s left over.  And you’ve already told my friend that in your view it’s very important that he finishes the course whilst in custody?‑‑‑Yes.

Before being released?‑‑‑Yes.

Could I take it that once he has completed the course, if he continues on this trajectory of positive behaviour, his risks, when he is released, will be reduced because of the report?‑‑‑I think we’re giving him the maximum opportunity possible ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ by release – by completing the SOPIM, to be able to change his trajectory, his life trajectory, such that he doesn’t offend sexually again.

And in your report you were of the view that he would need ongoing support from a forensic psychologist?‑‑‑Yes.

To deal with his sexual offending.  Is that in addition to the sexual offender’s maintenance program?‑‑‑Yes.  Each type of treatment provides different things.

Yes.  And do I – can I also assume that he could complete the sexual offender’s maintenance program whilst in the community?‑‑‑That’s my understanding, yes.

I’m sorry, I missed that because of the background noise?‑‑‑The maintenance program in the community is my understanding, yes.

Yes?‑‑‑He could do that.

Dr Sundin spoke of other programs to deal with his other issues, such as substance abuse?‑‑‑Yes.

I take it those would be issues that you would concur with?‑‑‑Well, he has only done a month’s program in custody, almost 10 years ago, and so it really does remain an outstanding treatment need when it comes to his risk factors.  And so I think it would be very important for him to engage in some substance program or counselling, in some way addressing his substance use, yes.

One of the issues that has been spoken of is the fact that he has spent so long in custody.  Nearly all of his adult life ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ has been in custody?‑‑‑Yes.

Both you and Dr Sundin speak of the difficulty that may be ahead for him in transitioning from being in custody, to being in the community?‑‑‑Yes.

It would seem that what’s being suggested is that he live within a precinct?‑‑‑That’s my understanding, that there’s been a place identified, yes.

That would be a useful transition – a useful way to transition?‑‑‑Yes.

Would it be important that he be closer to family during this time?‑‑‑Look, I think if people – if someone just in general has family support, then, of course, it can provide a really important part of their plan and their life in the community, and if that family is prosocial and, you know, is very helpful and supportive, then yes, it can be a very important part.

Very well.  But your view is that it is essential for him to complete the two remaining modules ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ before his release?‑‑‑Yes, that’s correct.”^[22]

Applicant’s submissions

44. [44]
    The applicant’s written submissions in relation to the application can be summarised as follows:

    1. (a)
       The respondent is a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act. The psychiatric assessments indicate the respondent’s unmodified risk of sexual re-offence is high.  The respondent will require ongoing programs, individual treatment and support on release to the community under a supervision order.
    2. (b)
       There is sufficient cogent evidence, considering the matters required to be taken into account under s 13(4) of the DPSO Act, to satisfy the Court to the high degree of probability necessary 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.
    3. (c)
       On a review under s 30(2) of the DPSO Act, the Court may affirm the decision if it is satisfied by acceptable, cogent evidence and to the high degree of probability that the evidence is of sufficient weight to affirm the decision that the prisoner is a serious danger to the community in the absence of a Division 3 order.
    4. (d)
       Once that decision has been affirmed, then the Court is able, by virtue of s 30(3) of the DPSO Act, to order the respondent to be subject to continuing detention or to be released from custody subject to a supervision order.
    5. (e)
       On the current application, there are no factors which would cause the Court to permit the supervised release of the respondent.  The protection of the community cannot be ensured.
45. [45]
    In particular, the applicant refers to the fact that the respondent is currently undertaking the SOPIM and will complete the program towards the middle of November this year.^[23]  An exit report is currently unavailable and there is no effective “relapse prevention plan”.
46. [46]
    Overall, the applicant submits that a supervision order at this point in time would reduce the respondent’s risk from high to moderate but would not provide for the adequate protection of the community.  In this respect, the applicant submits that the respondent remains an unacceptable risk and is largely untested in the community having spent most of his adult life in custody.
47. [47]
    The written submissions on behalf of the applicant also recognise the difficulties in respect of the need for this review to take place prior to the completion of the SOPIM program.  In this regard, the submission at paragraph 61 states:

“He should complete the Sexual Offenders Program for Indigenous Males (SOPIM) before consideration is given to whether his risk is such that he can be released to the community under a Supervision Order.  There should be a further review, once the respondent has completed the SOPIM ‒ which would allow the programme exit report to be completed, and updated clinical assessment to be obtained from the reporting psychiatrists.”^[24]

48. [48]
    Given the oral evidence of the two psychiatrists at the hearing and the supplementary affidavit of Ms Byrne, the applicant’s position in this regard was confirmed at the hearing.
49. [49]
    At the hearing, counsel on behalf of the applicant stated:

“And quite honestly, your Honour, this application, had it not been for that section^[25] would have been before the Court after Mr Henry had concluded the SOPIM and the doctors had an opportunity of considering the exit report and providing whatever further advice.  The difficulty in this case, if it is a difficulty, is really timing, of the second review.  And my instructions are that once the paperwork has been attended to by both QCS and the psychiatrists, the matter will be brought back before the Court as expeditiously as possible.”

50. [50]
    In evidence at the hearing, Dr Sundin indicated that she would be able to provide an addendum report setting out her view within five working days of receiving the exit report.
51. [51]
    Further, Dr Timmins also indicated that she would be able to prepare a supplementary report or addendum report based on the exit report from the SOPIM program within a week.

Respondent’s submissions

52. [52]
    The submissions on behalf of the respondent dated 7 September 2020 submitted that, as the evidence stood at that stage, it did not justify the continuing detention of the respondent.
53. [53]
    Following the additional evidence by way of the supplementary affidavit of Ms Byrne and the oral evidence of Dr Sundin and Dr Timmins at the hearing, the position of the respondent changed.
54. [54]
    Counsel for the respondent submitted at the conclusion of the hearing as follows:

“Before the evidence that your Honour heard this morning, the position of the respondent was set out in the written submissions.  Primarily in paragraphs 20 and 21.  But it seems clear from the evidence that they’ve given that both psychiatrists are of the view that a pre-condition of his release onto a supervision order would be the completion of the Sexual Offenders Program for Indigenous Males.  And would also seem clear on the evidence before you, from both the psychiatrists, but from the supplementary affidavit of Ms Byrne, that the course is not available in the community.  And therefore the points that were well made in the final paragraph of submissions have not been made out in the evidence that your Honour’s heard.  And I would be hard-pressed to point to anything in the material that would support his being released today.

 It is unfortunate that the course could not be completed before the review, but my friend has already touched upon that.  The only thing that can be taken from this procedure is that there does seem to have been made ‒ or some arrangements have been made upon his eventual release at the precinct at Rockhampton, which would be close to his family.

 That the progress he is making is well-regarded by those who are conducting the course.  And it would appear that both psychiatrists don’t need to see him again.  They only need to see the final exit report, which should be available some time before the end of November of this year.

 M[s] Byrne has said in her supplementary affidavit the course should be completed by about mid-November of 2020, assuming that there are no other problems which arise, given the current state of health in Queensland.  It would take a couple of weeks for the final exit reports to be available and both Drs Sundin and Timmins seem to suggest that they could finalise the matter within a week of receiving those reports.”^[26]

Consideration

55. [55]
    The respondent is currently undertaking the SOPIM and the indications are that he is showing some progress.  The psychiatric evidence is that it is important that the respondent complete the full programme.
56. [56]
    Further, in order to fully consider the risks, the psychiatric evidence is that the exit report should be obtained and further consideration given to the respondent in light of that report.  Dr Sundin and Dr Timmins have indicated they will be able to prepare supplementary reports once they have been provided with the exit report for the respondent on completion of the SOPIM.
57. [57]
    Until this further consideration is able to be undertaken and an application for a further review brought before the Court, it is necessary to consider and determine the current application in light of the currently available evidence.

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

58. [58]
    Based on the evidence relied upon by the applicant, including the reports of Dr Sundin and Dr Timmins and the evidence they gave orally at the hearing, I am satisfied that there is acceptable, cogent evidence which satisfies me to the high degree of probability required pursuant to s 30(2) of the DPSO Act that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act. 
59. [59]
    The psychiatric evidence identifies the respondent’s unmodified risk of sexual re-offending is high. 
60. [60]
    In the circumstances, I am satisfied that the respondent presents a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made on 24 September 2018 ought to be affirmed.

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

61. [61]
    The psychiatric evidence is clearly that the respondent needs to complete the SOPIM prior to his release into the community. Part of this includes the respondent preparing a relapse prevention plan and risk management strategies.
62. [62]
    Further, the exit report in respect of the respondent’s completion of the SOPIM needs to be considered.  This is important as it will also provide information that will identify what conditions may be suitable in any supervision order to address his particular circumstances.  Following these steps a supervision order could be prepared to ameliorate risks specifically identified in this process.
63. [63]
    While a supervision order at this stage may reduce the risk to moderate, it would not provide for the adequate protection of the community. The view of the psychiatrists is that, without completing the SOPIM together with a proper relapse prevention plan and risk mitigation strategies in place (such as those developed in the SOPIM New Future Plan module), there is a real risk that the respondent would quickly become overwhelmed out of the custodial setting, he would seek out and use substances, and consequently his risk of sexual reoffending would escalate very rapidly.  The relevant risk being that he would commit a serious sexual offence, potentially rape of an adult woman similar to the index offences.
64. [64]
    On the current evidence and in these circumstances, I cannot be satisfied that the adequate protection of the community could be reasonably and practicably ensured by a supervision order.

Release on a supervision order or the continuing detention order to be maintained

65. [65]
    In these circumstances, I am satisfied that an order pursuant to s 30(3)(a) of the DPSO Act ought to be made that the respondent continue to be subject to the continuing detention order made on 24 September 2018.
66. [66]
    The order of the Court is that:

THE COURT, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSO Act), ORDERS THAT:

1. Pursuant to s 30(1) of the DPSO Act, the decision made on 24 September 2018 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed.

2. Pursuant to s 30(3)(a) of the DPSO Act, the respondent continue to be subject to the continuing detention order made on 24 September 2018.