Attorney-General v Bewert[2020] QSC 336

SUPREME COURT OF QUEENSLAND

1. [1]
   This is a decision on an application by the Attorney-General for orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act).  That provision operates if the Court is satisfied on the balance of probabilities that the respondent has contravened a requirement of a supervision order, and it operates such that unless the respondent satisfies the Court on the civil standard that adequate protection of the community can be ensured despite the contravention, then the Court must rescind the supervision order and make a continuing detention order.

The respondent’s criminal history

2. [2]
   The respondent is presently 56 years of age.  His criminal history was summarised by Boddice J in Attorney General for the State of Queensland v Bewert:^[1]  

“[3] On 23 February 1988, when the respondent was aged 24, he was sentenced to two years probation for an offence of aggravated assault on a female committed on 8 January 1988.  The respondent had attended a laundromat at Redbank Plains.  Whilst there, he sat beside the complainant and touched her on her upper leg. When she resisted, he grabbed her upper body.

[4] On 25 June 1996, the respondent was sentenced to three years probation for offences of indecent assault and assault occasioned bodily harm committed on 2 May 1995.  The complainant was a doctor employed at the Barrett Centre Psychiatric Hospital.  The respondent voluntarily admitted himself to that hospital.  During the course of an examination in a locked room at the hospital, the respondent slapped the complainant on the face.  He began to rip at her clothing, groping her breast and crotch underneath her clothes.  He then placed the complainant on an examination table face down and tried to remove her pants.

[5] On 3 April 1997, the respondent was sentenced to three years imprisonment for two offences of indecent assault committed on 14 August 1996, some six weeks after he had been placed on probation.  The complainants were employed as nurses at the Ipswich Hospital.  The respondent approached them and told them he was looking for a woman to have sex with.  He assaulted the first nurse by grabbing her and at the same time trying to pull down the zipper of her pants.  He grabbed the second nurse in a tight bear hug while fumbling with his trousers.

[6] On 19 September 2003, the respondent was convicted of the offence of sexual assault committed on 29 March 2003.  He was sentenced to five years imprisonment.  The complainant was an unknown female patient waiting alone in the emergency department at the Ipswich Hospital.  The respondent grabbed her, and kissed her on the neck.  When she screamed for help and tried to escape, he dragged her by the waist down to the floor while rubbing her breasts.  The respondent told police he intended to go to the hospital to sexually assault a female because he wanted to get caught and go to prison.

[7] On 14 November 2006, the respondent was released on parole in relation to the offence committed on 29 March 2003.  Prior to his release he had participated in the High Intensity Sexual Offender Treatment Program between June 2005 and March 2006.  The respondent was subject to that parole order when he committed the four further offences of sexual assault the subject of his most recent sentence of imprisonment.  Those offences were committed in early 2007.  The first, committed on 24 January 2007, involved the respondent rubbing his hand over the breast and stomach of a woman who was walking across Victoria Bridge.  The second, third and fourth offences, committed on 8 March 2007, involved the respondent attending a Coles Supermarket.  Whilst there, he masturbated and ejaculated on a 17 year old student.  He also approached two other female shoppers. He touched each on the bottom, and masturbated with his penis exposed.

3. [3]
   Pursuant to that decision, the respondent was made the subject of an order under s 13(5)(a) of the Act operating from 10 May 2011.  The respondent’s position was the subject of a review by this Court on 8 April 2013.^[2] 
4. [4]
   On that occasion, McMurdo J (as his Honour then was) determined that some recent developments in respect of the treatment and proposed treatment of the respondent gave rise to a consideration that led his Honour to make a supervision order.  The supervision order was subject to an extensive list of conditions; 30 in total.  His Honour was persuaded that it was appropriate to rescind the continuing detention order and to make the supervision order so that the respondent could be released to supported accommodation, with case management provided and proposed treatment undertaken.
5. [5]
   On 24 July 2016, the respondent committed a further offence.  He was taken into custody and eventually brought before the District Court on 23 August 2017.  At that time, he pleaded guilty to a charge of indecent assault whilst armed with a dangerous weapon and contravention of his supervision order contrary to s 43AA of the Act.  The relevant events were summarised by Lynch QC DCJ:

“The offence occurred on the 24th of July 2016.  On that date, you went to the Ipswich General Hospital and at about 5.30 pm went to the eighth floor of the main building.  You knocked on the door of the complainant, who was working in her office.  She was there all alone.  She opened the door, you entered.  You produced a knife and you approached her.  She was concerned about you coming towards her; she told you to stay away, you did not.  You approached her and presented the knife; she tried to grab hold of the blade of the knife to protect herself and you held on to the knife whilst she held on to the blade.  You put your hand down her top and you touched her on the breast.  She was calling for assistance and resisting your efforts, but you persisted.

Eventually, she was able to alert a co-worker who entered the room.  Initially, you did not drop the knife and the knife had to be taken from you.  But eventually, you were restrained and taken into custody.  The complainant received minor cuts to the little finger and thumb on her left hand as a result of her handling the knife.  She has expressed that she was frightened about being harmed by you.  No doubt it was a frightening experience all round for her.  She has not provided a victim impact statement; I do not conclude, therefore, that there was no effect on her and the reality is that it would have been very much a terrifying experience for someone who was simply doing their job at work in an office that was secured from the public area.”

6. [6]
   The respondent was sentenced to four years imprisonment.  At that time, he had already served more than a year in custody, and that time was declared as time served under the sentence.  The District Court did not impose any further punishment in respect of the breach of the supervision order.  The respondent’s full-time release date in respect of that sentence is 24 July 2020.
7. [7]
   Given those circumstances, there can be no doubt that the respondent has contravened requirements of the supervision order.  It was the subject of a plea of guilty by him in 2017, and as much is conceded by counsel who appeared on his behalf today.  The relevant contravention is of two particular requirements in the order:  requirement 9, that he not commit an offence of a sexual nature during the period of the order; and requirement 28, that he notify a corrective services officer when attending a hospital or emergency department. 

Psychological and psychiatric evidence

8. [8]
   The Court has been provided with a number of reports for consideration at today’s hearing.  There are reports from Dr Susan Boyce, a forensic psychologist who was involved in the treatment of the respondent between about August of 2014 and September of 2016, Dr Ken Arthur, a psychiatrist who was responsible for the treatment of the respondent between about May of 2015 and July of 2016, Dr Jane Phillips, a forensic psychiatrist, and Dr Scott Harden, a consultant psychiatrist.  There is a commonality to those reports in that they agree that the respondent presents, on any measure, a high risk of reoffending in terms of the commission of sexual offences and of offences involving violence. 
9. [9]
   One of the most recent of the reports is the report of Dr Phillips from 30 March 2020.  In that report, Dr Phillips states:

“Taking into account the results of the above risk assessment tools, it is my opinion that Mr Bewert’s risk of future sexual re-offending falls in the high range in the longer term, if released from custody without a supervision order. 

It is my opinion that even if he were to be released under a supervision order that Mr Bewert’s risk of sexual offending would remain high.  The rationale for this is:

1. He re-offended while being assertively and appropriately managed under a supervision order with very comprehensive risk management interventions being in place. 
2. Little gains were made from his previous engagement in HISOP [High Intensity Sexual Offending Program] or SOMP [Sexual Offending Maintenance Program] during his previous incarceration, or individual psychological intervention in the community, as evidenced by his reoffending. 
3. Little gains were made from his previous engagement in substance use interventions, as evidenced by his relapse to alcohol use while on a supervision order. 
4. His failure to accurately disclose sexually deviant and homicidal thoughts to his case worker with the HROMU [High Risk Offender Management Unit], treating psychologist or treating psychiatrist.  In addition, there was a lack of other objective signs of decompensation which were able to alert those supervising him to the escalation in dynamic risk factors for sexual offending.
5. The escalation in seriousness of sexual offending, given that the most recent sexual offending occurred whilst armed with a knife.  It is a significant concern that at mental health assessment immediately following the sexual re-offending Mr Bewert disclosed that he had been experiencing thoughts to harm an adult female for a number of months prior to the re-offence and had gone to the hospital with the intention of stabbing and killing a victim.  In addition, it is a significant concern that Mr Bewert made disclosures at my assessment (albeit followed by retractions) that he had been experiencing homicidal ideation leading up to the 2016 offending.
6. I do not consider that there has been any meaningful improvement in dynamic risk factors for sexual violence since the time of the 2016 reoffending.  He appears to have gained very little from the repetition of the SOMP during this period in custody.  Mr Bewert has outstanding treatment needs and has been identified as being suitable for the Inclusions sexual offending program but has not yet had the opportunity to participate in this program.”

10. [10]
    Dr Phillips further states:

“While I do not consider that Mr Bewert is an imminent risk of sexual re-offending, it is my opinion that even with very robust supervision in the community that it would be very difficult for those monitoring him in a community setting to accurately detect signs of worsening dynamic risk factors for sexual violence, predominantly due to Mr Bewert’s demonstrated history of failing to disclose important risk related information to those providing supervision or to treatment, and also the rapidity with which dynamic risk factors are able to re-emerge.”

11. [11]
    Dr Phillips recommends that Mr Bewert should engage in the Inclusions Sexual Offending Program and makes a number of other recommendations set out in that most recent report.  I understand from other evidence put before the Court today that the Inclusions Sexual Offending Program is only available to persons who are in custody.  It is not offered in the community either by Corrective Services or by any private service.
12. [12]
    The other most recent report is from Dr Harden dated 10 June 2020.  Dr Harden’s conclusions are as follows:

“The actuarial and structured professional judgment measures I administered would suggest that his future risk of sexual reoffence is high.  My assessment of this risk is based on the combined clinical and actuarial assessment.  This assessment takes into account all information made available to myself. 

It is my opinion based on the current information that I have available that his risk of sexual reoffence would be high if he were to be released from custody without further monitoring or intervention.

High level compulsory supervision and treatment consistent with a supervision order has not prevented his most recent reoffending. 

The 2016 offence is extremely concerning particularly because of the use of a weapon, his statements to others around the time of the offence about intending to kill and the inability to predict the acute risk factors that led to the offence despite high levels of supervision at that time. 

Community risk management to meaningfully reduce the risk of sexual recidivism is difficult or impossible on the current information as there were no clear warning signs until the alcohol intoxication and the offending followed rapidly after the alcohol intoxication meaning that the alcohol intoxication was not a useful marker in terms of preventing offending. 

There are clearly underlying issues with Mr Bewert with regard to healthcare settings and female health care professionals in terms of sexual offending but he has never been able to provide adequate insight into these issues. 

In summary at this time I cannot see how a supervision order will meaningfully reduce his risk of sexual reoffending in the community.

13. [13]
    Dr Harden has also recommended that Mr Bewert undertake the Inclusions Sexual Offending Program.  He explains:

“The reason for undertaking the program would be to try and ascertain more comprehensively ways of successfully monitoring his risk of reoffending in the community and working out what markers might allow acute intervention if he was decompensating in order to prevent further offending.”

14. [14]
    However, Dr Harden says:

“I am not confident that program participation will provide enough data to enhance supervision to the point where it will meaningfully reduce the risk of sexual reoffending but this should be attempted.”

15. [15]
    Dr Harden also discusses in his recommendations other matters, including a voluntary trial of a testosterone-lowering agent, and makes some other recommendations about monitoring if it were the Court’s view that a supervision order remained appropriate.

Consideration

16. [16]
    I am satisfied on the evidence before the Court that the respondent did breach the two requirements of the supervision order in paragraphs 9 and 28.  That means that the onus is on the respondent to demonstrate that the adequate protection of the community could be ensured by his release on supervision. 
17. [17]
    The respondent has, in effect, not sought to persuade the Court that such an outcome is possible.  The evidence put before the Court on behalf of the Attorney demonstrates that the supervision order ought to be rescinded and a continuing detention order ought to be made.  This is because the psychiatric evidence discloses that no supervision order would be effective to reduce the respondent’s risk of reoffending. 
18. [18]
    It is also demonstrated by the fact that his most recent criminal behaviour was committed whilst on a supervision order, and notwithstanding the provisions of that order and the respondent’s active participation with various health practitioners, there were no indications of the imminence of such an offence detected by any of those persons or made apparent by the operation of the other conditions of the order.  It is particularly significant that this most recent offence in breach of the supervision order conditions marked a significant increase in the nature of offending.  The fact that the respondent was armed with a knife at the time of the attack indicates the true nature of the risk that could be realised were such an offence to occur. 
19. [19]
    I am satisfied on the basis of the expert evidence provided to the Court that the risk is of a level that cannot be managed under a supervision order, and I am also satisfied that the consequence of the risk, were it to be realised, would be of such a significant danger to the community that it is not possible to address that risk so as to provide adequate protection for the community through the terms of a supervision order.

Disposition

20. [20]
    I propose to make an order in terms of the draft proposed by the applicant, which has the effect of rescinding the supervision order made on 8 April 2013 and orders that the respondent be detained in custody for an indefinite term for care, control or treatment.  Those words are not idle words in this case because it is anticipated that the respondent will be able to undertake the Inclusions Sexual Offending Program commencing next month, which will provide approximately 120 hours of interaction over a lengthy period of time in a program that would not be available to the respondent were he not detained in custody.