Attorney-General for the State of Queensland v SRD
[2020] QSC 376
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Attorney-General for the State of Queensland v SRD[2020] QSC 376
- Add to List
Attorney-General for the State of Queensland v SRD[2020] QSC 376
Attorney-General for the State of Queensland v SRD[2020] QSC 376
SUPREME COURT OF QUEENSLAND
CITATION: | Attorney-General for the State of Queensland v SRD [2020] QSC 376 |
PARTIES: | ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v SRD (respondent) |
FILE NO: | BS 6851 of 2018 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 16 December 2020 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 December 2020 |
JUDGE: | Ryan J |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS VIOLENT OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the 40 year old respondent has a significant history of sexual offending for which he has served multiple periods of imprisonment – where Jackson J, being satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order, made orders pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that the respondent be detained in custody for an indefinite term for control, care or treatment – where this is the first review of the order for the respondent’s continuing detention – where, at the time at which Jackson J made the continuing detention order, the respondent was the subject of ongoing criminal proceedings alleging, inter alia, five counts of rape committed upon his cell-mate – where as a result of those charges, the respondent has been housed in a maximum security unit and has been unable to complete recommended group sexual offender treatment programs – where a nolle prosequi has since been entered in relation to those charges – whether the decision of Jackson J, that the prisoner is a serious danger to the community in the absence of a Division 3 order, ought to be affirmed – whether, bearing in mind the paramountcy of the need to ensure adequate protection of the community, and the strength of the clinical evidence, it is necessary that the respondent remain subject to the continuing detention order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27, s 27(1A), s 30(3), s 30(4), schedule 1. A-G (Qld) v Francis [2006] QCA 324, explained A-G (Qld) v S [2015] QSC 157, cited A-G (Qld) v SRD [2019] QSC 52, related Yeo v A-G (Qld) [2012] 1 Qd R 276; [2011] QCA 170, cited |
COUNSEL: | J Tate for the applicant L M Menolotto for the respondent |
SOLICITORS: | Crown Solicitor for the applicant Grasso Searles Romano for the respondent |
First review of a continuing detention order
- [1]This is the first review of a continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act).
- [2]The operation of the Act, the paramountcy it accords to the protection of the community and the authorities which guide its application are well known.
- [3]On 25 February 2019, Jackson J found that the respondent is a serious dangerous to the community in the absence of a Division 3 order.[1] His Honour ordered that the respondent be detained in custody for an indefinite term for control, care or treatment (a “continuing detention order”).
- [4]
- [5]Upon this review, I am to first consider whether the decision of Jackson J, that the respondent is a serious danger to the community in the absence of a Division 3 order, ought to be affirmed.[4]
- [6]If I decide to so affirm Jackson J’s decision, then I must consider which Division 3 order is called for.[5]
- [7]Orders under Division 3 of the Act include continuing detention orders and supervision orders. A supervision order permits a relevant prisoner’s release but only subject to certain conditions, some mandatory and others not, designed to ensure adequate protection of the community.
- [8]
Submissions of the Attorney-General at this first review
- [9]The Attorney-General submits that the evidence in this case supports a finding that the respondent remains a serious danger to the community in the absence of a Division 3 order – warranting the affirmation of the decision made by Jackson J. She relies in particular upon the fact that the respondent’s unmodified risk of serious sexual offending remains in the “high” range.
- [10]The Attorney-General further submits that the clinical evidence indicates that the respondent, who has outstanding treatment needs, should continue to be subject to the continuing detention order.
Submissions of respondent at this first review
- [11]The respondent does not “concede” that he is a serious danger to the community in the absence of a Division 3 order and submits that, even if I were against him on that issue, the relevant risk that he poses could be adequately managed by way of a suitably conditioned supervision order.
- [12]The respondent urges me to take into account the length of time he might spend in custody, before the prospect of his release might arise, because of his inability to access relevant programs, were I to order his continuing detention.
- [13]The respondent’s argument proceeds as follows –
- The respondent has been in continuous custody for over 10 and half years (having been arrested within days of the commission of his last recorded sexual offence);
- At the time at which Jackson J made the continuing detention order, the respondent was the subject of ongoing criminal proceedings, alleging five counts of rape and five of administering a stupefying drug with intent to commit rape, committed upon his cell-mate over a four day period in March 2017. A “nolle prosequi” was entered in relation to those offences on 4 March 2020 after the complainant refused to give evidence at trial. The respondent submits that the case against him in any event was very weak and relies upon evidence suggesting that sexual relations between the respondent and his cell-mate were consensual, and that his cell-mate was not a vulnerable adult male. The respondent submits that the circumstances of those offences ought not to be considered at all by me on this review;
[I indicate now that I have not taken the circumstances of those alleged offences into account at this review, even though they are referred to in some of the material before me.]
- It is for the applicant to establish that the adequate protection of the community cannot be ensured by the imposition of a supervision order (relying on A-G (Qld) v S [2015] QSC 157 at [38] (McMurdo J, as his Honour then was); which referred to Yeo v A-G (Qld) [2012] 1 Qd R 276 at [73]; and A-G (Qld) v Francis [2006] QCA 324 at [39]);
[Whether that correctly states the applicant’s “onus” at a review or not, I indicate now that I proceed on the basis that I would only make an order continuing the respondent’s indefinite detention if I were satisfied that the adequate protection of the community could not be ensured by the release of the respondent on a suitably conditioned supervision order.]
- Whilst the “ideal” might be for the respondent to complete a High Intensity Sexual Offenders Treatment Program (HISOP) in custody before his release may be contemplated, that ignores the reality of his situation –
- He has been held in a maximum security unit (MSU), under rolling maximum security orders (MSOs), since 1 November 2018;
- His current MSO will not expire until 20 February 2021;
- His behaviour in MSU has been, generally, compliant;
- The respondent is not able to undertake a (group) sexual offenders’ treatment program whilst he is in the MSU;
- During his incarceration in the MSU, he has been receiving counselling from a clinical and forensic psychologist (Dr Lars Madsen);
- Before the proceedings referred to above were discontinued, Dr Madsen observed that the respondent’s unwillingness to discuss his outstanding charges (though he would discuss his past convictions) made him unsuitable for offence-specific intervention;
- In October 2019, Dr Madsen was advised in correspondence from Queensland Corrective Services (QCS) that the respondent was “now willing” (having previously been unwilling) to undertake a group sexual offenders’ treatment program in relation to the sexual offences of which he had been convicted. He was also informed that it was not possible for the respondent to undertake such a program whilst he was in the MSU. The correspondence noted that the respondent’s position with respect to his then outstanding charges meant that Dr Madsen’s treatment would be of “limited efficacy” until those charges were “dealt with”;
- The outstanding charges were discontinued on 4 March 2020;
- Despite the respondent’s willingness to undertake group sexual offenders’ treatment [a willingness that I am prepared to accept has been present since at least October 2019], he is not able to undertake such a program in the MSU;
- The only relevant treatment the respondent has received since 4 March 2020 has been brief, periodic, one-on-one sessions with Dr Lars Madsen;
- The HISOP which is recommended for the respondent, is a 39 week course [which is, I note, preceded by a preparatory program of six weeks duration];
- [Even if the MSO were not continued beyond 21 February 2020] it is highly unlikely that the respondent would be able to complete the HISOP before the next review of the continuing detention order (in 2021);
- By the time of the third review (in 2022), the respondent will be 43 years old, having been in custody for 13 and a half years for offences committed when he was 29 or 30 years old – his eight-and-a-half-year sentence having expired in November 2018.
- [14]The respondent concluded his written submissions with the following –
The snail pace of progress by the Corrective Services Department in meeting the treatment requirements of the Respondent may amount to sufficient concern for the Court to conclude his continued detention is not justified under the Act. Just such a scenario was contemplated by the Court of Appeal in A-G (Qld) v Francis [2006] QCA 324 at para [24]:
“There may be cases in which departmental recalcitrance, in relation to the rehabilitative treatment of a prisoner during continuing detention, will give rise to a question on subsequent review by the court as to whether the continued detention of the appellant is justified under the Act. It must always be borne in mind, in this regard, that one of the purposes of the regime of post-sentence detention established by the Act is treatment of the prisoner.”
- [15]In oral submissions, counsel for the respondent argued that “without a change in the decision of the delegate in respect to his continuing detention in a maximum security unit, he’s basically facing another two years. And not through any lack of want on his part to comply with the requirements of a sexual offender treatment program … Certainly not since … October 2019”. He continued –
… that goes close to the position envisaged in Francis … In my submission, that’s a relevant consideration … I say that goes far enough … for your Honour to actually consider that a like position. If your Honour’s against me, well, then I don’t have any further submissions to make about that.
Consideration of “Francis” upon which the respondent relies
- [16]It is worthwhile at this stage to recall the circumstances of Francis and the context in which the Court of Appeal made the statement upon which the present respondent relies.
- [17]On 13 August 2004, Byrne J made an order for the continuing detention of the appellant, Francis. It was accepted by the appellant that his continuing detention was warranted for a “specific purpose”, namely “to permit his participation in a custodial program (‘the plan’) that [had] been designed to achieve his rehabilitation within the year that will elapse before any order for his detention must be reviewed”.
- [18]The plan had been devised by psychiatrists. It required, among other things, the appointment of a “co-ordinator” in the “Department of Corrective Services”, with authority to ensure that the plan was implemented. Such an appointment was not made. The plan was implemented to some extent, including by way of the provision of therapy to Francis. But other aspects of it were impossible to implement. For example, it was envisaged under the plan that the appellant would be released on day leave from custody to attend therapy sessions – but his security classification was too high to permit his release on day leave. By way of further example, it contemplated his transfer at a certain time to a community correctional centre, but there was no such center in operation at the relevant time.
- [19]Upon review of the order made by Byrne J, the primary judge was concerned about the department’s lack of performance in its role in the plan. However, on the evidence before him, the primary judge was of the view that the appellant remained a serious danger to the community in the absence of a Division 3 order. His Honour was not persuaded that adequate protection of the community could be ensured by the making of a supervision order (with certain proposed conditions) and, ultimately, it was ordered that the appellant was to continue to be subject to the continuing detention order made by Byrne J.
- [20]The appellant appealed from the decision of the primary judge.
- [21]The paragraph upon which the present respondent relies was made in the context of the Court of Appeal considering whether the primary judge ought to have affirmed the decision of Byrne J that the appellant was a serious danger to the community in the absence of a Division 3 order. It was argued that the primary judge erred in so affirming because the appellant was left “worse off” as there was (at review) no treatment plan in place or in prospect.
- [22]The Court of Appeal said that there was no legal basis for such a complaint. The primary judge’s affirmation was well supported by the evidence and whether or not the appellant was worse off than he was under the order imposed by Byrne J was irrelevant.
- [23]It is important to consider [24] in Francis in the context of the paragraph which appears immediately before it ([23]). Together then, it is said (my emphasis) –
[23] The appellant’s submissions emphasise the department’s failure to support the program of graduated release contemplated when the order of Byrne J was made. It might be said that the appellant’s submissions over-emphasise the department’s responsibility in this regard, bearing in mind the evidence of the appellant’s equivocation in his commitment to his rehabilitation. But in any event, the task posed by the Act for his Honour’s determination is not one which can be resolved in the appellant’s favour simply by pointing to departmental ineptitude.
[24] There may be cases in which departmental recalcitrance … will give rise to a question on subsequent review by the court as to whether the continued detention of the appellant is justified under the Act. It must always be borne in mind … that one of the purposes of the regime of post-sentence detention established by the Act is treatment of the prisoner.
- [24]The Court of Appeal in Francis went on to conclude that the primary judge had erred in deciding to order that the continuing detention order continue. In particular, the primary judge erred in his view that the department would not provide a sufficiently intensive commitment of resources to provide effective supervision. There was no evidence that the resources required to achieve effective supervision of the appellant were so extensive that it would be unreasonable to expect the commitment; nor was there evidence that the effective provision of the resources would be impracticable. The Court concluded that a supervision order was apt to ensure adequate protection of the community having regard to the risk posed by the appellant and such an order was made.
Summary of conclusions
- [25]In the present case, there is no suggestion of relevant recalcitrance – although I acknowledge the difficult circumstances in which the respondent finds himself. Regardless, I am not to answer the questions posed by the Act upon this review by pointing to department ineptitude (even if it were present). I am to answer the questions posed by the Act on the basis of relevant matters, including the present level of the risk posed by the respondent and the fact that he is yet to complete the recommended group sexual offenders’ treatment program.
- [26]For the reasons which follow, I am of the view that the decision of Jackson J, that the respondent is a serious danger to the community in the absence of a Division 3 order, ought to be affirmed.
- [27]I am also of the view that, at this stage, bearing in mind the paramountcy of the need to ensure adequate protection of the community, and the strength of the clinical evidence, it is necessary that the respondent remain subject to the continuing detention order.
- [28]As noted, the respondent is currently housed in a maximum security setting. On the evidence, before his release on supervision can be realistically considered, he will require, at best, transition to mainstream and completion of a HISOP or, at least completion of the core components of HISOP in the MSU via individual therapy, even though it is a poor substitute for the HISOP (a group program).
- [29]Those responsible for the care, control and treatment of the respondent are encouraged to consider these matters, together with the opinion of Dr Madsen about the respondent’s readiness for transition from the MSU (discussed below), and progress the respondent’s treatment before the next review of his continuing detention order. For obvious reasons, there are likely to be advantages in capitalising now on the gains made by the respondent in the course of his treatment with Dr Madsen (discussed below) over 2020.
Reasons
- [30]I reached my conclusions on the basis of the evidence before me, which I will now discuss, starting with the evidence about the relevant offences in the context of the respondent’s criminal history.
The nature of the relevant offences and the respondent’s criminal history
- [31]The nature of the relevant offences, and the respondent’s criminal history generally, were summarised by Jackson J in 2019. I can do no better than his Honour’s summary which is as follows –
[5] The respondent was born on 15 May 1979. He is 39 years of age. He has a significant history of sexual offending. In 2001 he was convicted of offences against four young boys all under the age of 12. He pleaded guilty to each offence and received a head sentence of seven years imprisonment.
[6] In 2011 the respondent was convicted of two offences of indecent treatment of a child under 16 and received sentences of four years imprisonment for each offence.
[7] On 17 September 2014 he was found guilty of one count of rape and sentenced to a term of imprisonment of four years and six months, following a long process of trials and appeals that began in 2011 at the time of the indecent treatment convictions.
[8] The sentencing judge in 2014 considered that a nominal head sentence of eight and a half years’ imprisonment would have been appropriate had the rape and two indecent treatment offences been dealt with at the same time. The Respondent had then served the four year term imposed in 2011 and was sentenced to a further period of four and a half years’ imprisonment. This is the sentence he was serving when this application was filed. The Respondents’ full time release date was 11 November 2018. He is currently subject to an interim detention order.”[8]
…
[22] The respondent’s relevant criminal history began in 1996 when he was a child, aged 16, and continued throughout his life and … includes … [sexual offences] …
[23] The respondent’s criminal history also discloses an extensive record of breaches of bail undertakings and probation orders and other offences, which are not related to sexual offending.
[24] As to the sexual offences, the respondent pleaded guilty … on 3 April 2001, to counts on two indictments, charging him with sexual offences committed against four young boys.
[25] The respondent was then 19 to 20 years of age when he committed the offending. One of the victims was a young male, identified as QC, aged 11, known to the respondent through his older sister. On the night of the offence, the victim was asleep on a mattress in the lounge room of a family home. His sister arrived home at about 3:00AM with the respondent and another friend. They went to sleep on single mattresses on either side of the victim. The victim woke during the night to the respondent trying to pull down his pants. He attempted to move away, but the respondent succeeded in rubbing his hands between the victim’s buttocks on the outside of his shorts. The victim moved further away before going to the bathroom. At the time, he attempted to tell his mother, but she was too drowsy. After the respondent left the following morning, the victim disclosed the offending to his mother, who had a vague recollection of being told by the victim that the respondent touched him on the bottom.
[26] There were three other male victims in the 2001 convictions, identified as SC, PC and MA. SC was seven years old, PC was eight or nine years old, and MA was 12 years old. The respondent was involved with a cultural centre that travelled to schools, teaching young Aboriginal children traditional dance. It was through this association that the respondent befriended the victims. On each occasion, the respondent was in a position of trust when the victim was in his care.
[27] The offending towards SC occurred in early 1999. He had gone to the respondent’s house to play with a friend. While his friend slept, the respondent took him to his bedroom and sodomised him. The pain made the victim cry. The respondent threatened to hurt the victim with his killer boomerang if he told his mother. The victim left and ran home. A second offence against SC occurred sometime around February 1999, when he went to the respondent’s house with his brother, PC. While playing a Nintendo wrestling game, the respondent touched the victim in the genital area.
[28] During the course of the game, the respondent offended against PC. He pulled the victim onto the bed and sodomised him as well.
[29] The first offence towards MA occurred sometime between January and July 1999, at the respondent’s house. The offending involved the respondent masturbating the victim, despite resistance, until he ejaculated. The remaining offences all arise from the same incident on 19 September 1999. On this occasion, the respondent had pre-arranged for the victim to stay at his house on the pretence that he was going to take the victim and others to Stradbroke Island for an Aboriginal cultural dancing weekend. After being dropped at the respondent’s house on 18 September 1999, the respondent took the victim to Lake Manchester for a swim. They slept that night in the rear of the respondent’s van. The victim woke during the night to the respondent masturbating him and giving him oral sex. The respondent instructed the victim to perform oral sex on him. The respondent then sodomised the victim before masturbating the victim until he ejaculated. The victim fell asleep after the incident. The following morning, while showering, the respondent instructed the victim to wash him. The victim called his mother and had been instructed by the respondent to tell her that they were staying at another address. He eventually disclosed the offending to his mother on 23 September 1999. SC and PC made a complaint to police after the offending towards MA.
[30] When interviewed, the respondent made general admissions but denied the specific particulars for each of the offences.
[31] In sentencing the respondent, the District Court judge noted the serious breach of trust involved in the offending.
[32] The 2011 and 2014 convictions for relevant sexual offences have a lengthy history through the criminal justice system. The offending was alleged to have occurred between 2008 and 2009.
[33] On 16 September 2011, the respondent pleaded guilty to counts on two indictments, charging him with sexual offences against two young males, identified as CR and DB. The other alleged victim was another young male, JR. It is unnecessary to recount the full history of the proceedings brought against the respondent, in respect of JR.
[34] CR was a 14 year old male who had known the Respondent for about two weeks before the sexual conduct occurred on 13 January 2009. At the time, the respondent was staying with the victim and his family. The offending involved the respondent massaging the victim’s bottom and penis, during a back massage. This conduct lasted for about five seconds before the victim said he needed to go to the toilet. He subsequently told his mother.
[35] During the offences that are the subject of the 2011 and 2014 convictions, the respondent was a reportable offender.
[36] DB was a 14 year old male. On 11 May 2010, he was to stay over at the respondent’s house with a friend. The victim was awoken at 2:30AM when he felt his penis being touched. The respondent was masturbating him under his pants. The victim thought he was dreaming but realised that he was awake, and he became scared. The offending ceased when the victim got up and went to the toilet.
[37] The respondent admitted to this offending during a police interview. He stated that he had an urge to make the victim’s penis erect, so masturbated him for about 10 to 15 minutes. He knew that the conduct was wrong and at that time, he was on bail for the alleged offending committed against JR, that I will mention below.
[38] In sentencing the respondent for the offences committed towards CR and DB, the judge noted that whilst in custody for the 2001 convictions, the Respondent participated in a sexual offender program and remarked that:
“Clearly that course did not change your perverted attitude to sexual matters. In my view, you represent a significant danger to young males in particular, and you probably are a genuine paedophile.”
[39] On 12 August 2014, a fresh indictment was presented charging the respondent with a single count of rape alleged to have occurred between 1 June 2008 and 9 April 2009, against JR. JR was a 17-year-old male. The respondent was found guilty and sentenced on 17 September 2014.
[40] The offending occurred shortly after they – that is, the respondent and JR – met and in the bedroom they were sharing. On the night of the offence, the victim woke to find the respondent lying on his back and restraining his hands. He removed the victim’s pants and rubbed his penis against the victim’s bottom in order to achieve erection. He lubricated his penis before sodomising the victim until he ejaculated. After he pulled his penis out, he used his clothes to clean the victim’s anus and his own penis. The victim knew the respondent was a professional boxer and was scared. He was threatened by the respondent not to tell anyone about the incident, otherwise he would get hurt. The victim went back to sleep and the following morning, had a shower and went to school. He and the respondent continued to share a room.
[41] When interviewed by police, the respondent stated that he had only been in a consensual sexual relationship with the victim once he was over the age of 18. He admitted to staying in the same room as the victim but denied ever being in the same bed as him.
[42] When sentencing the respondent, the District Court judge remarked that:
“The offending was opportunistic, protractive and forceful. The victim had been homeless and was a vulnerable person.”
[43] The judge noted the respondent’s history of sexual offending and that this offence was not an isolated aberration. She said:
“You pose a risk to the safety of vulnerable members of the community.”
[44] In determining the appropriate sentence for the offence, the judge considered the effect of the sentence imposed on 16 September 2011, with respect to CR and DB, stating as follows:
“You interfered with the boys as I said, in the same time period under consideration for the rape. The total period of imprisonment for those combining offences will be unbroken, effectively a cumulative sentence. Therefore, totality is an issue. The combined sentence for the acts against the boys and the rape of J must be proportionate to the combined level of offending. Normally, I would identify a sentence in the order of six to seven years imprisonment. To that must be factored in the offending against the masturbation of the two boys. A proportionate response would be a sentence in the order of eight and a half years, taking into account the four years already served. That means today, the sentence will be four and a half years imprisonment.”
- [32]The inference I draw from the respondent’s criminal history is the same as Jackson J’s – that is, that the respondent’s pattern of offending over the years demonstrates that he is (unmodified) a high risk of re-offending: relatively long periods of imprisonment for sexual offending did not deter him from further sexual offending.
- [33]The other evidence which was before Jackson J and his Honour’s decisions, are discussed under the next heading.
The Division 3 hearing before Jackson J
- [34]In reaching the conclusion, on 25 February 2019, that the respondent is a serious danger to the community in the absence of a Division 3 order and ordering that he remain in custody for an indefinite term for control, care and treatment, Jackson J took into account inter alia the opinions of three psychiatrists, Drs Phillips, Timmins and Aboud, that –
- the unmodified risk posed by the respondent of future, serious sexual offending was high;
- he had diagnoses of paedophilia, complex personality disorders and elevated psychopathy scores, if not psychopathy;
- he had substance abuse issues, which bore upon his inhibitions and therefore his risk; and
- he had poor insight, and used minimisation, rationalisation and externalisation of blame to explain his offending.
- [35]His Honour also took into account their opinions to the effect that the respondent required a comprehensive risk management intervention, including by way of the completion of recommended sexual offender treatment programs, before his release might be contemplated.
- [36]Dr Timmins informed his Honour that, in her view, it was likely to be a considerable period of time before the respondent could learn to manage himself appropriately, thus lowering his risk. It was also suggested to his Honour that it was appropriate (in a treatment sense) to consider augmentation of psychological interventions with biological interventions aimed at reducing the risk posed by the respondent of committing a serious sexual offence upon release.
- [37]As to the Division 3 order required, having regard to the nature of the index offences, the clinical opinions of the psychiatrists and the longitudinal evidence (of the respondent’s criminal history), his Honour was satisfied that the adequate protection of the community could only be ensured by the making of a continuing detention order.
- [38]A summary of the expert psychiatric evidence before his Honour follows. Two of those three psychiatrists, Drs Timmins and Aboud, also gave evidence before me.
Evidence of the psychiatrists before Jackson J
- [39]In her evidence before Jackson J, Dr Phillips evaluated the respondent’s relevant risk as high; she discussed when that risk might increase; and she diagnosed the respondent with paedophilic disorder, among other conditions. She recommended intensive intervention (my emphasis) –
Taking into account the results of the above risk assessment tools, it is my opinion that [the respondent’s] risk of future sexual re-offending falls in the high range. His risk of physical violence is also in the high range. It is my opinion that intensive interventions targeting dynamic risk factors for sexual and physical violence, assertive monitoring and environmental restrictions will be necessary to reduce the risk of re-offending.
The risk of sexual re-offending would increase in the setting of increased sexual pre-occupation, rejection of supervision, psychosocial stresses such as relationship breakdowns or perceived rejections, or a lapse to cannabis abuse. He has limited adaptive coping skills to manage psychosocial stresses and would be at risk of emotional collapse and returning to his long standing maladaptive patterns of cannabis use or use of sex as coping in the context of psychosocial stresses. The victim of future offending would likely be a male. Either pre-pubescent or post-pubescent adolescent. Although vulnerable adult males may also be a target. Given the seriousness of the previous sexual offending, including forced anal intercourse against a number of males of varying ages and at least one occasion of use of previous threats of violence, there is the potential for future sexual offending to be of a serious nature.
…
From a diagnostic perspective, the respondent meets the criteria for a diagnosis of paedophilic disorder, nonexclusive type, attracted to males and females. He describes a long history of recurrent intense sexually arousing fantasies, urges and behaviours involving sexual activity with prepubescent children. He has disclosed these previous sexually deviant thoughts during my assessment, during his previous engagement in the sexual offender treatment program in 2004, and also during a previous police interview in May 2010. While at my assessment, the respondent forwarded that he has not experienced any sexually deviant thoughts involving children, but in the previous two to three years, it is considered that this is unlikely given the chronic nature of the paedophilic disorder. Even if the thoughts are in abeyance at present in custody, there is the high likelihood they would recur in the future, given the natural history of the condition and the respondent’s refusal to engage in any sexual offender treatment program during the current incarceration.
- [40]Dr Timmins considered the respondent’s risk of sexually re-offending upon release to be high and likely to occur within a relatively short time after his release –
In summary, I am of the opinion that [the respondent’s] risk of sexual reoffending is high if released into the community without a supervision order in place.
He is likely to return to sexual offending in the near future given his history of sexual re-offending after his previous release. This appears to have occurred within 12 months of release from his previous incarceration in 2008.
His history shows that he has difficulties coping in the community and he may return to substance use as a way to cope. He has poor insight into his offending pathway and has no clear ideas of how to manage his emotions or sexual drives, even after completing a sex offender treatment program in 2004.
At some point after release he is likely to offend against a young male child aged from pre-pubescent age upwards. He may use a position of trust and groom the child or offend impulsively. He is likely to use substances in order to gain the child’s compliance. He may resort to rape if the victim is an adolescent or adult. There would be physical and psychological coercion involved in the offending and a high degree of harm to the victim.”
- [41]Dr Aboud similarly assessed the respondent’s risk as high and recommended sexual offender treatment in custody prior to his release (my emphasis) –
In summary, it is my opinion that [the respondent] currently presents a high risk of sexual re-offending and that this risk would be considered manageable in the context of a supervision order once he has completed a substance misuse program and a group sexual offender program. I believe the latter should be completed in custody prior to his release. Should he be made subject to a supervision order I recommend that it be in place for at least 10 years, given his combination of risk factors, vulnerability factors, poor previous record and his relatively young age.
- [42]With respect to necessary interventions, Dr Phillips and Dr Timmins were of the view that effectively treating the respondent would include group and individual treatment. Dr Phillips said (my emphasis) –
The respondent will require comprehensive risk management interventions prior to it being clinically appropriate that he be managed in the community. The respondent would benefit from engagement in a high-intensity sexual offender treatment program.
It is noted that the group sexual offender programs do not address sexual deviance, and therefore, in addition to a group program, the respondent would also benefit from individual psychological interventions targeting sexual deviance from a forensic psychiatrist with experience in managing sexual offenders. He would benefit from further psychological interventions targeting adaptive coping mechanisms, problem-solving, affect regulation, and relapse prevention planning.
From a clinical perspective, it may be appropriate for the respondent to consider augmentation of psychological interventions with biological interventions aimed at reducing the risk of sexual reoffending prior to his unsupervised release to the community.
- [43]Dr Timmins said (my emphasis) –
He has poor insight into his offending. He maintains his innocence for his previous and current rape charges. He uses minimisation, rationalisation and externalisation of blame. He has engaged in a short-term substance program, cognitive skills and sex offender programs in the earlier incarceration which appeared to have little impact on his offending. He has refused to attend any further substance or sex offender programs during his incarceration.
Ideally, he should engage and complete the recommended sex offender programs in custody prior to his release into the community. His risk may be modified by a community supervision order under the Act. He would most likely fall into the moderate to high risk category.
The respondent is a relatively young man and has a long history of sexual offending, difficult personality structure, chaotic lifestyle and poor insight into his sexual offending. It is likely to take a considerable period of time to learn how to manage himself more appropriately such that his risk towards the community is lowered further.
Evidence at the first review
- [44]In reaching my conclusions, I took into account evidence about the significant changes in the respondent’s position in the two years between the imposition of the continuing detention order and its first review, namely that –
- he is now willing to undertake a group sexual offenders’ treatment program;
- the prosecution discontinued the sexual offences allegedly committed upon his cell-mate; and
- he has been receiving individual treatment with Dr Lars Madsen.
Current psychiatric opinion
- [45]At the time of their interviews with the respondent in 2020, Dr Timmins and Dr Aboud were aware that he is housed in the MSU on an MSO because he is considered by QCS to have been involved in predatory sexual behaviour upon another inmate. They were also aware that the charges relating to that alleged predatory behaviour were discontinued. Dr Aboud confirmed that he proceeded on the basis that the respondent is innocent of those charges. However, their discontinuance had no bearing on his opinions about the respondent. Dr Timmins’ position was similar.
- [46]There was no change in Dr Aboud’s clinical diagnoses of the respondent from those he made for the purposes of the hearing before Jackson J.
- [47]Overall, Dr Timmins’ clinical diagnoses also remained unchanged from the diagnoses she made for the purposes of the hearing before Jackson J, although she now raises the likelihood of an element of sadism being present because of the respondent’s comments about his rape fantasies.
- [48]The psychiatrists’ evidence is to the effect that the respondent’s unmodified risk of future serious sexual offending is still high. And in their opinion, that risk could not be reduced to below “moderate to high” by the security and restrictions of a supervision order.
- [49]Indeed, Dr Aboud observed that it is somewhat artificial to be considering a way forward for the respondent when he is housed in the MSU, under an MSO. He has to progress out of the MSU in order for there to be any prospect of progression to the broader community.
- [50]I will now outline the psychiatrists’ evidence in more detail.
Dr Timmins
- [51]Dr Timmins’ report is dated 6 September 2020. It was based upon her interview with the respondent on 30 June 2020, via videolink.
- [52]Consistently with the opinion she offered to Jackson J, Dr Timmins diagnosed the respondent as suffering from:
- Paedophilic Disorder (non-exclusive, sexually attracted to both males and females);
- Psychopathy (PCL-R scoring of 30 indicating the presence of psychopathic traits);
- Mixed Personality Disorder (Antisocial, Narcissistic and Borderline personality traits); and
- Substance Use Disorder – mainly Cannabis (in sustained remission in a controlled environment).
- [53]In addition to these diagnoses, as noted above, she now raises the likelihood of an element of sadism in the respondent’s makeup.
- [54]There was no material change to her risk assessment, apart from a reduction in the respondent’s Static 99-R result, which reduced from nine to eight, because of his age. In her view, the respondent remains within the high-risk group if released into the community at this time.
- [55]She elaborated on the respondent’s risk and issues for his future management. She noted, positively, that the respondent is now willing to undertake group sexual offender treatment. She said (my emphasis) –
[SRD] has a background history of a prejudicial childhood with neglect, poor attachments and sexual abuse. His life has been chaotic in the community. His childhood experiences have led to the development of his personality structure which causes issues in the way he relates to others and his deviant sexual proclivities which are invariably acted upon. Given his personality structure and behaviour I consider [SRD] to have clear psychopathic traits which will cause issues in his management.
He has a history of substance use, mainly marijuana.
He has evidence of difficulties in the prison environment with a number of breaches of a threatening, violent and sexual nature in addition to a history of using illicit substances in custody. There have been allegations of sexual behaviour and assault in the custodial setting in 2010, 2017 and 2018.
[SRD] continues to display has [sic] poor insight into his offending pathway and has no clear ideas of how to manage his emotions or sexual urges even after completing a Sex Offender Treatment program in 2004. He had refused to engage in further treatment for any sexual or substance use during this incarceration until the Continuing Detention Order.
On a positive note, he is now more amendable [sic] to the group programs since his placement on the Continuing Detention Order, however his placement in the Maximum Secure Unit has caused difficulties with accessing the programs required. He has engaged with a forensic psychologist for regular sessions although progress appears to be slow.
[SRD] continues to have only a few plans for his release. His way of relating in the interview with reading from paperwork, use of jargon and verbose and difficult to understand explanations gives the impression that he really has no idea as to how to manage himself prosocially. He seems to think that if he denies his propensity to offend sexually and denies his sexual thoughts and fantasies to rape males that these thoughts and behaviours have somehow disappeared. He can “split” off this aspect of himself as though it does not exist and will not become a problem for him in the future. This is impossible to accomplish and is indicative of his personality structure and poor insight. It is only when he engages and starts discussing his sexual thoughts, fantasies and behaviours that he will gain understanding and control of himself.
In summary, I am of the opinion that [SRD]’s risk of sexual reoffending is HIGH[9] if released into the community without a supervision order in place.
His history shows that he has difficulties coping in the community. He may be sexually preoccupied and frustrated. He is unlikely to access support systems but may return to substance use as a way to cope. If a young male is in his vicinity, he could then re-offend sexually.
His victims are males and he has shown preference for young male children aged from pre-pubescent age upwards. He may use a position of trust and groom the child, or offend impulsively. He may use substances in order to gain the child’s compliance. He may resort to violence and rape if the victim was an older adolescent or young adult. There would be physical and psychological coercion involved in the offending and a high degree of harm to the victim.
He has poor insight into his offending. He continues to be evasive when questioned about his sexual offending and sexual behaviours. He uses minimisation, rationalisation and externalisation of blame. He has engaged in a short-term substance program, cognitive skills and sex offender programs in the earlier incarceration which appear to have little impact on his offending. He has engaged in individual interventions with a forensic psychologist since December 2018 but progress has been slow. Ideally, he should also engage and complete the recommended Sex Offender programs in custody prior to his release into the community.
- [56]In her opinion, were the respondent to be released on supervision, without having undertaken relevant programs, his risk of reoffending would be reduced to “moderate to high”. She continued –
The duration of a community order would need to be 10 years for the adequate protection of the community. [SRD] is a relatively young man and has a long history of sexual offending, a difficult personality structure, chaotic lifestyle and poor insight into his sexual offending and how to manage himself pro-socially. It is likely to take a considerable period of time for him to learn how to manage himself more appropriately such that his risk towards the community is lowered further.
- [57]In her oral testimony, Dr Timmins made the following points –
- People with psychopathic traits (like the respondent) are more difficult to treat and tend to have a higher risk of recidivism, specifically sexual recidivism;
- In concluding that the respondent’s unmodified risk of sexually reoffending is high, Dr Timmins revisited her first report, conducted a second interview with the respondent and re-scored “the risk instruments”;
- In her opinion, if the respondent’s risk were to “materialise”, it would do so by way of his grooming a young male (including an underage male) whom he finds sexually attractive, offering them incentives or substances before engaging in a contact offence;
- She considered that the respondent meets the criteria for HISOP treatment, which in her view ought to be his “number one priority”, to be undertaken before consideration of his release under a supervision order;
- The respondent should also consider undertaking a substance intervention program;
- Before HISOP treatment, the constraints of a supervision order would reduce his relevant high risk to a moderate to high risk;
- The combination of treatment and the constraints of a supervision order would reduce his relevant risk to the lower end of the moderate to high range;
- The HISOP program would reveal information about the respondent which would enable his risk to be better understood and managed;
- Even if the respondent’s last fantasies about raping underage boys happened in 2009 or 2010, “when you are talking about sexual preferences, these sorts of things don’t go away … it’s in their DNA. It’s what they … like. It’s what they find attractive. And they have to learn to manage those sorts of things if they’re not pro-social … those sorts of thoughts don’t go away … And the fact that [the respondent] is trying to work against having those thoughts means that they’re still there … He’s trying to manage them”; and
- Whilst the charges which were discontinued in 2020 were pending, it would have been very difficult for the respondent to have participated in a sexual offenders’ treatment program.
- [58]Dr Aboud’s report, dated 30 October 2020, was based on his interview with the respondent on 5 June 2020.
- [59]In a summary of his critical opinions, Dr Aboud said (my emphasis) –
[The respondent’s] psychiatric diagnoses are: Mixed Personality Disorder (with borderline, antisocial and narcissistic traits), Cannabis Dependence, in forced remission, Paedophilia, with an attraction to boys.
I consider his current unmodified risk of sexual reoffending to be high. This risk would be reduced to moderate-high, once he has successfully completed a (further) group sexual offender treatment program and a substance misuse program. This risk would then be further reduced to below moderate in the context of a supervision order.
Importantly, I do not believe he could be safely released, even on a supervision order, without having completed these above programs in the custodial environment prior to release.
When I interviewed him on 5 June 2020, he was housed in the Maximum Security Unit (MSU) at Brisbane CC. He claimed that he was being deprived of the opportunity to engage in the above programs, on account of this placement. He also claimed that he had been attending individual therapy with Dr Lars Madsen, and that in his ([SRD]’s) opinion, this therapy should be accepted as a substitute for the group program(s).
It is my recommendation that consideration should be given as to how best engage him in the recommended group program(s), and whether this requires consideration of him first progressing out of the MSU, or whether there is another way that his participation can be achieved. If he remains in the MSU, and it is genuinely unfeasible him to participate in the group program(s), then efforts will need to be made for him to cover the course material individually with his therapist, and to the satisfaction of his therapist.
Should he be released to a supervision order, I recommend that it be made for 10 years, given his combination of risk factors, vulnerability factors, poor previous record and relatively young age. If/when released, important requirements for management would include assistance in respect of: stable and appropriate accommodation; abstinence from illicit drugs; participation in the sexual offending maintenance program; structuring his time with useful activities, such as education and/or employment; ongoing individual therapy to address emotional instability associated with his personality and his problematic childhood, his trust issues, his intimacy problems, his maladaptive and avoidant coping, his manipulative interpersonal style, his tendency to deceive people about how he is feeling and other matters, his sexual deviancy. He should not have any unsupervised contact with male children. He should be offered the opportunity to discuss and consider the benefits of anti-libidinal medication, which he would likely find to be of great benefit in light of his deviant sexual drive and poor self-restraint.
- [60]In his oral testimony, Dr Aboud made the following points –
- His risk assessment was based upon the respondent’s criminal, personal and behavioural history, his custodial behaviour and his vulnerability factors (which included his prejudicial childhood). He formulated risk by using actuarial risk assessment tools as well as dynamic risk factors, which spoke to the dynamic nature of the risk. This information provided a platform for his professional opinion, which was to some extent influenced by the respondent’s attitude and the possibility that he might not be a reliable historian;
- In his view, unless the respondent completes the HISOP and the Pathways substance misuse program, his risk could not be safely managed in the community under a supervision order;
- The respondent suffers from a mixed personality disorder, which is an enduring condition. He has borderline, anti-social and narcissistic traits. His borderline traits – a high level of impulsivity, reactivity to stress or environmental difficulties, relationship difficulties, difficulty managing anxiety and stress, quick mood changes and a fear of rejection and abandonment – mean that he has a need to connect and feel safe and secure. His antisocial traits include a tendency towards rule-breaking and an anti-authoritarian stance and behaviours, which might operate “protectively”, in the sense that they protect him from being a victim. His narcissistic traits include his being a little grandiose and feeling superior, which might also be defensive. His personality traits impact upon risk in this way: they make him as an individual more difficult to manage; they also make it difficult for him to self-manage. That leads to his tendency to abuse cannabis, which in turn carries a risk of disinhibition and his being less able to control his sexual deviance. In other words, his underlying deviant sexual drive is complicated by his personality disposition and exacerbated by substance abuse which would reduce the self-control he needs to assert to manage his risk;
- Whilst Dr Timmins considered the respondent to be psychopathic, Dr Aboud considered him only to have psychopathic traits – that difference was explained by Dr Aboud placing greater weight on his borderline traits than his anti-social ones;
- The respondent’s diagnosis of paedophilia means that he has a life-long deviant sexual preference;
- Were the respondent’s risk to materialise, he would target a boy aged 7 to 15, or a vulnerable male of [16], 17 or 18, to meet his intimacy needs in a way which would not allow him to be re-victimised (as he was as a child who was sexually abused);
- The respondent’s willingness to (now) accept treatment is a positive thing;
- If, however, he is unable to transition out of the MSU, then an attempt could be made to cover the core material of the HISOP program via one-on-one treatment – although that would be a poor substitute for a group program;
- The information obtained about the respondent during group therapy would allow for a better understanding of his risk in the community. Indeed, his participating in the group program would provide good evidence about whether he would be able to cope with broad socialisation with younger adult males;
- In terms of his transition from the MSU to mainstream, Dr Aboud recommended that for the first several months, the respondent ought not to have “ready access” to vulnerable young males – that is, those who might fit his victim profile, including those who have been sexually abused or have substance abuse vulnerability or are (as a possible victim profile factor) homosexual;
- Even though the respondent told Dr Aboud that he does not entertain thoughts about young boys anymore, it is not feasible for the respondent to no longer harbour those types of thoughts because they are underpinned by his paraphilia; and
- Even though a HISOP participant is encouraged to admit to their offending during the program, the program could be adapted to deal with “hypotheticals” in the case of a participant who does not admit to the offences.
- [61]Dr Aboud was cross-examined extensively about the basis for his scores in several of the assessment tools he deployed. He justified every score he gave and conceded where a lower score (leading ultimately to a lower risk) could have been more appropriate. Overall though, cross-examination did not detract from Dr Aboud’s opinions about the respondent’s risk and the need for him to undertake the HISOP before his release might be contemplated.
- [62]Dr Aboud was cross-examined extensively about the respondent’s ability or willingness to take part in HISOP and whether it is feasible from the point of view of QCS. Whilst probably not a matter for Dr Aboud, he observed that there are two different issues at play: (i) whether there have been findings of fact of sexual abuse in a court room (that is, the fact of the nolle) and (ii) the management of an individual in custody (bearing in mind allegations made about them).
- [63]Dr Aboud was cross-examined about recidivism rates for Queensland offenders and the efficacy of sexual offender treatment programs (on the strength of a report by Dr Stephen Smallbone, of which Dr Aboud was vaguely aware). The upshot of that cross-examination was Dr Aboud’s evidence that, the higher the risk, the more efficacious the program tends to be at reducing it. There might be a lower treatment effect in the case of low to moderate risk individuals. Most sexual offenders do not go on to commit a second sexual offence. But once an individual does re-offend sexually, they are putting themselves in a completely different category. Recidivism rates are not very low for individuals who have offended on more than one occasion and with the density of the respondent’s offending. The HISOP would not reduce the respondent’s risk from high to low: it would reduce it from high to moderate to high.
- [64]Dr Aboud also explained that the respondent would be considered a fixated sexual predator. His intimacy needs are met by his offending. However, as he ages, even without treatment, his risk would decrease in close correlation to the decrease in his testosterone and libido. That is based on biology. Anti-andogen medication would also assist in breaking the link between the way he thinks about children and his sexual drive.
- [65]The other evidence before me included evidence from QCS staff, Dr Madsen and the respondent.
Evidence of Patricia Dennis
- [66]Ms Dennis is the Acting Principal Advisor of the High-Risk Offender Management Unit (HROMU). The remit of the HROMU includes matters relevant to the treatment and accommodation of high-risk offenders.
- [67]She explained (in her affidavit) that the respondent is housed in the MSU (and has been since November 2018) because QCS considered that he posed a threat to the security and good order of a corrective services facility.
- [68]Ms Dennis read the recent reports of Dr Timmins and Dr Aboud. She appreciated their recommendation that the respondent participate in HISOP. She confirmed that HISOP is only available in custody. She expressed QCS’s concerns about the respondent’s release on supervision and stated that QCS holds concerns about a supervision order being “reasonably or practicably applied to the identified risks posed by the respondent and the respondent’s ability to comply with any order made by the Court to manage his risks”. She elaborated on what would be and what might be offered to a respondent under a supervision order.
- [69]She noted that the respondent has been engaged with Dr Lars Madsen whilst in MSU and explained that it is the intention of QCS that the “collaboration” continue during the respondent’s continuing detention (if that were ordered at this review).
- [70]Material attached to Ms Dennis’ affidavit revealed that QCS decisions about the respondent’s detention in the MSU are informed, in a not insubstantial way, by the reports of Dr Madsen about the respondent’s treatment progress.
- [71]The “Information Notice Security Classification Form” dated 27 October 2020, and signed by Samantha Newman (as “delegate”), informed the respondent that, drawing on Dr Madsen’s earlier opinion (among other matters), QCS formed the view that he posed a risk to other prisoners which required management via a maximum security classification and that his detention in the MSU would continue.
- [72]That form states (my emphasis) –
Since your previous classification decision in April 2020 you have demonstrated acceptable conduct and have maintained Stage 3 of your Maximum Security Unit Management Plan. You have not incurred any adverse violations.
Dr Madsen has previously reported his opinion was that in the longer term, if you remain untreated, then he regards there would be considerable risk of you engaging in sexually abusive behaviour again likely towards other prisoners. I note that on 7 August 2020 Dr Madsen provided a Progress Report relating to the individual intervention he has undertaken with you. He indicated that you are motivated, engaging well and genuinely think about and try to apply the concepts to your situation. Further he noted an improvement in your awareness of your risk factors and strategies to manage such. I am of the view that continued engagement with Dr Madsen will assist in further reducing your risk of potentially being sexually abusive towards other prisoners in the general prison population and to assist in addressing your present risks.
I have considered your submission dated 23 October 2020 outlining that during your conversation with Dr Madsen on 21 October 2020 he indicated that you have done everything asked of you and that he would provide a report indicating such. I can advise that at this time, Dr Madsen has not provided a further updated report for my consideration.
- [73]The Information Notice observed that Dr Madsen’s August 2020 report did not include an evaluation of the respondent’s longer-term risk.
Evidence of Dr Madsen
- [74]Dr Madsen’s written evidence referred to his report which informed the respondent’s April 2020 classification decision (referred to above). Since that report, he had seen the respondent on four occasions until 7 August 2020. His August 2020 letter about the respondent’s progress was very positive. He said (errors in original) –
Shannon appeared to engage well in the process he was cooperative and spoken candidly about the material and exercises that he has been completing. As I have noted previously, he genuinely appears to think deeply about the concepts that are covered and obviously attempts to apply them to himself in ways that are helpful for him. He does not justify his historical offending, rather appears to recognise that his offending was due to a range of characteristics including – general entitlement/sexual entitlement, predisposition and sex-preoccupation and an entrenched sexual interest in your male children and overly dominant power and control themes. He appears able to link the development of these vulnerabilities to a highly stressful and physically/sexually/emotionally abusive early home environment. Put another way at a young age he learnt that sex should be used as a method of regulating himself (feeling good), feeling safe and getting his emotional needs for attachment and connection met. Many of his relationships with supposedly protective adults during his early childhood were exploitative and sexual in nature or became sexualised in some way at some point in time. These challenging (essentially powerless) experiences appear to have led to the formation in him of a tendency to seek to control and dominate others – likely as a method of protecting himself/making himself feel powerful and invulnerable etc. This proclivity seems to have a sexualised element to it.
- [75]On 3 September 2020, the respondent was referred to Dr Madsen again by the Serious Offender Unit – Sentence Management Services for the purpose of re-engaging him in psychological treatment and intervention, because he continued to be detained in the MSU under an MSO.
- [76]In his oral evidence, Dr Madsen explained that he consulted to the MSU, by way of assisting with decisions about transitioning prisoners out of it. His role is primarily as an assessor of the risk posed by a prisoner of institutional violence. He also has a role as a provider of treatment and counselling to certain prisoners (including the respondent). He was not however required to assess the respondent’s risk of re-offending for the purposes of this review.
- [77]He was asked what needed to happen for the respondent to transition out of the MSU. He explained that, initially, he was engaged with the respondent to discuss with him what caused him to be placed in the MSU – but because the respondent denied any offending (against his cell-mate), Dr Madsen did not get far. However, Dr Madsen maintained therapeutic rapport and connection with the respondent by using their sessions to focus on his historical offences. The concepts they discussed, which were relevant to his historical offences, were also relevant to the allegations of institutional sexual violence. Dr Madsen reasoned, in effect, that it was therefore worthwhile to discuss the historical offending with the respondent.
- [78]He affirmed the positive view of the respondent which he expressed in his written report. He described his engagement as positive and useful. He thought it important that the respondent transition to mainstream so that he might complete the HISOP.
- [79]Under cross-examination, he confirmed that whilst he made recommendations to QCS about MSU prisoners and their transition to mainstream, that decision was for the delegate not for him. In his opinion, the respondent was eligible for transfer to an open unit to allow his participation in the HISOP – leaving security issues to one side.
- [80]Dr Madsen observed that the respondent has been in prison for a long time but has incurred only a small number of breaches and adverse incidences. That suggests he is very good at self-control: he is not dysregulated. Having said that, the allegations raised about him (about his sexual behaviour in custody) are concerning. Risks could be addressed (in an open unit) by having the respondent under 24-hour surveillance in the common areas and in a cell on his own.
Evidence of Bruce Tannock
- [81]Mr Tannock is the Acting State-Wide Manager of the Serious Offenders Unit. He explained maximum security classifications and placements under an MSO in a MSU. (A prisoner with a maximum security classification may be housed in a high security prison mainstream unit.)
- [82]Mr Tannock explained that the respondent’s maximum security classification is due to be reviewed on 21 February 2021. A decision about whether to make another MSO for him is to be made at the same, or about the same, time. Dr Madsen has been engaged to provide a report by 23 December 2020 about the respondent for the purposes of considering whether to make another MSO in relation to him.
Evidence of the respondent
- [83]The respondent gave evidence at the hearing.
- [84]He confirmed that he was aware that Dr Madsen is preparing a report for QCS about his placement in the MSU which is due on 23 December 2020.
- [85]He indicated that being placed in a cell on his own (if he were he moved out of the MSU) would not be a problem for him. He is also aware that he is under 24-hour surveillance in the open parts of the prison.
- [86]He said he hopes to undertake the HISOP to gain “more understanding and awareness” and to be able to maintain that. He wants to live with his family and get a job. He has kept in touch with his family by way of letters and phone calls. His eventual desire is to be reunited with his family “on the outside”.
- [87]In cross-examination, he was asked whether he could “live with” the fact that he had to do the programs before his release could be contemplated. He said that he could.
Discussion of evidence, affirmation of Jackson J’s decision and continuing the respondent’s detention
- [88]I may only affirm the decision of Jackson J, that the respondent is a serious danger to the community in the absence of a Division 3 order, if I am so satisfied by acceptable, cogent evidence; and to a high degree of probability, that the evidence is of sufficient weight to do so.
- [89]I am satisfied that there is evidence of such quality and weight before me. That evidence has been discussed above. It establishes that the respondent’s unmodified risk of committing serious sexual offences upon his release remains high. He still has poor insight and has not undertaken a group sexual offenders’ treatment program – although I note the progress he has made with Dr Madsen. His longitudinal criminal history reveals the risk that he would re-offend in a sexual way upon release even though he has spent a long time in custody. The evidence persuasively establishes that he could not safely be released at this point in time. He remains a serious danger to the community in the absence of a Division 3 order. The decision of Jackson J is affirmed.
- [90]Having affirmed Jackson J’s decision, I am to consider whether the respondent must continue to be detained, or whether he may be released from custody subject to a supervision order containing appropriate conditions.
- [91]In my view, this is not a case where the protection of the community would be assured by the Court exercising its discretion to release the respondent on supervision.
- [92]The evidence of the psychiatrists is strong and consistent: the respondent’s unmodified risk of future serious sexual re-offending is high. Without treatment, the restrictions imposed by a supervision order would only reduce that risk modestly – to a moderate to high level. Thus, now, the respondent remains a high risk, recidivist offender, whose diagnoses include paedophilia and psychopathy. Were his risk to materialise upon his release, he is likely to sexually abuse a male child or adolescent – likely causing them (it is reasonable to assume) at least psychological harm. Whilst the respondent has had individual therapy, to date he has not demonstrated the internal change required to reduce risk to an acceptable level. His participation in group programs is essential. As Dr Aboud explained –
… [I]t is my concern (and also his own) that such individual therapy would not be sufficient to properly treat him. I strongly, but respectfully, recommend that all efforts be made to engage [SRD] in these recommended group programs. If such engagement requires him to first exit the MSU, and re-enter general association, then efforts should be made to support him in this progression, as long as it is considered to be progression that can be managed in terms of any interpersonal (sexual) risk that he might present to other inmates. With this in mind, consideration might be given to avoiding his sharing a cell with another, potentially vulnerable inmate. If it is genuinely unfeasible to progress him from the MSU, then I reluctantly suggest that consideration be given to trying to meet his sex offender treatment needs (by covering the course material) via an individual program with a therapist, and to the satisfaction of the therapist. In [SRD]’s case, such an undertaking is not readily suggested, as his manipulative interpersonal style, and tendency toward minimisation and denial, suggest that he would be far better suited to participation in the group program, and would be far more likely to benefit from that modality, given its evidence base.
- [93]The evidence of Dr Madsen is encouraging. It may be hoped that the respondent will be transferred out of the MSU relatively soon, so that he may undertake and complete the preparatory program and then the HISOP. At that point, it is likely that more will be known about the respondent and his offending pathways and further risk assessments may be undertaken.
- [94]However, at this point in time, the only appropriate order is an order for the respondent’s continuing detention.
- [95]Also, I will act on Mr Tannock’s request and direct that the reports of Drs Timmins and Aboud be provided to those supervising the respondent during his detention, including the delegate responsible for deciding upon his security classification and his placement in the MSU.
Footnotes
[1]Attorney-General for the State of Queensland v SRD [2019] QSC 52.
[2]Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27.
[3]Ibid, s 27(1A).
[4]Ibid, s 30.
[5]Ibid, s 30(3).
[6]Ibid, s 30(4)(a).
[7]Ibid, schedule 1.
[8]Attorney-General for the State of Queensland v SRD [2019] QSC 52 (Jackson J).
[9]Emphasis (bold) in original.