Attorney-General v Jackway[2020] QSC 377

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act)^[1]for review of the continuing detention of Douglas Brian Jackway, the respondent.^[2] The applicant seeks to have a decision of O'Brien AJ made on 28 February 2012, that Mr Jackway, the respondent presents a serious danger to the community in the absence of an Order under Division 3 of the Act, affirmed and further that the respondent continue to be subject to a continuing detention order pursuant to s 30(3)(a) of the Act.
2. [2]
   This is the seventh annual review of the continuing detention order.
3. [3]
   There is no contest by Mr Jackway that there is acceptable cogent evidence which supports a finding that the respondent is a serious danger to the community in the absence of a Division 3 order under the Act and that the decision of O'Brien AJ of 28 February 2012 ought to be affirmed. That concession is a proper one on the basis of the evidence before the court.
4. [4]
   The respondent is a man of 44 years of age. He has a history of substance and alcohol abuse.
5. [5]
   The real dispute is as to what, if any, is the appropriate order to be made by the Court in terms of a continuing detention order or a supervision order. The applicant contends that Mr Jackway should continue to be subject to a continuing detention order whereas Mr Jackway’s counsel contends that he should be released from custody under the proposed supervision order (Supervision Order). The onus is on the applicant in that regard.

Criminal History

6. [6]
   Mr Jackway has a significant criminal history. In terms of the present review however, the relevant offences are one of rape that he committed against a female child in 1991 when Mr Jackway was 14 years old and a series of offences against a male child committed in 1995 when Mr Jackway was 18 years old. Mr Jackway has not committed a further sexual offence since 1995.
7. [7]
   While both offences are obviously serious and relevant to the assessment of risk.  The offences in relation to the 1995 matter were assault occasioning bodily harm; taking a child under 16 for immoral purposes with a circumstance of aggravation; three counts of indecent dealing with a child under 12; and two counts of attempted carnal knowledge by anal intercourse of a child under 12.
8. [8]
   The circumstances of the 1995 offending were that Mr Jackway had had a falling out with family members and had taken off in a vehicle. He went nightclubbing and the next day took Rohypnol and Xanax tablets and drank alcohol in the company of a man he had met the night before prior to the offending. He was later driving in a highly intoxicated state from alcohol and drug use when he saw three boys. He approached the young boys who were riding bicycles under the guise of asking for directions. After punching one boy, Mr Jackway manhandled another into his vehicle and drove a short distance before his vehicle collided with a bridge. He took the boy into the mangroves. He then stripped the boy, assaulted him, threatened him, and performed sexual acts upon him including anally raping him. He threatened the boy with physical violence. He had been observed by a witness taking the boy who contacted the police. The police found Mr Jackway when it appeared that he was about to engage in anal intercourse. He was sentenced to eight years imprisonment and not released until 2003.
9. [9]
   After being released in relation to the 1995 offences, he then returned to prison on remand in January 2004, for stealing a motor vehicle.  He had also committed the offences of dangerous operation of a vehicle whilst adversely affected, stealing, and wilful damage. He was sentenced for those offences at the same time he was dealt with for the 1991 rape of a young girl related to him when she was nine or ten years of age, and he was fourteen. In 2005 he received a total term of imprisonment of seven years.
10. [10]
    Mr Jackway has been in prison for his entire adult life, except for three or four months. He has spent some 25 years in total in prison.  For over seven and a half years he has been subject to a continuing detention order under the Act.

History of reviews

11. [11]
    In the review of December 2013, Daubney J noted:

“I cannot avoid giving heed to the concern expressed by both psychiatrists that a relapse by the respondent into drug and alcohol use will catapult into a high risk of sexual offence category. Despite the obvious and welcomed improvements in his situation since the time he was made subject to a Continuing Detention Order, I am not satisfied that he is yet at the stage where he is sufficiently able to manage the risk of exposure to drugs and alcohol and otherwise manage his violent behaviour.

That necessarily leads to my conclusion that he is not at the stage where I can be satisfied that, if released under a supervision order, adequate protection of the community could reasonably and practicably be managed by a supervision order. If released on a supervision order, he is not in custody. I am not satisfied that he yet has the personal skills to ensure ongoing abstinence from drugs and alcohol, which as I have already noted on several occasions, present on the common evidence as the trigger for him presenting a high risk of sexual offence.”

12. [12]
    In a review on 9 February 2015,^[3] Mullins J was not satisfied by the psychiatric evidence that adequate protection of the community could be reasonably and practicably managed by a supervision order. Her Honour noted, in particular, that Mr Jackway had not completed the Pathways course that was recommended when he was previously before the court although his behaviour in prison in the preceding 12 months was also a relevant and different factor than his behaviour in the period leading up to the hearing before Daubney J. In that regard and while her Honour noted that Mr Jackway had been subject to various stressors in that 12 months and particularly had been wrongly accused by another offender of murder, her Honour stated that:^[4]

“The fact that he has behaved with aggression and impulsivity in the prison environment, because of stressors for whatever reason, I consider is a relevant factual matter to take into account in assessing the risks of re-offending outside the prison environment, if Mr Jackway were released on a supervision order.”

13. [13]
    Holmes CJ reviewed the matter in 2016. By that stage Mr Jackway had completed the Pathways program, however a number of incidents had occurred during 2016 while in prison. In particular, her Honour concluded that having taken into account that Mr Jackway’s last sexual offence was 20 years ago:^[5]

“[21] The question is whether a supervision order can effect adequate protection of the community against the risk which the psychiatrists identify. I cannot be satisfied that it would, in light of Mr Jackway’s inability to control his impulsive behaviours, even when it was so clearly in his interest to do so. It should be said that he has demonstrated considerable motivation to cooperate by undertaking appropriate courses and receiving assistance from Mr Smith; but he has not, to date, been able to consistently put what he has learned into practice. His acceptance of a ‘shot’ while still on the Pathways programme illustrates the gap between his ability to recognise strategies he should use in dealing with situations of risk and his ability to apply them. One could almost suspect that the events of February were a form of self-sabotage; but whatever the reason for Mr Jackway’s behaviour then, it augurs very badly for the prospects of a supervision order’s being effective. As Dr Grant said, such orders can work well, but not when the individual concerned does not have the capacity to control his impulses.

[22] The statute does not mandate an absolute guarantee of protection, of course, but in light of Mr Jackway’s recent history, one could have no confidence that he would not give way to irrational and impulsive behaviour, resulting in absconding and/or drug or alcohol use, with the outcome being further sexual offending. That could occur quite quickly and without sufficient warning to prevent it, notwithstanding the constraints of a supervision order.

[23] That is not to say that Mr Jackway might not in the future be able to demonstrate a level of stability which could give greater confidence about his ability to comply with a supervision order. Certainly his involvement with Mr Smith appears to have been beneficial and I would recommend that Corrective Services both ensure that he has regular sessions with Mr Smith (ideally, fortnightly) and give Mr Smith access to Mr Jackway’s conduct records, so that he has a full appreciation of what he is dealing with. Mr Jackway should also be given the opportunity, if he wishes, to try a course of anti-depressants, which might have a stabilising effect. But for the present, I am not satisfied that adequate protection of the community can be reasonably and practicably managed by a supervision order.

[24]  Accordingly, I affirm the decision of Acting Justice O'Brien made on 28 February 2012 that Mr Jackway is a serious danger to the community in the absence of a Division 3 Order and I order that Mr Jackway continue to be subject to the continuing” detention order made by Acting Justice O'Brien.” (footnotes omitted)

14. [14]
    In 2017, I affirmed the decision that the respondent is a serious danger to the community in the absence of a Division 3 Order and ordered that he continue to be subject to a continuing detention order. In my reasons I stated that:^[6]

“[74] While I accept the evidence of both Dr Aboud and Dr Grant, Dr Grant has the advantage of having had the opportunity to observe the respondent over a period of time. In real terms however their evidence was relevantly not significantly different. Both had a level of concern that the respondent would not comply with a supervision order and a serious offence might be committed before his non-compliance was detected. Dr Aboud considers that the respondent’s behaviour could spiral very quickly into reoffending, if he engages in substances abuse, without the supervision order being sufficient to constrain him. Dr Grant agreed that the respondent’s behaviour could spiral out of control quickly and could occur in a number of days although he thought it more likely it would occur in weeks. The impulsivity of his actions would depend upon the extent to which he was spiralling out of emotional control. Both Dr Aboud and Dr Grant considered that the respondent needed to demonstrate that he could control his impulsivity and his response to the emotional stressors for 12 months while in custody, in order for Mr Jackway to be successfully managed in the community.

[75] While Dr Aboud considered it would be ideal if the respondent could spend time in a residential unit in order to see how he is coping with the everyday stresses, Dr Grant didn’t appear to consider it was a necessary precondition to be satisfied he could cope with the various stressors he may be exposed to, given the various threats which the respondent faces, even though he agreed it was a more realistic environment.

[76] I accept that the detention is not an environment which necessarily provides a sound indicator of how the respondent is able to manage his anti-social behaviour, impulsivity and emotional instability, given it is a very regimented environment. I consider in the present context, the more important factor in terms of whether adequate protection of the community can be reasonably and practicably managed by a supervision order is whether in such an environment the respondent is able to conduct himself in a way which consistently implements the strategies he has been developing to control his antisocial behaviour and impulsivity. While the number of his violations have reduced, the fact he still succumbed to the offer to take drugs and still responded with threats of violence when threatened and more particularly threatened to smash his cell when placed in a unit he did not want to be in, indicate he is unable to exercise control over his behaviour on a consistent basis.

[77] The view of Dr Grant that a period of 12 months where the respondent successfully indicates he can control his anti-social and impulsive responses before one could be confident that the respondent could be adequately managed under supervision order is supported by the view of Dr Aboud. Good functioning, both interpersonal functioning and institutional functioning and work functioning, would demonstrate that he has a level of control and management of his own impulses such that one could then be satisfied that he could be adequately managed under a supervision order. I accept the force of that view…              

[80] On the basis of the evidence presently before me I am satisfied that the applicant has shown that adequate protection of the community cannot be reasonably and practicably managed by a supervision order. I consider that the respondent’s personality disorder has not yet settled with maturation to the point where the protection of the community from the risk that the respondent will commit a serious sexual offence is adequately ensured by the terms of a supervision order, albeit that its terms are comprehensive. This is particularly so given the respondent’s impulsivity and his vulnerability to alcohol and drug abuse. His vulnerability to drug use and his impulsivity is demonstrated by the fact he took ice in September 2016, notwithstanding the court in March 2016 found in his previous review that the taking of drugs at the end of the Pathways Programme augurs very badly for the prospects of a supervision order being effective…

[83] That is not to say that this will be the case in the future given Mr Jackway’s present trajectory if he continues to engage in therapy and to develop mechanisms to manage his personality traits, impulsivity and vulnerability to alcohol and drug abuse.” (footnotes omitted)

15. [15]
    Crow J reviewed the matter again in April 2018.^[7] The case was reopened in June 2018 after Mr Jackway had tested positive to a synthetic opioid which meant that he was no longer in a position to oppose a continuing detention order. His Honour noted that the psychiatric evidence supported the fact that Mr Jackway was progressing but considered that if he was able to undergo 12 months of good and controlled behaviours then that would demonstrate that he might be able to be released subject to a supervision order. His Honour concluded that, on the basis of the evidence before him, he was not satisfied that the respondent with his anti-social personality had demonstrated a reasonable ability to control himself and that the adequate protection of the community could be reasonably and practicably managed by a supervision order.
16. [16]
    Lyons J reviewed the matter in 2019.^[8] There had been five aggressive incidents involving the respondent up until March 2019. After the matter had been listed for hearing, Mr Jackway returned a positive test for buprenorphine on 3 July 2019, which he admitted to Dr Aboud in part he had done to sabotage his release, particularly out of fear of the media attention and concern about being housed in the precinct. It was subsequently ascertained that he had also engaged in an aggressive incident with a general practitioner on 13 June 2019. Her Honour concluded that:^[9]

“[123] The expert evidence of Drs Aboud and Timmins, which I accept, does not support release under a supervision order at this point in time. Having considered all the current evidence, I cannot positively conclude that a supervision order will provide adequate protection to the community.

[124]  On the basis of the evidence presented before me and in particular the lack of evidence sufficient to show that the respondent, with his anti-social personality disorder, has demonstrated a reasonable ability to control himself, I am satisfied that the applicant has shown that the adequate protection of the community cannot be reasonably and practically managed by a supervision order. Whilst I accept the respondent’s personality disorder is settling with maturation, treatment and medication, it is not yet settled to the point where the protection of the community from the risk the respondent will commit a serious sexual offence is adequately ensured by the terms of the supervision order.”

Legal Framework

17. [17]
    The submissions of the respondent’s counsel adopted the summary of the law in the applicant’s submission at [10] – [31].
18. [18]
    The application for review is governed by s 30 of the Act. It provides inter alia that the court may affirm the decision that a prisoner is a serious danger to the community in the absence of a Division 3 Order only if it is satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to affirm the decision.
19. [19]
    In relation to such a review, arrangements generally must be made for the respondent to be examined by two psychiatrists.^[10] Reports have been provided by Dr Timmins and Dr Aboud for the present review. Both have examined Mr Jackway before.
20. [20]
    Relevantly the definition of “serious danger to the community” requires that there must be an unacceptable risk that the prisoner will commit a serious sexual offence^[11] in the absence of a Division 3 order. The relevant risk is not the risk of any offence but the risk of the commission of a “serious sexual offence”.
21. [21]
    The term “unacceptable risk” is incapable of precise definition but requires the striking of a balance of competing considerations. The relevant risk is not any risk. The risk means the possibility, chance or likelihood of commission of such an offence. An unacceptable risk is a risk which does not ensure adequate protection of the community. In Attorney-General (Qld) v DBJ,^[12] Bowskill J stated that:

“[13] In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates. In this regard, in a case in which the focus was upon the degree of likelihood, Keane JA said in Attorney-General (Qld) v Beattie [2007] QCA 96 at [19]:

‘For the appellant, it was argued that the expert description of the risk of the appellant’s re-offending as ‘moderate’ meant that the risk fell short of ‘unacceptable’. But this argument overlooks the point that whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising. In this regard, the appellant’s likely targets are children, and especially street children: vulnerable members of the community who are likely to be peculiarly susceptible to his seduction techniques. The focus of consideration must, therefore, be upon the likely effect of a supervision order in terms of reducing the opportunities for the appellant to engage in acts of seduction of children to an acceptably low level.’

[14]  As observed in Nigro v Secretary, Dept of Justice (2013) 41 VR 3597 at [6]:

‘Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.’

[15]  For present purposes, what is required is an assessment of the risk of the released prisoner committing a serious sexual offence in the absence of a further supervision order. Relevantly, the object of the DPSOA is to ensure adequate protection of the community (s 3(a)). That does not mean the purpose of the legislation is to guarantee the safety and protection of the community. If that were the case, every risk would be unacceptable. This is the corollary of the point made by the Court of Appeal in Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39] that the Act “does not contemplate that arrangements to prevent [a particular risk] must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made” (as opposed to a continuing detention order). In this regard, as McMurdo J noted in Attorney-General (Qld) v Sutherland [2006] QSC 268 at [30]:

‘Adequate protection is a relative concept. It involves the same notion which is within the expression ‘unacceptable risk’ within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.’”

22. [22]
    The assessment of whether a risk is acceptable may include consideration of what is known and what is unknown about the risk.^[13]
23. [23]
    In determining whether the decision ought to be affirmed under s 30 of the Act, the factors mentioned in s 13(4) of the Act must be considered. These are:

1. “(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.”

24. [24]
    If the court, on a review hearing, affirms the decision that the prisoner is a serious danger to the community in the absence of a Division 3 Order, then the discretion granted by s 30(3) is enlivened.
25. [25]
    Once the Court’s discretion is enlivened, the court may then order either that the prisoner continue to be subject to the continuing detention order or be released from custody subject to a supervision order. The onus lies on the applicant to satisfy the court that a continuing detention order should be made. The starting point is the consideration of whether a supervision order can ensure adequate protection of the community.
26. [26]
    The paramount consideration under s 30(4) of the Act is the need to ensure the adequate protection of the community in deciding what the appropriate order is to make. That requires the Court to consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order and whether the requirements under s 16 can be reasonably and practicably managed by corrective service officers.
27. [27]
    That does not require the court to be satisfied that there is some absolute guarantee of protection. In order to be satisfied that the community can adequately be protected by the supervision order, the Court must be satisfied that a “supervision order would be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences.”^[14] In Attorney-General (Qld) v Francis the Court observed that:^[15]

“…The Act does not contemplate that 10 arrangements to prevent such a risk must be “watertight”; otherwise orders under s. 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.” (footnotes omitted)

28. [28]
    There must be evidence that the respondent will or is, at least, capable of complying with the order.^[16]
29. [29]
    In Attorney-General (Qld) v S,^[17] the court stated that, in determining whether the community could be adequately protected only by a continuing detention order, “the court is required  to consider the nature and extent of the risk as well as the potential consequences of that risk eventuating, in order to assess whether the risk is acceptable, in the sense of providing adequate protection to the community.”

Psychiatric evidence

30. [30]
    Evidence was given by Dr Timmins and by Dr Aboud. Both saw him in person prior to providing their reports. Dr Lars Madsen, who is Mr Jackway’s treating psychologist, also gave evidence.

Dr Aboud

31. [31]
    Dr Aboud interviewed the respondent for the first time on 13 January 2017. In discussing Dr Aboud’s evidence in 2017 I commented that:^[18]

“[57]  Dr Aboud considered that while it was evident that there had been some improvements in relation to the respondent’s general behaviour in prison, there remained clear examples within the last year of violent behaviour in terms of issuing threats and property damage as well as substance abuse.

[58]  While Dr Aboud considers that there is evidence of gradual personality maturation, he considers that there is still evidence of ongoing emotionally unstable impulsive and challenging behaviour.

[59]  Dr Aboud considers in the context of the supervision order the risk of reoffending sexually would reduce to moderate. However presently he is not confident that the respondent would comply with an order. He considers that given the respondent’s personality traits and impulsivity, that the respondent’s progression from stressful situations outcomes could be rapid. He stated that to be confident that the respondent would be successfully managed under a supervision order, it was necessary to see behavioural evidence that the respondent can manage his various stressors appropriately within the prison environment. In that regard, he considered that it was necessary for the respondent to demonstrate for a continuous 12 month period no physically violent behaviour, no threat of violence to an officer or inmates and no ingestion of contraband substances.”

32. [32]
    Dr Aboud provided reports for both the 2018 and 2019 reviews and has had the opportunity to observe the changes in the respondent over the last four years. In his report dated 30 September 2020, he confirmed his opinion that the respondent suffers from an antisocial personality disorder with prominent psychopathic traits which he considers explains the respondent’s anti-authoritarian disposition, wide ranging criminal offending and tendency to breach rules. He also considers that the respondent appears to have some Borderline (Emotionally Unstable) Personality Traits manifesting with a fragile emotional state, fears of abandonment and trust issues. These vulnerabilities particularly become apparent when he experiences psychosocial stress and at those times, he is at high risk of using alcohol or illicit substances as a means of coping with his emotions. Dr Aboud considers he meets the criteria for alcohol abuse and polysubstance abuse.

33. [33]
    Dr Timmins diagnosed Mr Jackway with Mixed Personality Disorder with Narcissistic, Personality, Borderline, Antisocial and Psychopathic traits, as well as having a polysubstance use disorder.^[19] Dr Aboud clarified in evidence that his diagnoses was similar to Dr Timmins despite the difference in terminology of the diagnoses.^[20]
34. [34]
    Dr Aboud considered the possibility that the respondent suffered from the Paraphilia Sexual Sadism but concluded he did not. While he considers it likely that Mr Jackway harbours an underlying paedophile drive, he is unsure whether Mr Jackway meets the criteria for a diagnosis of Paraphilia Paedophilia. Dr Aboud did consider that the offence against the young boy was committed when Mr Jackway was behaviourally dyscontrolled with alcohol and substances, which allowed a latent and suppressed homosexual paedophilia to express itself. Dr Timmins also stated that she was uncertain as to whether Mr Jackway meets the criteria for a sexual deviance such as paedophilia or even sexual sadism.
35. [35]
    Dr Aboud assessed Mr Jackway’s unmodified risk without a Division 3 order under the Act as currently being high in respect of both sexual violence and general violence.
36. [36]
    Dr Aboud further opined:^[21]

“When I have previously assessed Mr Jackway, I have expressed my view that I was not confident at that time that he would be able to properly comply with the order. I considered his pathway of escalation toward sexual re-offending likely required a circumstance of psychosocial stress (caused by interpersonal conflict, relationship difficulties, or other distress or frustration), leading to impulsive and poorly thought through decisions to maladaptively manage negative feelings with alcohol and/or substances. In such a circumstance, I considered his progression from stressful situation to high risk outcome might be rapid, and could even lead to a situation where he abducts a stranger child victim from a public place. Thus, in order to be confident that Mr Jackway could be successfully managed in the community on the supervision order, I believed that it was necessary to first see behavioural evidence (in addition to his verbal assurances to professionals) that he could be successfully managed in the community on the supervision order that he could manage his various stressors appropriately within the prison environment. The challenge for the Court is to decide whether the improvements that the [sic] Mr Jackway has evidently made are sufficient to meet the required standard of custodial behaviour set by the Court at the hearing in 2018, and whether Mr Jackway is now showing signs of emotional, impulse and behavioural control, that would allow him to be successfully managed in the community, subject to a supervision order.

It is my view that it would be unrealistic to expect Mr Jackway’s personality structure to have changed within the last year. His various vulnerabilities and proclivities remain, and are likely to remain, as chronic problems for him. What is important is whether he has demonstrated sufficient capacity to exercise self-control and to arrest the behavioural urge that is underpinned by his emotional instability, impulsive tendencies and reactive anger. It would appear to me that the last year has reflected significantly improved behaviour. There was one single violation, namely an [sic] fight in May 2020. He had admitted to abusing opioid drugs, but ceased in March 2020, and is requesting professional assistance in this regard, if released to the community. It is thus my view that he is now showing signs of being a man who might be successfully managed under conditions of a strict supervision order. It is my opinion that his risk could be considered manageable in the community, modified by a supervision order and in this context would be reduced to below moderate.”

37. [37]
    Dr Aboud reiterated that alcohol abuse and polysubstance abuse were very relevant to the respondent’s risk of sexual offending. In response to questions about what sort of stressors he perceived could lead Mr Jackway to consuming substances, alcohol or other stimulants or other opioids Dr Aboud stated:^[22]

“…I think this is at the heart of the matter because the types of stresses that one would have described as destabilising Mr Jackway several years ago would have been really quite minor and widespread, the types of problems that one could encounter on a regular basis in a prison environment or, alternatively, in a community environment. I think that over the last three or so years, there has been marked shift in a positive direction, judged by Mr Jackway’s behaviour history or his – his violation history documented in his IOMS records by the prison, but also in the information provided by his psychologist and also when serially assessed by psychiatrists such as myself. I think that there has been the most obvious favourable shift in the last year, but that’s not happened without there being a lead-up to that favourable shift, which was already seemingly occurring in the preceding one or two years before that. So now the answer to your question is not quite the same as it would have been. Now, I think the answer is that Mr Jackway needs to be subjected to a – to a higher level of difficulty than he used to be in order to become frustrated, agitated, angry. But the types of things that could cause that might still be similar in that interpersonal conflict I think would be one. Another would be that he feels personally frustrated at not having needs met, when he feels that they need to be met. I think that if he was facing significant threat or perceived threat, or even loss, such as the – losses that might relate to family or people that he has invested in on that level. I think that those are the types of difficulties. But the most noteworthy one in the first instance is going to be his interpersonal difficulties with other people I think, and that’s what’s being borne out in the past.”

38. [38]
    In discussing an incident that occurred between Mr Jackway and another prisoner on 15 May 2020 which resulted in Mr Jackway slapping the prisoner, Dr Aboud stated that the more relevant observation may be on every day where the same situation occurred and the respondent did not act in that way and that:^[23]

“… a man in Mr Jackway’s situation is highly likely to be experiencing those types of difficulties on a regular basis. And therefore, the fact that there was only one incident, it is perhaps the reason why one looks at that incident and says that that’s a sign of improvement.”

39. [39]
    While Dr Aboud stated that while engaging in a fight cannot be justified as a sign of improvement, he noted that the respondent’s lapse was not as severe as had been seen in the past and that neither prisoner was breached, indicating that corrective services did not consider it to be a serious issue. He noted that the respondent also remained in the same unit as the other prisoner with no reprimands in place, suggesting that there was no ongoing problem.^[24] There is no suggestion that as a result of that interpersonal conflict Mr Jackway resorted to taking any illicit substances. Dr Aboud also noted that the concern in relation to the respondent is not merely that he would engage in a fight, but that he would be so emotionally dyscontrolled that he could not contain himself and would engage in a fight. The circumstances of the May incident did not suggest that Mr Jackway became so emotionally dyscontrolled he could not contain himself. Rather, it suggests that he was emotionally in control and not dysphoric.  Notwithstanding that there was a corrective services officer present and the other party may not have retaliated, Dr Aboud considered that the fact that Mr Jackway stopped his behaviour when asked supports the fact that he was in control. This was in contrast to what may have been anticipated to be his response a number of years ago where he would not have taken direction from the corrective service officer.
40. [40]
    Dr Aboud was also asked about the significance of the discussion with the respondent when he told Dr Aboud he had stopped using Subutex^[25] in March 2020. In that conversation he told Dr Aboud that he decided that he had had enough and decided to stop using. This occurred after initially stating that a reference to a conversation with corrective services where he had informed them that he was using drugs for self-management of pain occurred at an earlier time.  Dr Aboud said that Mr Jackway had originally sought to explain away his comment in the IOMS records that he had been abusing opioids and had no intention of ceasing using them in March 2020.  Dr Aboud stated when he then came back to it later, Mr Jackway told him that he had been using Subutex on occasion in February and March 2020 and wanted to be honest about it and admitted that he had not been caught by corrective services. Mr Jackway also admitted to Dr Aboud that he would remain vulnerable to opioids and would need to go on a program when released.
41. [41]
    Dr Aboud thinks that Mr Jackway’s change of explanation may have been because he had become more comfortable with Dr Aboud such that he made the admissions later in the interview.  According to Dr Aboud, his conduct was consistent with the fact that Mr Jackway’s initial reaction is to quickly deny matters because he is frightened or anxious regardless of what the ramifications may be, but once he realises that the person is not attacking him he becomes more honest.
42. [42]
    Dr Aboud agreed that Mr Jackway’s apparent abstinence from drugs since March 2020 was not an unequivocal marker of improved behaviour insofar as he abused substances until March and drugs were less available after March 2020 due to COVID-19 restrictions. Dr Aboud said that he had assumed that the fact that COVID-19 has meant drugs were not coming into the prison and were therefore less available would have been part of the rationale in Mr Jackway’s ceasing to use drugs. Given what Dr Aboud understood about Mr Jackway, he stated that he tended to believe Mr Jackway when he told him that he had stopped using drugs. As Dr Aboud stated, there was no advantage in Mr Jackway disclosing to Dr Aboud that he had been taking drugs when he had had negative tests and had not been breached for it. Dr Aboud considered it was to Mr Jackway’s credit that he admitted to taking drugs.  He considers it unlikely that he has abused drugs since then. He also considered it significant that Mr Jackway admitted that he should go onto a program because of his vulnerability to drugs. Dr Aboud agreed, however, that Mr Jackway stopping to use the drug was potentially neutral if he only stopped using drugs because of lack of availability.
43. [43]
    Dr Aboud agreed in cross-examination that Buprenorphine does not stay in the body very long such that it can be detected in urine tests and the fact the respondent did not have any positive test could be attributed to the irregularity of the tests, rather than any dishonesty by the respondent in relation to the tests. Dr Aboud regarded the respondent seeing Dr Madsen and having a three week delay in being able to go on an opioid program as more important than going to Townsville to start the program in jail immediately.
44. [44]
    Dr Aboud identified two possible pathways to Mr Jackway reoffending. One scenario is that of in effect an antisocial rapist in relation to a vulnerable female or possibly a child. Dr Aboud stated that was driven by the assessment tool he was using which encouraged scenarios of future offending based on past offending. He regarded this scenario as speculative. It was based on the respondent’s offending in 1991 and he was trying to extrapolate offending of an immature offender to a mature offender. Dr Aboud regarded it as a “form of barrel scrape” of trying to look at what the respondent did as a 14 year old and what it can be shaped into, if anything.^[26] Insofar as it is one scenario which is part of the high risk of Mr Jackway’s potential reoffending, Dr Aboud stated that the word “high” also incorporates the severity of the offending. This scenario involved a combination of a multitude of factors that affect the respondent coming together, where there would be very few warning signs. Dr Aboud described it as, as “speculative as it gets to extrapolate from something that happened more than 30 years ago when a young adolescent and to try and make sense of it now.”^[27]
45. [45]
    The second pathway to reoffending is based far more on emotional dysregulation and potentially a latent homosexual drive as a result of the abuse the respondent himself is said to have experienced from a taxi driver when he was a teenager which was his likely state of mind when the index offence against the young boy was committed in 1995. Dr Aboud agreed with Dr Timmins that, there would be a build-up of warning signs in this pathway before any reoffending would occur.
46. [46]
    Dr Aboud considered that the imposition of a supervision order would reduce the risk to below moderate. He identified the ways in which the order would reduce the risk as follows:^[28]

“….in Mr Jackway’s case, it provides him with both monitoring and supervision, as well as support. He’s the type of man who would benefit and will benefit from there being structure imposed on him, and, in fact, he is likely to embrace quite a lot of structure because he’s quite institutionalised. The – the monitoring is going to be to ensure that he is managing his interpersonal relationships with others, that he’s not engaging in higher risk situations, that his whereabouts are generally known. I think that the – the structure of the – of – of – of the processes are something – that would be a continuation from what it’s like to be in prison, and something that is probably necessary. I think it is necessary for him in order to structure his – his life. The support that he needs is considerable. Not only does ne (sic) need support to adjust from being in an – from being in a closed, contained institution to being in a less contained and less closed environment, but he also needs psychological support in terms of reintegration, coping adaptively, as opposed to not maladaptively, being able to discuss with his psychologist and also from his case manager. So I think that the – the supervision order offers all of those things. The – the – the list of conditions that are – that the supervision order has actually create – create those monitoring and support conditions or structure.”

47. [47]
    Dr Aboud considered that the order should be imposed for at least ten years at first instance but did not disagree with Dr Timmins opinion that it would be appropriate to impose the order for 15 years. He considered that ten years is appropriate if one is reviewing Mr Jackway in ten years’ time. He stated that he thought that was an appropriate time to review his progress given that he would not have forecast three or four years ago that there would be such a shift in Mr Jackway’s behaviour that he would now be discussing Mr Jackway’s release on a supervision order on this occasion.^[29] Dr Aboud considered that one would expect to see an observable change in five years. In that regard, the stated that Mr Jackway’s behavioural change over five years has been significant and largely driven by his own choices and his work with Dr Madsen. This change has occurred even though he still has the same antisocial personality.
48. [48]
    Dr Aboud agreed with Dr Timmins that 15 years is a more realistic time frame to ensure the adequate protection of the community without an order. Given the period for which the respondent has been in custody and his degree of institutionalisation, he stated that ten years is the minimum period needed as Mr Jackway may need longer to build relationships and a positive network.
49. [49]
    He did not suggest it was necessary to amend the proposed conditions in the Supervision Order.

Dr Timmins

50. [50]
    Dr Timmins also provided a report dated 6 September 2020 and gave oral evidence. She had also previously assessed Mr Jackway in 2019.
51. [51]
    In her report, Dr Timmins noted from Dr Madsen’s report amongst other matters, his opinion that:^[30]

“It is noted when considering the issue of treatment progress, it is important to bear in mind that Mr Jackway presents with many of the typical characteristics of individuals with and Antisocial Personality Disorder (ASPD), including, impulsivity, a tendency to be defiant, a resistance to rules and obviously, substance misuse. These characteristics predispose him to struggle with compliance and have a tendency to ‘self-sabotaging’.

In addition, another factor to consider when evaluating progress is his current context. In the high secure [sic] prison unit that he lives, he has few opportunities to participate in structured ‘pro-social’ activities (such as treatment course) or indeed even engage in regular therapy with someone like myself. He spends all his time associating with other offenders. These circumstances mean that he is constantly exposed to antisocial attitudes that justify and reinforce problematic behaviours and defiant attitudes, whilst providing him opportunities to access illicit substances. Because of the monotony of these environments Mr Jackway experiences boredom which he struggles to tolerate (due to his personality disorder), a psychological state that then leads to an increased risk of engaging in impulsive behaviours, such as drug use.

Finally, as regards to the issue of risk, it is important to recognize [sic] that Mr Jackway has two episodes of sexual offending, one occurred when he was 14 and the other when he was 18. He served a prison sentences [sic] for these offences, and in 2012 was placed on a supervision order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003. He, of course, has a fairly extensive general criminal history, and all of his problems whilst under the DPSOA have related to noncompliance with rules, substance misuse and general antisocial behaviour, not sexual reoffending. He is now also 44 years old. It is my opinion that Mr Jackway’s presentation and history identify his as a life-course persistent generalist antisocial offender, rather than a specialist sexual offender. In other words, Mr Jackway is most at-risk of engaging in general criminal behaviour, non-compliance with conditions, and substance abuse than he is of specifically sexually re-offending, should he be returned to the community under a supervision order.”

52. [52]
    In cross-examination Dr Timmins stated that she did not disagree with Dr Madsen’s assessment that Mr Jackway’s presentation identified him as a life course persistent generalist antisocial offender rather than a specialist sexual offender.^[31]
53. [53]
    Like Dr Aboud, Dr Timmins administered a number of risk assessment instruments in addition to interviewing Mr Jackway when assessing his risk. She considered that Mr Jackway is a high risk of reoffending in a sexual manner if released into the community without a supervision order. Under the supervision of such an order, Dr Timmins considers that his risk is likely to fall into a moderate category.
54. [54]
    Dr Timmins observed that Mr Jackway appears to have been substance free for the four months since March 2020 and, as a consequence, his affect regulation appears to be better and he has been able to experience an absence of substances and understand the negative impact of substances on his ability to regulate his emotions.^[32] Dr Timmins considered that he was better able to manage himself and was more interested in healthier lifestyle choices. She also found that his insight into himself and his risk is improving over time and he appeared to be more invested emotionally in his release on this occasion.
55. [55]
    Dr Timmins further commented in oral evidence that if Mr Jackway was, as he stated, feeling better without taking Buprenorphine, he could be coming to an understanding that his drug use was causing a lot of his emotional dysregulation, which is more of a positive reinforcement to not take drugs.^[33]
56. [56]
    Dr Timmins considers that Mr Jackway has improved insight but is likely to require a significant degree of practical and emotional support to avoid the risk of sexual offending if released under a supervision order. She notes that stresses that he will face in the community, which give rise to negative emotional states, are likely to trigger old thoughts of retaliation, lack of caring about himself and others, thoughts of violence and substance use. In terms of potential reoffending, she stated that:^[34]

“There is likely to be a lead in time for this final behaviour which means there could be opportunities for Mr Jackway to access supports thus subverting negative consequences for himself and the community. The risk is likely to escalate over time if Mr Jackway finds he is unable access his supports and experiences an escalation of negative emotional states, thoughts of violence and strong urges to use substances. If he acts on these thoughts then a possible pathway to offending sexually could occur with Mr Jackway leaving his accommodation in a negative emotional state, accessing and using substances and a relatively quick escalation to offending after substance use with initially general and possibly violent offending to even sexual offending. His victims could be adults or children and the risk of physical harm or psychological harm is high.”

57. [57]
    Dr Timmins considered that Mr Jackway’s emotional state, and to a lesser extent peer pressure, will be matters which influence his decision to use illicit substances in the community. By “emotional state” Dr Timmins was referring to the more negative emotional states that Mr Jackway struggles with which could be triggered for a number of reasons. She considered that there would probably be a build-up on a number of stressors and not necessarily just one minor stressor that will lead to substance use.^[35] She considered that the lead in time before there would be an escalation in his risk of reoffending would be a period of time spanning weeks to months. Dr Timmins noted that there was a five week lead up to the offending from when Mr Jackway was last assaulted by the taxi driver, fought with his brother, took drugs and alcohol and offended against the young boy.^[36]
58. [58]
    Once there has been a build-up and he has reached a negative emotional state Dr Timmins considers that Mr Jackway is then at risk of going from thoughts to behaviour which will potentially escalate reasonably quickly and go into last resort thinking as she considers he did when he offended when he was 18.
59. [59]
    She considered that if Mr Jackway was subject to stressors and took substances such as drugs and alcohol it could be a period of between 24 and 48 hours before he would engage in a serious sexual offence. She said it is not just a case of him taking substances but him being really agitated, taking substances and then potentially taking off such that the risk escalates.^[37]
60. [60]
    Dr Timmins considered there would be a number of opportunities for someone supervising Mr Jackway, such as a corrective services officer or his psychologist, to identify when he is building up to such a state. For example, noticing Mr Jackway being more agitated, anxious, frustrated and testing boundaries then steering him away from that course. She said his positive relationship with Dr Madsen will mean that Dr Madsen is going to be best placed to identify the increasing agitation.^[38]
61. [61]
    In 2019 Dr Timmins considered the events in June and July 2019 prior to the hearing raised concerns that Mr Jackway was destabilised or destabilising.^[39] At that time she considered that Mr Jackway was not in a state where she felt confident enough to manage his own risks in the community.^[40]
62. [62]
    Dr Timmins considered the May 2020 incident between Mr Jackway and another prisoner. In relation to that incident, she considered that Mr Jackway showed a level of control in asking the prisoner not to burn material and notwithstanding he gave him a backhand, in stepping away when told to stop by the corrective services officer. She considered when you were looking at the whole 12 months and the nature of the incident there was markedly improved behaviour by Mr Jackway.^[41] She did not consider that his response could only be attributed to the prison environment. She stated that while there may not be a corrective services officer to tell Mr Jackway to step away in the community, he would have more opportunity to move away because he would be outside the hierarchy of the prison environment. She also considered that the quick de-escalation shows that he will separate very quickly once he is pulled up rather than escalating the situation as he has done in the past.^[42]
63. [63]
    She considered that Dr Madsen’s treatment program with Mr Jackway has ameliorated the characteristics arising from his diagnoses, although it cannot completely eliminate the manifestations of his diagnosis. Dr Timmins has observed an increased tendency not to manifest itself through reacting poorly as he has done in the past.^[43] Similarly, Dr Timmins noted that while  psychopathy traits are lifelong traits, they tend to mellow when people hit their 40s, and this was consistent with what had been observed in relation to Mr Jackway.  With age, people in Mr Jackway’s position tend to understand their antisocial behaviours are causing them problems and become more pro-social.
64. [64]
    In relation to Mr Jackway’s drug use, Dr Timmins considered that his indication that he is “over” using Subutex is consistent with that mellowing and that he has an intellectual understanding of the consequences.^[44]
65. [65]
    Dr Timmins considered that the opiate replacement treatment program Mr Jackway has indicated he would engage in is an important part of his treatment to reduce his urge to take or abuse opioids. She considered however it is more important for Mr Jackway to be treated by Dr Madsen upon his release and to wait three weeks to get on the Subutex replacement program, rather than have him undertake the program in custody in Townsville where Dr Madsen does not visit.^[45] She also considers Mr Jackway may benefit from a Sex Offending Maintenance Program. Dr Timmins stated that he will be difficult to manage given his personality.^[46]
66. [66]
    Dr Timmins considered that Mr Jackway is more at risk of engaging in general offending prior to any sexual offending. In assessing Mr Jackway’s risk as moderate on a supervision order, Dr Timmins considered that sexual offending is always going to be a concern given his past sexual offending. Dr Timmins   considered, however, that the procedural restrictions of a supervision order together with what Mr Jackway can contribute himself with the work he has done with Mr Madsen and his going onto the Subutex program will assist in reducing his risk down to moderate.^[47]
67. [67]
    Given Mr Jackway’s age, complex diagnosis and that he is institutionalised, Dr Timmins considered that the supervision order would need to be for a duration of 15 years to ensure the adequate protection of the community and ameliorate the risk of reoffending. This length of time is reflected by the fact that it will take him a long time to settle into the community and get himself moving forward.^[48]
68. [68]
    Dr Timmins did not consider there were any further conditions required than had been proposed in the draft supervision order. She considered the requirements with respect to the monitoring of his relationships to be a matter of particular importance.

Dr Madsen

69. [69]
    Dr Madsen is Mr Jackway’s treating psychologist of over two years. Mr Jackway informed the psychiatrists he had benefited from his treatment with Dr Madsen. Since Dr Madsen’s last report in September 2019, he managed to meet with Mr Jackway on eight occasions at the Capricornia Correctional Centre until March 2020. Due to COVID-19, Dr Madsen was unable to have further sessions with Mr Jackway until August 2020. Dr Madsen has met with Mr Jackway four times since August 2020. Dr Madsen has provided two reports to the Court. He has been using a Forensic Schema Therapy approach in Mr Jackway’s treatment which targets characteristics that contribute to many of Mr Jackway’s problems with violence and problematic behaviour. A summary of the progress of that treatment is set out Dr Madsen’s first report. In cross-examination Dr Madsen agreed that studies suggested that it took two years for the benefits of the schema therapy to manifest and that appeared to be the case now with Mr Jackway, such that concrete improvements in his behaviour have been achieved.^[49] He noted the prison environment restricted the extent to which Mr Jackway could practice the techniques derived from the schema therapy. Dr Madsen will continue the schema therapy program with Mr Jackway upon his release as it is designed to work with individuals over the longer term.
70. [70]
    Dr Madsen noted that Mr Jackway has engaged well with him and in particular, Mr Jackway has shifted his position on returning to the community and has been able to talk about his anxieties about doing so. Media attention is one of them. Dr Madsen stated that Mr Jackway recognises that his use of drugs is a coping strategy for managing the stress and boredom of the prison environment and was accepting of suggestions as to how to cope with such challenges and access medical support when he eventually returned to the community. Dr Madsen noted that while Mr Jackway previously appeared to be overconfident about his ability to cope and survive in the community, he now appears to be able to now tolerate being more thoughtful and reflective. This was a significant change from what had been observed previously.
71. [71]
    Dr Madsen opined that, as a result of his personality characteristics, Mr Jackway has a predisposition to struggle with compliance and a tendency to be self-sabotaging. Dr Madsen noted however that Mr Jackway had few opportunities to engage in pro-social activities in the prison environment. Dr Madsen noted the time that has passed since Mr Jackway’s last sexual offending and observed that his problems relevant to the Act have related to noncompliance with rules, substance misuse and general antisocial behaviour, not sexual reoffending. Dr Madsen considered that Mr Jackway is most at risk of engaging in general criminal behaviour, non-compliance with conditions and substance abuse, rather than sexually re-offending should he be returned to the community under a supervision order.
72. [72]
    Dr Madsen stated that, on the basis of evidence that supports the fact Mr Jackway has ceased using illicit drugs, he considered that that is evidence of Mr Jackway developing some emotional impulse and behavioural control.^[50] Dr Madsen also considered that Mr Jackway’s conduct over the preceding 12 months provides some assurance that he would be more capable of complying with a supervision order and thinks Mr Jackway would be capable of functioning in that kind of environment successfully.^[51] Dr Madsen considered that Mr Jackway is better equipped to undertake that transition now than he was 12 months ago.^[52]
73. [73]
    In his further report dated 14 October 2020, Dr Madsen stated that Mr Jackway continued to talk openly to him about his prison life, his conduct and various matters which affect him. Dr Madsen noted that Mr Jackway’s most recent engagement since August 2020 has been positive and that he appears to have made positive progress in stopping illicit drug use and avoiding further violence or other disruptive behaviours. Dr Madsen considered that aspects of Mr Jackway’s personality have matured, as is often the case with people who had anti-social personalities and that there is evidence that nowadays he is less impulsive and prone to violent and aggressive outbursts than he previously has been.
74. [74]
    Both Dr Aboud and Dr Timmins considered Mr Jackway needed to continue his ongoing care with Dr Madsen. Dr Madsen agrees ongoing treatment will be necessary particularly to assist him in the transition from prison life to the community.

Other matters

75. [75]
    Mr Jackway has undertaken a number of courses for sexual offenders and for substance abuse since being placed on a continuing detention order.
76. [76]
    The reports of the respondent’s conduct between 6 August 2019 and 3 July 2020 show that his behaviour has generally been at an acceptable level, except for two incidents which have been discussed by Dr Aboud and Dr Timmins.
77. [77]
    The first incident is that on 3 March 2020 Mr Jackway disclosed ongoing illicit substance use which he attributed to self-management for pain associated with a spinal injury. The Attorney-General accepts that notwithstanding he did not convey any intention to stop substance abuse in March 2020, when he also acknowledged its links to his recidivism, it appears, based on the available evidence that he has not used the substance since that time. Drug tests have been carried out on 25 July 2020, 30 September 2020 and 1 October 2020. The September test yielded an invalid result but the other tests support the fact that the respondent has taken no illicit substances, which is some independent evidence in support of the respondent telling the psychiatrists and Dr Madsen that he had ceased drug use. It is also supported by the fact that it was uncontentious that less drugs were available in prison after COVID-19 restrictions were put in place.
78. [78]
    The second incident is that Mr Jackway had an altercation with another prisoner on 15 May 2020 which started, according to the respondent, because the other prisoner was burning a thong to make soot for a tattoo gun in the unit’s exercise yard and the respondent asked him to stop. There was a stand-off with the result Mr Jackway backhanded the prisoner. No breach was incurred.
79. [79]
    There is no evidence, nor is it submitted on behalf of the Attorney-General that Queensland Corrective Services (QCS) cannot reasonably and practicably administer a supervision order for the respondent.^[53]
80. [80]
    It is proposed Mr Jackway would to go the precinct which can accommodate him. While the precinct is not a regulated environment like the prison, it is managed by QCS. The affidavit of Mr Bear deposes to a supervision regime which would include:

    1. (a)
       Case management meetings which would initially occur twice weekly;
    2. (b)
       Curfews which can range from 24 hours to 8 hours;
    3. (c)
       GPS Tracking;
    4. (d)
       Regular random testing for illicit drugs and alcohol up to a frequency of twice weekly.
81. [81]
    The evidence of Mr Bear also confirms that Dr Madsen is available to continue providing treatment to the respondent in the community and that QCS would liaise with any treating psychologist and consider other referrals if necessary. He also states that Mr Jackway would be provided with the details for the Alcohol and Other Drug Service and he would have to liaise with them regarding participation in the Opioid replacement treatment program.
82. [82]
    According to what Mr Jackway has told the psychiatrists he has regular telephone contact with his mother and brother, albeit they live interstate. Mr Jackway also has a sister on the Sunshine Coast. Although limited, it is evidence of some family support he can access upon his release.

Consideration

Is the respondent a serious danger to the community in the absence of a Division 3 Order?

83. [83]
    The first question is whether the respondent is a serious danger to the community in the absence of a Division 3 Order under the Act. As set out above, the respondent concedes that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order and that the order of O'Brien AJ in that regard should be affirmed. Given the evidence before me, particularly the psychiatric evidence and the psychiatrists’ assessment of Mr Jackway’s unmodified risk, which I accept, that concession is a properly made. I am satisfied to a high degree of probability that there is acceptable cogent evidence that has been presented to me, that is of sufficient weight to conclude that the respondent continues to be a serious danger to the community in the absence of a Division 3 Order under the Act. I have reached that conclusion having regard to the matters which I am required to consider under the Act, a number of which are addressed in the psychiatric opinions and Dr Madsen’s evidence.
84. [84]
    I am therefore satisfied that the court should affirm the decision of O'Brien AJ that the respondent is a serious danger to the community in the absence of a Division 3 Order.

Should the respondent be released on a supervision order?

85. [85]
    The Attorney-General submits that Mr Jackway should be the subject of a continuing detention order in the exercise of the Court’s discretion pursuant to s 30(3) of the Act. The applicant carries the onus to persuade the Court in that regard.^[54] As provided under s 30(4) of the Act, the paramount consideration is the need to ensure adequate protection of the community. The court must consider whether the adequate protection of the community can reasonably and practicably be managed by a supervision order and whether the requirements of s 16 of the Act can be reasonably and practicably managed by QCS. There is no evidence suggesting that QCS cannot reasonably and practicably manage the requirements under s 16 of the Act in this instance.
86. [86]
    In previous reviews one of the key issues has been whether Mr Jackway was able to exercise a sufficient level of control in response to various stresses, notwithstanding his antisocial personality, other personality traits and diagnosed conditions. As is evident from the above decisions, each year has seen Mr Jackway’s behaviour improving with signs of maturation, although he still engaged in self-sabotaging behaviour in 2018 and 2019. Psychiatric opinion has previously been that a minimum of 12 months of good and controlled behaviour is required in order for Mr Jackway to demonstrate sufficient control for a person with the respondent’s psychiatric condition to be the subject of a supervision order.^[55] Mr Jackway had committed numerous breaches in custody demonstrating a lack of control with impulsive behaviour and violent, aggressive outbursts. His aggressive behaviours were often linked to when he was feeling agitated and frustrated when he could not get his own way. He was observed to have a low threshold in that regard. The breaches have however progressively reduced throughout the period he has been the subject of a continuing detention order and he has demonstrated significant improvement in the regulation of his behaviour.
87. [87]
    Mr Jackway’s emotional instability in the face of psychosocial stressors has acted as a trigger for impulsive behaviour and poor decision making with Mr Jackway seeking to manage such negative feelings with alcohol and drugs. Dr Aboud and Dr Timmins considered that this was a significant feature of his 1995 offending. That is the most likely pathway to potential sexual offending in the future. Mr Jackway suffers from complex conditions which cannot be cured, but the negative characteristics mellow with the passing of time and can be controlled. Thus, the importance of him showing that he can manage his behaviour and exercise emotional control in order for the Court to form a view that he can be managed under a supervision order to ensure the adequate protection of the community.
88. [88]
    In contrast to the evidence given in previous years and in particularly the opinions given by Dr Aboud and Dr Timmins last year, the psychiatrists opine that Mr Jackway’s risk would reduce to moderate or below moderate if released on a supervision order and both now consider he will be manageable under such an order given his progression in the last 12 months. It has been an incremental process as his behaviour has been improving progressively while on the continuing detention order.
89. [89]
    The Attorney-General submits, however, that the consequences of the manifestation of risk are such that even a moderate risk is still too high to provide adequate protection of the community. It is contended that the risk that is required to be managed has content from a real possibility that the respondent suffers from a paraphilia, such that there is a sexual drive that could propel the respondent towards offending, and not just an alcohol induced anger brought about by a personality disorder. The Attorney-General submits that there is moderate risk of a violent penetration of a child or adult female which could have catastrophic consequences. In that regard, the Attorney-General referred to Attorney-General (Qld) v Beattie (Beattie).^[56] Keane JA (as his Honour then was) in that case rejected an argument that the characterisation of a risk as moderate meant that the risk fell short of unacceptable, stating that “whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising.”^[57]
90. [90]
    In Beattie, the primary judge had found that while it was unlikely that the prisoner would actively seek to find victims to satisfy his deviant urges, there was a high degree of probability that if presented with the opportunity to offend he would do so. The prisoner in that case had been diagnosed as a homosexual paedophile, had committed a number of sexual offences, had refused to engage in the High Intensity Sexual Offending Program (HISOP), and while he had expressed a willingness to participate in a Medium Intensity Sexual Offending Program outside prison, the opinion of the psychiatrist was that the prisoner was clearly unmotivated to change. In that case, one of the psychiatrists had expressed the view that had the respondent successfully participated in the HISOP, a supervision order could have been made with some confidence, but absent that, such an order would carry with it too great a risk to the community. Keane JA found that the primary judge had not erred in his conclusion that the prisoner could not be relied upon to adhere to the strictures of the conditions in the supervision order such that the danger he posed to the community could be reduced to an acceptable level. Keane JA stated that if the Court had to re-exercise the discretion it would have reached the same conclusion because it could not conclude that the prisoner was sufficiently willing and able to observe the conditions of the supervision order to reduce to an acceptable level the danger which he poses to the community. In reaching that view, Keane JA noted that the prisoner had a long history of irresponsible denial of his paedophilia, had refused treatment and given no indication of a change of heart.
91. [91]
    The present case is quite different from Beattie. Mr Jackway has undertaken sexual offending programs and been engaged with one-on-one therapy with psychologists for a considerable period of time and the psychiatric opinion supports the fact he can now manage and be managed by a supervision order, such that his risk can be managed in the community. He has been reviewed for several years by psychiatrists and there has not been any significant change in his identified possible pathways to reoffending and the relevant triggers to the behaviour that could lead to that offending.

92. [92]
    The present case is also unlike the circumstances considered by McMurdo J in Attorney-General (Qld) v S.^[58] In that case, the prisoner, like the prisoner in Beattie, would not engage in programs to address his sexual offending. The Attorney-General particularly relies on statements by McMurdo J in that case when he noted that his task was to consider whether “the community could only be protected by a continuing detention order.”^[59] That, according to McMurdo J (as his Honour then was), involved “a consideration of the nature and extent of risk as well as the potential consequences of that risk eventuating, in order to assess whether the risk is acceptable in the sense of providing adequate protection to the community.”^[60] His Honour stated that risk had a content “not only from what can be found as a fact about the prisoner, but also from what constitute real possibilities.”^[61] In that case, the opinions of the psychiatrists were that it was highly likely that the prisoner was a sexual sadist and that it was necessary for him to engage in the sexual offender programs to understand his potential pathways to reoffending so as to be able to develop an appropriate supervision order to deal with the risks he presented.^[62] The opinion of the psychiatrists was also that he needed to continue to be detained in prison for the safety of the community.^[63] His Honour determined that there was a substantial risk, according to the evidence of the psychiatrists, that the prisoner would not comply with the supervision order and that a serious offence might be committed before his non-compliance was detected and he was returned to custody.^[64]
93. [93]
    While I agree with his Honour’s statement as to the assessment of risk, such an assessment depends upon the facts of a particular case and the present case is again quite different from the case of S.

94. [94]
    The Attorney-General raised a concern about the respondent’s possible paraphilia as a sexual drive, propelling the respondent towards offending.  That possibility has, however, been considered by the psychiatrists.  Neither of the psychiatrists have diagnosed the respondent with a paraphilia but raised the possibility that it may be present. Neither psychiatrist has suggested that that possibility would change their assessment of the risk or the ability to manage the respondent on a supervision order. Neither opined that Mr Jackway had to undertake further programs or therapy or stay in custody in order for the nature of his potential risk of reoffending to be understood and managed.  Dr Aboud stated that in reaching his conclusion that Mr Jackway’s unmodified risk was high, using the actuarial and dynamic assessments of risks, he took into account matters including the worrying aspects of Mr Jackway’s offending behaviour and nature of the sexual offences.  Dr Timmins noted that it would likely take a considerable amount of time to truly understand his sexual preferences given his personality structure, mistrust of authority figures and a developing but still limited insight into himself as a person. The possibility of sexual deviance was taken into account in his possible scores for the RSVP assessment tool in her assessment of his risk.^[65]
95. [95]
    Both Dr Aboud and Dr Timmins have made their assessments of risk on the basis that the most likely pathway to his reoffending includes a potential sexual assault on a child, although both state the offending could be against an adult female.
96. [96]
    Both Dr Timmins and Dr Aboud assessed Mr Jackway’s predominant risk as being an offence against a young underage boy if he was affected by illicit substances and alcohol in a dysregulated stated.^[66] In that regard, Dr Aboud considered that his suspicion was that Mr Jackway could be driven by his likely latent homosexual paedophile drive, but stated:^[67]

“Whether Jackway himself is a paedophile is far less certain to me. But my concern is that when he is in a destabilised intoxicated state, there is a … very angry person there, a person who was sexually abused and who is capable of sexually abusing or molesting a victim male child.”

97. [97]
    Dr Aboud agreed with Dr Timmins that there would, however, be a lead up time in relation to any such offending.
98. [98]
    Dr Madsen, who has been his psychologist for more than two years, considered that Mr Jackway is more a life-course persistent offender, rather than a specialist sexual offender. Dr Timmins did not disagree with that view and considered that he was more likely to engage in general offending before sexual offending.
99. [99]
    The Attorney-General also submitted that one of the “real possibilities” in terms of risk was the possible pathway identified by Dr Aboud that Mr Jackway would opportunistically attempt to coerce a vulnerable female into sexual activity, who could be a child, intellectually compromised or an otherwise vulnerable person, which given the ramifications is a high risk in terms of Mr Jackway’s sexual offending.^[68] I discussed Dr Aboud’s evidence in relation to this above which was the pathway that he would in effect be an antisocial rapist. While Dr Aboud did identify that pathway as a potential risk, Dr Aboud did not suggest that there was any real likelihood of that risk coming to fruition. Dr Aboud’s opinion was that such a scenario was speculative at best, which was based upon a scenario developed from when Mr Jackway offended as a 14 year old boy.  He stated it was the result of him engaging in a process required in applying the risk for sexual violence protocol as a form of “barrel scrape”.^[69] While one cannot dismiss the possibility of this pathway to reoffending given its serious consequences,  on the basis of Dr Aboud’s evidence, I consider that the likelihood of that scenario occurring is relatively low.
100. [100]
     Counsel for the Attorney-General also submits that while the respondent, has shown increased levels of self-control in custody, the incident in May 2020 supports the fact he cannot be presently be managed on a supervision order to ensure the adequate protection of the community. It was submitted that personal grievances such as those which occurred in May 2020 will be experienced in the community without the same level of control and containment found in the prison environment. Counsel for the Attorney-General emphasised that interpersonal conflict can quickly escalate in the community and that drugs or alcohol can be quickly consumed. The Attorney-General submitted that those factors will critically escalate the risk of reoffending which could occur in 24 to 48 hours if no indicators are detected in the lead-in time. It is submitted that the respondent’s volatility, albeit better controlled, still remains. Further, Counsel for the Attorney-General submits that on Mr Jackway’s own admission he had been taking Subutex up until March 2020 when he was aware of the link to his risks of reoffending considered under the Act. The Attorney-General submitted caution must be exercised in giving much weight to anything said by Mr Jackway in the absence of corroboration, particularly that he has stated to QCS in March 2020 that he was using drugs and intended to continue to abstain in the future. The Attorney-General also submitted that it was significant his ceasing drug use was contributed to by lack of availability of drugs in prison due to COVID-19 restrictions, rather than necessarily by choice.
101. [101]
     Counsel for Mr Jackway emphasised that the court is not required to be satisfied that the arrangements under the supervision order are “watertight”. The respondent’s counsel contends that the psychiatric evidence supports the fact that Mr Jackway can now be released with the benefit of a supervision order and the Court’s decision should heed the expert advice, as it has done in the past, in determining whether Mr Jackway’s risk was reduced to an acceptable level to ensure the adequate protection of the community under a supervision order.
102. [102]
     Counsel for Mr Jackway contends that in that regard Dr Aboud’s evidence is the most compelling that Mr Jackway is likely to comply with a supervision order, given his observation of Mr Jackway over  a number of years and given, in previous review hearings he had not considered that Mr Jackway was likely to comply with the conditions of a supervision order and further time was needed for his maturation and exercise of self-control. That is supported by the fact that there is only one relatively minor altercation with a prisoner that had occurred in the last 12 months and his self-confessed use of Subutex which has ceased. The change in behaviour of the respondent is consistent with what was predicted by psychiatrists in the past, that negative characteristics of Mr Jackway’s personality have mellowed with age. Counsel for the respondent submitted that there was no real uncertainty relevant to risk. His pathway to reoffending described by psychiatrists had generally not changed from previous opinions given.
103. [103]
     It was further submitted on behalf of Mr Jackway that there were added protections given that Dr Timmins indicated that there were going to be tell-tale signs of his increasing emotional dyscontrol and that Dr Madsen particularly will be able to observe signs even if QCS officers do not.
104. [104]
     I am conscious of the fact that psychiatric opinions provided and considered in previous reviews and accepted by the Court expressed the view that if the respondent was able to undergo 12 months of good and controlled behaviour that would be sufficient to demonstrate that he may be able to be released subject to a supervision order. Indeed Dr Aboud expressed such a view when he appeared before me in 2017. The last 12 months have not been without incident. However the significance of both Mr Jackway’s admission of using drugs up until March 2020 and his statement that he ceased using in March 2020 and the May 2020 incident were considered by both Dr Aboud and Dr Timmins and explored in cross-examination. Neither considered that the admission he had been taking drugs up until 2020 or the May incident, in the overall context of his behaviour, and their observations when assessing him changed their opinion that his risk could now be managed under the proposed Supervision Order. Given that both Dr Timmins and Dr Aboud were familiar with Mr Jackway’s history I attached significant weight to their opinion. 
105. [105]
     Both Dr Aboud and Dr Timmins impressed me with their thorough and well considered opinions and I accept their evidence. They generally were in agreement with each other. To the extent Dr Aboud assessed Mr Jackway’s risk under the supervision order as below moderate as opposed to Dr Timmins who assessed it as moderate, I place some added weight to Dr Aboud’s opinion that Mr Jackway’s risk would be reduced to below moderate, given that he has had the opportunity to Mr Jackway’s progression over a longer period than Dr Timmins. I also accept the evidence of Dr Madsen as to Mr Jackway’s progress.
106. [106]
     The opinions of both Drs Timmins and Aboud are supported by the assessment by Dr Madsen.  All three have observed that Mr Jackway has generally improved with each year that has passed in relation to his ability to self-regulate and control his emotions, consistent with his maturation. That is consistent with the evidence of the psychiatrists that people with anti-social personalities and psychopathic traits tend to mature and those aspects of their personality mellow, although they will never be fully eliminated. The change in Mr Jackway’s behaviour is also consistent with the expected time frame for the schema therapy being utilised by Dr Madsen to take effect.
107. [107]
     While Mr Jackway’s conduct in relation to the May 2020 incident was inappropriate, I accept that it was not, as it has been in the past, indicative of Mr Jackway’s inability to manage his impulsivity and exercise emotional control. I also accept Dr Timmins evidence that it is not indicative of the fact that he may not be able to control himself in the precinct without the intervention of QCS officers. The fact that there has been only one incident in May 2020, as Dr Aboud observed has to be judged against the other period of time without incident. The fact only one incident has occurred in the circumstances it did must also be considered in the context of his environment.  This is supported by Dr Madsen’s observations that Mr Jackway is constantly exposed to antisocial and defiant attitudes in prison where he considers he needs to appear uncompromising and dangerous to others to avoid being stood over and bashed and has had few opportunities to participate in pro-social activities. I consider that the Attorney-General’s submission overstates the significance of the incident when considered in the context of all of the circumstances. 
108. [108]
     Given the link between Mr Jackway’s offending and using illicit substances, the fact Mr Jackway indicated to Dr Aboud and Dr Timmins that he had been using Subutex up until March 2020 without apparent detection is concerning. The evidence does not however support any suggestion that the lack of detection was due to dishonesty on Mr Jackway’s behalf and I do not infer it.
109. [109]
     I am cautious in attaching weight to what Mr Jackway says given his propensity to be manipulative and untruthful. I found that both Dr Aboud and Dr Timmins were similarly cautious. Both were inclined to believe that he had stopped taking Subutex.  The most recent urine tests support an abstinence from drugs, although caution needs to be exercised since he admitted he had not been caught prior to March 2020 despite urine tests having been undertaken. Further support for the fact that Mr Jackway has in fact stopped taking drugs is his disclosure to Dr Timmins and Dr Aboud that he had taken them up until March 2020, but then stopped, when it was not in his interest to disclose it and the timing correlates with the fact that the drugs were unavailable due to COVID-19.
110. [110]
     While one must exercise some degree of scepticism as to whether Mr Jackway is being candid in what he says rather than self-serving, in all of the circumstances I find that what has occurred it does appear more likely than not that he has ceased using Subutex. While I consider that Mr Jackway’s ceasing to use illicit substances was partly forced upon him due to lack of availability and partly due to a decision to cease using, the fact he has ceased using drugs is a significant step given his ongoing use of drugs in the past. Further he has reported feeling better after the period of withdrawal, although he recognises that he is still vulnerable to drugs and needs to go on a treatment program upon his release. 
111. [111]
     Both Dr Aboud and Dr Timmins consider that the fact Mr Jackway disclosed his use of Subutex was a positive sign when he had no need to make the admission and also both were inclined to accept that he had ceased taking drugs.  In disclosing the fact that he had ceased using drugs, Mr Jackway appears to now recognise that it is of benefit to him not to be taking drugs and that he uses drugs as a way of coping with stress.^[70] Dr Timmins considers that Mr Jackway has been able to experience an absence of substances and understand the negative impact substances have on his ability to regulate his emotions which serves as a positive reinforcement of abstinence from drugs. However, Mr Jackway should still undertake the opioid replacement treatment program as he has indicated he is prepared to do.
112. [112]
     As a further sign of his maturation Mr Jackway was able to openly discuss the anxiety he experienced in 2019 with Dr Timmins and Dr Madsen. His conduct in the last twelve months is in contrast to his high anxiety in 2019 which appears to have led him to “self-sabotage” according to him, because of his fears about being released. He has spoken openly about his anxiety about media attention upon his release and adjusting to being released after so many years of imprisonment. While those anxieties remain, he stated to Dr Timmins that he would have to take it step by step and acknowledged that he would be subject to a curfew and wearing an ankle bracelet.^[71] Mr Jackway also stated to Dr Timmins that he was ready this time to be released, whereas on the last occasion he was unsure about what he wanted.^[72]
113. [113]
     Dr Madsen noted in his report that Mr Jackway was more reflective about his return to the community and tolerant of having his perception and viewpoint challenged as opposed to having previously been overconfident about his capacity to adapt to and deal with the new challenges. This openness to discussing his anxieties is of significance given he is institutionalised and his transition to everyday independent living in the precinct setting will pose significant challenges. Dr Timmins considered that with appropriate supports the fact he has become institutionalised does not mean he could not function in the outside world.^[73] Dr Aboud considers that the structured environment in the precinct and under the terms of the order will be of benefit to him in transitioning.
114. [114]
     Mr Jackway last committed a sexual offence in 1995.^[74] He is said to have suffered abuse when he was a young teenager and is presently taking steps to make an application in relation to the abuse he suffered. He has a complex diagnosis and his personality and other traits mean that he will always have an added layer of complexity which will have to be taken into account when managing him under a Supervision Order, although it will continue to diminish over time. The psychotherapy he has been engaging in is the appropriate treatment to ameliorate the manifestations arising out of his diagnoses.^[75] Dr Timmins observed that he is more receptive to that treatment than in the past, particularly with Dr Madsen.^[76] I accept the evidence that his change in behaviour is also the result of psychotherapy.
115. [115]
     Given the complexity of Mr Jackway’s personality and particularly his psychopathic traits, it is his conduct rather than what he says which is of particular evidential significance. In particular, there must be sufficient evidence to persuade the Court that he is willing to comply with the order and that it will contain the risks of his reoffending to an acceptable level.
116. [116]
     Mr Jackway has been detained on a continuing detention order for seven years. In this time, his behaviour has been monitored and he has engaged in therapy to effect change in his behaviour and instil coping mechanisms to cope with the various stressors he experiences. His progress in that regard shows that the object of the Act to provide continuing control, care or treatment to facilitate their rehabilitation is being met.  While his personality disorder and other traits remain, the evidence supports the fact he has reached a point where he can sufficiently control his response without becoming emotionally dyscontrolled and does not have the same level of dependence on drugs in the past.
117. [117]
     In the present case, the evidence of the psychiatrists, Dr Madsen and Mr Jackway’s conduct in the last 12 months support a finding that the has demonstrated that he has reached a level of maturation and learnt methods of controlling his impulsive behaviour, emotions and anger to a level where the Court is satisfied he is likely to comply with the conditions of a supervision order. He has shown significant progress with Dr Madsen in the schema therapy program over the last two years which is, as is anticipated under that program, showing positive outcomes in terms of his conduct. That therapy will continue with Dr Madsen upon his release. Dr Aboud also commented upon Mr Jackway’s conduct in court in this hearing as being very reasonable and that for somebody who is an emotionally dysregulated man with psychopathic traits he had behaved remarkably well which is supportive of a shift in his behaviour from what one would have anticipated would have been his reaction in the past.^[77] The fact there has been only one incident in May 2020 over the last 12 months is evidence of Mr Jackway’s ability to control his behaviour and interpersonal conflicts and to comply with the rules imposed upon him in the prison environment.^[78] I further accept Dr Timmins’ observation that while Mr Jackway will not have the same supervision in the community there will not be the same dynamics and peer pressure to have to not show weakness in such situations and a greater ability to walk away, albeit it will initially be in the confines of the precinct.
118. [118]
     In considering the likelihood of the occurrence of the risk of reoffending, Dr Timmins is of the view that Mr Jackway is more likely to breach conditions such as using substances or more general type offences before committing any sexual offending.^[79] Importantly, Dr Timmins believes that there will be a build-up in Mr Jackway’s behaviour over some weeks or months prior to any final escalation which could then occur within 24 to 48 hours, which will provide opportunities for him to access supports, thus subverting negative consequences for himself and the community. Dr Aboud now agrees with that view. In that regard, the ongoing therapy with Dr Madsen is proposed to continue and has an added protective factor given Dr Timmins considers that Dr Madsen would be in the best position to pick up signs of Mr Jackway’s increasing rise to a negative emotional state. There are additional signs which were identified by Dr Aboud and Dr Timmins, which could also be telling signs for the QCS officer and case management officer to note as red flags that Mr Jackway may be reacting to psychosocial stressors in a negative way. The fact that there will be red flags reduces the likelihood of any incident of risk occurring and supports the fact that Mr Jackway’s risk can be adequately managed under a supervision order. The order also provides for him having no contact with children under 16 years of age and imposes conditions on contact with any adult who has care of a child. He has also indicated that he will partake in a Sex Offender Maintenance Program which can be undertaken in the community and which Dr Timmins considers may be of benefit.
119. [119]
     While the scenario of the respondent coercing a female and sexually assaulting her will not, according to Dr Aboud, have the same tell-tale signs, the risk in that regard while severe in consequences, is a matter of very low likelihood of occurring, given Dr Aboud’s view that scenario was as speculative as one could get. It is not a scenario that was specifically identified by Dr Timmins. Dr Madsen also believes that Mr Jackway is more aptly described as a persistent generalised anti-social offender rather than a specialist sexual offender. Dr Timmins did not disagree with that view. That supports Dr Timmins’ view it is more likely that Mr Jackway will transgress the supervision order by general offending.
120. [120]
     Further, the Supervision Order also provides for QCS being able to graduate his progression into the community and monitor social contact insofar he will have to disclose to QCS what he plans to do each week, albeit it relies on Mr Jackway disclosing details. There are also restrictions upon his use of a mobile phone.
121. [121]
     Mr Jackway’s initial release will be to the Wacol precinct which is provided by QCS. Any other accommodation will have to be assessed for suitability by QCS before his release. While he will not be subject to the same strictures of being in prison, QCS will monitor his progression under curfew directions and he will also be subject to wearing a GPS tracker.
122. [122]
     In terms of his release on a supervision order, it is also notable that, upon release, Mr Jackway will be subject to strict conditions under the Supervision Order. Importantly, Dr Madsen will continue to treat Mr Jackway and will be supported by QCS in that regard. Dr Madsen and the psychiatrists noted that it will be necessary for him to see Mr Jackway twice weekly. The fact that he has developed a fairly open relationship with Dr Madsen and appears to freely discuss what is taking place in his life is an added protective factor in his transition to the community and the inevitable stresses he will experience.
123. [123]
     An important factor in his successful compliance with a supervision order and the management of his behaviour is his abstinence from alcohol and drugs. As noted above, the fact that he will be able to do so has been strengthened by his apparent abstinence from any illicit substances since March 2020 and his insight that that abstinence has been of benefit to him. Provision is made in the supervision order that he must abstain from both illicit substances and alcohol and be subject to random urine tests.
124. [124]
     The respondent has also indicated that he wished to engage in an opioid substitution treatment program. He has been assessed as being suitable to be placed on a program, and the visiting medical officer can make a referral to a community-based program which will be facilitated by Alcohol and Other Drugs Service (AODS). QCS will provide the details to Mr Jackway to make contact with AODS and assist him with making the intake appointments with AODS. They will continue to liaise with AODS regarding Mr Jackway’s attendance and compliance. Under the Supervision Order, Mr Jackway must obey any direction by a QCS officer about participating in any treatment or rehabilitation program. While there will be a short delay in his undertaking the program, there are sufficient safeguards in place to monitor his behaviour in the interim.
125. [125]
     Dr Timmins and Dr Aboud consider supervision will reduce Mr Jackway’s risk to moderate and below moderate respectively. Dr Aboud stated it would do so by providing him with monitoring and supervision as well as support. He considers the structure imposed upon him will be of assistance given he is quite institutionalised. Both consider he will need psychological support and support from his case manager to assist his transition and reintegration.^[80] He considers the supervision offers all of the necessary supports and structure.
126. [126]
     I consider that the extensive conditions of the proposed Supervision Order will reduce the risk to an acceptable one given that the real issue has been the ability of the respondent to comply with the conditions not as to the appropriateness of the conditions to contain the risks of reoffending posed by the respondent.
127. [127]
     Taking into account all of the circumstances, the structured nature of his transition, the supports and programs that will be available upon his release and constraints of the supervision order, while all relevant risks cannot be eliminated, I do not consider that the evidence establishes that there is a sufficient likelihood of the occurrence of risk that makes the risk unacceptable despite the ramifications if he did offend, if Mr Jackway is released under a supervision order. I find that the proposed Supervision Order will be efficacious in containing Mr Jackway’s risks of sexual reoffending to an acceptable level and ensuring the adequate protection of the community.
128. [128]
     The Attorney General has failed to discharge the onus of persuading me that the Court should exercise its discretion to affirm the continuing detention order.

Length of Order

129. [129]
     There was initially a contest as to whether the Supervision Order should be for 10 or 15 years.
130. [130]
     While Dr Aboud had recommended a supervision order for at least 10 year, whereas Dr Timmins recommended a supervision order for a period of 15 years, Dr Aboud ultimately stated that the 10 year period was a minimum period and that Dr Timmins’ view of 15 years was the more realistic one. The respondent’s counsel submitted in light of the psychiatric evidence that he did not make any submissions about the conditions on the proposed Supervision Order or the duration of 15 years.
131. [131]
     I accept the opinion of Dr Timmins, from which Dr Aboud did not dissent, that the order should be for a period of 15 years. The proposed period of the Supervision Order of 15 years is naturally an onerous one, given the extensive conditions which are provided for under the order. However, the respondent is somebody who has become institutionalised given he has been incarcerated for most of his adult life, since he was 18. His diagnoses are such that it is anticipated that he will take longer to adapt and develop positive networks than would be expected for other individuals and to ameliorate his risk of sexual offending in the community to a level where the adequate protection of the community can be ensure without a supervision order at all.^[81] In this regard, I place considerable weight on the psychiatrists’ evidence as to the time that it is likely to take for the respondent to reach a point where he is an acceptable risk without a supervision order. In my view, the appropriate length of time for the order is one of 15 years, noting that the order does provide for the QCS to adjust the conditions to allow the respondent greater freedoms as time progresses if his conduct supports a relaxing of the conditions to which he is subject.

Conclusions

132. [132]
     Given the above analysis, the orders that should be made by this Court are that:

The Court affirms the decision of O'Brien AJ made on 28 February 2012 that the respondent, Douglas Brian Jackway is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:

1. Pursuant to s 30(3)(b) of the Act, the respondent, Douglas Brian Jackway be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of 15 years.