Attorney-General v CBR[2020] QSC 394

SUPREME COURT OF QUEENSLAND

2. [1]
   The respondent is subject to a continuing detention order (CDO) made under s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA).  Before me is the first annual review of that CDO.^[1]

Background

2. [2]
   The respondent was born on 22 May 1968.  He is presently 52 years of age.  He has a significant criminal history of sexual offending against children.  This criminal history was extensively analysed by Callaghan J when making the CDO; see Attorney-General for the State of Queensland v CBR.^[2] It is therefore unnecessary to make other than short observations about the respondent’s criminal history.
3. [3]
   Over a period of almost eight years between 1993 and October 2001, the respondent maintained a sexual relationship with a child who was his step-daughter. He was charged with maintaining a sexual relationship with her and convicted in 2003. He was also convicted of a number of other individual charges which were, in effect, particulars of the principal charge which was maintaining a sexual relationship with her. He was sentenced to an effective head sentence of nine years’ imprisonment.  Those convictions were suffered in the Brisbane District Court on 9 May 2003.  
4. [4]
   On 18 March 2005, the respondent was convicted of two counts of indecent treatment of a child under 12. That offending occurred between 1 May 2003 and 9 May 2003 while the respondent was on bail for the earlier offences against his step-daughter.  The complainant in the second episode of offending was 10 years old and the respondent was the boyfriend of the complainant’s mother. He had lived with the family for about 16 months and the child regarded him as a father figure. The conduct consisted of simulated intercourse while both the respondent and the child were undressed.  He received a sentence of two years’ imprisonment to be served concurrently with the sentences imposed in 2003.
5. [5]
   On 26 May 2017 after a trial, the respondent was convicted of three counts of indecent treatment of a child under the age of 12.  The child was 10 years of age who lived with her family in a caravan park.  The respondent was also staying at the caravan park.  The respondent befriended the child’s mother and then entered a room where the child and another girl were sleeping.  He held the complainant’s hand against his exposed penis and placed his hand on her leg and tried to move it towards her vagina.  He was sentenced to a period of imprisonment of three years.  He still maintains his innocence in relation to that offending.
6. [6]
   The 2017 convictions formed the basis upon which the Attorney-General made application under the DPSOA for orders against the respondent.  The resulting CDO was made by Callaghan J on 4 June 2020.
7. [7]
   By force of s 27(1A) of the DPSOA, the hearing of the first annual review of a CDO and all submissions for that hearing must be completed within two years after the day the CDO first has effect.  The application for review here was made well under a year after the CDO was made.  The filing of the application so early is unusual but is understandable here given findings made by Callaghan J when making the CDO.  I will return to that shortly.

Statutory framework

8. [8]
   The DPSOA provides for the continued detention in custody or supervised release of prisoners who have been convicted of a “serious sexual offence” in order “to ensure adequate protection of the community”.^[3] Those objects are achieved through the making of continuing detention orders^[4] and supervision orders.^[5] It is well-established that where “adequate protection of the community” can be “ensured” by a supervision order rather than a CDO, a supervision order ought to be made.^[6]
9. [9]
   The pivotal section in the DPSOA is s 13.  It provides relevantly as follows:

“13  Division 3 orders

1. (1)
   This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).
2. (2)
   A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—

   1. if the prisoner is released from custody; or
   2. if the prisoner is released from custody without a supervision order being made.
3. (3)
   On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—

   1. by acceptable, cogent evidence; and
   2. to a high degree of probability;

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

5. (5)
   If the court is satisfied as required under subsection (1), the court may order—

   1. that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or
   2. that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
6. (6)
   In deciding whether to make an order under subsection (5)(a) or (b)—

   1. the paramount consideration is to be the need to ensure adequate protection of the community; and
   2. the court must consider whether—

   1. adequate protection of the community can be reasonably and practicably managed by a supervision order; and
   2. requirements under section 16 can be reasonably and practicably managed by corrective services officers.
7. (7)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

10. [10]
    The threshold question before any order can be made under s 13 is whether the prisoner “is a serious danger to the community in the absence of [an order]”; see s 13(1).  A prisoner is such a danger “if there is an unacceptable risk that the prisoner will commit a serious sexual offence [if no order is made]”.^[7] Understandably, by s 13(3), a high degree of satisfaction is required.
11. [11]
    The term “serious sexual offence” is defined as:

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

1. (a)
   involving violence; or
2. (b)
   against a child; or
3. (c)
   against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”

12. [12]
    Once a CDO is made, it must be reviewed as I have already mentioned, and the review hearing is governed by s 30, which provides:

“30  Review hearing

1. (1)
   This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.
2. (2)
   On the hearing of the review, the court may affirm the decision only if it is satisfied—

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

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

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

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

1. (a)
   continue to be subject to the continuing detention order; or
2. (b)
   be released from custody subject to a supervision order.

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

1. (a)
   the paramount consideration is to be the need to ensure adequate protection of the community; and
2. (b)
   the court must consider whether—

   1. adequate protection of the community can be reasonably and practicably managed by a supervision order; and
   2. requirements under section 16 can be reasonably and practicably managed by corrective services officers.

5. (5)
   If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order.
6. (6)
   In this section—

required matters means all of the following—

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

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

13. [13]
    Section 30 in many ways mirrors s 13.  A question on the review, like on the original application for orders under s 13, is whether “the prisoner is a serious danger to the community in the absence of [an order]”.  Callaghan J was satisfied that was the case at the time his Honour made the CDO.  If that decision is affirmed by me, then a discretion arises to order that the CDO be maintained or to order that the respondent be released subject to a supervision order.^[8] Like with the discretion to be exercised under s 13, the discretion under s 30 is informed by “the paramount consideration” which is “the need to ensure adequate protection of the community”; see s 30(4).
14. [14]
    In both ss 13 and 30, “adequate protection of the community” means protection from the commission of a “serious sexual offence”, not the protection against general offending.

Consideration of the present application

15. [15]
    At the time of making the CDO, Callaghan J had the evidence of Doctors Timmins, Sundin and Beech, Psychiatrists.  Dr Timmins thought the respondent most likely met the criteria for paedophilia, non-exclusive, sexually attracted to prepubescent females with evidence of a mixed personality disorder with anti-narcissistic and avoidant personality traits. Dr Sundin diagnosed the respondent with paedophilia, nonexclusive, sexually attracted to prepubescent females with indications of avoidant personality traits.  Dr Beech made similar diagnoses.
16. [16]
    As to risk, Dr Timmins thought the risk of sexual reoffending if released into the community without treatment was high and that the respondent required treatment, probably both the High Intensity Sexual Offenders Program which I’ll call “HISOP” and individual therapy.  There is a difficulty with the respondent undertaking the HISOP given that he doesn’t admit the latest offending.  
17. [17]
    Dr Sundin also thought the respondent posed a high risk for future sexual recidivism if released unsupervised.  She was concerned that the respondent required further treatment before being released on a supervision order.  She recommended that he work “with an experienced forensic psychologist for a course of one-on-one individual counselling to address deviant sexual needs for a period of at least six months prior to any release on a supervision order”.
18. [18]
    Dr Beech shared the views of Doctors Timmins and Sundin that the respondent was a high risk of reoffending if released into the community without supervision.  Dr Beech also thought completing treatment before release was advisable.
19. [19]
    During the hearing before him, Callaghan J was concerned that if a CDO was made and treatment was obtained, the risk may fall to an acceptable level well before the CDO would be reviewed in the ordinary course.  His Honour expressed those views and received evidence that the Crown Solicitor intended to file an application for review by 3 August 2020.  The application for review was, in fact, filed on 3 August 2020.
20. [20]
    Since the making of the CDO, the respondent has been receiving treatment from Mr Nick Smith, a forensic psychologist.  Doctors Beech and Timmins have noted that the respondent has engaged “in an appropriate and responsive manner”.
21. [21]
    All three psychiatrists, Timmins, Sundin and Beech, still regard the respondent as a high risk of reoffending if released into the community without supervision.
22. [22]
    Dr Timmins opined:

“The potential he poses to the community can be reduced to an acceptable level by the presence of a supervision order with all the usual requirements of curfews, disclosure, GPS tracking, electronic review of telephone and internet material assessed and continued one to one treatment sessions with Mr Smith.

I therefore respectively advise the court that he could be released under a supervision order.”

23. [23]
    Both Doctors Beech and Timmins thought the risk fell to “below moderate” through the imposition of a supervision order.
24. [24]
    I accept the evidence of the psychiatrists.
25. [25]
    Turning then to the first question; whether the respondent is a serious danger to the community in the absence of a Division 3 order.  The obvious answer to that is “yes”.  The respondent has a serious and significant history of offending sexually against children.  He is a diagnosed paedophile.  He is not fully rehabilitated and his treatment is ongoing. A significant body of evidence from very experienced forensic psychiatrists is to the effect that the respondent is a high risk of sexually reoffending if released without supervision.
26. [26]
    The second question is whether the respondent’s release on a supervision order provides adequate protection to the community.  In my view, it does.  The respondent has engaged well in treatment since the making of the CDO and the psychiatrists opine that risk has been lowered and that the conditions of the proposed supervision order are appropriate to manage the risk.
27. [27]
    The third question is as to the duration of the supervision order.  What has to be ascertained is the point in time in the future when the respondent will be an acceptable risk in the community without being under supervision.^[9]
28. [28]
    The supervision order should be of a duration of 10 years.  It is the opinion of the psychiatrists that a 10 year supervision order is warranted as the respondent is still undergoing treatment and given his diagnosis of paedophilia, his risk factors are significant and long-term.  I accept that evidence.

29. [29]
    I have been provided with a draft supervision order and I am satisfied that the terms are appropriate.

Conclusions

30. [30]
    For the reasons I have given, I will make a supervision order in terms of the draft which has been provided and which I will have attached to these reasons as a schedule.

SCHEDULE

SUPREME COURT OF QUEENSLAND

REGISTRY: Brisbane

NUMBER: 13609/19