Attorney-General v S[2021] QSC 193

SUPREME COURT OF QUEENSLAND

1. [1]
   The application is made pursuant to s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act), that the Supreme Court of Queensland review the continuing detention order made by PD McMurdo J on 9 June 2015, affirmed by Brown J on 13 March 2017, and further affirmed by Lyons SJA on 30 April 2018, Wilson J on 13 May 2019 and Williams J on 1 June 2020 (fifth review).
2. [2]
   The respondent is the subject of a continuing detention order made by PD McMurdo J (as his Honour then was) on 9 June 2015^[1] under the provisions of the DPSO Act.
3. [3]
   His Honour found that:

   1. (a)
      the respondent was a serious danger to the community in the absence of an order under Division 3 of Part 2 of the DPSO Act;^[2] and
   2. (b)
      the adequate protection of the community could not be ensured by the release of the respondent on a supervision order.^[3]
4. [4]
   In those circumstances, his Honour made a continuing detention order.
5. [5]
   On 6 February 2017, Brown J conducted a review of the continuing detention order and on 13 March 2017 her Honour:

   1. (a)
      affirmed the decision that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the DPSO Act; and
   2. (b)
      ordered that the respondent continue to be the subject of the continuing detention order.^[4]
6. [6]
   On 30 April 2018, Lyons SJA undertook a further review (second review) of the continuing detention order and on 1 May 2018:

   1. (a)
      affirmed the decision made on 9 June 2015 that the respondent was a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSO Act; and
   2. (b)
      ordered that the respondent continue to be subject to the continuing detention order made on 9 June 2015.^[5]
7. [7]
   On 13 May 2019, Wilson J undertook a further review (third review) of the continuing detention order and on that date ordered that:

   1. (a)
      the decision made on 9 June 2015 that the respondent was a serious danger to the community in the absence of a Division 3 order be affirmed; and
   2. (b)
      the respondent continue to be subject to the continuing detention order made on 9 June 2015.^[6]
8. [8]
   On 1 June 2020, I undertook a further review of the continuing detention order (fourth review) and ordered that:

   1. (a)
      the decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed; and
   2. (b)
      the respondent continue to be subject to the continuing detention order made on 9 June 2015.
9. [9]
   My reasons for making the orders on the fourth review were published on 10 June 2020.^[7]

Statutory context

10. [10]
    Section 27 of the DPSO Act provides for periodic reviews as follows:

“27  Review—periodic

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

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

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

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

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

11. [11]
    Section 30 directs the Court on the hearing of the review as follows:

12. [12]
    Section 30 incorporates the term “serious danger to the community” which in turn encompasses the notions of “serious sexual offence” and “unacceptable risk”.  This in effect mirrors s 13 of the DPSO Act.
13. [13]
    Section 13 of the DPSO Act provides as follows:

14. [14]
    In the decision of Attorney-General for the State of Queensland v Anderson [2020] QSC 142, Davis J summarised the effect of s 13:

“[5] The effect of s 13 is:

1. (a)
   the court must consider whether the prisoner is a “serious danger to the community in the absence of a Division 3 order”;^[8]
2. (b)
   a prisoner is a “serious danger to the community” where there is an unacceptable risk that the prisoner will commit a “serious sexual offence” in the absence of an order;^[9]
3. (c)
   a “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence; or … against a child …”;^[10]
4. (d)
   orders under Division 3 are:

   1. a continuing detention order;^[11] or
   2. a supervision order;^[12]

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

   1. (i)
      make no order;
   2. (ii)
      make a continuing detention order; or
   3. (iii)make a supervision order;^[13]
6. (f)
   in determining what, if any order, to make “the paramount consideration is to be the need to ensure adequate protection of the community” from the commission by the prisoner of a “serious sexual offence”;^[14]
7. (g)
   if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;^[15] and
8. (h)
   if the adequate protection of the community can be ensured by a supervision order, then supervision ought to be preferred to the making of a continuing detention order.^[16]

[6] The process of the assessment of risk in terms of the DPSOA was explained by McMurdo J (as his Honour then was) in Attorney-General for the State of Queensland v Sutherland^[17] where his Honour said:

‘[30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.’^[18]”

15. [15]
    Further at paragraph 10, his Honour helpfully summarised the process that is to be undertaken under s 30:

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

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

Background to continuing detention order and previous reviews

16. [16]
    PD McMurdo J summarised the relevant factual background as at June 2015 as follows:

“[2]  In May 2001 the respondent was sentenced to several terms of imprisonment amounting to a period of 16 years which expires on 10 June 2015. He was sentenced to 10 years imprisonment for maintaining a sexual relationship with a child with circumstances of aggravation over a six month period in 1988-1999. He was sentenced to concurrent terms of five and three years on a number of offences of assault occasioning bodily harm and the indecent treatment of a child who was under 12 years. He was sentenced to a cumulative term of six years for grievous bodily harm. Nearly two years of pre-sentence custody had been served. He was declared to be a serious violent offender.

[3]  These offences were committed against the respondent’s then partner and her young son. The offences were summarised by McPherson JA, in dismissing the respondent’s appeal against conviction and application for leave to appeal against sentence, as follows:^[19]

‘The victim of the physical assaults was at the time his de facto wife. Most of them took place after she had, at his insistence, performed indecent acts which the applicant filmed for the purpose of setting up a pornographic business. Some of those acts consisted of performing acts of multiple sex with other adults. The assaults, some of which involved the use or threat of use of a dangerous instrument such as a garden fork, were carried out by the applicant because he was dissatisfied with the standard of the complainant's performance during those indecent acts.

One of the persons with whom she was forced to commit some of the sexual acts was her own nine year old son, who was also the victim of the sexual offences committed against the child to which I have referred. To crown this career of appalling behaviour, the applicant finally subjected the woman complainant to a prolonged and savage beating inflicting grievous bodily harm on her, including brain damage, fractures to facial bones and a severe injury to her left ear requiring plastic surgery.

In the course of his submissions in this Court the applicant, it may be noted, admitted that he had committed that assault causing grievous bodily harm.

…

He showed no remorse whatever for what he has done. The learned sentencing Judge described his behaviour as depraved and despicable. Those are strong words, but they are in my opinion fully justified. In the 20 years in which I have been on this Court, I have not seen a case in which the conduct of the accused was worse than this.’

[4]  The respondent has always maintained that he did not commit sexual offences against the child. He sought to explain his violent assaults upon his partner as attempts to protect the son from sexual misconduct by her.

[5]  He was born in 1973 and is now 41 years of age. Prior to the matters already mentioned, he had a criminal history for offences of violence, dishonesty and breaking and entering a dwelling house, for which he received various terms, including one of three years imprisonment for which he was required to serve 12 months. The offence of breaking and entering a dwelling house with intent was committed in October 1992. The sentencing judge then remarked:

‘I regard this as a very serious offence. Here we have a decent woman asleep in her own home where she should be safe. You come in the early hours of the morning and subject her to a terrifying ordeal. You say you went there for money, but from what she tells the police even if that were so your mind changed towards sexual matters. You told her to remove her knickers. She managed to escape you and she was punched as she eluded you.’

[6]  There are several recorded breaches during the respondent’s time in prison. Most involved disobeying the lawful direction of a corrective services officer. At least one involved an assault on another prisoner. Another, in 2013, involved an assault on a visitor.

[7]  He has completed a number of rehabilitative programs as follows:

• Anger Management Core Program- completed 23 July 1997;
• Substance Abuse Education Program- completed 28 October 1997;
• Operate a Personal Computer- completed 9 December 2008;
• Operate a Word Processing Application - completed 5 January 2009;
• Operate a Spreadsheet Application- completed 19 January 2009;
• Operate a Database Application- completed 3 February 2009;
• Operate a Presentation Package- completed 20 February 2009;
• Transitions Programs- completed August 2011;
• Work Safely in the Construction Industry- completed 23 November 2011;
• Present a Positive Image - completed 5 November 2012;
• Apply Job Search and Interview- completed 29 October 2012; and
• Stepping Up Program - completed 15 April 2013.

[8]  However he has not engaged in programs to address his sexual offending. If he is detained as a result of this application he will be waitlisted for the Getting Started: Preparatory Program (the “GS:PP”), which is described in the evidence as ‘a mandatory preparatory program designed to motivate offenders to participate and address their offending in a more intensive treatment program …’. It is not a treatment program as such. The records of Corrective Services indicate that in June 2012 he was offered a place in this program which he declined, stating that he was innocent in relation to his sexual offence convictions. There is a further record that in March 2013 he began but did not complete the GS:PP. There is also a record of the respondent being offered the GS:PP in May 2014, when again he maintained his innocence of any sexual offence and refused to attend any sexual offending programs.

[9]  Were he to complete the GS:PP, he could then be considered for what is described as an intervention program, such as the High Intensity Sexual Offending Program (HISOP), the Cognitive Self Change High Intensity Violent Offending Program (CSCP) or the Pathways High Intensity Substance Abuse Program.” (Footnotes omitted)

17. [17]
    Following a review of the psychiatric evidence, his Honour undertook a consideration of the particular issues and concluded as follows:

“[34]  The respondent’s counsel did not challenge the evidence of any of the psychiatrists and it is conceded on the respondent’s behalf that the court would be satisfied that the respondent would pose a serious danger to the community if released without a division 3 order. But it is submitted for the respondent that adequate protection of the community could be provided by a supervision order.

[35]  I am satisfied that the respondent is a serious danger to the community in the absence of a division 3 order.^[20] It is clear, in my view, that there is an unacceptable risk that he would commit a serious sexual offence if released from custody without any such order.^[21] The respondent’s offending behaviour, his antisocial personality, the possibility that there is in his case an element of sadism or paedophilia, his denial of his sexual offending and the fact that he has not engaged in necessary treatment programs together combine to present that unacceptable risk.

[36] The question then is whether he should be detained or released under supervision. Counsel of the Attorney-General cited a recent decision of the Court of Appeal, Turnbull v Attorney-General (Qld).^[22]  In that case, as in the present one, the prisoner had not undergone the HISOP. Morrison JA described evidence to the effect that there were ‘important gaps’ in what was known of that prisoner’s motivations and desires and that more needed to be known before it could be said that ‘his risk is one that can be managed’. In his conclusion, those ‘unknown factors’ prevented ‘the conclusion that adequate protection of the community could be ensured under a supervision order’.^[23]

[37]  Morrison JA (with the agreement of the other members of the court) said that before making a supervision order rather than a detention order, ‘the court has to reach a positive conclusion that the supervision order will provide the adequate protection’.^[24]

[38]  Other judgments of the Court of Appeal have expressed the present question somewhat differently. In Attorney-General (Qld) v Lawrence,^[25] Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof:^[26]

‘[I]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.’

…

[39]  It may be assumed that in Turnbull there was no intention to depart from those authorities because they were not cited. And although counsel for the Attorney-General referred to Turnbull, it was not cited for a specific submission that the relevant onus was other than an onus upon the Attorney to establish that the community could be adequately protected only by a continuing detention order.

[40]  In Turnbull, as in the present case, there was uncertainty as to some material facts about the prisoner, an uncertainty which affected the question of whether a detention order was required to ensure the adequate protection of the community. As Morrison JA said, in this context, there is a consideration “of what is known, as well as what is unknown, about the risk …”.^[27] In the present case, there is uncertainty as to whether there is in his case sadism or even paedophilia. As I have summarised, each of the psychiatrists recognises that as at least a real possibility. Dr Sundin thought it highly likely that the respondent met the criteria for sexual sadism. I could not make a finding that more probably than not there is that element in the respondent’s case. But my task is to consider whether the community could be adequately protected only by a continuing detention order. That involves 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. That risk has a content not only from what can be found as a fact about the prisoner, but also from what constitute real possibilities.

[41]  It was argued for the respondent that the effect of the evidence of the psychiatrists was that there was no unacceptable risk from the supervision order on the conditions which, during their evidence, he asked them to consider. But that was not the effect of their evidence. They were not critical of the conditions. Their concern, in each case, was that the respondent would not comply with the order and that a serious offence might be committed before his non-compliance was detected and he was returned to custody. In my view, that is a substantial risk. It is a risk which exists especially from the likelihood, as the psychiatrists explained it, that the respondent would not engage with those supervising him and from the difficulties in supervising this prisoner without his having undergone what they regard as necessary treatment programs.

[42]  In my conclusion, the Attorney-General has established that there could be adequate protection of the community only by a continuing detention order. It will be ordered that pursuant to s 13(5)(a) of the Act, the respondent be detained in custody for an indefinite term for control, care or treatment.”

18. [18]
    At the time of the first review before Brown J in 2017, the respondent maintained his denial that he had been engaged in any sexual offending and this prevented him from being suitable for the High Intensity Sexual Offenders Program.  Following a consideration of the psychiatric evidence, her Honour concluded:

“[73]  The difficulty for the respondent is that until he meaningfully engages in these programs such that his offending behaviour can be discussed and his motivation and the triggers for that behaviour ventilated, the respondent cannot progress forward and appropriate treatment, and management to avoid his risk of sexual reoffending cannot be implemented.

[74]  While it may be true as submitted by the respondent that he did not consider that he had to participate in such programs in order to obtain parole and had participated in a drug and substance program, it is plain that from his own correspondence that he was aware that the result of the decision last year of this Court that he needed to participate in the Getting Started: Preparatory Program, High Intensity Sexual Offending Program and Cognitive Self Change High Intensity Violence Program. The respondent’s own correspondence in ex 2 dated 8 October 2015 indicated he needed to become part of the Getting Started Program, the Pathways Program and the Violence Program.

[75]  The weight of the evidence supports the fact it is largely the respondent’s own conduct and positional stance that has resulted in him not participating effectively or at all in any of the programs that were recommended as necessary to address his sexual offending behaviour and the risk factors giving rise to sexual reoffending.”

19. [19]
    Her Honour then considered whether the respondent was a serious danger to the community and concluded as follows:

“[76]  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. I am satisfied to a level of high degree of probability that there is acceptable cogent evidence that has been presented to me, particularly with respect to the psychiatric evidence and the evidence of Ms O'Brien, Mr Phelan and Ms Cowie as to the respondent’s history and conduct in undertaking or being offered various rehabilitation programs, of sufficient weight to affirm the decision that the respondent continues to be a serious danger to the community in the absence of a division 3 order under the Act, having regard to the required matters I am to consider.”

20. [20]
    Further, her Honour stated: 

“[84]  In the present case, I am also satisfied on the evidence before me that the position remains as was described by this Court in the reasons of Philip McMurdo J at para [40], cited above^[28] that while there is uncertainty as to whether there is in his case sexual sadism or even paedophilia, there is a real possibility that the respondent may have a paraphilia which is sexual sadism which raises a high risk of sexual reoffending, particularly having regard to his antisocial personality and psychopathic traits. The absence of a clear determination in this regard due to the respondent’s unwillingness to engage in such a program does not suggest that the respondent is not a serious danger to the community. It supports a finding of unacceptable risk.

[85]  I am satisfied that the court should affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 Order. The respondent’s offending behaviour in the past in relation to sexual offences, his anti-social personality, the fact that he has psychopathic traits and that there is a real possibility that there is an element of sexual sadism in his offending and possibly paedophilia, satisfies me that there is unacceptable risk that the respondent would commit a serious sexual offence if released without a division 3 order. That risk is further heightened by the fact that he is not engaged in necessary treatment programs previously recommended, save for the Getting Started Program. While he did participate in that program, his denial of sexual offending has meant the respondent has not responded positively as it has provided no insight into the nature of his behaviour or motivations and the relevant triggers for his sexual offending such that it could be treated. Presently his attitude indicates that a High Intensity Sexual Offending Program which both psychiatrists considered he would need to engage in is not open given his denial.”

21. [21]
    In respect of whether adequate protection of the community could be ensured by the respondent’s release on a supervision order, her Honour concluded:

“[89]  It is evident therefore that there is a significant risk that the respondent would not comply with any supervision order and that he may commit a serious offence before his non-compliance is detected. Moreover presently no supervision order can be formulated to properly address the risks posed by the respondent to ensure adequate protection of the community, given the failure of the respondent to engage in programs that would enable that to occur. In the circumstances, I consider that the imposition of a supervision order cannot reasonably and practically manage the adequate protection of the community, because it presently cannot contain the risk posed by the respondent to provide such adequate protection.

[90]  Given the above and taking into account the paramount consideration is the need to ensure protection of the community, I am satisfied that the Attorney-General has established that there could not be adequate protection of the community by a supervision order and there can only be adequate protection of the community by a continuing detention order.

[91]  I therefore affirm the decision of this Court of 9 June 2015 that the respondent is a serious danger to the community in the absence of a division 3 order. I order that the respondent continue to be subject to the Continuing Detention Order.”

22. [22]
    The second review was carried out by Lyons SJA in 2018.  Her Honour concluded that the respondent was a serious danger to the community in the absence of a Division 3 order and affirmed the decision made on 9 June 2015 and affirmed on 13 March 2017. 
23. [23]
    In respect of whether adequate protection of the community could be ensured by the respondent’s release on a supervision order, her Honour concluded:

“[42]  Having considered the reports which have been prepared for this hearing, as well as the other material relied upon by the applicant, I am satisfied that the evidence indicates that the respondent’s risk of serious sexual re-offending is still in the moderate to high range and that the likely offence would involve an adult female or child and that such an offence would result in psychological or physical damage. In the present case the applicant submits that the respondent is an untreated sex offender who has limited or no insight into his condition and the steps he needs to take to address his risk and therefore a continuing detention order is required.

…

[44] In the present case however, I cannot 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. In making such an order the Court is required to reach a positive conclusion that the supervision order proposed would provide adequate protection. As Counsel for the applicant stated in his closing submission, because of the respondent’s non engagement in the HISOP, the risk cannot be quantified. Counsel continued:

‘The risk can’t be managed by way of an appropriately structured supervision order, absent the offending pathway being identified and one does not know whether [the respondent] is a sexual sadist. One does not know whether he’s a paedophile. One does not know what his drivers are to enable an appropriately structured supervision order to be formulate, which would – which your Honour could be satisfied would provide adequate protection to the community. That’s the touchstone – whether the community would be adequately protected if – without knowing what motivates [the respondent]. One would be releasing him into the community a ticking time bomb that could go off at any stage when corrective services would simply not know how to direct him. For example, a GPS tracker might identify where he goes, but that does not necessarily identify who he associates with and the circumstances and those factors might be quite relevant to corrective services and how they manage him. So without knowing what Mr – what makes [the respondent] tick, it’s very difficult to structure an order which would provide the necessary protection.’

[45]  I accept that the evidence remains unaltered since 2015 and clearly establishes that the applicant has satisfied me that the adequate protection of the community cannot be ensured by a supervision order and the respondent should continue to be subject to a continuing detention order.” (Footnote omitted)

24. [24]
    On 13 May 2019, Wilson J conducted the third review of the continuing detention order.  Following a review of the evidence, her Honour concluded that the respondent was a serious danger to the community in the absence of a Division 3 order. 
25. [25]
    In respect of whether adequate protection of the community could be ensured by the respondent’s release on a supervision order, her Honour concluded:

“In this case, however, I cannot be satisfied that a supervision order would be efficacious in continuing the respondent’s behaviour by preventing the opportunity for the commission of sexual offenders [sic].  In making such a supervision order the court is required to reach a positive conclusion that the supervision order proposed would provide adequate protection.  I am not so satisfied.

 The expert evidence does not reach such a conclusion and I take into account Dr Moyle’s report, in particular, paragraphs 154 to 157, paragraph 160 and paragraphs 160 to 168.  I note Dr Sundin’s report at page 6, from line 158 to page 7 at line 171.

 It is noted that in 2017, Brown J affirmed the continued detention order, as no supervision order could be formulated to properly address the risk posed by the respondent to ensure adequate protection of the community.  One of the primary reasons for coming to that conclusion was the failure of the respondent to engage in programs that would enable his release on a supervision order to occur.  I note that nothing much has changed in two years.

 The applicant, in all of the circumstances, has satisfied me that the adequate protection of the community cannot be ensured by a supervision order and the respondent should continue to be subject to a continuing detention order.”^[29]

26. [26]
    The fourth review was carried out by me on 1 June 2020 with reasons delivered on 10 June 2020.  I concluded as follows:

“[45]  The position of the respondent has largely remained unchanged since the original application in 2015 and the reviews that took place in 2017, 2018 and 2019. The respondent remains an untreated sex offender.

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

[46]  Based on the evidence relied upon by the applicant, including the reports of Dr Arthur and Dr Moyle and the evidence they gave orally at the hearing, I am satisfied that there is acceptable cogent evidence which satisfies me to the high degree of probability required pursuant to s 30(2) of the DPSO Act that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act.

[47]  The psychiatric evidence identifies a moderate to high risk of reoffending and any offence, if committed, would constitute a sexual assault on an adult female or child. In the circumstances, I am satisfied that the respondent presents a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made on 9 June 2015 ought to be affirmed.

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

[48]  The respondent continues to deny his sexual offending and maintains his innocence in relation to the index offence. Further, the respondent continues to refuse to participate in programs offered by Corrective Services and also refuses involvement on an individual basis for assessment and / or treatment by psychiatrists or psychologists.

[49]  Consistent with previous opinions, the psychiatric evidence remains that the respondent needs to meaningfully participate in a High Intensity Sexual Offender Treatment Program or in individual treatment prior to his release into the community. This is important as it will also provide information that will identify what conditions may be suitable in any supervision order to address his particular circumstances. It is only if a full evaluation can be undertaken that a supervision order could possibly be drafted to ameliorate the risks specifically identified.

[50]  Given the psychiatric evidence, and in the absence of participation in the relevant programs, I cannot be satisfied that adequate protection of the community could be reasonably and practicably ensured by a supervision order.

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

[51]  In these circumstances, I am satisfied that an order pursuant to s 30(3)(a) of the DPSO Act ought to be made that the respondent continue to be subject to the continuing detention order made on 9 June 2015.”

Further psychiatric reports

27. [27]
    Pursuant to s 29 of the DPSO Act, further psychiatric reports were obtained from Dr Ken Arthur on 9 April 2021 and Dr Robert Moyle dated 6 April 2021 for the purposes of the fifth review.
28. [28]
    On 19 March 2021, Dr Arthur was scheduled to conduct a psychiatric assessment, but the respondent refused to participate.  As a result, Dr Arthur prepared his report based on a review of the material in the absence of cooperation from the respondent.
29. [29]
    In relation to the risk assessment and recommendations, Dr Arthur’s report states as follows:

“FORMULATION AND DIAGNOSIS

48. Since my last attempt at a risk assessment, there have been further incidents of violence, aggression and non-compliance such as refusing to follow directions, yelling out sexually-based profanities to female officers, behaving aggressively towards medical staff, refusal to follow directions requiring threats of force and disrespectful attitudes towards senior correctional officers.

49. He continues to express the belief that he is a victim of a racist and corrupt system and has declined any engagement in DP(SO)A case management meetings. He remains dismissive, belligerent, demanding and aggressive. He also utilises passive aggressive behaviour, such as placing a blanket over his head and refusing to get out of bed during unit inspections.

50. As far as I am aware, he has not indicated any willingness to engage in any form of offence specific treatment, whether it be individual therapy or group programs. He has again declined to engage in the risk assessment process, possibly in a passive aggressive manner (waiting until the last minute until he refuses).

51. Based on the available information, I have little choice but to conclude that there has been no shift in [the respondent’s] attitudes or behaviour.

52. His diagnosis remains unchanged, namely Mixed Cluster B Personality Disorder with predominantly antisocial and narcissistic features in addition to a provisional diagnosis of Sexual Sadism. Based on previous assessments, he fulfils the criteria for a Psychopathic Personality.

RISK ASSESSMENT

RISK STATEMENT

54. Given his apparent resignation to remaining in custody, lack of community support and absence of any meaningful or achievable goals, there is little to motivate him to remain compliant with community supervision. It is probable that he will seek out sexual partners (despite his antipathy towards women, he appears to have maintained contact with females outside of the jail) and will most likely resent any attempts at Corrections to regulate or supervise this. The threat of returning to custody may not be sufficient to prevent him from acting on sadistic sexual impulses. He also represents a more general risk of aggressive and threatening behaviour directed at female Corrections staff.

55. Based on the available documentation, it was my impression that [the respondent’s] unmodified risk of committing further sexually violent offences on release remained high.

RECOMMENDATIONS

56. Without any indication of attitudinal change or developing insight, it remains difficult to recommend [the respondent’s] release from custody on a supervision order. Due to his high levels of psychopathy and antisocial narcissism, [the respondent] is unlikely to tolerate the restrictions of a supervision order.

57. As other assessors have concluded, [the respondent’s] risk cannot adequately be appreciated nor managed until he engages meaningfully in some form of offence specific treatment, either in a group or individual setting. A program addressing violence, such as the CSCP, remains a potential entry point for him to address his general and sexual violence risk. A valid alternative would be individual therapy with a skilled clinician whilst in custody, although such therapy is unlikely to provide short term benefit and should be seen as part of a longer term strategy.”

30. [30]
    The respondent also refused to participate in the psychiatric risk assessment by Dr Moyle and Dr Moyle also prepared a report based on the material supplied to him.
31. [31]
    Dr Moyle, in his report, identifies the relevant risks and concludes as follows:

“IN SUMMARY

12. [The respondent] is now 47 years-old, incarcerated at Wolston Correctional Centre on a Detention Order under the DPSOA who, on each occasion I have tried to interview him for assessment, has refused to appear for interview. On this occasion on 6 March 2021, he was reported to be arcing up and refusing to attend, despite my having arrived at the Wolston Correctional Centre on time for my interview with him. I cannot be sure that [the respondent] was aware that I was to attend. Based on material stored, he appears to have always been sexually interested and, given the nature of his sexual offending, I previously recommended that he considers using injectable antiandrogens that might lower any arousal and allow better engagement with mental health professionals that, although not a panacea that would prevent reoffending, may allow him to feel: more in control of his sexual urges and encourage him to work towards a safe release. There are requirements he would need to meet to have access to such treatment, and he would have to see the benefits outweigh the potential for adverse effects in his case to ask for such treatment.

13. I previously accepted that, on the evidence of the reports, he poses a high risk of reoffending sexually. He belligerently opposes intentions that could benefit him in understanding the sexual offending behaviours such that a formal assessment of the risk factors that may contribute to his high risk of reoffending could be analysed, and a Management Plan formulated with him that would be a plan that he could own, and work with Corrections psychologists and psychiatrists and other professionals to overcome the vulnerability to sexual offending behaviours. However, his belligerent refusal to engage does not allow a comprehensive evaluation and the formulation of a Risk Management Plan to be accurately prepared. His hostile and dominant behaviours to authorities in custody do not bode well for his capacity to adhere to plans that he does not own, or see as desirable, if he was released on a Supervision Order.

14. I tried, through the reports, to get an accurate appreciation of his life that might allow some reasonable conclusions to be made. Other than noting that he has a Torres Strait Island mother and an Aboriginal father and he identifies pretty closely with a Torres Strait Island heritage, and that he was raised in Inala but his parents separated when he was 3, there were inconsistencies in subsequent history. It is likely he saw violence and alcohol use as a child and adult and there was no reported sexual victimisation of him during his development. The early development seemed stable and he seemed to have received prosocial advice.

15. There was an early life break and enter where he, during a robbery, became sexually aroused by an adult, forcing her to remove her underwear before she escaped, when he was 19. Other crimes, non-sexual, occurred up until the 1990s, where he was with an older partner. For nine years or so tried to set up a pornography business that included brutalising the partner to the degree she suffered stabbing with pitchforks and brain injury, accompanied by his demands that she was the star of his pornography business. I considered the evidence against him was suggestive of gratuitous violence. Included in this were sexual acts involving her child, aged 6 to 9 years of age, where he forced the child into pornographic acts with the mother and a history of sexual behaviours with himself. There was evidence from multiple witnesses of the extent of past violent sexual misbehaviours.

16. Latterly, coming up to the end of his sentence, he has been subject to Detention Orders under the DPSOA repeatedly while claiming the sexual offences did not occur. He has been repeatedly found to have Cluster B Personality Disorders of Antisocial and Narcissistic nature, a probably Sexual Paraphilia, although this has not been formally diagnosed fully, and substance use seemed to be a factor in his offending behaviours.

17. Using risk assessment instruments, we start with the Psychopathy Check List - Revised (PCL-R), where he has been repeatedly found to meet the North American standard for Psychopathy. I did a screening test and therefore I accept that to be a factor.

18. Using the CAPPS, (Comprehensive Assessment of Psychopathic Personality) that analyses the dimensions often found disturbed in people who rate highly on Psychopathy, he rates moderately high to high on all six dimensions. In the Self domain, he is self-centred with a moderately high sense of entitlement, self-justifying and an unstable self-concept. Emotionally, he lacks emotional stability, lacks remorse and to a moderate degree lacks pleasure, emotional depth and anxiety. He enjoys the company of his fellow inmates. He rates highly on almost all elements of the Dominance domain. He is garrulous, insincere, manipulative, deceitful, domineering, and to a moderate degree antagonistic. He seems to have high attachment needs in that he is relatively detached, uncommitted, unempathic and uncaring. He has moderately high behavioural features in that he is unreliable and appears restless at times, potentially disruptive, verbally aggressive in recent times more than actual violent aggression, somewhat reckless in not acting in ways that propel him towards likely release on a Supervision Order and he does not persevere with programs of any utility in helping him. Cognitively, he is highly suspicious of authority, quite inflexible and to some degree lacks planfulness, although he does seem to be starting to look at the necessary components of living independently. He is moderately intolerant.

19. I have mentioned the actuarial tests before rated him at moderately high to high risk of sexual reoffending and the nature of the offending is violence towards women and involvement of children in sexual acts. The violence is likely to result in significant physical and mental injury to the woman and child.

20. He seems to want to set up a business but there is no real evidence that he is likely to be successful in doing so, and the business he was trying to set up at the time of his incarceration for now decades was in the sexual industry involving his offending.

21. Clinically, he is highly resistant to being assessed, let alone aided and helped, and does not see the need to change or even explore ways he might leave custody. While a lot of the issues that seem apparent in the documentation could be seen as institutional behaviour of inmates who do not know how to survive outside of the structured environment of a jail, where their misbehaviours are challenged and brought under control, he is not making positive moves to manage the animosity to authority, and continues to have significant distrust that authority, or society, are likely to be wanting to assist him to meet his needs.

22. In the past I recommended making the offer of assistance should he wish it but, given his tendency to have people arrive and then not see them, and his belligerent attitude to authority in custody, it is doubtful that he would adhere to enforced counselling, let alone treatment, let alone adherence to conditions of Supervision Orders.

QUESTIONS

23.  In answer to the questions posed:

(2)  The report must indicate:

(a)  the psychiatrist's assessment of the level of risk that the prisoner will commit another serious sexual offence:

 (i)  if released from custody; or

Moderately high to high.

 (ii)  if released from custody without a Supervision Order being made.

Moderately high to high.

The nature of the serious sexual offence would be a violent assault upon a woman, including sexual assault but not limited to sexual assault, where his will is forced upon the woman under threat of violence or with the infliction of actual violence resulting in severe injury to his victim. It is also likely to involve children under the influence of the woman and his past behaviour has suggested that such precocious sexualisation of children can occur even to male children aged over 6 years of age. These are the only behaviours that have been observed in the community. The likely harm to victims is both serious physical and mental health consequences. Such sexualised behaviour has also occurred during a break and enter offense on discovering a lady was present

(b)  the reasons for the psychiatrist's assessment.

[The respondent] engaged in his first violent sexual assault on a woman when 19 years of age. He did not, from the evidence we have so far, have a consistently reported background suggesting a serious family instability but there may have been childhood exposure to alcohol and violence. Nonetheless, his behaviours have been antisocial and for a number of years in the 1990s he used violence both operationally to ensure the older woman who was his partner would act in a manner sufficiently sexual that his pornography business would survive, that included stabbing her with a pitchfork or brutalising her to the degree of causing brain damage and other serious injuries on her body, and enticing, again over a number of years, a 6 to 9 year-old son of that woman to engage with the woman in sexual behaviours. There was also evidence that he also had sexual misbehaviours with the child. Such a prolonged period of violent sexual behaviours would be entrenched in his mind and it has been considered by my colleagues - that is, those that originally assessed him - that he may have a paraphilic or sexually deviant arousal that he acts on in violent ways.

In jail, he has steadfastly resisted attempts to understand his sexual behaviours and to modify the risk factors contributing to those behaviours to the extent that, when his time is due, he remains belligerent, resistant, dominant, argumentative, controlling and aggressive, refusing assessment, that does not permit a full appreciation of risk factors let alone mitigation strategies that might lower the risk from moderately high to high of serious physical and sexual harm and mental harm to victims on release. His resistance to attempts to ameliorate risk by understanding the risk factors leads to the likelihood that the cost of engaging therapists to assist him when he resists would be exorbitant and the exercise fruitless.

In custody he is continually abusive and resistive and uses aggressive sexualised swearing, "die fucking sluts" to female officers, even to this day during this latest Detention Order. Other nurses who approach him are resisted and then he demands attention, thereby trying to dominate and control even those who offer helpful assistance with his health needs. He seems driven to be objectionable and resistant, does not take part in management meetings to encourage him to address his needs, and refuses therapeutic endeavours on offer. His behaviour to authority figures is resistant, dominant and threatening, including idle threats to get NITV to report the racism behind his original convictions and ongoing inability to progress, despite his declining all offers made to him.

This seems to be an entrenched, unchanging pattern of behaviour at this stage and, while many with serious psychopathic scores on a PCL-R do behaviourally improve over time and many lose the hostility and sexualised imagery to women as they get older, as well as the sexual interest, there is no suggestion this is occurring in his case.

Even on this current Detention Order, he has made no attempt to further understand his sexual offending behaviours or the factors behind them that might be subject to strategies to modify those factors in the interest of his progressing from custody to a Supervision Order.

Therefore, I have no evidence of change sufficient to allow me to modify my previous assessment that he still poses a moderately high risk to high risk of brutalising adult women and sexualising children under their control.

MANAGEMENT SUGGESTIONS

24. These are hard to make, other than to hold open to him the offer, when he is ready, to talk with mental health professionals who might be able to work with him to understand the sexual offending behaviours, the factors behind them, whether there are any mental problems contributing to these factors, and whether there are strategies that he might engage to assist him to adapt positively to life out of the institution where he has spent the last two decades. Until he is able to engage in this manner, it is unlikely that I can formulate a Management Plan for modifying risk factors that could work towards lowering the risk or encouraging his safe reintegration while learning slowly, in a stepwise manner, how to manage the practical side of living in the community, the emotional changes and attitudinal changes that would be necessary if he is going to adhere to a Supervision Order. Therefore, my suggestion is that the offer be held to him, when he is ready, to meet with a forensic psychologist and psychiatrist to discuss the possibility of engaging in a structured, stepwise program to lower his risk on release. I see no evidence he has serious mental illness preventing him making such choices when he is ready to do so. I see resistance is limited to verbal abuse and pushing past officers and not further physical violence.”

Oral psychiatric evidence

32. [32]
    Dr Moyle and Dr Arthur attended the hearing and gave evidence.  The respondent refused to continue participating in the hearing and left the video-conferencing room prior to the psychiatrists being called to give evidence.  The respondent had been given the opportunity to cross-examine the psychiatrists but did not take up that opportunity.
33. [33]
    At the hearing on 19 July 2021, Dr Moyle and Dr Arthur maintained their views that the respondent remains untreated and without a proper assessment being able to be undertaken it is not possible to identify the risks or what treatment, if any, is appropriate.
34. [34]
    Dr Moyle and Dr Arthur were specifically asked at the hearing their opinion as to what they would need to see from the respondent to be able to move forward to a position where a supervision order could be considered.  This evidence is included to provide some assistance to the respondent to understand what is likely to be required in the future should he decide to engage with moving towards potentially being released on a supervision order.
35. [35]
    Dr Moyle gave oral evidence as follows:

“Can I focus, at this point, on moving forward from this point, for you to be able to, potentially, consider a release to a supervision order, what would you need to see occur in relation to [the respondent], both from his perspective and generally?‑‑‑Generally, he needs to address the primary risk factors and show that he can manage them under the supervision of Correctional Services officers under a supervision order.  The biggest handicap to that is [the respondent’s] intense sensitivity, by the looks of today’s performance, to any capacity to reflect on his own behaviour.  While he’s acutely aware of the psycho-social factors that probably contributed to some degree to him being the person he is now, he hasn’t been able to reflect on himself, and what aspects of his behaviour, and his thinking and his motivational style – style, his attitudes contribute to the risk he poses, which is in the form we found to be a high risk.  The changes we would like to see would be that he – and the simplest way of doing that would be to attend, perhaps, the cognitive self-change program.  That might be a first step that will allow him to look at himself, to look at the way he thinks, and maybe allow him to reflect on the possibility of change in the future.  That might allow him then to take part in either a sexual offender programs, if he can moderate his behaviour and not be a disruptive influence to those programs, or individual therapy with a forensic psychologist who’s skilled in working with people with high levels of psychopathy, and who has offending violently and sexually against children or adults.

…

So we want to see him at least reach the point where he would engage in some form of assessment or interviews?‑‑‑More than that.  He needs not only engage in the assessment interviews, but he needs to engage in the process of formulating the key risk factors that contribute to the risk of re-offending sexually.  So he needs to engage in at the same time.  Use that engagement.  Not for his own purposes of – if what he said in the past about lying to get – get where he wants to go, but to engage in it so that he can learn what he can do to formulate a release plan.  A plan that can be then monitored by corrections staff.  It can be put into a management strategy under conditions of a community supervision order, and how he’s going to manage his aggressive impulses when he gets upset and angry.  How he’s going to manage his tendency to go against the advice given.  So he needs to – he needs to change his behaviour over a period of time, so it matches the prosocial goals of getting out and being able to be safely supervised and managed in the community. 

Well, sort of – would the 12 months of an annual review be a sufficient period of time of that sort of demonstrated behaviour?‑‑‑Well, 12 months would give him time to show that he can either get on the path or engage and formulate such strategies.  And it would be a surprise if 12 months is sufficient time, but twelve months gives him an opportunity to do so.

Now, there’s, also, in your report – and, also, Dr Arthur’s report, comments on the type of behaviour he demonstrates within the correctional centre and with correctional staff?‑‑‑Yes.

Can you comment on the concerns from that behaviour and what you would want to see in respect of that?‑‑‑Well, we can look at the dominance and belligerence type behaviours, which, as you saw here today when her Honour asked him to be quiet he chose not to.  In – in – in prison he’ll be, at times, approached by nursing staff to give him his medicines and he will then decide he wants some special arrangement to be made or he won’t take them, only to go back to his room and then ask for the medicines to be given at his time when there’s no nurses to give them.  Or he might object to prison officers’ instructions such as, you know, they remove items he’s not allowed in his room and he might push past them and just take them back again and the like.  Well, I mean, that does not lend any confidence that he will follow instructions in the community.  So he needs to, for a good long period, show that he can adhere his behaviour to the instructions of the people who are responsible for overseeing him.

So we would want to see that sort of improvement in behaviour.  We would want to see him engaging or accepting or at least communicating with both staff and say, his psychologists, and perhaps his psychiatrist when assessments are undertaken, to enable some information to be obtained from him?‑‑‑Yes.  I think they need to go through the whole process to be able to formulate what are his sexual arousal, what are his – what’s it been in the past, what’s been present, what will it be in the future, what are his goals.  They need to look at how – how he plans to earn a  living, how he plans – the aboriginal population – I should explain.  The aboriginal population is difficult to find risk factors that apply in general to Aboriginal populations.  But also – but the key factors that do seem to contribute quite significantly are criminogenic factors.  Just not necessarily just – just sexual factors.  But sexual reoffending tends to occur if people don’t have good coping skills, which [the respondent] doesn’t have.  If they can’t formulate reasonable plans on how they’re going to live their lives, they’re – what sort of leisure activities they’re going to engage in, how they’re going to manage their time, their work and that.  And – and those sort of factors have to be considered as well.  So a comprehensive assessment will allow all of those factors to be itemised and [the respondent] to plan strategies on how he’s going to handle them.

And that sort of information also gives, from your perspective, in relation to assessing risk and looking for to the potential in management on a certain individual, that gives you the greater insight into his offending ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ so therefore what the future management plan would have to be from a corrective services perspective as well?‑‑‑Yes.”

36. [36]
    Dr Arthur gave oral evidence as follows:

“Now, and it’s – at this point, he’s not engaged in any form of treatment or assessment?‑‑‑My understanding is – is that he – he’s completed the GSPP many, many years ago.  That was unsatisfactory but, obviously, the GSPP is designed just for people to get used to the idea of group programs and he hasn’t progressed past that point.  So I wouldn’t consider that treatment. 

Now, to focus on where to from now?‑‑‑Yes. 

What would you want to see over the next annual review period that might potentially give rise to a consideration of release to supervision?  What would he need to demonstrate for that to even be considered?‑‑‑Look, on a very basic level, I think that [the respondent] needs to show an attitudinal change such that he can become accessible to any form of reasonable communication about what will happen next.  At the moment, he’s engaging in very chronically entrenched avoidance behaviours and denial.  I think what we’ve seen throughout this process is somebody who has tried his very best not to engage in the process, and there’s reasons for that and they lie mostly in his very maladaptive coping and his personality pathology.  Until he decides to change – until he decides to – to – to try something else, I think we’re – we’re stuck where we are now because without that basic attitudinal change, which is to cooperate on any level, to have a discussion about his situation, to stop ruminating over his past issues with his concerns about his convictions – which have, really, no bearing to the current issues at hand as far as his treatment and management in the community – and accepting some degree of responsibility for the situation he finds himself in.  He’s very good at projecting blame.  He’s very good at – at making everybody else responsible for his position, but he refuses to accept that his behaviour and his choices have led to – to this, as we’ve seen today.  So that has to change because without that there is no engagement and if we can’t engage him, we can’t assess him.  If we can’t assess him, we don’t have any understanding of his risk factors and we can only go on what we have, and what we have is that he’s very high risk, regardless of – of what – what he says.  You know?  His behaviour relating to the offences, which is, really, all we have to go on, is that he has a high degree of sadism, he has high psychopathy ratings, that he has engaged in sexual offences against children and domestic violence sexual offences.  He’s an anti-social person with strong narcissistic tendencies.  These are all incredibly high-risk factors.  Now, he may have changed over the last 20 years, but without assessment we don’t know.  Then we can talk about treatment and management and, as Dr Moyle pointed out, he needs to collaboratively be part of that.  So he could turn up and he could sit through a program, but unless he engages in that program and puts something into it, then we’re not going to see any change and I think that he needs to collaboratively talk about what treatment he will accept and what will be reasonable for him and then strategies to address his risk factors and risk man – management strategies in the community that he’s willing to agree to and at least try and comply with. 

And can I just see if – is – my – my thinking is correct here.  He has a – he has a vehement denial of the child sex offending, doesn’t he?‑‑‑Yes. 

Now, there’s a difference between his view on that – despite the conviction and despite not successfully appealing it – and, would you say, acknowledging this is where he is now? That despite disagreeing with that outcome ‑ ‑ ‑?‑‑‑Yes. 

‑ ‑ ‑ his behaviours have led him to where he is.  So that – that’s a correct distinction to make?‑‑‑Yes.  Yes.  There’s many, many people that have been convicted that maintain their innocence and it doesn’t necessarily mean they can’t be managed in the community or their risk cannot be adequately managed, but what [the respondent] is doing is that he’s not even accepting that his behaviour has a consequence.  He’s, basically, saying, ‘Anything bad that happens to me is everybody else’s fault and nothing I do can be held accountable’, and that’s, really, not a position that you can – you can address and I think that people with high psychopathy, you accept that they may not accept responsibility.  You accept that they – they may not be motivated to engage in treatment, but if you can have a dialogue and you can come up with some goals that are achievable and work towards risk management, then there’s – there’s a way forward.  Unfortunately, with [the respondent], he doesn’t even give us that opportunity. 

And in the absence of that level of information and engagement, it’s impossible to draft a supervision order that would be effective, isn’t it?‑‑‑Unless you considered every single possible consequence and every – and – and assessed him at the highest level of risk possible, which, I think, is impractical on so many levels.

And it would be im – difficult or impossible for the supervising officers to know what to look for as signs of, perhaps, increasing his risk?‑‑‑Yes.”

Current factual position

37. [37]
    The facts remain largely the same as those considered in the original judgment of PD McMurdo J and subsequent reviews (including the fourth review in 2020).  In particular, the respondent:

    1. (a)
       continues to have no insight in relation to the sexual offending of which he was convicted at trial;
    2. (b)
       has refused to meet with the psychiatrists so they can undertake an assessment of his specific risks and treatment needs; and
    3. (c)
       remains an untreated sex offender and has not engaged in programs that have been identified in the previous reviews.

Applicant’s submissions

38. [38]
    The applicant’s position is as follows:

“54.  The position remains as it was when the matter came before the court in the fourth annual review in 2020. 

55. The respondent presents as an untreated sexual offender.  He has limited or no insight into his condition and the steps he needs to take to address his risk.  He is aware of the importance of the meaningful participation in programs offered by Corrective Services.  This was clearly an issue in the 2015, 2017, 2018, 2019 and 2020 hearings.  The respondent denies the circumstances which gave rise to his incarceration.  He has not demonstrated any emotional or intellectual commitment to participation in any programs which would serve to minimise the risk. He continues to refuse to participate in any treatment, discussions or risk assessment processes which may be of benefit to him.

56. On the evidence of the psychiatrists, the respondent needs to meaningfully participate in a high intensity sexual offender treatment program or in individual treatment prior to his release into the community.  If he did meaningfully participate in such program or treatment, it would provide his supervisors with more information about the offending pathways which the respondent is likely to traverse prior to the commission of any offence.  It would enable supervision to be an effective tool in providing adequate serious social protection to the community.

57. Absent such participation, it is impossible, it is submitted, for the court to be satisfied that adequate protection to the community could be reasonably and practicably ensured by a supervision order.

58. Taking into account all the evidence, the preference for a supervision order has been displaced.  It cannot be found in the circumstances presented by the respondent’s presentation that adequate protection of the community is ensured by his release on supervision.

59. Accordingly, an order pursuant to s 30(3)(a) of the Act, ought be made.”

Consideration

39. [39]
    The position of the respondent continues to be unchanged since the original application in 2015 and the reviews that took place in 2017, 2018, 2019 and 2020.  The respondent remains an untreated sex offender.

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

40. [40]
    Based on the evidence relied upon by the applicant, including the reports of Dr Arthur and Dr Moyle and the oral evidence they gave at the hearing, I am satisfied that there is acceptable, cogent evidence which satisfies me to the high degree of probability required pursuant to s 30(2) of the DPSO Act that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act. 
41. [41]
    The psychiatric evidence, which I accept, identifies a moderate to high risk of reoffending and any offence, if committed, would constitute a sexual assault on an adult female or child with the risk of psychological damage and/or physical injury to any victim.  In the circumstances, I am satisfied that the respondent presents a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made on 9 June 2015 ought to be affirmed.

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

42. [42]
    The respondent continues to deny his sexual offending in relation to the index offence.  Further, the respondent continues to refuse to participate in programs offered by Corrective Services and also refuses involvement on an individual basis for assessment and/or treatment by psychiatrists or psychologists.
43. [43]
    It is only if a full assessment of the respondent can be undertaken that a supervision order could possibly be drafted to ameliorate the risks specifically identified.  Consistent with previous opinions, the psychiatric evidence remains that the respondent needs to meaningfully participate in a High Intensity Sexual Offender Treatment Program or in individual treatment prior to his release into the community.  As previously recognised, this is important as it will also provide information that will identify what conditions may be suitable in any supervision order to address his particular circumstances. 
44. [44]
    Given the psychiatric evidence, and in the absence of participation in an assessment and/or the relevant programs, I cannot be satisfied that adequate protection of the community could be reasonably and practicably ensured by a supervision order.

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

45. [45]
    In these circumstances, I am satisfied that an order pursuant to s 30(3)(a) of the DPSO Act ought to be made that the respondent continue to be subject to the continuing detention order made on 9 June 2015.
46. [46]
    The order of the Court is that:

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

1. The decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed; and
2. The respondent continue to be subject to the continuing detention order made on 9 June 2015.