Attorney-General v Bewert[2021] QSC 239

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act), that the Court review the Continuing Detention Order made in respect of the respondent, Henry Bewert.

2. [2]
   On 10 May 2011, Boddice J found that the respondent was a serious danger to the community in the absence of a Division 3 order under the DPSO Act.  Further, his Honour ordered that the respondent be detained in custody pursuant to s 13(5)(a) of the DPSO Act.^[1]
3. [3]
   On 8 April 2013, P McMurdo J (as his Honour then was) affirmed the finding that the respondent was a danger to the community in the absence of an order made pursuant to Division 3 of the DPSO Act.  His Honour found that the adequate protection of the community could be ensured by the respondent’s release on supervision.  The Continuing Detention Order made on 10 May 2011 was rescinded and it was ordered that the respondent be released from custody subject to a Supervision Order.^[2]
4. [4]
   The terms of the Supervision Order included conditions that the respondent must:

“(ix) not commit an offence of a sexual nature during the period of the order;

…

(xxviii) notify a Corrective Services officer when attending a hospital/emergency department;”

5. [5]
   On 26 July 2016, the respondent was brought before the Court pursuant to the execution of a warrant issued pursuant to s 20 of the DPSO Act and it was ordered that the respondent be detained in custody until the final decision of the Court under s 22 of the DPSO Act.^[3]
6. [6]
   On 23 August 2017, the respondent pleaded guilty and was sentenced in the District Court at Ipswich for a sexual assault whilst armed^[4] and also a contravention of a relevant order contrary to s 43AA of the DPSO Act.
7. [7]
   The respondent was sentenced to four years imprisonment for the sexual assault and was convicted but not further punished in relation to the offence under the DPSO Act.  The fulltime custodial end date in respect of the August 2017 sentence was 24 July 2020.
8. [8]
   On 22 June 2020, Bradley J heard and determined the contravention proceedings under the DPSO Act.  The contravention was established and Bradley J ordered that the Supervision Order made on 8 April 2013 be rescinded and the respondent be detained in custody subject to a Continuing Detention Order.^[5]
9. [9]
   As required by s 27 of the Act, the applicant has applied for the review of the Continuing Detention Order.
10. [10]
    On 3 September 2021, the matter was listed for hearing and upon 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 DPSO Act, I made orders that:

1. Pursuant to s 30(1) of the DPSO Act, the decision made on 22 June 2020 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSO Act, be affirmed.

2. Pursuant to s 30(3) of the DPSO Act, the respondent continue to be subject to the Continuing Detention Order made on 22 June 2020.

11. [11]
    Further, to facilitate the ongoing treatment of the respondent, I directed that the applicant provide to Queensland Health copies of the following documents:

    1. (a)
       The report of Dr Scott Harden dated 25 June 2021;
    2. (b)
       The report of Dr Jane Phillips dated 14 June 2021;
    3. (c)
       The email from Dr Scott Harden dated 31 August 2021;
    4. (d)
       The email from Dr Jane Phillips dated 1 September 2021.
    5. (e)
       The report of Dr Ken Arthur dated 27 August 2021;
    6. (f)
       The report of Dr Anthony Tie dated 20 August 2021.
12. [12]
    These are the reasons for the orders made on 3 September 2021.

Statutory context

13. [13]
    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.”

14. [14]
    Section 30 directs the Court on the hearing of the review as follows:

“30  Review hearing

3. (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.

3. (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. (i)
   adequate protection of the community can be reasonably and practicably managed by a supervision order; and

2. (ii)
   requirements under section 16 can be reasonably and practicably managed by corrective services officers.

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

3. (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.”

15. [15]
    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.
16. [16]
    Section 13 of the DPSO Act provides as follows:

“13  Division 3 orders

3. (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).

3. (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. (a)
   if the prisoner is released from custody; or

2. (b)
   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. (a)
   by acceptable, cogent evidence; and

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

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

3. (4)
   In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

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;

5. (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.

3. (5)
   If the court is satisfied as required under subsection (1), the court may order—

1. (a)
   that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

2. (b)
   that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).

3. (6)
   In deciding whether to make an order under subsection (5)(a) or (b)—

1. (a)
   the paramount consideration is to be the need to ensure adequate protection of the community; and

1. (b)
   the court must consider whether—

1. (i)
   adequate protection of the community can be reasonably and practicably managed by a supervision order; and

2. (ii)
   requirements under section 16 can be reasonably and practicably managed by corrective services officers.

3. (7)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

17. [17]
    In the decision of Attorney-General for the State of Queensland v Anderson,^[6] Davis J summarised the effect of s 13:

“[5] The effect of s 13 is:

• the court must consider whether the prisoner is a ‘serious danger to the community in the absence of a Division 3 order’;^[7]
• 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;^[8]
• a ‘serious sexual offence’ is, relevantly here, ‘an offence of a sexual nature … involving violence; or … against a child …’;^[9]
• orders under Division 3 are:
  1. (i)
     a continuing detention order;^[10] or
  2. (ii)
     a supervision order;^[11]

2. (b)
   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. make no order;
   2. make a continuing detention order; or
   3. make a supervision order;^[12]
3. (c)
   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’;^[13]
4. (d)
   if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;^[14] and
5. (e)
   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.^[15]

[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^[16] 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.’^[17]”

18. [18]
    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

19. [19]
    The respondent is currently 57 years of age.
20. [20]
    The relevant background is set out in the reasons of Boddice J in 2011, including the respondent’s criminal history and the index offence, as follows:^[18]

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

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

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

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

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

21. [21]
    The most recent offending is described in the sentencing remarks of Lynch QC DCJ on 23 August 2017 as follows:

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

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

22. [22]
    Bradley J, in respect of the application for orders under s 22 of the DPSO Act in respect of the contravention offending stated as follows:^[19]

“I am satisfied on the evidence before the Court that the respondent did breach the two requirements of the supervision order in paragraphs 9 and 28.  That means that the onus is on the respondent to demonstrate that the adequate protection of the community could be ensured by his release on supervision. 

 The respondent has, in effect, not sought to persuade the Court that such an outcome is possible.  The evidence put before the Court on behalf of the Attorney demonstrates that the supervision order ought to be rescinded and a continuing detention order ought to be made.  This is because the psychiatric evidence discloses that no supervision order would be effective to reduce the respondent’s risk of reoffending.

 It is also demonstrated by the fact that his most recent criminal behaviour was committed whilst on a supervision order, and notwithstanding the provisions of that order and the respondent’s active participation with various health practitioners, there were no indications of the imminence of such an offence detected by any those persons or made apparent by the operation of the other conditions of the order.  It is particularly significant that this most recent offence in breach of the supervision order conditions marked a significant increase in the nature of offending.  The fact that the respondent was armed with a knife at the time of the attack indicates the true nature of the risk that could be realised were such an offence to occur.

 I am satisfied on the basis of the expert evidence provided to the Court that the risk is of a level that cannot be managed under a supervision order, and I am also satisfied that the consequence of the risk, were it to be realised, would be of such a significant danger to the community that it is not possible to address that risk so as to provide adequate protection for the community through the terms of a supervision order.”  

Further psychiatric reports

23. [23]
    Pursuant to s 29 of the DPSO Act, further psychiatric reports were obtained from Dr Scott Harden dated 25 June 2021 and Dr Jane Phillips dated 14 June 2021 for the purposes of this review. 

Dr Scott Harden

24. [24]
    Dr Harden interviewed the respondent on 16 April 2021 and had previously interviewed the respondent on 23 March 2010, 19 October 2018 and 20 March 2020.
25. [25]
    Dr Harden undertook various risk assessments, with the results including as follows:

    1. (a)
       On the Static 99R – the respondent is placed in the well above average group of sexual recidivism relative to other adult male sex offenders.
    2. (b)
       Stable 2007 – the respondent achieved a score which placed him in the high needs group in terms of a sexual offender’s dynamic risk.
    3. (c)
       Hare Psychopathy Checklist – the respondent achieved a score of 26 which is “elevated” but did not reach the cut off point for a diagnosis of psychopathy.
    4. (d)
       SVR 20 – the respondent was placed in the high risk category.
26. [26]
    Further, in his report, Dr Harden concluded that the respondent met the diagnostic criteria for alcohol abuse in remission because of incarceration and also the criteria for personality disorder not otherwise specified with borderline, antisocial and dependent features.  Further, Dr Harden “suspected” that the respondent has a “paraphilia of some kind associated with touching non-consenting women and possibly specifically female health professionals”.
27. [27]
    Dr Harden also indicated some limited support for a diagnosis of a psychotic illness such as schizophrenia.  However, Dr Harden recognised that there was no material to suggest a connection between any possible psychotic illness and his offending.
28. [28]
    Dr Harden concluded that “it is most likely that his severe personality disorder, borderline intellectual function and deviant psychosexual arousal explain his symptoms and his sexual offending”.
29. [29]
    In respect of the assessment of risk, Dr Harden concluded:

    1. (a)
       The respondent’s future risk of sexual re-offence is high.
    2. (b)
       The risk of sexual re-offence would be high if the respondent was to be released from custody without further monitoring or intervention.
    3. (c)
       High level compulsory supervision and treatment consistent with a Supervision Order did not prevent his most recent re-offending.
    4. (d)
       The 2016 offences are extremely concerning, particularly because of the use of a weapon, his statements to others around the time of the offence about intending to kill, and the inability to predict far enough in advance the “acute risk factors that led to the offence despite high levels of supervision at that time”.
    5. (e)
       Community risk management is difficult on the current information as there were no clear warning signs until the alcohol intoxication and the offending followed rapidly after alcohol intoxication.  This means that the alcohol intoxication was not a useful marker in terms of preventing offending.
    6. (f)
       There are underlying issues with the respondent in relation to health care settings and female health professionals.  The respondent has never been able to provide adequate insight into the issues.
    7. (g)
       Dr Harden cannot see how a Supervision Order will meaningfully reduce the respondent’s risk of sexual re-offending in the community. 
30. [30]
    Dr Harden stated:

“The only additional risk reduction strategy that I can generate at this time is libido lowering medication.  He may have medical issues which are a contraindication to this (some prostatic symptoms recorded in some notes).  It would be hard to know whether this would be sufficient to alter my opinion on risk management in the community.”

31. [31]
    In his report, Dr Harden made the following recommendation:

“A voluntary trial of testosterone lowering agent such as cyproterone or medroxyprogesterone might be useful.  This is justified by the seriousness and persistence of his offending.  This would reduce libido and might decrease risk of sexual recidivism if libido is a significant component to the sexual offences.  This would require medical assessment and pathology monitoring of testosterone levels and for side effects.  I am not sure if the Prison Mental Health Service would undertake this treatment.  If not I would recommend Dr Arthur his previous treating forensic psychiatrist be involved or alternatively Dr Moyle.”

Dr Jane Phillips

32. [32]
    Dr Phillips examined the respondent on 24 April 2021.  Dr Phillips had previously prepared reports dated 26 November 2018 and 30 March 2020.
33. [33]
    In her report, Dr Phillips states that her opinion remains unchanged from her previous reports.  In her opinion, the respondent has:

“a complex presentation consisting of Schizophrenia; Borderline Intellectual functioning (Full Scale IQ 74); the paraphilic disorders of Frotteuristic Disorder and Exhibitionistic Disorder; Personality Disorder Not Otherwise Specified (with anti-social, borderline, psychopathic and dependent personality traits); and previous histories of Alcohol and Cannabis Use Disorders.  My rationale for these diagnoses remains unchanged from that outlined in my previous report.”

34. [34]
    Further, Dr Phillips states that in her opinion, the respondent continues to have residual psychotic symptoms from his Schizophrenia, which include overvalued paranoid ideas regarding co-prisoners and officers, intermittent thoughts that co-prisoners can read his mind and auditory hallucinations (but these are not currently command to harm himself or others).  Dr Phillips notes that there has been a change in his medication regime which may have contributed.
35. [35]
    Dr Phillips also noted that the respondent “continues to give contradictory responses as to whether or not he has experienced homicidal fantasies in the past” and concludes that it will continue to be important for there be longitudinal assessment of this aspect of the respondent’s presentation.
36. [36]
    Dr Phillips undertook various risk assessments, with the results including as follows:

    1. (a)
       Static 99R – the respondent achieved a score of 7 placing him in the category described as well above average for being charged or convicted of another sexual offence.
    2. (b)
       The risk for sexual violence protocol -  the respondent scored in the high range for future sexual offending.  It was noted there had been some improvements however, the respondent’s risk of sexual re-offending remains in the moderate to high range.
    3. (c)
       Stable 2007 – the respondent was in the high needs group in terms of a sexual offender’s dynamic risk.
    4. (d)
       Psychopathy Checklist – the respondent achieved a score of 24.
    5. (e)
       Historical Clinical Risk – the respondent’s risk of physical violence offending in the future was in the moderate to high range.
37. [37]
    On the overall risk assessment, Dr Phillips concluded:

    1. (a)
       The respondent’s risk of future sexual re-offending falls in the high range in the longer term, if released from custody without a Supervision Order.
    2. (b)
       Completion of the Inclusions Sexual Offending Program has seen some modest improvement in dynamic risk factors for sexual offending.
    3. (c)
       If the respondent were to be released under a Supervision Order, his risk would be reduced from high to moderate.
    4. (d)
       There remains a concern that the sexual re-offending in 2016 represented an escalation given that:

       1. it involved sexual offending whilst using a weapon;
       2. the respondent relapsed to alcohol use and was intoxicated at the time of the re-offence;
       3. the re-offending occurred despite stringent monitoring of the Supervision Order with the High-Risk Offender Management Unit (HROMU), forensic psychologist and forensic psychiatrist; and
       4. there were also few objective factors which were detectable by those monitoring him that alerted them to a worsening of dynamic risk factors. 
    5. (e)
       It is also of concern the rapidity with which dynamic risk factors re-emerged and the respondent failed to disclose important risk related information to those treating and monitoring him.
38. [38]
    In her report, Dr Phillips states:

“It remains a concern that the sexual re-offending in 2016 represented an escalation given that it involved sexual offending whilst using a weapon; he relapsed to alcohol use and was intoxicated at the time of the re-offence; the re-offending occurred despite stringent monitoring of a Supervision Order with the HROMU, forensic psychologist and forensic psychiatrist; there were few objective factors which were detectable by those who are monitoring him that alerted those supervising him to a worsening of dynamic risk factors; the rapidity with which dynamic risk factors re-emerged; and that [the respondent] failed to disclose important risk related information to those treating and monitoring him.  It is also of significant concern that [the respondent] has given variable accounts as to whether or not he was experiencing homicidal fantasies leading up to the re-offence and whether or not he had thoughts to stab or kill the victim at the time of the 2016 offence.  During the Inclusion Program [the respondent] reported that he was experiencing command auditory hallucinations to kill at the time of the re-offence, but denied intention to act.  It is also a significant concern that during the Inclusions Program that [the respondent] described high risk situations included risky thoughts such as “I want to rape my psychologist”.  In addition, it is noted that [the respondent] continues to present with residual psychotic symptoms occurring in the context change from depot to oral antipsychotic medication; the onset of a thyroid condition requiring future surgery; and the stressor of court.”

39. [39]
    In respect of the risk of sexual re-offending, Dr Phillips expresses the view that the risk would increase in the setting of relapse to alcohol abuse, acute intoxication or psychosocial stressors, including relationship breakdowns, perceived rejections, loss of social supports, financial stressors or difficulty with his living situation.
40. [40]
    Further, Dr Phillips states:

“Whilst he has made some progress, [the respondent] continues to have challenges with adaptive coping skills to manage psychosocial stressors, and would be at risk of emotional collapse and returning to his long-standing maladaptive patterns of alcohol use or use of sex as coping in the context of psychosocial stressors.  The risk of sexual re-offending would also increase in the setting of non-compliance with psychotropic medication or a relapse of mood or psychotic symptoms, due to becoming more disorganised and disinhibited and being more likely to act upon underlying sexually deviant thoughts … The risk of sexual re-offending would also increase in the setting of increased sexual pre-occupation or rejection of supervision.”

41. [41]
    Dr Phillips identifies that the victim of future offending would likely be an adult female, either a stranger, or a female involved in his care or monitoring.  The sexual offending is most likely to take the form of touching of a non-consenting adult female’s breasts, buttocks or genitals, or exposing his genitals and masturbating in front of an unrelated adult female.
42. [42]
    Given the recent contravening offending, there is a risk that future sexual offending will also include offending against a female whilst armed.  There is a risk for future sexual offending to involve the most serious physical violence and the potential for serious psychological harm to future victims.
43. [43]
    Overall, Dr Phillips considered that the risk of further serious offending could be adequately managed under a Supervision Order, but this would require very assertive community management.
44. [44]
    The recommendations of Dr Phillips include:

    1. (a)
       that wherever practicable, the respondent be allocated to male case workers and clinicians.
    2. (b)
       he engage in a further sexual offending maintenance program.
    3. (c)
       prior to his release to the community there be clear alerts on the various State-wide data bases for public mental health services and emergency departments of the potential risks posed by the respondent to female staff and vulnerable female patients when in hospital, so that appropriate risk management strategies can be put in place if he presents to hospital.

Dr Anthony Tie

45. [45]
    On 20 August 2021, Dr Anthony Tie, consultant psychiatrist, Prison Mental Health Service, provided a brief report in respect of the respondent.  Dr Tie is the current treating psychiatrist for the respondent and the report sets out the current treatment of the respondent. 
46. [46]
    Dr Tie has indicated in his report to be willing to discuss with the respondent depot antipsychotic medication.  Further, the respondent will receive on-going psychiatric reviews by Prison Mental Health Service if detained on an on-going basis.

Dr Ken Arthur

47. [47]
    On 27 August 2021, Dr Ken Arthur provided a report in respect of the respondent.  This report particularly addresses the request for an assessment in relation to the suitability of commencing antilibidinal medication. 
48. [48]
    Dr Arthur had the benefit of considering the reports of Dr Harden and Dr Phillips and material provided from Dr Tie.  Dr Arthur also spoke with Dr Tie and Dr Crystal Pidgeon, Prison Medical Officer as recorded in his report.
49. [49]
    Dr Arthur’s report outlines the following opinion:

“[59]  I agree with the diagnoses of a Mixed Personality Disorder with antisocial, dependent and possibly borderline features.  I also agree that he has some form of paraphilia associated with the forcible touching of women, with an apparent preference for female hospital workers.  He has some form of psychotic illness.

[60] I concur that his future risk of sexual recidivism is high; his use of a weapon in the most recent offences does carry the risk that future offending may be associated with serious physical harm to the victim.

[61] Given the ambiguity around his psychiatric diagnosis, I would personally err on the side of caution and re-trial a depot antipsychotic.  Even in the absence of psychosis, antipsychotic medication can be useful in the management of affect regulation in patients with severe personality disorders.

[62] I believe that there is sufficient evidence of sexual preoccupation on the available history to warrant a trial of antilibidinal medication.  I am satisfied that [the respondent] has the requisite capacity to give informed consent for the use of these drugs, although to assist in his decision making I will provide him with some relevant information on the use and side effects of antilibidinals.  I am also satisfied that there are no medical contraindications to a trial of Cyproterone.  I intend to liaise directly with Dr Pidgeon in regard to ensuring that relevant baseline investigations are completed prior to the commencement of Cyproterone.  I am confident that with Dr Pidgeon’s assistance, [the respondent] can be safely commenced on this drug in the near future.

[63] I am willing to remain involved in his psychiatric management, although due to the nature of his recent offences, I would prefer not to see [the respondent] in my private practice office and will require a location where the safety of female staff can be assured.”

Supplementary reports of Dr Harden and Dr Phillips

50. [50]
    The report of Dr Arthur dated 27 August 2021 was provided to Dr Harden and Dr Phillips for their further consideration.
51. [51]
    Dr Harden provided the following further opinion on 31 August 2021:

“I support Dr Arthur’s recommendation of depot antipsychotic medication as part of the overall management of [the respondent]. 

 I also support his recommendation with regard to starting anti-libidinal medication such as Cyproterone in [the respondent].

 In my view both these medications should be started in custody and should be well-established (at least 3 months of treatment with a demonstrated decrease in testosterone) prior to a further review and risk assessment to assess if there is any decrease in risk associated with a supervision order in the community if he were then released on such an order.

 As I have stated in my most recent report it is my opinion at this time that a supervision order does not decrease the risk of sexual reoffending in the community to any appreciable extent (given the nature of [his] most recent offence).”

52. [52]
    Dr Phillips also provided a further opinion on 1 September 2021 which states as follows:

“I agree with Dr Harden and Dr Arthur regarding the appropriateness of a trial of anti-libidinal medication. 

 At the time of my assessment [the respondent] did not present as an imminent risk of sexual re-offending … a trial of anti-libidinal medication could occur whilst [the respondent] is in the community on a Supervision Order, at The Precinct, with very strict curfew conditions.  In this scenario, it is my opinion that he would represent a moderate to high risk of sexual re-offending.  However, given the potential seriousness of future sexual and violent offending and the difficulties posed during his previous period of management in the community, from a clinical risk management perspective there would be additional benefit in him commencing the anti-libidinal medication whilst in custody.  Having a therapeutic dose of anti-libidinal medication in place may increase the likelihood of a successful transition to the community.

 In the event that a decision is made for [the respondent] to remain in custody until he has been commenced on anti-libidinal medication, then it is recommended that his treating psychiatrist Dr Tie be informed of the potential release date so as to allow for planning for his referral to the local mental health service, and also to allow for Dr Tie to have further discussions with [the respondent] regarding re-commencing depot antipsychotic medication.  It remains my opinion that [the respondent] suffers from Schizophrenia and would benefit from re-commencement of depot antipsychotic medication.  However, I acknowledge the clinical complexity of his case and the differing diagnostic opinions.  Irrespective of the differing diagnostic opinions I note that Dr Tie has indicated his willing [sic] to consider and discuss recommencement of depot antipsychotic medications with [the respondent].  I also note that Dr Arthur has indicated that he would err on the side of caution and re-trial a depot antipsychotic medication.”

 Additional evidence regarding on-going treatment of respondent

53. [53]
    A further affidavit of Ms Jolene Monson affirmed on 2 September 2021 was filed at the hearing.
54. [54]
    Ms Monson is the manager of the HROMU within Community Corrections, Queensland Corrective Services.  The further affidavit of Ms Monson addresses the regime for the administration of anti-libidinal medication to the respondent in custody and how this would be facilitated and overseen by Queensland Corrective Services.
55. [55]
    The affidavit outlines:

    1. (a)
       Queensland Corrective Services engaged Dr Arthur to assess the respondent with regard to his ability and willingness to undertake anti-libidinal medication and to oversee the administration of the medication if it is to be prescribed to the respondent.
    2. (b)
       As identified in Dr Arthur’s report dated 27 August 2021, a trial of the anti-libidinal medication was identified as warranted and the respondent consented to the assessment of his suitability for the medication.
    3. (c)
       Dr Arthur will attend the Wolston Correctional Centre to confirm that the respondent is willing to consent to take the anti-libidinal medication on a trial basis.
    4. (d)
       The process for the administration of the anti-libidinal medication will be overseen by Dr Arthur who will liaise with Prison Health Services, Queensland Health, with regard to the prescription and administration of the medication.
    5. (e)
       Whilst Queensland Corrective Services can encourage an offender to take medication, it cannot compel someone to do so and consent may be withdrawn at any time.
    6. (f)
       If a Continuing Detention Order is affirmed, Queensland Corrective Services will make arrangements for Dr Arthur to see the respondent with a view to commencing the anti-libidinal medication as soon as possible.
    7. (g)
       Dr Arthur will have an ongoing role in monitoring the respondent’s state of health.
    8. (h)
       Queensland Corrective Services and Dr Arthur will be assisted by a process allowing for the provision of the respondent’s medical information in a timely and reliable way for review.  In this regard, Crown Law is preparing an authority to be sought from the respondent to facilitate the sharing of information between Dr Arthur and Dr Pidgeon and the Prison Health Services more generally.
56. [56]
    At the hearing, a further affidavit of Ms McLean sworn on 3 September 2021 was also filed. 
57. [57]
    Ms McLean states:

“9.  In anticipation of a continuing detention order being made, and with a view to the respondent commencing anti-libidinal medication in custody and, as noted by Dr Harden, for it to be well-established (at least three months of treatment with a demonstrated decrease in testosterone levels), I have started preparing for the next review of the continuing detention order.

10. In that regard, absent any other issues, I intend to arrange for the filing of the next annual review application by 31 January 2022.  In the usual course, the matter will then be managed on the Dangerous Prisoners List and will be regularly reviewed by the Court prior to the hearing of the application.”

58. [58]
    Ms McLean outlines preliminary arrangements for Dr Harden and Dr Brown to interview the respondent for the purpose of the next annual proceeding.  Dr Harden is available to interview the respondent on 27 January 2022 and Dr Brown has availability to interview the respondent on 3 February 2022.  Further, both doctors are available for an annual review hearing in February 2022.
59. [59]
    Ms McLean outlines that she will liaise with the Court, Dr Harden and Dr Brown, and Counsel for the applicant and the respondent’s legal representatives regarding a suitable listing of the hearing, including a special listing if necessary.

Applicant’s contentions

60. [60]
    The applicant identifies that there are two questions for determination as follows:

    1. (a)
       Whether the decision that the respondent is a serious danger to the community in the absence of a Division 3 order ought to be affirmed?
    2. (b)
       If such an affirmation is made, whether the respondent ought to continue to be subject to a Continuing Detention Order or be released from custody subject to a supervision order?
61. [61]
    In respect of the first question, the matters identified in s 13(4) of the DPSO Act are relevant to determine whether the respondent is a serious danger to the community in the absence of a Division 3 order.
62. [62]
    The applicant refers to the assessments that the respondent presents a high risk of sexual re-offence.  Further, the respondent has a personality disorder with borderline antisocial and dependent traits.
63. [63]
    Having regard to the psychiatric evidence, the applicant submits that there is evidence upon which the Court can be satisfied that the respondent is a serious danger to the community in the absence of an order under Division 3 of the DPSO Act.  In these circumstances, the applicant contends that the decision that the respondent is a serious danger to the community in the absence of a Division 3 order ought to be affirmed.
64. [64]
    In respect of the second question, whether supervision or continued detention is appropriate, this raises the discretion under s 30(3) of the DPSO Act.  The matters in s 13(4) of the Act are also relevant to the determination of this issue.
65. [65]
    The paramount consideration is the need to ensure adequate protection of the community and also to consider whether the adequate protection can be reasonably and practicably managed by a Supervision Order and whether the requirements of s 16 of the DPSO Act can be reasonably and practicably managed by Corrective Services.
66. [66]
    The psychiatric evidence does not support a finding that a Supervision Order would reduce the high risk to an acceptable level if the respondent were released.
67. [67]
    In particular, the applicant submits that a Supervision Order contains a series of requirements, each designed to identify circumstances of escalating risk such that a contravention of that requirement could be an indicator of escalating risk.  The applicant relies on the view of Dr Harden that he cannot identify how a Supervision Order will meaningfully reduce the risk of sexual re-offending in the community in respect of the respondent.
68. [68]
    Dr Phillips also does not identify that the imposition of a Supervision Order would have any meaningful reduction in risk.  This is particularly so given the 2016 offending where the contravention was not able to be detected in a timely way and acted upon. 
69. [69]
    Further, in respect of the 2016 offending, the applicant contends that none of the “trip wires” built into a Supervision Order were able to operate to detect the escalation in risk of the respondent re-offending.
70. [70]
    In particular, there were no objective signs that the respondent was contemplating the actions that he committed that were able to be observed by the respondent’s Corrective Services officers, psychologists or psychiatrists.
71. [71]
    In particular, the applicant describes the 2016 offending in the following terms:

“The circumstances of the 2016 events are chilling.  The respondent took a knife whilst intoxicated, perhaps with the intention of assaulting and perhaps, killing a female hospital employee.”

72. [72]
    In the intervening period whilst the respondent has been in custody, the applicant submits that nothing has altered which would indicate that a Supervision Order is able to be constructed which would provide adequate protection to the community.
73. [73]
    The applicant acknowledges that ordinarily, a Supervision Order is to be preferred, however in the current circumstances, it is submitted that the psychiatric evidence displaces that preference.  The adequate protection of the community cannot be ensured by the respondent’s release on supervision.
74. [74]
    In relation to the Court’s discretion pursuant to s 30(3) of the DPSO Act, the applicant submits that the further psychiatric evidence demonstrates that the adequate protection of the community can only be ensured by the respondent continuing to be subject to a Continuing Detention Order.
75. [75]
    The applicant notes that “to the respondent’s credit, he will accept the administration of antilibidinal medication and does not contest a finding he continue to be subject to a Continuing Detention Order.  Such an order will facilitate his treatment”.
76. [76]
    The applicant contends that the psychiatric evidence supports the administration of the proposed medications commencing whilst the respondent is in custody and once the respondent has demonstrated stability on the medication, it would be appropriate to undertake a further review of the respondent’s Continuing Detention Order.  The applicant properly recognises that it would be appropriate to have this review at an earlier time than what would ordinarily be the case.
77. [77]
    In all of the current circumstances, and having regard to the respondent’s risk, the applicant contends that the only way that the risk can be adequately managed is by the respondent’s continuing detention and whilst in custody he undertakes the recommended treatment.

Respondent’s position

78. [78]
    Brief submissions have been provided on behalf of the respondent which state as follows:

“1.  The Respondent does not challenge he is a serious danger to the community in the absence of a Division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 [DPSO Act].

2. The Respondent does not seek at this review an order for supervision under the Act [DPSO Act] but concedes an order for his continuing detention be made.

3. The Respondent however would like his treatment with anti-libidinal medication to commence as soon as possible.”

Consideration

79. [79]
    Whilst the respondent does not challenge the orders sought by the applicant, it is still necessary for the Court to be satisfied to the relevant level of satisfaction and to reach the view that it is appropriate that the respondent continue under a Continuing Detention Order.

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

80. [80]
    This is not contentious between the parties or between the psychiatrists.
81. [81]
    The psychiatric evidence clearly establishes the respondent’s risk of sexual re-offending is high in the absence of an order made under Division 3 of the DPSO Act and that he has outstanding treatment needs.
82. [82]
    In the circumstances, I am satisfied that the respondent presents as a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made on 22 June 2020 be affirmed.

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

83. [83]
    The paramount consideration under s 30(4)(a) of the DPSO Act is the adequate protection of the community.  On all of the evidence before the Court, I cannot be satisfied that the adequate protection of the community could be reasonably and practicably ensured by a Supervision Order.
84. [84]
    Given the respondent’s assessed risks, his outstanding treatment needs and the nature of his personality disorder with borderline antisocial and dependent traits, there is a real risk of re-offending if the respondent does not complete the relevant treatment in custody with a view to reduce the risk to an acceptable level on release to the community. 
85. [85]
    The psychiatric evidence supports the view that the recommended treatment commence in custody and the Continuing Detention Order will facilitate this ongoing treatment.

Release on a Supervision Order or the Continuing Detention Order to be maintained

86. [86]
    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 22 June 2020.
87. [87]
    An important consideration is that once the respondent has demonstrated stability on the recommended medication, it will be appropriate to undertake a review of the Continuing Detention Order.  The applicant acknowledges that it would be appropriate for this review to occur earlier than the usual timing and has indicated that steps have been undertaken to schedule a review hearing in February 2022.
88. [88]
    This timing should be adopted as far as it is practicable to enable the respondent to have his continued detention further considered in light of the recommended treatment.  Directions will be made to facilitate the next annual review in February 2021.

Orders

89. [89]
    Accordingly, 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 DPSO Act, THE ORDER OF THE COURT IS THAT:

1. Pursuant to s 30(1) of the DPSO Act, the decision made on 22 June 2020 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSO Act, be affirmed.

2. Pursuant to s 30(3) of the DPSO Act, the respondent continue to be subject to the Continuing Detention Order made on 22 June 2020.

90. [90]
    Further, to facilitate the ongoing treatment of the respondent, THE COURT DIRECTS THAT the applicant provide to Queensland Health copies of the following documents:

    1. (a)
       The report of Dr Scott Harden dated 25 June 2021;
    2. (b)
       The report of Dr Jane Phillips dated 14 June 2021;
    3. (c)
       The email from Dr Scott Harden dated 31 August 2021;
    4. (d)
       The email from Dr Jane Phillips dated 1 September 2021;
    5. (e)
       The report of Dr Ken Arthur dated 27 August 2021;
    6. (f)
       The report of Dr Anthony Tie dated 20 August 2021.