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Attorney-General v SLS (No 2)[2021] QSC 243

Attorney-General v SLS (No 2)[2021] QSC 243

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v SLS (No 2) [2021] QSC 243

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

SLS

(respondent)

FILE NO/S:

BS No 5194 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

5 October 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2021

JUDGE:

Williams J

ORDER:

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 (Qld) (DPSO Act), THE order OF THE COURT IS that:

  1. Pursuant to s 30(1) of the DPSO Act, the decision made by Burns J 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)(a) of the DPSO Act, it is ordered that the respondent continue to be subject to the Continuing Detention Order made by Burns J on 18 September 2019.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where an order was made in September 2019 that the respondent was a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) and detained in custody for an indefinite term for control, care or treatment – where the applicant applied under Part 3 of the DPSO Act for the First Annual Review of the Continuing Detention Order made in respect of the respondent – where the application was adjourned as an issue had arisen whether the respondent had an impaired capacity – where the question of the respondent’s capacity was referred to QCAT for determination – where orders were made appointing the Public Guardian as guardian for the respondent – where further psychiatric reports were obtained for the purposes of the review – whether the respondent is a serious danger to the community in the absence of a Division 3 Order – whether adequate protection of the community can be ensured by the respondent’s release on a supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 27, s 30

Attorney-General for the State of Queensland v Anderson [2020] QSC 142, considered

Attorney-General for the State of Queensland v SLS [2021] QSC 111, cited

COUNSEL:

J Tate for the applicant

S Robb for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

  1. [1]
    This is an application by the Attorney-General for the State of Queensland (the applicant) under Part 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) for the First Annual Review of the Continuing Detention Order made in respect of the respondent. 
  2. [2]
    On 18 September 2019, Burns J found that the respondent was a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the DPSO Act and ordered that the respondent be detained in custody for an indefinite term for control, care or treatment.
  3. [3]
    On 25 August 2020, the applicant filed an application for the First Annual Review.  On 15 February 2021, the hearing date for the First Annual Review was vacated.
  4. [4]
    The application was adjourned as an issue had arisen whether the respondent had an “impaired capacity”.  The matter was listed before me for consideration of the respondent’s representation in the DPSO Act proceedings and the management of his affairs.
  5. [5]
    On 24 May 2021, I made orders including referring the question of the respondent’s capacity to the Queensland Civil and Administrative Tribunal (QCAT) for determination.[1] 
  6. [6]
    On 26 July 2021, Member Endicott made orders including appointing the Public Guardian as guardian for the respondent for the following personal matters:
    1. (a)
      Accommodation;
    2. (b)
      Provision of services, including in relation to the National Disability Insurance Scheme;
    3. (c)
      Legal matters being the current proceedings in the Supreme Court of Queensland to review the Continuing Detention Order made under the DPSO Act.
  7. [7]
    This appointment is for a period of two years or until further order of the QCAT.
  8. [8]
    Between 6 May 2021 and 2 August 2021, the respondent was at the High Security Inpatient Service, The Park – Centre for Mental Health, for treatment.  On 2 August 2021, he was released to the Woodford Correctional Centre. 
  9. [9]
    On 17 August 2021, an updated clinical report was provided by Dr Sarah Wilson of Prison Mental Health, the current treating psychiatrist of the respondent.
  10. [10]
    On 20 August 2021, an addendum report was prepared by Dr Eve Timmins, to supplement her original report dated 6 November 2020. 
  11. [11]
    On 24 August 2021, Dr Scott Harden prepared an addendum report, to supplement his report dated 16 December 2020.
  12. [12]
    The First Annual Review was listed for hearing on 7 September 2021.  Section 27(1A) of the DPSO Act requires the hearing and all submissions to be completed within two years after the day the order first had effect, being 18 September 2021.
  13. [13]
    The Public Guardian retained Legal Aid Queensland on behalf of the respondent.  Counsel for the respondent has been able to obtain instructions from the respondent and written and oral submissions have been provided based on those instructions for the First Annual Review.

Statutory scheme

  1. [14]
    Section 27 of the DPSO Act provides for periodic reviews as follows:

“27  Review—periodic

  1. (1)
    If the court makes a continuing detention order, it must review the order at the intervals provided for under this section.
  1. (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.
  1. (1B)
    There must be subsequent annual reviews while the order continues to have effect.
  1. (1C)
    Each annual review must start within 12 months after the completion of the hearing for the last review under this section.
  1. (2)
    The Attorney-General must make any application that is required to be made to cause the reviews to be carried out.”
  1. [15]
    Section 30 of the DPSO Act directs the Court on the hearing of the review as follows:

“30  Review hearing

  1. (1)
    This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.
  1. (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
  1. (b)
    to a high degree of probability;

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

  1. (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
  1. (b)
    be released from custody subject to a supervision order.
  1. (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
  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
  1. (ii)
    requirements under section 16 can be reasonably and practicably managed by corrective services officers.
  1. (5)
    If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order.
  1. (6)
    In this section—

 required matters means all of the following—

  1. (a)
    the matters mentioned in section 13(4);
  1. (b)
    any report produced under section 28A.”
  1. [16]
    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.
  2. [17]
    Section 13 of the DPSO Act provides as follows:

“13  Division 3 orders

  1. (1)
    This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).
  1. (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
  1. (b)
    if the prisoner is released from custody without a supervision order being made.
  1. (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
  1. (b)
    to a high degree of probability;

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

  1. (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;
  1. (b)
    any other medical, psychiatric, psychological or other assessment relating to the prisoner;
  1. (c)
    information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
  1. (d)
    whether or not there is any pattern of offending behaviour on the part of the prisoner;
  1. (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;
  1. (f)
    whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
  1. (g)
    the prisoner’s antecedents and criminal history;
  1. (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;
  1. (j)
    any other relevant matter.
  1. (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
  1. (b)
    that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
  1. (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
  1. (ii)
    requirements under section 16 can be reasonably and practicably managed by corrective services officers.
  1. (7)
    The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”
  1. [18]
    In the decision of Attorney-General for the State of Queensland v Anderson[2] Davis J summarised the effect of s 13:
  1. “[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’;[3]
  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;[4]
  3. (c)
    a ‘serious sexual offence’ is, relevantly here, ‘an offence of a sexual nature … involving violence; or … against a child …’;[5]
  4. (d)
    orders under Division 3 are:
    1. a continuing detention order;[6] or
    2. a supervision order;[7]
  1. (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. make no order;
    2. make a continuing detention order; or
    3. make a supervision order;[8]
  2. (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’;[9]
  3. (g)
    if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;[10] and
  4. (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.[11]
  1. [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[12] 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.’[13]”

  1. [19]
    Further, his Honour helpfully summarised the process that is to be undertaken under s 30:
  1. “[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

  1. [20]
    The respondent is an Indigenous man with a history of serious sexual offending including multiple counts of rape and indecent treatment of children.  Burns J described the respondent’s criminal history and the index offences as follows:
  1. “[5]
    By way of background, the respondent’s criminal record stretches back to his mid-teens and includes convictions for burglary, stealing, assaults with violence, sexual offences, drug offences, breaches of bail conditions, breaches of immediate release orders and probation orders, enclosed land offences, wilful damage and general dishonesty. Over a 15 year period between the ages of 13 and 28, the respondent was convicted of around 200 offences. So far as his convictions for sexual offences are concerned, they followed pleas of guilty in the District Court at Cairns on three separate occasions. I deal with each group of offences in order.
  1. [6]
    On 22 January 2007, the respondent pleaded guilty to one count of indecent treatment of a child under the age of 16 years and one count of entering a dwelling with intent by break at night. The victim was a 14 year old girl who was known to the respondent and resided with her parents in Yarrabah. At about 2.30 am on 27 January 2006, the respondent broke into a dwelling when the victim was asleep in her bedroom. Her father and mother were asleep in another bedroom. The victim awoke when she felt someone touching her on her vagina. She saw the respondent leaning over her bed, and heard him say something to her. She screamed for her father and, with that, the respondent ran from her room. Her father took the victim to the police station, and identified the respondent as someone he knew was a friend of his son. The respondent was apprehended and interviewed by the police. He gave a largely false account. When sentenced by his Honour Judge Griffin QC, it was accepted that the respondent touched the victim ‘on the outside of her genital area’ and that, when he did so, he had a ‘very drunken intent’. He was sentenced to two years imprisonment for the enter dwelling with intent by break at night offence and 12 months imprisonment for the indecent treatment offence, each of which was suspended after serving eight months for an operational period of two years;
  1. [7]
    Only a few days before he pleaded guilty to the offences before Griffin QC DCJ, the respondent committed the same offences against a different child complainant, and in very similar circumstances. On 3 September 2007, he pleaded guilty to one count of indecent treatment of a child under the age of 16 years and one count of entering a dwelling with intent by break at night. The offences were committed in the early hours of 19 January 2007. Again, the family of the victim, a 12 year old girl, was known to him. The respondent gained entry to the family home through an unlocked window and found the victim asleep in her bedroom. She awoke to him lying on the bed next to her with his erect penis exposed. She took fright and ran from the room. When interviewed by police, he again gave a largely false account but did say that he had consumed three to four casks of wine since the previous morning as well as four to five ‘cones’ of marijuana. The respondent was sentenced by his Honour Judge White to three years imprisonment for the enter dwelling with intent by break at night offence and two years imprisonment for the indecent treatment offence, with a parole eligibility date of 22 March 2009;
  1. [8]
    As earlier mentioned, on 28 May 2013, the respondent pleaded guilty to three counts of rape and nine counts of indecent treatment of children under the age of 16 years. Some of the counts charged circumstances of aggravation involving a child under 12 years old or a child under the respondent’s care. These offences are referred to in the material as the ‘index offences’. The circumstances were as follows:
  1. (a)
    Rape x 3: The three counts of rape constituted one episode of offending on 19 March 2011. The sentencing judge, his Honour Judge Harrison, recounted the facts:

‘These charges involve you going into the bedroom of a 15 year old girl and raping her on three separate occasions. Earlier that evening you had been a guest in her grandmother’s home where the young girl was staying at the time. You had been one of a group of people who’d been there playing cards and drinking. The house was shut after everybody left and everyone else went to bed. You somehow managed to get back in by knocking on the door and someone there let you in and you then proceeded, at sometime around 4 a.m., into the bedroom of this 15 year old.

You then took advantage of her and committed three separate rapes. The first involved the insertion of your tongue in her vagina, which comes within the extended definition of rape. On the second occasion, you placed your penis inside her vagina and on the third occasion you penetrated her vagina with one of your fingers.

When you first went in there you tried to take her shorts off. She told you to get off. She told you to go and get her phone and a drink. You said you’d get them for her but you returned a short time later and pushed her back down on to the bed and lay on top of her. Then, importantly, you told her you had a knife and you threatened to stab her with the knife if she didn't let you do it.

There’s no proof that there was a knife but I view very seriously the threat that you did make to the effect that you had one and to the effect that you would stab her if she did not go along with what you intended to do. Obviously there will have to be a substantial sentence imposed because of that offending’;

  1. (b)
    Indecent treatment of children under 16, child under 12 years, under care x 2: These offences occurred sometime between late 1999 and 2004. The victim was one of the respondent’s younger brothers who was aged between five and 10 years of age at the time. The respondent rubbed his penis on his brother’s buttocks outside of his shorts and then removed his own shorts, exposed his penis, and rubbed his brother’s hand on it;
  1. (c)
    Indecent treatment of child under 16, child under 12 years x 2: The victim was the respondent’s younger sister who was between 10 and 11 years of age at the time. Although it is not clear, it is likely that these offences took place between October 2000 and October 2001. The offending involved the respondent getting into his sister’s bed and rubbing his penis against her buttocks on the outside of her shorts. He also lifted her t-shirt, rubbed her breasts and rubbed her genitals underneath her underwear;
  1. (d)
    Indecent treatment of child under 16 (expose), child under 12 years: This offence took place between early 2004 and early 2007. The victim was the respondent’s niece. She was between four and seven years old. He exposed his penis and masturbated whilst his niece was watching;
  1. (e)
    Indecent treatment of child under 16 (expose): The victim was the same younger brother as is referred to in (b) above, although he was approximately 13 years of age at the time of the offence. The respondent masturbated in front of his brother;
  1. (f)
    Indecent treatment of children under 16, child under 12 years: The victim was the same niece as is referred to in (d) above. She was four or five years old at the time. The respondent touched his niece on the vagina through the outside of her clothing. She slapped his hand and walked away; and
  1. (g)
    Indecent treatment of children under 16 x 2: These offences again involved the same niece. She was then about nine or 10 years old. The first offence occurred when she was asleep at night. She awoke to the respondent beside her bed. One of his hands was up her shorts and he was touching her on her genitals through her underwear. The second offence involved the respondent entering her bedroom, standing beside her and masturbating while she was sleeping. He then pulled down his shorts, lay beside her and continued to masturbate whilst she slept. After a period of time, his niece awoke, and the respondent ceased masturbating.
  1. [9]
    When sentencing the respondent to an effective head sentence of imprisonment for eight years and six months, Harrison DCJ, made it clear that the offences summarised in (b) and (c) of the preceding paragraph most likely occurred when the respondent was under 17 years of age and, as such, he was dealt with for those offences as a child. The balance of the offences occurred when the respondent was an adult. The respondent’s ‘serious addiction to cannabis’ and ‘problems with alcohol’ were noted along with a diagnosis reported by Dr Maguire, psychiatrist, on 28 June 2012 to the effect that he suffered from paranoid schizophrenia manifesting in ‘delusional beliefs and auditory hallucinations’.”
  1. [21]
    In making an order that the respondent be detained in custody for an indefinite term for control, care or treatment, Burns J concluded:
  1. “[33]
    I have no doubt that the respondent is a serious danger to the community in the absence of an order under Division 3 of the Act. Each of the reporting psychiatrists expressed the opinion that the respondent’s unmodified risk of the commission of a serious sexual offence was high. He has a number of serious mental health issues, little in the way of treatment, a perfunctory insight into his offending behaviour or the need to address the causes of it, next to no motivation to change (if not a determination not to change) and, as Dr Harden said, a ‘constellation of very severe risk factors’. This all amounts to the ‘concerning picture’ spoken of by Dr Timmins.
  1. [34]
    On the face of things, the more difficult question in this case is whether the adequate protection of the community can be reasonably and practicably managed by a supervision order. That is because of the difference in the written opinions of the psychiatrists regarding the extent to which a supervision order would reduce the risk to the community represented by the respondent: Drs Moyle and Timmins do not consider that a supervision order would have any significant reducing effect on the risk whereas Dr Harden expressed a contrary view.
  1. [35]
    The applicant of course bears the onus of demonstrating that a supervision order would afford inadequate protection to the community and, in the end, I am satisfied that this is so. In coming to that conclusion, I was very much assisted by the oral evidence of each of the psychiatrists. In particular, it became clear that Dr Harden’s opinion as to the reducing effect on risk of a supervision order was dependent on the ‘critical assumption’ I discussed earlier (at [23]), that is to say, that the respondent would ‘prefer not to return to custody’ and, if that is so, there would be an ongoing incentive for him to abide by the conditions of a supervision order. To my mind, it would be folly to make such an assumption in this man’s case, at least at this time. Indeed, as Dr Moyle opined, it is more probably the case that the respondent is determined not to exercise control over his risk factors if he is released.”

Updated psychiatric evidence

  1. [22]
    For the purposes of the Division 3 hearing in September 2019, there were reports from Dr Moyle, Dr Timmins and Dr Harden.  The psychiatric diagnoses in respect of the respondent were as follows:
    1. (a)
      Dr Moyle diagnosed Paranoid Schizophrenia (differential Drug Induced Psychosis), Psychopathy, Antisocial Personality Disorder, Drug and Alcohol Use Disorders, Childhood ADHD (possible) and possible Paedophilia (non-exclusive by age or gender).
    2. (b)
      Dr Timmins provided a similar diagnosis but with the addition of Exhibitionism (and possible rape fantasies).
    3. (c)
      Further, Dr Harden’s diagnosis was consistent with Dr Moyle and Dr Timmins, save for the diagnosis of Intellectual Disability.  Dr Harden diagnosed Antisocial Personality Disorder – severe, with Psychopathic features, Paedophilia, Nonexclusive (provisional), Polysubstance Abuse – in remission due to incarceration, Schizophrenia – Paranoid Type and Mild Intellectual Disability.

Psychiatric evidence for First Annual Review

  1. [23]
    For the purposes of the First Annual Review which was originally listed in February 2021, Dr Timmins and Dr Harden provided reports dated 6 November 2020 and 16 December 2020 respectively.
  2. [24]
    The diagnoses of Dr Harden and Dr Timmins remain unchanged from their earlier diagnosis in 2019.
  3. [25]
    Both Dr Timmins and Dr Harden in their 2020 reports were of the view that the respondent required treatment in custody, both for his mental illness and sexual deviance, before consideration could be given to release to the community under a Supervision Order.
  4. [26]
    In her November 2020 report, Dr Timmins expressed the following opinion:

“Without treatment, [the respondent’s] presentation is likely to continue as it has done over the previous year.  He is likely to experience a further deterioration in his psychotic illness with increasingly problematic behaviour will become increasingly problematic, potentially aggressive including sexually aggressive towards female staff in particular.

With respect to treatment of his sexual deviance and risk of serious sexual offending in the community, little has changed since he came under the Continuing Detention Order in September 2019.  While an individual psychologist has seen him for some sessions, he has not really engaged and the sessions were terminated due to his inappropriate behaviour towards her.

With the current situation, there is little to convince me that he will be anything but difficult to manage in any setting and, he is unlikely to engage in addressing these issues until he is more stable.

After treatment for his psychiatric illness, then [the respondent] may be able to engage in further treatment for his sexual offending with group programs and/or individual therapy with a psychologist prior to his release.

I am not entirely convinced that even with a more stable mental state he is likely to be able to address his risk to the community to a level where he could be managed safely.  This is due to the combination of psychotic illness, low intellect, paraphilia, personality dysfunction, substance use, poor insight and poor compliance with previous community correctional orders and mental health treatment.”

  1. [27]
    Dr Harden, in his December 2020 report, provided the following opinion:

“The critical issues for this man are his substance misuse, intellectual disability, psychotic illness, severe antisocial personality disorder with psychopathic features and probable paraphilia.

 Any future offence is likely to occur while intoxicated and be oriented towards younger victims.  It is less likely that physical violence will occur during the offending.  Physical injury of the victim is less likely.  Psychological trauma of the victim is very likely.

 In my opinion the monitoring and supports associated with a supervision order will not reduce the risk below moderate – high due to the untreated nature of his personality disorder and the uncontrolled nature of his psychotic disorder resulting in behavioural issues in custody. 

Recommendations

I recommend adequate treatment of his psychotic disorder to control his acute positive symptoms.  He will require long-term mental health service and psychiatrist follow-up.”

Treatment

  1. [28]
    As previously indicated, the respondent was transferred from the Woodford Correctional Centre to the High Security Inpatient Service, The Park – Centre for Mental Health, for treatment.  Following treatment, the respondent was returned to the Woodford Correctional Centre on 2 August 2021.
  2. [29]
    The respondent’s treating psychiatrist, Dr Sarah Wilson of Prison Mental Health, summarised the respondent’s condition following his return to the Woodford Correctional Centre in a report dated 17 August 2021. 
  3. [30]
    Dr Wilson’s opinion includes as follows:

“I reviewed [the respondent] at Woodford Correctional Centre today, 17 August 2021 in the company of Anila Diloi, Prison Mental Health Service Clinical Coordinator.  In response to your questions:

a)  his current psychiatric condition / diagnosis

  • [The respondent] has schizophrenia.  His symptoms are currently in remission.
  • [The respondent] has comorbid mild cognitive impairment
  • His mental state examination today was as follows:

Indigenous male appearing of his stated age in custodial attire and facemask (current pandemic precautions)

Pleased to see us

Recalled Anila

Pleasant and upbeat, spontaneously describing his plans for the future

Speech and thought form NAD

Mood good, affect bright and reactive

Denies auditory hallucinations, not observed to re responding to internal stimuli

Nil delusional ideation

Future orientated

Cognitively he appears brighter

Has reasonable insight, accepting of his diagnosis and can describe symptoms he previously experienced.

Judgement intact.

b)  his current treatment and management plan

  • [The respondent] is treated with depot paliperidone 150mg intramuscularly every month
  • He has been referred to the Indigenous Mental Health Intervention Program
  • He will be reviewed by myself approximately monthly and additionally if required
  • If [the respondent] was to be released from custody he would be referred to the local public Mental Health Service for ongoing treatment
  • He is subject to a Treatment Authority under the Mental Health Act (2016) Queensland.

c)  his responsivity to the current treatment

  • [The respondent] has had a good response to paliperidone medication
  • His symptoms have remitted and he has gained insight.

d)  advice (if possible, based on his responsivity to treatment) on the likely period for ongoing treatment at the Park before a discharge can be achieved

  • [The respondent] was discharged from The Park to Woodford Custodial Centre on 2 August 2021.

e)  any other relevant psychiatric information on [the respondent]

  • [The respondent] has a long-standing psychiatric illness that will require indefinite care
  • It would be advisable for this care to include attendance to his psychosocial and cultural needs as well as long term antipsychotic medication
  • I was [the respondent’s] treating psychiatrist during his time at The Park
  • On arrival to The Park [the respondent] was very unwell
  • He has made a marked improvement with pharmacotherapy
  • He has made efforts at improving his self-care and appears to be committed to continue to improve his physical and psychosocial wellbeing.”

Updated psychiatric reports for First Annual Review

  1. [31]
    Dr Wilson’s report was provided to both Dr Timmins and Dr Harden for their consideration to prepare addendum reports for the purposes of the First Annual Review.
  2. [32]
    Dr Timmins provided an addendum report by email dated 20 August 2021 which states as follows:

“[The respondent] appears to have responded well to treatment with an anti-psychotic during his admission.  He does, however, remain untreated with regards to his sexual offending.  Now that his mental state appears more stable he could be considered for engaging in group treatment programs and/or individual psychological treatment prior to his release.  His previous attempts at engaging have been unsuccessful due to his mental state.  He may do better now he is treated.

I remain of the opinion that he needs to complete some form of treatment for his sexual offending before release, even if he is released on a CSO.  He will require support and monitoring from PMHS to ensure medication compliance and a stable mental state so that he can benefit fully from the group sex offender programs and/or psychological intervention, the latter which should be with a male clinician.”

  1. [33]
    Dr Harden provided an addendum report by email dated 24 August 2021 which states as follows:

“I note that in essence [the respondent] was admitted to The Park Centre for Mental Health with a severe exacerbation of his psychosis due to his schizophrenia and notable at my interview in October 2020.  The report of Dr Wilson identifies that he was very unwell but responded well to pharmacological treatment and was stable and relatively well when discharged on 2 August 2021 to be transferred to Woodford Correctional Centre.  I note from your email that he was in the Caboolture Hospital from 5 August until 9 August 2021 for unspecified health concerns but returned to the Correctional Centre on 9 August 2021.

 The circumstances of his psychotic illness being better controlled does alter my risk opinion expressed in my report of 16 December 2020.  It most likely returns the risk to that expressed in my opinion of 20 August 2019.

 That is that the risk of sexual re-offence without a supervision order is in the well above average or high range and that a supervision order would reduce this to the average or moderate range.

 If released into the community he will need to be abstinent from substance use, comply with appropriate mental health treatment including his ongoing antipsychotic medications, have ongoing psychological treatment associated with his risk of sexual reoffending and likely will need practical NDIS support or similar to assist him in coping with a level of disability associated with a combination of his mild intellectual impairment and his residual negative symptoms of schizophrenia.

 Optimally if he were to be released on a supervision order this would require a degree of case planning across relevant agencies prior to his release.

 If he were to be placed on a supervision order the factors that increase his risk our long standing [sic] and unlikely to respond rapidly to interventions so I would recommend an order of 10 years or greater duration.”

Evidence regarding the management of the respondent

  1. [34]
    Ms Jolene Monson, the Manager of the High-Risk Offender Management Unit (HROMU) within Community Corrections, Queensland Corrective Services (QCS), provided an affidavit outlining the position as to the on-going management of the respondent in detention or on a Supervision Order in light of the addendum reports of Dr Harden and Dr Timmins.[14]
  2. [35]
    In respect of the risk assessment of the respondent, Ms Monson concludes:

“10. Based on the identified risk of the respondent expressed in the psychiatric evidence, QCS holds concerns regarding its ability to disrupt offence related behaviours should the respondent be released from custody subject to a supervision order, noting in particular that the expert psychiatric reports indicate that there are risk factors which need to be addressed prior to his release from custody to a supervision order.”

  1. [36]
    At paragraph 11 of the affidavit, Ms Monson identifies that if the respondent is subject to a Continuing Detention Order then QCS will:
  1. “(a)
    Continue to liaise with Prison Mental Health Services (PMHS), centre-based psychologists and his DPSOA case manager to monitor his mental health stability; and
  1. (b)
    Consider engaging a suitably qualified psychologist for the purpose of treatment to manage his risks of sexual offending.”
  1. [37]
    The affidavit of Ms Monson also addresses potential support under the National Disability Insurance Scheme.  At paragraph 21 it notes that the respondent has been approved for capacity building support funding to assist with obtaining assessment reports and support coordination.  However, the respondent is not approved for any funding for community support and/or accommodation under the existing plan.
  2. [38]
    At paragraph 23, Ms Monson also notes that on 20 August 2021, QCS contacted the NDIS support coordinator and were notified that the respondent had been referred for a functional capacity assessment.
  3. [39]
    In respect of ongoing psychological treatment of the respondent, at paragraph 33, Ms Monson identifies that if the respondent is subject to a continuing detention order, the HROMU will continue to monitor the respondent’s mental health and if suitable, engage a suitably qualified psychologist to consider the provision of intervention to address his offending behaviour.  The HROMU will continue to liaise with the centre-based psychologists, the DPSO case manager and the Prison Mental Health Services (PMHS).
  4. [40]
    Alternatively, if the respondent is released on a supervision order then HROMU would engage a suitably qualified psychologist to address his offending behaviour. 
  5. [41]
    In respect of psychiatric treatment, Ms Monson deposes to the respondent being subject to a treatment authority under the Mental Health Act 2016 (Qld).  If the respondent is subject to a continuing detention order then he will continue to receive ongoing psychiatric reviews under PMHS.  If he is released into the community subject to a supervision order then a referral to the Community Mental Health Service will be necessary.
  6. [42]
    In relation to accommodation, Ms Monson also addresses whether contingency accommodation is appropriate.  It is noted that the respondent will require intensive support from a number of agencies in order to ameliorate his risk if he was to be released to the community under a supervision order.  It is in these circumstances that Ms Monson deposes at paragraph 52 as follows:

“52.  QCS does not support or facilitate external in reach support or services accessing the contingency accommodation given safety and security concerns.  This is due to the risks associated with the cohort housed at the contingency accommodation and the absence of staff to facilitate access.  The only exception is emergency medical services who often attend with Queensland Police escort.  No external domestic, daily living or medical supports are permitted on premises.”

  1. [43]
    Further, Ms Monson states:

“53. Noting the opinions and recommendations of the psychiatrists, QCS holds concerns regarding the respondent’s suitability to be housed at QCS contingency accommodation.”

  1. [44]
    In respect of the anticipated functional capacity assessment by NDIS, QCS will consider any recommendations of the assessment when it is received.

Further psychiatric evidence from hearing

  1. [45]
    At the hearing on 7 September 2021, both Dr Timmins and Dr Harden gave further evidence in chief and were cross-examined.
  2. [46]
    Dr Timmins confirmed her view that the respondent presents with a complex mix of paranoid schizophrenia, an intellectual disability, together with paedophilia, psychopathy, anti-social personality disorder and drug and alcohol disorder.  The respondent’s treatment of his mental illness is at the very early stage but he is now well enough to be discharged to the prison environment.  The respondent’s mental illness will require on-going treatment.
  3. [47]
    Further, the respondent presents with paedophilia and Dr Timmins is also concerned that exhibitionism and voyeurism are present as well.  These complex issues need lifelong management. 
  4. [48]
    The respondent’s history of drug and alcohol abuse and his intellectual impairment, high sex drive and proclivity for underage children, all impact on the risk of re-offending.  Additionally, the respondent’s anti-social personality disorder and psychopathy results in him being difficult to manage and further adds to the complexity of managing the risks.  This is evidenced by the respondent’s previous breaches of community orders, not complying with rules and regulations and a long history of offending.
  5. [49]
    These factors all contribute to Dr Timmins’ conclusion that the respondent is at high risk of re-offending without a supervision order and needs to complete some form of treatment for his sexual offending before release on a supervision order.
  6. [50]
    Dr Timmins expressed the view that a male psychologist would be most appropriate to undertake treatment with the respondent to ensure that the respondent is able to learn and engage without being distracted.  This is particularly so given the sexualised behaviours that occurred in sessions with a female psychologist in Townsville.
  7. [51]
    Dr Timmins relevantly gave evidence as follows:
    1. (a)
      In relation to treatment to reduce the risk of sexual re-offending:

“… Over the next 12 to 24 months – just use that intermediate timeframe – what sort of treatment would you advise for [the respondent]?‑‑‑So now that his mental state is much more stable and he’s got an antipsychotic on board, the next thing I think should be addressed, from a clinical perspective, is – is the paraphilias.

Yes?‑‑‑And that will – maybe both either a group sex offending program or individual treatment.

Yes?‑‑‑I’m not sure which one would be best;  I – I think there’s evidence that he really struggled in the group setting.  That may have been due to his mental state;  this is 2015 ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ Indigenous sex offending program.

Yes?‑‑‑That may have been his mental state at the time.

…  With treatment onboard, he may not struggle as much in the sex offending program, maybe the Inclusions program addressed at – at low intellect offenders, but there’s also an argument that perhaps he would do better overall with just individual treatment with a forensic psychologist.  He’ll be less worried and anxious, less wanting to avoid the sessions, maybe easier to engage as he builds rapport.  They can look at his paraphilia as well as various other aspects, you know, drug and alcohol use, the problems that he has with his personality that cause him issues;  these sorts of things might be better able to be discussed and a better relapse prevention plan come up with in – with an individual psychologist.

It’s sounding, Doctor, from your evidence, that it’s almost as if there’s been a reset now that his diagnosis has been confirmed.  He’s been up to high secure;  he’s now being treated.  The report is that he’s responding, at least initially, quite well to the current medication.  Would it be fair to say that now is the time to again review what sort of program, what sort of intervention could be done with him to reduce his overall risk to – of serious sexual offending to the community?‑‑‑Yes.

And is that what you would hope would be the result of an intervention, whether it be program or one-on-one?‑‑‑Yes.  Yes.  That, say, in 12 months time, if he’s been engaged in quite an intensive way, we would be then in a better position to relook at how he has – what he’s learned and how he’s learnt to manage himself better with all the risk factors, and then that would dovetail with the strict supervision order and it might be – we might be in a better position to look at community release then.

Yes.  For someone like [the respondent], how important is the relapse prevention plan?‑‑‑I think it’s very important, yes.”

  1. (b)
    In relation to the importance of those treating and managing the respondent to be fully aware of all of the issues and factors relevant to the respondent:

“… There’s the clinicians that might be looking after him at the district mental health service level?‑‑‑Yes.

But also there are the people – presumably at the precinct or elsewhere – who would be monitoring and managing him on a supervision order.  Within both cohorts, how important is it for them to be aware of the risk issues, be aware of his relapse prevention plan and other matters that might affect their supervision?‑‑‑I – I think it’s very important that – that everybody’s across all of those aspects of his case because he’s quite a complex case and there’s quite a number of factors that impact on his risk of sexual recidivism.  So both, you know, the clinicians as well as the people at the precinct – the caseworkers, QCS – need to know all of those factors and how they might change and impact on his risk in any given moment.”

  1. (c)
    The affect of the age of the respondent on the level of risk:

“…  Doctor, the last issue that I just briefly wanted to mention with you is that [the respondent] was born in 1984, which puts him between about 35 and 40;  is that significant in terms of understanding his risk and the length that he may remain at medium or high risk?‑‑‑Age is an important risk factor;  it’s included in the Static-99 risk assessment tool.  And, in general, as some – as – as men age, their testosterone goes down and then they become less preoccupied sexually, and – so, therefore, that’s reflected in when you score.  So someone who’s say, 70, has a lower score as that’s mitigated against because of his age, compared to someone who is in that sort of very young age bracket.  So we will see, as he ages, a score will go down, but because his original score is nine, that’s really quite high, so we’re not – he’s still going to score above six for quite some time to come.

And, with paedophilia, when would one expect a reduction due to age?‑‑‑That can be difficult with someone who’s got paedophilic interest.  They are more risky in general than other sex offenders.  I know most of his victims have been underage girls, but there is a male victim in there, so it means that he’s probably more risky than, say, other sex offenders who don’t have child sex offences in their – in their case.

Yes, I understand.  And then when we add antisocial personality disorder and psychopathy, it just makes it more difficult?‑‑‑The risk goes up even further, yes.”

  1. [52]
    Dr Harden relevantly gave evidence as follows:
    1. (a)
      The level of risk of re-offending on a supervision order:

“His unmodified risk remains high?‑‑‑That’s correct, yes.

And you think now that the supervision order might reduce that to moderate?‑‑‑Yes.

What’s the basis of the reduction?‑‑‑He’s more likely to be able to comply with the strictures of the order when he’s not acutely psychotic.

What role do you see his antisocial personality disorder and psychopathy playing in his ability to comply with orders at this point?‑‑‑Well, I mean, they impair it to some extent, but that’s why his risk remains in the, you know, average or possibly in the above-average range even on an order.”

  1. (b)
    In relation to treatment to reduce the risk of further serious sexual re-offending:

“… the issue of interventions to lower his risk of serious sexual offending, what clinical advice can you offer the court in relation to that issue?‑‑‑It’s not clear whether he’s suitable for a group program or not.  He was in a group program and didn’t cope with that.  He may have been unwell at the time, or he may have been under other pressure.  He is suitable for individual treatment.  I don’t know what the effect size of treatment will be in [the respondent] given his many difficulties.

Yes?‑‑‑So I don’t know what risk reduction will occur as a result of psychological intervention.  So I think that a much more rapid and larger reduction will occur in risk, or – as a result of the stretches of the supervision order, plus him being as well as possible from his psychotic illness, plus him having an appropriate suite of psychosocial supports in the community.  So it may well be that he’ll get a good effect from treatment, but he has a lot of difficulties and so I’m therefore not that confident.”

  1. (c)
    The importance of a relapse prevention plan:

“…  And at this point, we don’t have a relapse prevention plan for him?‑‑‑Not that I have seen.  And normally, a relapse prevention plan, in terms of the sexual re-offending is drawn out of the treatment process.

Yes, yes.  And that informs how he can be managed by Corrective Services whilst he’s on a supervision order as well, doesn’t it?‑‑‑It identifies important risks and strategies, yes.

  1. [53]
    In cross-examination, Dr Harden further provided his view in respect of the following:
    1. (a)
      The importance of a functional capacity assessment:

“… in your middle report – perhaps the substantive report, that you think it might be a good idea for [the respondent] to have an occupational therapy assessment?‑‑‑At that time, yes.  Because in order to so quantify his actual abilities ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ in – in terms of – well, basic activities of daily living, but also, what they call extended activities of daily living which are the more complicated things we have to do to get by in the community. 

I don’t know whether you’ve had the opportunity to see an affidavit under the hand of Jolene Monson that was circulated on – late on Friday.  But Ms Monson talks about the fact that [the respondent] has some NDIS funding and that on the 20th of August, QCS confirmed with the NDIS support coordinator that the respondent is being referred for a functional capacity assessment to assist with a additional NDIS evidence.  I assume that’s to benchmark him for what – in what ways the NDIEIS can – NDIS can assist him, but is that the type of assessment that you had in mind?  And is that the type of assessment that you think may be necessary to assist him to transition to the community or to identify what needs are required?‑‑‑Yes. 

And ideally, that would be done now?  Or what is – or ‑ ‑ ‑?‑‑‑Well, you – you ‑ ‑ ‑

‑ ‑ ‑ post-treatment, mid-treatment, or it’s not related?‑‑‑Okay.  So if he’s not acutely psychotic ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ that’s the best time to do it.  I note that in the recent notes from QCS that I was shown this morning, there is some talk that he’s hearing some voices.  But he probably hears the voices – I think, sort of on and off all the time.  I don’t know whether that’s a marker of him being very unwell or whether that’s just – doesn’t mean anything in particular.  So ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ you should do those assessments when people are not too unwell, in order to work out what their best abilities are.  But yes, in general terms, that’s the kind of assessment that’s required and it’ll fuel – fill the dual needs of meeting – you know, helping the NDIS understand what services he might need, but also, helping everyone else understand what services he might need for support.  Because he’s going to need quite a lot of support in the community ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ at a purely practical level.”

  1. (b)
    The benefits of completing sexual offender treatment in custody:

“I think that the benefits of sexual offender treatment are likely to take – also in this man, a – a little bit longer than it would in other people.  So I think that the main protections for – against re-offending if he is released on a supervision order are the structural aspects of the order that prevent him from accessing victims and similar – and make it – make – make offending very difficult.  But if you’re looking to the longer term, then you – we need to make some attempt at trying to see what can be achieved with treatment.  Now, it – and practically speaking, it’s often easier if you can do some of that while people are still in custody, so that they’ve got some experience of talking and people getting some sense of how mu – how – how – how much he might be able to achieve. 

…

You get some sense of engagement and – and a person’s commitment, for example.  Because the supervision orders are more effective at reducing risk if you are able to comply with them and if you are also – understand and are motivated to comply with them.”

  1. (c)
    What progress Dr Harden would like to see in the respondent to be able to consider suitability for release on a supervision order:

“first, I’d like to see his mental state when you talk with him, being obviously, as clear as possible.  His ability to understand, in broad terms, what’s going on, you know, in terms of his offences, the – the order he might go onto.  How he is going to comply with that, and also, perhaps, his – a bit more developed planning about things that he might like to – realistic things that he might like to achieve over time on a supervision order.  And ideally, a nicely developed plan about how all the services are going to work together when he’s – when he comes out of custody, because he’s going to need a fair bit of support.”

Applicant’s submissions

  1. [54]
    The applicant submits that the clinical evidence supports the respondent continuing to be subject to the continuing detention order.  In this regard, the applicant submits that the index offences, the clinical opinions of the psychiatrists and the longitudinal evidence provides acceptable and cogent evidence of sufficient weight to justify the continuation of the Continuing Detention Order.
  2. [55]
    Further, the applicant submits that the available evidence supports a finding that the respondent is a serious danger to the community in the absence of a Part 2 Division 3 Order and that a Continuing Detention Order should be preferred.
  3. [56]
    In particular, the applicant points to the opinion of Dr Timmins that a supervision order would not provide for the adequate protection of the community.  While Dr Harden is open to various risk management options, his risk assessment has not changed since his 2019 opinion.  In these circumstances, the applicant submits that the respondent remains an unacceptable risk.
  4. [57]
    Overall, the applicant contends that the respondent remains a high-risk recidivist untreated sex offender with a diagnosis of Paedophilia.  This case is further complicated by the need to manage the respondent’s risk of serious sexual reoffending within the context of the respondent’s psychotic illness.

Respondent’s submissions

  1. [58]
    As previously noted, the respondent now has the Public Guardian appointed for legal matters.  The written submissions made on behalf of the respondent in relation to the review of the Continuing Detention Order include the following:
  1. “(a)
    the respondent accepts that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order;
  1. (b)
    the respondent concedes that in the circumstances adequate protection of the community may not be reasonably and practicably managed by the imposition of a supervision order at this point in time, although notes that the evidence is no longer one way on the question;[15]
  1. (c)
    the respondent notes that his personal circumstances have materially changed since he was reviewed by the reporting psychiatrists and instructs that he wishes to avail himself of treatment opportunities.”
  1. [59]
    The respondent points to a number of matters in submissions including:
    1. (a)
      The respondent has responded rapidly to treatment and has been discharged from The Park on 2 August 2021.
    2. (b)
      The respondent will avail himself of any opportunities to engage in sexual offender treatment that are presented to him.
    3. (c)
      Now that the Public Guardian is appointed, the respondent will be assisted to liaise with QCS with the view to obtaining and establishing appropriate supports in the community.
    4. (d)
      As noted by Dr Wilson, the respondent’s symptoms of Schizophrenia have responded well to medication and he has obtained some insight. 
  2. [60]
    At the hearing on 7 September 2021, Counsel on behalf of the respondent acknowledged that the respondent’s mental health is subject to ongoing and involuntary management and it cannot be submitted that his symptoms have totally resolved.  However, it is acknowledged that there is progress and the respondent is in a far better position then he was when Dr Harden and Dr Timmins originally did their reports for the purposes of the First Annual Review.
  3. [61]
    The respondent also acknowledges that he has outstanding treatment needs and concedes that there is evidence to support the conclusion that a continuing detention order may be required.

Consideration

  1. [62]
    The respondent presents with a complex mix of factors including a lifelong mental illness (Paranoid Schizophrenia) and a mild cognitive impairment as well as other diagnoses including Antisocial Personality Disorder, Paedophilia and Drug and Alcohol Use/Polysubstance Abuse.
  2. [63]
    Further, the psychiatric assessments indicate the respondent’s unmodified risk of sexual reoffence is at the high or well above average (high) range.
  3. [64]
    A unique issue in this case is the dynamic of managing the respondent’s risk of serial sexual reoffending together with his established severe mental illness.
  4. [65]
    At the time that the psychiatrist reports were prepared in November and December 2020 for the purposes of the First Annual Review, the respondent was acutely psychotic.  However, since that time he has received treatment and it appears that he has made some significant progress.  However, it is acknowledged that he has ongoing treatment needs in relation to his psychiatric illness.
  5. [66]
    Separate to the treatment of the respondent’s psychiatric illness is also treatment relevant to his sex offending.
  6. [67]
    Previously, the respondent undertook the Getting Started: Preparatory Program, being a precursor to the more intensive group sexual offender treatment programs.  He also previously engaged in one-on-one treatment.  However, both these treatments were stopped as his mental health deteriorated. 
  7. [68]
    Now that he is receiving ongoing treatment and his symptoms of Schizophrenia have responded well to medication, it is recognised that the respondent may now be able to engage in a group sexual offender treatment program or alternatively, one-on-one treatment.  Which treatment option is to be preferred is yet to be finally determined.
  8. [69]
    The involvement of the Public Guardian now will also assist the respondent in liaising with QCS to obtain and establish appropriate accommodation and supports in the community following the anticipated functional capacity assessment.
  9. [70]
    The change in the respondent’s attitude and ability to engage in ongoing treatment is a positive development.  Further, as identified by Dr Timmins and Dr Harden in their oral evidence at the hearing, there are steps which can be undertaken in the next period which will assist the respondent over the next 12 months (or earlier) to be in a better position for consideration as to whether the risks can be appropriately managed on a supervision order.

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

  1. [71]
    This is not contentious between the parties or between the psychiatrists.
  2. [72]
    Based on the reports of Dr Timmins and Dr Harden, and the evidence they gave orally at the hearing together with other affidavit and longitudinal evidence in respect of the respondent, 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.
  3. [73]
    The psychiatric evidence identifies that the respondent’s unmodified risk of sexual reoffending is at the high or well above average (high) range.  Dr Harden is of the view that a supervision order itself would reduce the respondent’s risk to some degree from high to potentially moderate or moderate to high.[16]  Dr Timmins is of the opinion that the respondent’s risk remains high even on a Supervision Order as she is not convinced that “even the procedural restrictions of an order would assist decreasing his risk of sexual re-offending to the community”.
  4. [74]
    As a result of the respondent’s outstanding treatment needs and his particular diagnoses, the evidence supports the conclusion that the respondent remains a high-risk recidivist untreated sex offender with a diagnosis of Paedophilia.
  5. [75]
    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 by Burns J on 18 September 2019 be affirmed.

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

  1. [76]
    Given the respondent’s complex circumstances and ongoing treatment needs in relation to both his mental illness and his sexual offending, and the risk assessments by the psychiatrists there is an unacceptable risk of serious sexual re-offending. 
  2. [77]
    The respondent needs to engage with a group sexual offender program or on-on-one treatment in respect of his sexual offending.  Further, through either a group sexual offender treatment program or one-on-one treatment, the respondent needs to engage with a relapse prevention plan and risk management strategies.
  3. [78]
    Ongoing treatment whilst in custody will also enable consideration to be given to what conditions may be suitable in any supervision order to address the respondent’s particular circumstances.  This should also factor in considerations raised by the NDIS functional capacity assessment which will assist with consideration of accommodation and other support services which may be available and appropriate.
  4. [79]
    Whilst the respondent’s psychotic illness may be able to be managed in the community, without further treatment in custody in respect of his sexual offending, in particular his sexual deviance, the respondent remains a high risk untreated sex offender with a diagnosis of Paedophilia.
  5. [80]
    The paramount consideration under s 30(4)(a) of the DPSO Act is the adequate protection of the community.  The respondent concedes that in the particular circumstances, the adequate protection of the community may not be reasonably and practicably managed by the imposition of a supervision order at this point in time.
  6. [81]
    It is ultimately a value judgment for the Court as to whether a prisoner is a serious danger to the community.    However, the psychiatric evidence in this case is of particular importance, perhaps more than usual, given that there is the interaction between the respondent’s risk of serious sexual reoffending together with his severe mental illness which requires lifetime treatment and management.  This is further complicated by the existence of a mild cognitive impairment.
  7. [82]
    In the circumstances of this case, I accept and rely upon the psychiatric evidence in respect of the particular risks and management needs in respect of the respondent.  On all of the evidence, I cannot be satisfied that the adequate protection of the community could be reasonably and practicably ensured by a supervision order.

The Continuing Detention Order to be maintained

  1. [83]
    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 18 September 2019.
  2. [84]
    At the hearing it was recognised that:
    1. (a)
      the ongoing treatment of the respondent should be monitored and it may be appropriate to bring the next annual review application at an earlier time. 
    2. (b)
      it would be of assistance if Dr Timmins and Dr Harden, or other psychiatrists appointed, had the opportunity to interview the respondent in person to undertake an assessment of the respondent in order to prepare updated reports for the next review and to obtain the best insight into the respondent’s progress and particular risks.

Orders

  1. [85]
    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 by Burns J 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)(a) of the DPSO Act, it is ordered that the respondent continue to be subject to the Continuing Detention Order made by Burns J on 18 September 2019.

Footnotes

[1]Attorney-General for the State of Queensland v SLS [2021] QSC 111.

[2][2020] QSC 142.

[3]Section 13(1).

[4]Section 13(2).

[5]Section 2 and Schedule (Dictionary). As to the term “involving violence” see Attorney-General v Phineasa [2013] 1 Qd R 305 at 312-16, [23]-[45].

[6]Section 13(5)(a).

[7]Section 13(5)(b).

[8]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597, [34].

[9]Section 13(b).

[10]Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39].

[11]Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39].

[12][2006] QSC 268.

[13]At [30] and see also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 657, [225], [226].

[14]Affirmed 2 September 2021.

[15]This last point was not put as strongly in oral submissions in light of the further evidence from Dr Timmins and Dr Harden.

[16]T1-15, L1-4.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v SLS (No 2)

  • Shortened Case Name:

    Attorney-General v SLS (No 2)

  • MNC:

    [2021] QSC 243

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    05 Oct 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Attorney-General v Anderson [2020] QSC 142
2 citations
Jump To
Cite 1 - [2020] QSC 142
Cite 2 - [2020] QSC 142
Attorney-General v Francis[2007] 1 Qd R 396; [2006] QCA 324
2 citations
Jump To
Cite 1 - [2007] 1 Qd R 396
Cite 2 - [2007] 1 Qd R 396
Attorney-General v Phineasa[2013] 1 Qd R 305; [2012] QCA 184
1 citation
Jump To
Cite 1 - [2013] 1 Qd R 305
Attorney-General v SLS(2021) 8 QR 128; [2021] QSC 111
2 citations
Jump To
Cite 1 - [2021] QSC 111
Cite 2 - [2021] QSC 111
Attorney-General v Sutherland [2006] QSC 268
1 citation
Jump To
Cite 1 - [2006] QSC 268
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575
2 citations
Jump To
Cite 1 - (2004) 223 CLR 575
Cite 2 - (2004) 223 CLR 575

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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