Attorney-General v Flenady[2021] QSC 256

SUPREME COURT OF QUEENSLAND

1. [1]
   The respondent has accumulated an eclectic criminal history.  In 2003 he was convicted of unlawful stalking.  The offence involved sending obscene letters to a female neighbour.  In 2006, he engaged online with someone he thought was a 14 year old boy, to whom he suggested a meeting for sexual purposes.  He sent photographs of his erect penis to the “boy” who was, in fact, a police officer posing as such.
2. [2]
   In 2017 he was convicted, after a trial, of multiple offences against the 9 year old female child of his then partner.  On the victim’s version of events, the respondent was attempting to rape her; there was persistence and a degree of personal violence.
3. [3]
   In addition to his offending, he has demonstrated disregard for orders of the Court.  He has breached probation, domestic violence, and intensive correction orders.
4. [4]
   At least some of the offending - and in particular the 2017 offending – was marked by intoxication from alcohol.  His (at least partial) denial of that offending has made the prospect of paedophilia difficult to explore, but the nature of the online communication and the age of the complainant in the 2017 offences, raises that diagnosis as a distinct possibility.^[1]
5. [5]
   On 13 March 2020, Burns J upheld an application by the Attorney-General by finding that the respondent was a ‘serious danger to the community in the absence of a division 3 order’.  His Honour ordered that the respondent remain in custody for an indefinite term under a Continuing Detention Order for control, care and treatment. The Attorney-General now makes application, pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) for that Continuing Detention Order to be reviewed.
6. [6]
   His Honour’s judgment^[2] contains a summary of the respondent’s criminal history and the psychiatric evidence that was placed before him by Dr Arthur, Dr Beech and Dr Phillips. His Honour’s conclusions included:

[49]  It will be seen from the above summary of the expert opinion in this case that the psychiatrists agree that the respondent represents a high risk of sexually reoffending against children if he is released into the community.  Currently, he is very much an untreated sex offender.  His substance abuse issues are also yet to be treated.  He has limited insight with a very poor understanding of the drivers for his offending.  He lacks motivation to get to the bottom of any of this.  It is therefore perhaps unsurprising that he has no real appreciation of his risks for future sexual offending, let alone risk management strategies or appropriate plans for his release into the community.

[50]  As mentioned at the outset of these reasons (at [2]), the respondent through his counsel conceded that is a serious danger to the community in the absence of an order under Division 3.  He was right to make that concession.  The evidence all points one way.

[51]  I am satisfied by acceptable, cogent evidence and to the high degree of probability required by the Act that the evidence overall is of sufficient weight to justify the conclusion that the respondent is a serious danger to the community in the absence of a Division 3 order…

[57]  Here, each of the psychiatrists has expressed the opinion that it would be preferable for the respondent to undertake the GS:PP followed by the HISOP before consideration is given to his release from custody.  To my mind, such a course is not only preferable, it is essential.

[58]  It is not to the point to argue, as the respondent’s counsel did (at least in writing) that there are good reasons why the respondent is resistant to group therapy, that he is quite prepared to undertake individual therapy in the community under a supervision order and that there will now be a lengthy delay in the delivery of that therapy to the respondent if he remains in custody.  In the first place, the expert evidence is to the effect that the respondent’s resistance to group therapy is not uncommon and may be capable of being overcome.  Secondly, individual therapy is not an adequate substitute for group therapy, for the various reasons advanced by the psychiatrists in evidence and which are discussed above.  Thirdly, assuming the respondent now accepts that he will need to participate in group therapy, the expected delay before that will occur is most unfortunate but that does not change his current treatment status.  He is untreated and, if released on supervision, he will still be untreated.  Even if individual therapy in the community was to be regarded as an adequate substitute for group therapy, that may be expected to take a considerable period of time before it has any real effect.  As Dr Arthur said in evidence, if the respondent were to be released he would be leaving “jail pretty much the way he came into jail, with the same level of risk, the same lack of insight and with an inadequate plan to manage his risks and to better understand his triggers and … specific risk factors for his sexual reoffending”.

[59]  Although I accept that, were the respondent to be released on a supervision order on the strict conditions proposed in this case, there would be some reduction in the risk the respondent poses due to the strictures of such an order, the risk of commission of a serious sexual offence will remain unacceptably high unless and until the underlying causes of his sexual offending are properly explored and then addressed.  Currently, that can only be achieved through his participation in the GS:PP followed by the HISOP.  Individual psychological therapy as a forerunner to the GS:PP (and then running alongside the two successive group programs) is also indicated.

[60]  I am satisfied that that the community cannot be adequately protected by a supervision order.  He must be placed on a continuing detention order.

Conclusion

[61]  The respondent will be detained in custody for an indefinite term for control, care or treatment.  By s 27(1A) of the Act, this order must be reviewed within two years.

7. [7]
   On this review the Act directs my attention to considerations that mirror those which were relevant in proceedings before Burns J.  The threshold question involves an assessment of risk and, specifically, the risk that the respondent will commit a serious sexual offence^[3] if released from custody, or if released from custody without a supervision order being made.
8. [8]
   There has, since the matter was before Burns J, been some progress.  Some clinical intervention was provided by Mr Nick Smith, a Forensic Psychologist. 
9. [9]
   The respondent has been seen on four occasions^[4] by Mr Nick Smith.  Mr Smith said the respondent had engaged well with him, and presented as motivated and insightful into his history and his current treatment needs.  The respondent expressed a willingness to engage in individual therapeutic sessions if they were offered on an ongoing basis.
10. [10]
    He remained, however, resistant to attendance at group therapy. Having regard to certain features of the respondent’s background, I find his aversion to groups understandable. He suffered from awful abuse and bullying when he was young.  These led to the onset of symptoms of depression, anxiety and alcohol abuse, all of which worsened after the suicide of his brother. There is at least an explanation for his aversion to participation in group therapy.
11. [11]
    Such therapy is, however, the cornerstone of so much of the treatment included in programs calculated to rehabilitate sexual offenders. The respondent has therefore not received any treatment directed at the behaviour which is the reason for his incarceration. He presents before me as he did before Burns J, as “very much an untreated sex offender.”
12. [12]
    Importantly, however, he has also engaged in the “HISI” – a high intensity substance abuse program.  This has significance beyond its content, because it has involved the respondent overcoming his aversions and engaging in group therapy.  Against his “prejudicial background”, this is an important development.
13. [13]
    It is to be hoped that it will segue into participation in sexual offending programs that involve the same technique.  Indeed, the respondent has indicated to Dr Jane Phillips, Consultant Psychiatrist, that he is prepared to engage in a group sexual offending program in the community.  The difficulty, of which the respondent is well aware, is that the program in question is run only in prison.
14. [14]
    Dr Phillips^[5] concluded, unsurprisingly, that the respondent would benefit from engaging in that program.  Against the background of his refusal to do so whilst in custody, Dr Phillips was of the view that if the respondent was released from custody without a supervision order, the risk of future sexual reoffending was high.  In fact, even if released on the basis that he would be the subject of a supervision order, Dr Phillips still assessed the risk of sexual reoffending as being “in the moderate to high range”.  That is, the risk by her assessment was essentially unchanged from that which presented to Burns J.  It is to be inferred that there may be some alteration to that opinion if the respondent softened his position to the point where he undertook and completed the relevant program whilst in custody.
15. [15]
    Dr Beech interviewed the respondent on 1 June 2021.  Dr Beech agreed that the respondent was a high risk of reoffending if he was released into the community without supervision, originally expressing the belief that a supervision order would  reduce the risk of offending “probably into the moderate to low range.” In evidence Dr Beech allowed that to assess the risk as “low” might be “overstating it”, and expressed concern about the respondent’s ability to comply with a supervision order, given his past history of breaching other court orders. The doctor did point out that a supervision order would constrain the ways in which the respondent might offend. It would reduce his access to children, limit his ability to go online and restrict the consumption of alcohol which might release otherwise contained urges to offend.
16. [16]
    In the face of such evidence, accepted to be cogent, the respondent concedes the conclusion that there is a high degree of probability that he would be a serious danger to the community if released in the absence of an order made under Division Three of the Act.
17. [17]
    However, in the carefully articulated argument made on his behalf by Ms Robb, he maintains that individualised treatment such as the clinical intervention provided by Mr Smith could form part of a plan which, when incorporated into a supervision order, would reduce the risk to an acceptable level. He points to the difficulties involved in his engagement in group therapy given the fact that he (at least in part) denies having committed the “index offending”.  In the circumstances, it is submitted that his positive engagement with Mr Smith provides a basis for acting upon Dr Beech’s original opinion that a supervision order with strict conditions would reduce the risk of offending to the moderate to low range.  That is perhaps at least in part because the risk is, so it is submitted, of an offence that might involve “grooming”, and the order can be framed in such a way that alarm bells will ring if it increases. In consequence, the risk should be regarded as acceptable.
18. [18]
    The difficulties that remain, however, could be expressed in a recapitulation of that which was written by Burns J, reproduced at [7], above.  I agree with his Honour’s comments to the effect that the respondent should complete programs that explore and address the underlying causes of his sexual offending. This should be regarded as an essential prerequisite to the respondent’s release - it is necessary in order to inform the development of plans which will prevent a relapse.  These plans will, in turn, inform the requirements for and indeed, form a part of a supervision order.
19. [19]
    Although there is, as noted, some denial attaching to the circumstances of the crimes that led to his incarceration, the respondent is not one of those offenders described as a “complete denier”.  He has acknowledged enough about his behaviour for it to be expected that he can understand the benefits of and need for his completion of a sexual offenders program.  He has, by participating (in another context) in group therapy taken a difficult but highly commendable step in the direction towards rehabilitation.  It seems, on the materials, he is evincing an attitude that suggests his release on a supervision order is a realistic proposition, but he is not yet at that point.
20. [20]
    In the result, I order that:

1. The decision made by Justice Burns on 13 March 2020 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed.
2. The respondent, James Brian Robert Flenady, continue to be subject to a continuing detention order.