Attorney-General v Musso[2021] QSC 41

SUPREME COURT OF QUEENSLAND

1. [1]
   On 24 August 2018, the respondent was made the subject of a continuing detention order pursuant to section 13(5)(a) Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’).^[1] The first periodic review of the continuing detention order was heard on 25 November 2019.  On 17 December 2019, the Court affirmed the decision on 24 August 2019 that the respondent is a serious danger to the community in the absence of a Division 3 order, and ordered that he continue to be the subject of a continuing detention order.^[2]

2. [2]
   In this application, the Attorney-General for the State of Queensland has applied, pursuant to section 27 of the Act, for the continuing detention order to be reviewed.  The parties have requested that the application be adjourned to a date to be fixed to enable a reintegration plan to be developed.  In the circumstances, I am satisfied that that is the appropriate order to be made.  

3. [3]
   The respondent does not challenge a finding that he is a serious danger to the community in the absence of a Division 3 order, but submits that he should be released from custody subject to a supervision order.

4. [4]
   At the first review, the respondent accepted that it was open to the Court to affirm the decision that he was a serious danger to the community in the absence of a Division 3 order, but submitted that he should be released subject to a supervision order.  In deciding that adequate community protection could only be ensured by a continuing detention order, Brown J said:

71. [71]
    While a supervision order is not required to be watertight, it must be efficacious in constraining a respondent’s behaviour by sufficiently reducing the risks of the commission of serious sexual offences to ensure the adequate protection of the community. I am presently not satisfied that any supervision order could be effective in doing so, given the matters outlined above. I am not satisfied, given his violation history in custody and his complex psychiatric conditions, that Mr Musso presently could be reasonably and adequately managed by QCS under the mandatory conditions provided under s 16 of the Act.

72. [72]
    While I do not consider that Mr Musso can reasonably and practicably be managed by a supervision order at present, the evidence suggests that if he continues to progress with Dr Andrews, there is every reason to consider he will be able to reach a level of emotional self-regulation so the risk of reoffending can be reasonably and practicably managed under a supervision order. It is evident that Mr Musso still requires further individual therapy and a period of conduct without threats or violence towards others before he can be reasonably and practicably managed and the adequate protection of the community can be ensured under a supervision order. This is supported by his longstanding and complex psychiatric problems, evidenced not only in Dr Harden and Dr Arthur’s opinions but also in previous psychiatric and psychological opinions which are referred to in the applicant’s submissions, as well as his history of violations since the previous order.

73. [73]
    Given the above and taking into account the paramount consideration, which is the need to ensure adequate protection of the community, and the consideration of whether that protection can be reasonably and practicably be managed by a supervision order, I am satisfied that the Attorney-General has established that a supervision order should not be made and that adequate protection of the community can only be ensured by a continuing detention order.

5. [5]
   The respondent has a history of self-harming. He is presently being held in a Detention Unit under a safety order. The acting Chief Superintendent at the Wolston Correctional Centre, Joel Smith, gave evidence that the safety order is in place for the respondent’s own safety in view of his pattern of self-harm and concerns about managing the risk of further injury. Mr Smith said that the respondent’s self-harm behaviour has acted as a barrier to him being managed in the community. He accepted that the respondent’s self-harming should not disqualify him from release or supervision. He said that the respondent’s self-harming falls into two categories; one relates to a coping response to stressors and the other is an expression of dissatisfaction or rejection of supervision. He said that the respondent’s self-harming as a manifestation of poor coping should be viewed differently.

6. [6]
   Mr Smith proposed a three month reintegration plan for the respondent which would involve the continuation of his therapeutic relationship with his psychologist. 

7. [7]
   It is relevant to have regard to the conclusions of Dr Arthur, psychiatrist, who said in his report dated 11 January 2021 that:

173 Self-harm aside, prisoner Musso has shown an increased capacity for selfregulation as evidenced by the reduced frequency and intensity of violence directed towards others.  

174 Whilst self-harming has continued, I accept the likelihood that his continuing detention, particularly in highly contained areas such as Safety Units and Detention Units, may be perpetuating this behaviour as he does not have access to distraction tools and uses self-harm as a way of escaping his confines for a more pleasant hospital environment where he is provided with care and medical attention.

175 Whilst a dramatic change in environment from a Detention Unit or Safety Unit to community release is likely to cause distress and be associated with an acute rise in his risk of violence (predominantly self-harm), if prisoner Musso is able to show appropriate levels of behaviour in a less restricted environment for a period of 4-8 weeks, then he may be suitable for release under a supervision order. Whilst there is still a substantial risk that he may breach conditions of his order by engaging in aggressive behaviour towards others or self-harm, if he perceives his needs are not met, he appears to be reaching the requisite levels of self-control, insight, and motivation to comply with community management.

8. [8]
   In the circumstances, I am satisfied that it is appropriate that the matter be adjourned to a date to be fixed.  The matter will be listed for mention on 16 April 2021.