Attorney-General v Ruhland[2021] QSC 44

SUPREME COURT OF QUEENSLAND

1. [1]
   Hendrikus Josef Ruhland was released from custody on 9 March 2010 after serving a lengthy period of imprisonment for the commission of a number of serious sexual offences against young boys.  He was released subject to a supervision order made under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).  The supervision order has since been amended.
2. [2]
   The Attorney-General alleged that Mr Ruhland contravened the supervision order and was likely to contravene the supervision order in other respects.^[1]  He was arrested and the Attorney-General sought orders consequent upon the contravention and likely contravention of the supervision order.

Background

3. [3]
   Mr Ruhland was born 9 July 1945.  He is now 75 years of age.
4. [4]
   Mr Ruhland has reported to various psychiatrists over the years that he had been sexually active with boys since 1965 when he was 20.  At that time, he was a Scout leader.  He reported being involved in a paedophile ring in the 1980s and was charged with various sexual offences against boys in 1985.  Those charges did not result in convictions.  He was though, charged and convicted in 1988 and was sentenced to six and a half years imprisonment for various sexual offences against boys.  He was released from prison in April 1992.
5. [5]
   Mr Ruhland continued his sexual offending against children and in 1999 he was convicted and sentenced to 17 years’ imprisonment (the index offences).  On appeal, the sentences were reduced to 13 and a half years imprisonment.^[2]
6. [6]
   The index offences were very serious.  A summary of the offences was given by White J (as her Honour then was), one of the majority in Mr Ruhland’s appeal:

“The first two counts related to two offences of indecent dealing with a child under the age of 14 years between December 1976 and June 1977. The other offences occurred between April 1992 and September 1996 and involved eight counts of maintaining a sexual relationship with boys under the age of 16 (three with the aggravating circumstance of anal carnal knowledge), twenty-one counts of specific acts of indecent dealing, five counts of indecent treatment of a child under the age of 12, five counts of unlawful anal intercourse as well as forty-five acts of indecent dealing, one act of exposure of a child to an indecent act, two acts of anal intercourse and nine acts of permitting anal intercourse which were s 189 schedule offences taken into account on sentence. There were 98 offences in all. The conduct involved twelve boys between the ages of 10 and 15 although the preponderance were aged around 12 to 13 years.”^[3]

7. [7]
   Mr Ruhland’s offending occurred with others, namely Manning and Briggs.  As described by White J:

“At the time of the 1988 offences the applicant was associating with one Manning who was a younger man of about 29 years who was also convicted of offences against boys at about the same time. Manning was released from prison earlier than the applicant and the applicant went to live with him after his release. The applicant met one Neville Briggs, a sex offender, in prison and he became sexually involved with some of the present complainants. The prosecutor below used the expression ‘paedophile ring’ when referring to these men. This was objected to by defence counsel on the ground that such an expression tended to be associated in the public’s mind with an organised group who used the Internet and/or had international connotations. That was not the case here, but however described, the men used the same boys for sexual gratification and introduced them to each other.”^[4]

8. [8]
   The particulars of the offending were described by White J as:

“Manning’s house was a place where boys would congregate to watch television and socialise. He and the accused subsequently moved to other accommodation. It too became a place for boys to go who wanted to ‘wag’ school. Television, videos and video games as well as the kind of food that adolescent boys like was readily available. Many of the boys were introduced to the applicant by other boys who came there knowing that the applicant ‘gave erotic massages’.

The sexual activities with the boys involved massaging, mutual masturbation, mutual oral sex, anal sexual intercourse and permitting boys to have anal sexual intercourse with the applicant. Sometimes two or more boys participated in the sexual activity. On occasions the applicant paid the boys money for sexual favours or gave them gifts.

Shortly after being released from prison Manning introduced the applicant to the complainant PJ who was then aged 13. The relationship continued until mid-1993 when PJ turned 15 after which time he commenced a relationship with Briggs although on occasions he continued to engage in sexual conduct with the applicant. The offences involved massages, mutual masturbation and oral sex. On some occasions other boys participated.

The complainant JB was introduced to the applicant by Manning. The applicant maintained a sexual relationship with him from about April 1992 until mid-1993. He was aged between 13 and 15 years during that period. The offences involved mutual masturbation and oral sex and on some occasions other boys were present and participated in the activities. That complainant said that the applicant told him that he would go to the public toilets near the local school and ‘window shop’ the boys when school was dismissed. JB would visit the applicant regularly when ‘wagging’ school. Their relationship came to an end when the applicant moved.

The complainant JB introduced the complainant IL to the applicant shortly after he was released from prison. IL was told that the applicant’s house was a good place to go and ‘wag’ school. The applicant commenced a sexual relationship with IL which continued until mid-March 1995. The boy was aged between 13 and 15. The relationship began with massages and progressed to mutual oral sex, masturbation and sodomy. At one point IL left his home and came to live with the applicant who pretended that he was his son. He dealt with the boy’s teachers at school and applied for and received payments from the Department of Social Security for looking after the boy. The applicant purchased a $1250 bicycle for IL and from time to time this debt would be paid off by the complainant with sexual favours. Anal sex took place on about twenty occasions.

The applicant met the complainant LB through his older brother JB shortly after the applicant was released from prison. He maintained a sexual relationship with him until the middle of the following year. LB was 10 when the offences commenced. The indecent activity involved massages, mutual oral sex and sometimes involved other boys.

The complainant AS was introduced to the applicant by IL. Their sexual relationship commenced in September 1993 when he was aged 12 continuing for about three years. The offences involved mutual masturbation and oral sex and the applicant permitting AS to have anal sex with him.

The applicant met SM at a public lavatory in Woodridge in January 1994. SM was then aged 12 years. They exchanged telephone numbers and the same evening the applicant telephoned and invited the boy home which he accepted. The applicant massaged SM, engaged in mutual masturbation and oral sex with SM alone and with other boys. For a time SM came to live in the applicant’s house.

The complainant RK met the applicant at the applicant’s home in early 1995 when he gave a birthday party for IL. He was aged between 13 and 14 when he first met the applicant. The sexual relationship continued until September 1996. The offences involved mutual masturbation, oral sex and sodomy. The applicant introduced him to Briggs and Manning. On occasions the applicant paid RK for the sexual encounters. For a period he resided with the applicant who then received Department of Social Security payments for looking after him.

The complainant GK was introduced to the applicant by a friend in about mid-1996. That sexual relationship continued only for a few months. He was aged 14 when the offences were committed. Indecent activity took place regularly on weekends and involved massage, masturbation and oral sex. One occasion involved the applicant, Manning and the complainant in the spa together when indecent touching occurred.

The complainant RW met the applicant through other boys who visited the house. He was aged 11 when an act of oral sex occurred in the presence of the next complainant FC. That complainant was about 11 when the applicant performed oral sex on him in his bedroom while others were present.

The final complainant, LD, was aged 15 at the time the applicant met him through another boy. He gave him a massage and oral sex and then about a month later another massage occurred involving oral sex.”^[5]

9. [9]
   Perhaps unsurprisingly, Mr Ruhland was not granted parole and towards the end of his term of imprisonment, the Attorney-General made application for orders under the DPSOA.  On 9 March 2010, Mr Ruhland was released on a supervision order^[6] for a period of 10 years.  The supervision order contained a number of requirements, including that Mr Ruhland:

“(xiv) not commit an offence of a sexual nature during the period of the order and

(xv) comply with every reasonable direction of an authorised corrective services officer

(xxxviii) obtain the prior written approval of an authorised corrective services officer before possessing any equipment that enables him to take photographs or record moving images”

10. [10]
    Shortly after being released on supervision, Mr Ruhland breached the supervision order by failing to comply with a direction of a corrective services officer.  The breach there was constituted by Mr Ruhland contacting other child sex offenders.  In so doing, Mr Ruhland breached requirement (xv).  On 23 December 2010, the contravention was found to be proved, but Mr Ruhland was released back onto the supervision order with certain amendments which are not relevant here.
11. [11]
    It is an offence to breach a supervision order.^[7]  Mr Ruhland was charged criminally on that occasion with breaching the supervision order and spent 63 days in custody.
12. [12]
    On 28 February 2020, I declared that by force of s 24(2) of the DPSOA, the supervision order had been extended by the 63 days Mr Ruhland had been in custody and would now expire on 10 May 2020.^[8]
13. [13]
    On 7 March 2016, Flanagan J varied the supervision order but neither the circumstances of that being done nor the terms of the amendment are relevant for present purposes.
14. [14]
    In Capalaba, there is a public toilet block in a shopping centre opposite the public library.  On 28 February 2020, Mr Ruhland wrote on the wall of the public toilet the words “head today Friday 28-2-20 at library across the road 12-12.30 any age”.  This has been interpreted as an invitation by Mr Ruhland to perform oral sex on any male person, including a minor who might accept the offer.  About 12.15 pm on 28 February 2020, a male person was seen to leave the toilet area and get into a car registered to Mr Ruhland. 
15. [15]
    Mr Ruhland was convicted on 5 March 2020 of an offence of wilful damage to the toilet block.  Proceedings upon the contravention of the supervision order were commenced.  He was detained until the finalisation of those proceedings.  However, his supervision order was to expire on 10 May 2020 so an interim detention order was made.^[9]
16. [16]
    An application was filed by the Attorney-General alleging:

1. a likely contravention of requirement (xiv) – “not commit an offence of a sexual nature during the period of the order”;
2. an actual contravention of requirement (xxxviii) – “obtain the prior written approval of an authorised corrective services officer before possessing any equipment that enables him to take photographs or record moving images”.

17. [17]
    Section 20 of the DPSOA, relevantly, is as follows:

“20 Warrant for released prisoner suspected of contravening a supervision order or interim supervision order

1. (1)
   This section applies if a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the released prisoner’s supervision order or interim supervision order.

1. (2)
   The officer may, by a complaint to a magistrate, apply for a warrant for the arrest of the released prisoner directed to all police officers and corrective services officers to arrest the released prisoner and bring the released prisoner before the Supreme Court to be dealt with according to law.

1. (3)
   The magistrate must issue the warrant, in the approved form, if the magistrate is satisfied the grounds for issuing the warrant exist.

1. (4)
   However, the warrant may be issued only if the complaint is under oath.

1. (5)
   The warrant may state the suspected contravention in general terms.

1. (6)
   If the magistrate issues a warrant under subsection (3), the commissioner of the police service or the chief executive must give a copy of the warrant to the Attorney-General within 24 hours after the warrant is issued.

1. (7)
   The Police Powers and Responsibilities Act 2000, sections 800 to 802, apply to the application for the warrant—

1. (a)
   as if the warrant were a prescribed authority, within the meaning of section 800 of that Act, that could be obtained under that Act; and

2. (b)
   if the application is made by a corrective services officer, as if the corrective services officer were a police officer.

Note—

The Police Powers and Responsibilities Act 2000, sections 800 to 802 provide for obtaining prescribed authorities by phone, fax, radio, email or another similar facility.

1. (8)
   To remove any doubt, it is declared that a failure by the commissioner of the police service or the chief executive to comply with subsection (7) does not affect the court’s ability to make a further order under section 22.”

18. [18]
    It can be seen that by s 20, proceedings may be commenced by warrant when there is reasonable suspicion of “a contravention” or reasonable suspicion of a “likely contravention” of the supervision order.
19. [19]
    Here, the reference in the graffiti to “any age” gave rise to a reasonable suspicion in the person swearing the complaint^[10] that Mr Ruhland was likely to commit a sexual offence against a boy.  That was said to support a reasonable suspicion of a likely contravention of requirement (xiv).
20. [20]
    Evidence was obtained that Mr Ruhland had, at some stage, possession of a camera owned by Mr Ruhland’s partner.  Possession of a camera was an actual breach of requirement (xxxviii) as no prior approval had been given.
21. [21]
    Section 22 concerns the hearing of the contravention proceedings commenced pursuant to s 20.  Section 22, relevantly, provides:

“22 Court may make further order

1. (1)
   The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order).

2. (2)
   Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must—

1. (a)
   if the existing order is a supervision order, rescind it and make a continuing detention order; or

2. (b)
   if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order. …

3. (3)
   If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court—

1. (a)
   must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and

2. (b)
   may otherwise amend the existing order in a way the court considers appropriate—

1. (i)
   to ensure adequate protection of the community; or

2. (ii)
   for the prisoner’s rehabilitation or care or treatment.

4. (4)
   The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).”

22. [22]
    By s 22, before orders can be made consequent upon a contravention, the court must find that the prisoner either contravened or is likely to contravene the supervision order.  The determination of likelihood to contravene is assessed at the time of the hearing pursuant to s 22.^[11]
23. [23]
    Here, the Attorney-General, properly in my view, conceded that on the psychiatric evidence, Mr Ruhland is not now likely to commit a sexual offence against a child.  Therefore, an amended application was filed alleging only the contravention of requirement (xxxviii) constituted by Mr Ruhland having possession of his partner’s camera.  The allegation of a likely breach of requirement (xiv) was abandoned.
24. [24]
    Mr Ruhland admitted the breach.  In the meantime, he was charged with wilful damage, pleaded guilty to that offence in the Magistrates Court and was sentenced to four months’ imprisonment.  Parole was set on 14 April 2020.
25. [25]
    On 17 November 2020, Mr Ruhland pleaded guilty to a charge under s 43AA of the DPSOA.  He was sentenced to a further three months’ imprisonment but his parole release date was set on the date of his sentence.
26. [26]
    For the purposes of the contravention proceedings, Mr Ruhland was interviewed by forensics psychiatrists, Doctors Sundin and Harden who both prepared reports.  Neither was required for cross-examination at the hearing.

Psychiatric evidence

27. [27]
    Apart from the breach of the supervision order in 2010, Mr Ruhland had been on supervision in the community without breach for well over nine years before the current incident.  He explained to his case manager and to both psychiatrists that he was having difficulties in a long-term homosexual relationship.  This seems to have destabilised him.
28. [28]
    Dr Sundin diagnosed Mr Ruhland as follows:

“In my opinion, Mr Ruhland meets DSM-V diagnostic criteria for Paedophilic Disorder – sexually attracted to males, non-exclusive type.

His recent pattern has demonstrated both avoidant and dependent personality traits.

There was no evidence of any co-morbid mood disturbance, psychotic disorder or substance use disorder.”

29. [29]
    As to risk, Dr Sundin opined:

“In my opinion, the principal difficulty with Mr Ruhland is his pattern of avoidance and deceptiveness.

He is an intelligent man who has been on a supervision order for a lengthy period of time. He is very well aware of the compliance requirements with respect to that supervision order. He is very well aware that issues pertaining to sexuality are of particular relevance and that it was expected that such matters should be discussed with his psychologist and his case manager.

The concern on this occasion is that Mr Ruhland’s behaviour was offence paralleling to earlier behaviours when he sought out adolescent males in toilets.

Despite his denials that he has not held any sexual fantasises regarding underage males for many years, his behaviour suggests that he remains conflicted around matters to do with sexuality and intimacy.

Given his past searches for comfort and succour through sexual contacts with adolescent males, I consider this most recent breach, set as it was in the context of volatile hostile co-dependent relationship with his partner; cannot be ignored.

In my opinion, Mr Ruhland’s global risk for sexual offending is moderate; based on historical factors, past breaches and this recent deceptiveness. ·The presence of a supervision order reduces his risk to low.

Although Mr Ruhland is at an age where one expects his risk for sexual recidivism is reduced by age and waning libido; I am not sufficiently comfortable with his risk profile to recommend that he be allowed to come off a supervision order. Rather, I recommend that his supervision order be extended for a further two to three years and that during that time he continue to see his psychologist at least monthly on his own and that he and his partner agree to attend joint counselling sessions to address the problematic aspects of that relationship. I would request that Mr Ruhland’s partner voluntarily agree that their joint counsellor is given permission to provide a report of their progress in counselling both to Mr Ruhland’s individual psychologist and to QCS^[12], given that the instability and volatility of that relationship appears to have been a significant risk factor and relevant to Mr Ruhland’s most recent offence.

There do not need to be clauses in relation to abstinence from drugs or alcohol or a requirement for breath testing or urinary drug screening.

Exclusion zones should remain in place as should disclosure requirements.” (emphasis added)

30. [30]
    Dr Harden’s diagnosis was:

“He meets criteria for Pedophilia sexually attracted to males – nonexclusive type. He does not meet criteria for a diagnosis of Personality Disorder. He has some narcissistic and obsessive-compulsive personality traits that continue to be present but in a reduced form.”

31. [31]
    As to risk, Dr Harden opined:

“At the time of this report in my opinion his risk of sexual offence recidivism compared to other sexual offenders is in the low – moderate (below average) range without a supervision order. The average five year recidivism rate for sexual offenders is approximately 15%. His chances of sexual reoffending are still probably below that.

This is slightly increased compared to my previous assessment based on the events of March 2020.

With a supervision order it is in the low (well below average) range.” (emphasis added)

32. [32]
    Dr Harden, like Dr Sundin, thought the supervision order ought to be extended.  He said:

“In my opinion an abundance of caution would suggest further time on a supervision order to provide the external structure and scaffolding to keep the risk of sexual offence in the low range. This could be for as little as two years depending on legal constraints.”

Consideration

33. [33]
    Section 13 of the DPSOA concerns the making of initial orders.  It is a pivotal provision.  It provides, relevantly:

“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).

2. (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. …

4. (4)
   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).

5. (5)
   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

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.

6. (6)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

34. [34]
    The relevant risk for the purposes of s 13 is the risk of commission of a “serious sexual offence” defined, relevantly to Mr Ruhland, as “an offence of a sexual nature … against children”.  An order will be made under s 13 where there is an unacceptable risk of the commission of “serious sexual offence” in the absence of an order.  That order may be a continuing detention order or a supervision order, but in determining which order to make the paramount consideration is to ensure the adequate protection of the public.
35. [35]
    Section 22 incorporates many of the concepts within s 13.  Once a breach of the supervision order is established (here it is admitted), the onus falls upon the prisoner to establish that the adequate protection of the public can be ensured by his release upon the supervision order either in its original form or as amended.  The relevant risk is not of general offending or even sexual offending, but of commission of a serious sexual offence.
36. [36]
    Here, the psychiatric evidence is that Mr Ruhland’s risk on supervision is low.  I accept that evidence.
37. [37]
    Mr Ruhland’s supervision order contained requirements that he abstain from alcohol and illicit drugs and that he submit to testing.  Dr Sundin’s opinion is that those requirements are unnecessary.  I accept that evidence.  Drugs and alcohol appear not to be risk factors.  The supervision order should be amended to delete that requirement.
38. [38]
    The incident at Capalaba shows a lack of stability in Mr Ruhland which he manifested in an extreme and somewhat bizarre effort to connect sexually with a stranger.  Unsurprisingly, both psychiatrists opined that the supervision order should be extended.  The supervision order ought to expire at that time when Mr Ruhland is no longer an unacceptable risk of committing a serious sexual offence if not subject to the supervision order.^[13]
39. [39]
    Dr Sundin opined that point will be reached in two to three years, Dr Harden, two.  As earlier observed, there was no cross-examination of the doctors.  There was no attempt to resolve the difference of opinion as to the period of extension.  The extension of the order adversely affects Mr Ruhland’s freedoms and rights.  Over any extended period, he will be subject to the exercise of rights vested in corrective services officers who control his conduct.  He is at risk of criminal penalty for failing to comply.  In those circumstances, I should adopt Dr Harden’s opinion rather than Dr Sundin’s and extend the supervision order for two, not three, years.
40. [40]
    Since the making of the supervision order in 2010, attempts have been made to draft supervision orders in what can be described as plain English.  Mr Ruhland’s supervision order has effectively been re-drafted in plain English and that version will be the one that I will apply to him.
41. [41]
    Sections 23 and 24 of the DPSOA provide:

“23 Application of division

This division applies if, after being released from custody under a supervision order or interim supervision order, a released prisoner is sentenced to a term or period of imprisonment for any offence, other than an offence of a sexual nature.

24 Period in custody not counted

1. (1)
   The released prisoner’s supervision order or interim supervision order is suspended for any period the released prisoner is detained in custody on remand or serving the term of imprisonment.

2. (2)
   The period for which the released prisoner’s supervision order or interim supervision order has effect as stated in the order is extended by any period the released prisoner is detained in custody.”

42. [42]
    The supervision order was to expire on 10 May 2010.  That date was declared to be the date of expiry taking into account the 63 days Mr Ruhland spent in custody in 2010 after initially being released on supervision.^[14]  He has since spent 160 days in custody as a result of the current contraventions.  Adding 160 days to the expiry date of the supervision order gives 8 August 2021.  With the extension to the supervision order of two years, the order will now expire on 8 August 2023.
43. [43]
    There is no contest between the parties as to the effect of s 24 of the DPSOA on Mr Ruhland’s supervision order.  Despite the fact that there is no dispute between the parties, it is appropriate to declare the effect of s 24 for the reasons I explained in Attorney-General for the State of Queensland v Ruhland.^[15]
44. [44]
    In court documents up to the present, Mr Ruhland’s first Christian name has been spelt “Hendricus”.  In fact, his name is spelt “Hendrikus”.  It was appropriate to make orders correcting that error but without requiring the amendment of the many documents which have been filed in Mr Ruhland’s case.
45. [45]
    For those reasons, I made the orders which I did.