Attorney-General v CCW[2021] QSC 56

SUPREME COURT OF QUEENSLAND

1. [1]
   This is the third review of a continuing detention order made in respect of the respondent.
2. [2]
   On 6 February 2017, Brown J ordered that the respondent be detained in custody for an indefinite term for control, care or treatment pursuant to Part 2, Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSO Act).
3. [3]
   On 12 December 2018, Burns J affirmed the original decision that the respondent was a serious danger to the community in the absence of a Division 3 order under the DPSO Act, and ordered pursuant to s 30(3)(a) in Part 3 of the DPSO Act that the respondent continue to be subject to the continuing detention order.
4. [4]
   On 16 December 2019, Brown J affirmed her original decision that the respondent was a serious danger to the community in the absence of a Division 3 order under the DPSO Act, and ordered pursuant to s 30(3)(a) in Part 3 of the DPSO Act that the respondent continue to be subject to the continuing detention order.
5. [5]
   Section 27(1) of the DPSO Act requires reviews of the continuing detention order to be undertaken and each annual review must start within 12 months of the completion of the hearing of the last review.  The application for the third review of the continuing detention order was filed on 7 December 2020.
6. [6]
   At the hearing of the application on 1 March 2021, I made the following orders with my reasons to be provided:

“THE ORDER OF THE COURT IS THAT:

1. Pursuant to s 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”), the decision made by Brown J on 6 February 2017, and affirmed by Burns J on 12 December 2018 and Brown J on 16 December 2019, that the respondent is a serious danger to the community in the absence of an order pursuant to Part 2, Division 3 of the Act, be affirmed.
2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made by Brown J on 6 February 2017.
3. The applicant provide a copy of the reports of Dr McVie dated 28 January 2021 and Dr Sundin dated 3 February 2021, to the respondent’s treating psychiatrist.”

7. [7]
   These are my reasons for making the orders.

Applicant’s position

8. [8]
   The applicant submitted that the Court would be satisfied by acceptable, cogent evidence, to a high degree of probability, that the evidence is of sufficient weight to affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order and in these circumstances the Court would order that the respondent continue to be subject to the continuing detention order.
9. [9]
   The applicant relies upon the reports of Dr Sundin dated 5 February 2021 and Dr McVie dated 28 January 2021 prepared for the review.

Respondent’s position

10. [10]
    The respondent’s position is set out in the submissions filed on behalf of the respondent which state as follows:

“4.  It is conceded that the evidence supports a finding that the respondent is a serious danger to the community in the absence of a Division 3 Order and that the decision of Brown J ought to be affirmed.

5. While the respondent would not oppose the making of a supervision order, the psychiatric evidence supports a finding that adequate protection of the community cannot be afforded by a supervision order, at this stage.

6. The respondent does not contest the applicant’s submission that he should continue to be detained on a continuing detention order.”

Background

11. [11]
    I refer to and rely on the reasons for judgment of her Honour Justice Brown dated 6 February 2017 where her Honour sets out the respondent’s relevant criminal history and the circumstances of the index offences.
12. [12]
    For the purposes of the current considerations, I note the following:

    1. (a)
       In 1990, the respondent pleaded guilty in the Southport District Court to a number of offences, including rape of a woman.  The respondent was sentenced to eight years imprisonment with the recommendation that he be considered eligible for parole after serving two years.
    2. (b)
       Whilst on parole for those offences, the respondent committed the index offences which included assault with intent to rape, child stealing, indecent treatment of a child under 12 and rape.  The respondent pleaded guilty to these offences in 1998.
    3. (c)
       Dr Donald Grant provided a preliminary psychiatric assessment following an interview with the respondent on 7 April 2016.  Dr Grant’s view included “…there was no way that the respondent could be managed on a supervision order since he would not be able to recognise the reality of his situation and would be subject to psychotic symptoms which would control his behaviour, and that he would be unable to comply with the supervision order”.
    4. (d)
       Dr Joan Lawrence interviewed the respondent on 3 November 2016 and prepared a report.  Dr Lawrence also provided oral evidence which included that the risk of the respondent was high and that it was difficult to predict the nature of offence he might commit because of the nature of his psychosis.
    5. (e)
       Dr Ness McVie prepared a report for the initial application before Brown J.  The respondent refused to meet with Dr McVie for an interview.  Dr McVie’s report observed that “… if he is psychotic and he is refusing treatment he will be impossible to manage in the community on a supervision order”.

Current psychiatric evidence

13. [13]
    Further reports were prepared for the purposes of the third annual review of the continuing detention order.
14. [14]
    Dr Sundin interviewed the respondent on 26 November 2020 by video-link.  She had previously examined the respondent and prepared a report dated 25 October 2013 for the Queensland Parole Board.
15. [15]
    In her most recent report dated 5 February 2021, Dr Sundin outlines information provided to her during the interview.  This includes:

    1. (a)
       Statements about conspiracies and curses, including voodoo and witches.
    2. (b)
       “S” being part of him and urging certain behaviour.
    3. (c)
       Antagonistic statements and attitudes towards other prisoners, particularly Indigenous prisoners, including intentions to harm other prisoners.
    4. (d)
       Blaming another prisoner in relation to an incident where he threatened to stab a counsellor and having produced a “shiv”.
    5. (e)
       Blaming “S” and the High Intensity Sexual Offenders Programme (HISOP) for his past sexual offending.
16. [16]
    Dr Sundin’s diagnoses are as follows:

“In my opinion, the principal diagnoses under DSM-V criteria for [the respondent] are:

1. Antisocial Personality Disorder, meets criteria for Psychopathy; 

2. Borderline Personality Disorder;

3. Psychotic disorder Not Otherwise Specified; and

4. Paedophilia, non-exclusive type, sexually attracted to females.”

17. [17]
    Dr Sundin in her report concludes:

“When [the respondent’s] matter came before Her Honour, Justice Brown on 16 December 2019, Her Honour was satisfied that [the respondent’s] risk of serious sexual offending was significant and there was a risk for both violent offences towards women and sexual offending against children. Her Honour was not satisfied that the risk posed by the respondent could be adequately contained by the presence of a supervision order sufficient to ensure the adequate protection of the community. Her Honour noted that both Dr McVie and I made recommendations with respect to further treatment needs.

Unfortunately, it appears that these have not been able to be addressed in the last 12 months due to the frequent moves from one correctional centre to the next arising from [the respondent’s] violations record. In my opinion, [the respondent’s] unmodified risk for future sexual violence is moderate to high and his risk for general violence is high.

Given the tenacity of his personality disorder, the overt hostility that he expresses to certain individuals, his continuing displacement of responsibility for his offences onto pseudo-psychotic phenomena, and the general unpredictability of his actions within the highly controlled environment of a prison; I am not confident that the risk posed by [the respondent] could satisfactorily be managed in the community under the auspices of a supervision order.

[The respondent] wants to stay in prison. He is highly institutionalised and is likely to be anxious about how he will cope in the community upon release. My concern is that he would be at imminent risk of acting out in a sexually violent or violent fashion in order to ensure that he is rapidly returned to prison.

[The respondent] has completed all previous recommended treatment programmes recommended for him. I am not aware of any additional programmes that could be provided to him. He completed the Getting Smart Programme in 2011, the Getting Started: Preparatory Programme in 2012, the HISOP in 2013 and the Sexual Offenders Maintenance Programme in 2014.

He could be offered a repeat of the Sexual Offenders Maintenance Programme, but this is the only additional option that I can recommend at this time.

Finally, I note that he still has an outstanding legal matter which as yet has not come before the Mental Health Court. In my opinion, this remains a chronic stressor for [the respondent] and is a potential destabilising contributor to his violations.

I would therefore respectfully recommend to the Court that [the respondent] should be subject to a continuing detention order in the hope that further treatment with a forensic psychologist may be possible and in order to ensure the safety of the community.”

18. [18]
    Dr McVie interviewed the respondent on 8 December 2020 by video-link.  Dr McVie’s report records the following background from the interview:

    1. (a)
       The respondent had been in maximum security for six months due to being “caught up” in drug dealing at Woodford Correctional Centre.  He admits threatening a male counsellor but says he did not intend to harm him.  Further. He says he had a “shiv” in his pants but did not produce it.
    2. (b)
       The respondent’s past psychiatric history reveals previous admissions to the High Secure Inpatient Service in 2008 and being subject to an Involuntary Treatment Order.
    3. (c)
       The respondent’s violation history from November 2019 to November 2020 includes five incidents, including self-harm on 6 July 2020, the “victim of assault sexual on prisoner on 7 July 2020”, two incidents of threatening staff and one incident of a prohibited article (includes (a) above).
    4. (d)
       Further allegations of planning to hurt other prisoners and encouraging another prisoner to self-harm.
    5. (e)
       Statements of conspiracy theories, racist comments and threatening staff.
19. [19]
    Dr Ness McVie, in her report dated 28 January 2021, states:

“[The respondent] is a 51-year-old man with a history of prejudicial childhood, being exposed to physical and sexual abuse, domestic violence and substance use at an early age. He engaged in criminal behaviour from age 13 years. His first conviction for a violent offence was at age 20 years.

He has been convicted of two episodes of sexual offending, rape of an adult female at age 20 years, and rape of a ten-year-old female child at age 28 years.

He has an extensive history of polysubstance abuse, alcohol cannabis, heroin and hallucinogens, also from an early age.

Though he has completed the High Intensity Sexual Offenders’ Treatment Program, and the Maintenance Program for Sexual Offenders he continues to present with high treatment needs.

His presentation is complicated by features of a mental disorder. He was first seen by a psychiatrist in 1998 and no evidence of psychosis was found. He seems to have first attracted a diagnosis of psychosis in about 2004, at the time he was involved in an erotomanic attachment to a female psychologist, [S], who had been involved in his management in prison. He then spent two years in isolation in Maximum Secure.

His first inpatient assessment in High Secure was in 2008. His discharge diagnoses indicate he was considered to have primary severe personality pathology. Subsequently a diagnosis of schizophrenia has been considered. I note previous assessors including Dr Sundin in 2013, and Dr Grant in April 2016, and Dr Lawrence in January 2017, all considered him to have a severe chronic schizophrenic illness as his primary pathology and recommended secure hospital treatment.

He was last discharged from High Secure, The Park (HSIS) in November 2018 and spent nearly 18 months in prison without any prescribed antipsychotic medication. His behaviour thorough [sic] most of his time in Maryborough Correctional Centre, was reasonable. He has completed his Tertiary Preparation Studies. He developed problems with other inmates after transfer to Capricornia Correctional Centre in 2020, eventually leading to threats of violence and possession of a sharp implement, the ‘shiv’ in Woodford Correctional Centre, resulting in transfer to isolation again in Maximum Secure at Brisbane Correctional Centre. He was re-commenced on oral antipsychotic medication in about November 2020 and was awaiting transfer to High Secure at the time of my assessment.

In my opinion, [the respondent] has a primary severe personality disorder with features somewhat suggestive of a secondary psychosis.

[The respondent] meets criteria for a diagnosis of psychopathy and antisocial personality disorder. He additionally has borderline personality traits. He also meets criteria for substance use disorder and a diagnosis of paedophilia, heterosexual, nonexclusive.

I remain unconvinced of the diagnosis of schizophrenia, due to his retrospective attribution of voices (identifying a voice as belonging to a particular individual whom he did not meet until many years after he claims to have first heard the voices, and his blaming the voices for his actions in relation to the 1998 offences), periods of relative mental state stability while in custody without medication, and his preferences for being in hospital rather than prison. His early psychiatric evaluations did not identify psychosis. He does appear to gain some benefit from his psychotic symptoms, being somewhat egosyntonic, and self-serving. He did not present any convincing evidence of psychosis at recent interview in December 2020.

Risk assessment indicates he remains at high risk of re-offending. His recent behaviours, threats to staff and possession of the ‘shiv’, clearly indicate this risk remains high and he requires close management.

I also previously noted his history was suggestive of deteriorating behaviour with self harm episodes when he does not have his needs met. He does identify as a mental health patient and, in the past, seemed more settled in that environment. No doubt there is less pressure from his mental health peers than from the co-prisoners.

His risk is informed by his high score on the Hare PCL-R psychopathy scale. The structured clinical judgement instruments also identify considerable areas which require further treatment including problems with relationships and employment, attitudes to women, deviant sexual interests, impulsivity, problems with coping and problems in cooperation with supervision.

Substance abuse, gambling and pornography were also associated strongly with his previous offending behaviour.”

20. [20]
    Dr McVie further concludes:

“[The respondent] presents a high risk of re-offending with both sexual violence and general physical violence, if released from hospital without a supervision order. His recent behaviours in Woodford Correctional Centre indicate this risk would be extremely difficult to contain, at present, under a supervision order outside the structured environment of a Correctional Centre.

At this stage, I would recommend continuing individual therapy with his treating psychologist in custody.

The results of both the proposed inpatient re-assessment and the outcome of the Mental Health Court hearing should be reviewed prior to consideration of any management planning in the community on a supervision order.

Combined management on a DPSOA order and a forensic order may be a better outcome for this man.

In order to minimise risk of re-offending, a comprehensive management plan agreed to by both Corrective Services and Mental Health services, should be in place prior to consideration of any release from custody.”

DPSO Act Scheme

21. [21]
    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.

(1A)  The hearing for the first review and all submissions for the hearing must be completed within 2 years after the day the order first had effect.

(1B)  There must be subsequent annual reviews while the order continues to have effect.

(1C)  Each annual review must start within 12 months after the completion of the hearing for the last review under this section.

2. (2)
   The Attorney-General must make any application that is required to be made to cause the reviews to be carried out.”

22. [22]
    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.

2. (2)
   On the hearing of the review, the court may affirm the decision only if it is satisfied—

1. (a)
   by acceptable, cogent evidence; and

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

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

3. (3)
   If the court affirms the decision, the court may order that the prisoner—

1. (a)
   continue to be subject to the continuing detention order; or

2. (b)
   be released from custody subject to a supervision order.

4. (4)
   In deciding whether to make an order under subsection (3)(a) or (b)—

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

2. (b)
   the court must consider whether—

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

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

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

6. (6)
   In this section—

 required matters means all of the following—

1. (a)
   the matters mentioned in section 13(4);

2. (b)
   any report produced under section 28A.”

23. [23]
    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.
24. [24]
    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).

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

1. (aa)
   any report produced under section 8A;

1. (a)
   the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

2. (b)
   any other medical, psychiatric, psychological or other assessment relating to the prisoner;

3. (c)
   information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

4. (d)
   whether or not there is any pattern of offending behaviour on the part of the prisoner;

5. (e)
   efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;

6. (f)
   whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;

7. (g)
   the prisoner’s antecedents and criminal history;

8. (h)
   the risk that the prisoner will commit another serious sexual offence if released into the community;

1. (i)
   the need to protect members of the community from that risk;

10. (j)
    any other relevant matter.

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

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

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

6. (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

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.

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

25. [25]
    In the decision of Attorney-General for the State of Queensland v Anderson^[1] Davis J summarised the effect of s 13:

“[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”;^[2]
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;^[3]
3. (c)
   a “serious sexual offence” is, relevantly here, “an offence of a sexual nature … involving violence; or … against a child …”;^[4]
4. (d)
   orders under Division 3 are:

   1. a continuing detention order;^[5] or
   2. a supervision order;^[6]

5. (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;^[7]
6. (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”;^[8]
7. (g)
   if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;^[9] and
8. (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.^[10]

[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^[11] 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.”^[12]

26. [26]
    Further, his Honour helpfully summarised the process that is to be undertaken under s 30:

“[10] The process under s 30 involves the following steps:

1. (a)
   determination of whether the respondent is a serious danger to the community in the absence of a Division 3 order;
2. (b)
   if so, the court must determine whether adequate protection of the community can be ensured by the respondent’s release on a supervision order;
3. (c)
   if so, then release of the respondent on supervision ought to be preferred to the maintenance of the continuing detention order; and
4. (d)
   if not, then the continuing detention order ought to be maintained.”

Consideration

27. [27]
    The actuarial and dynamic assessments administered by the psychiatrists suggest that the risk of reoffending is at least moderate to high to very high.  Further, the respondent meets the DSM criteria for paedophilia, and has also been assessed as having an Anti-Social Personality Disorder as well as psychopathy.
28. [28]
    In respect of the consideration of any pattern of offending behaviour on the part of the respondent, the applicant points to the 1990 offence of rape being committed in the course of a violent home invasion/robbery and the 1998 offence involving kidnapping a 10 year old girl with forceable digital penetration of her anus and further, penile penetration of her anus without her consent.
29. [29]
    Further, Dr Sundin provides the opinion that she is not confident that the respondent could satisfactorily be managed in the community under a supervision order.
30. [30]
    Both Dr Sundin and Dr McVie agree that future management in the community would require both a supervision order and a comprehensive management plan.  In addition, Dr McVie considers that a comprehensive management plan agreed to by Corrective Services and the Prison Mental Health Service should be in place prior to consideration of any release from custody.
31. [31]
    A paramount consideration is the need to ensure adequate protection of the community from risk of the respondent committing another serious sexual offence.  Given the psychiatric evidence in relation to the high risk of reoffending, both sexual violence and general violence, this is the central issue on this application.

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

32. [32]
    Based on the evidence before the Court, primarily the reports of Dr Sundin and Dr McVie, 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. 
33. [33]
    The psychiatric evidence identifies the respondent’s unmodified risk of sexual re-offending, either with violence or against children, is high.  This is particularly so given the number and variety of risks present.
34. [34]
    The relevant risks in this matter are the respondent’s severe personality disorder with prominent anti-social traits, his previous substance abuse disorder, his psychopathy, his paedophilia, his persistent sexual preoccupation and his continued displacement and denial of responsibility for past sexual offences.
35. [35]
    In the circumstances, I am satisfied that the respondent presents a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made on 6 February 2017 ought to be affirmed.

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

36. [36]
    The psychiatric evidence is clearly that the respondent needs to continue treatment and prepare a comprehensive management plan prior to any consideration of his release into the community. 
37. [37]
    The previous recommendations with respect to the respondent’s treatment needs remain unaddressed.  This treatment needs to be undertaken to assist the respondent to address his particular circumstances and risks.
38. [38]
    On the current evidence and in these circumstances, I cannot be satisfied that the adequate protection of the community could be reasonably and practicably ensured by release upon a supervision order.

Release on a supervision order or the continuing detention order to be maintained

39. [39]
    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 6 February 2017.
40. [40]
    The order of the Court is that:

1. Pursuant to s 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”), the decision made by Brown J on 6 February 2017, and affirmed by Burns J on 12 December 2018 and Brown J on 16 December 2019, that the respondent is a serious danger to the community in the absence of an order pursuant to Part 2, Division 3 of the Act, be affirmed.

2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made by Brown J on 6 February 2017.
3. The applicant provide a copy of the reports of Dr McVie dated 28 January 2021 and Dr Sundin dated 3 February 2021, to the respondent’s treating psychiatrist.