Attorney-General v Hansen[2021] QSC 9

SUPREME COURT OF QUEENSLAND

1. [1]
   This is a decision on an application by the Attorney-General for relief under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act).  The respondent to the application is Mr Hansen. 

Criminal record

2. [2]
   Mr Hansen is presently 63 years of age.  The first serious entry in his criminal history is a sentence of four years imprisonment imposed by the District Court on 26 July 1995.  He had pleaded guilty and was convicted of maintaining a sexual relationship with a female child between 31 December 1989 and 1 April 1995.  He had also pleaded guilty to five other offences involving three different complainants: two charges of indecent dealing with a child under the age of 12 years with circumstances of aggravation; two charges of indecent dealing with a child under 12 years; and one charge of wilfully exposing a child under the age of 12 years to an indecent video tape with circumstances of aggravation.  Mr Hansen was aged between 32 and 37 when he committed these offences. 
3. [3]
   The next serious item in his criminal history is a sentence of three years imprisonment imposed in the District Court on 7 May 2004 for nine counts of indecent treatment of a child under 16 years with a circumstance of aggravation.  Six of the counts related to a female complainant who was four at the time of the offending.  One related to a girl who was in a park at the same time as Mr Hansen and the main complainant and the other two related to another girl who was also in the park.  The offending included inappropriate touching of the girl’s breasts and, in one instance, a child’s bottom.
4. [4]
   On 6 March 2006, Mackenzie J ordered that Mr Hansen be released from custody, subject to requirements set out in a supervision order made under the Act.  The order was for a period of about 20 years, that is, until 3 March 2026. He was 49 years of age at that time. 
5. [5]
   On 30 August 2010, Mr Hansen was convicted of an offence under s 43B of the Act for breaching the supervision order.  The contravention came about by Mr Hansen forming a relationship with a woman who had a child aged six years.  This relationship with the woman spanned a period of about 12 months.  It involved Mr Hansen giving the woman lifts to the shops in his car and picking her daughter up after school on approximately six occasions.  He was sentenced to five months’ imprisonment with a parole release date of 30 October 2010. So, he was detained in custody for 62 days from 30 August to 30 October 2010.  He was aged 53 at that time. 
6. [6]
   On 4 May 2011, the Court found Mr Hansen had again contravened the supervision order, but allowed him to be released on the supervision order.  The supervision order was amended, including to reduce its term so that it was to expire on 6 March 2016.
7. [7]
   On 5 June 2014, Mr Hansen was arrested in respect of a number of alleged sexual offences against a person anonymised as Ms X.  The following day a warrant issued pursuant to s 20 of the Act.  On 10 June 2014, Mr Hansen was brought before the Court and detained pending the determination of this application.
8. [8]
   On 20 October 2015, an indictment was presented.  There was no early plea by Mr Hansen.  Ms X was declared a special witness and on 29 September 2016, her evidence was pre-recorded and she was cross-examined.  Mr Hansen applied to recall Ms X for further cross-examination.  His application was heard and dismissed on 24 March 2017. 
9. [9]
   On 3 October 2017, Mr Hansen pleaded guilty in the District Court to seven counts on an indictment.  These sexual offences comprised one count of indecent dealing with a person with an impairment of the mind, six counts of indecent dealing with a person with an impairment of the mind under his care, and one count of unlawful carnal knowledge of a person with an impairment of the mind under his care.  Each was a sexual offence against Ms X.  Ms X was 26 years of age at the time of the offending.  She has a severe speech and language disorder and communicates through writing and gestures.  At the time of the offending, Ms X was functioning within an extremely low range of intelligence, with measured impairments in both verbal and non-verbal reasoning skills.  She met the diagnostic criteria for intellectual disability.  He was aged 56 when he committed these offences.   
10. [10]
    By the date sentencing submissions were made, Mr Hansen has spent 1,215 days in custody.  This period was not declarable as time served in respect of the offences.  On appeal, Mr Hansen’s initial sentence of four years imprisonment for the carnal knowledge offence was reduced to three years and four months.^[1]

Contravention of the supervision order

11. [11]
    Ms X was not a child.  No evidence was adduced that the sexual offences committed against her involved serious violence.  However, Mr Hansen’s offences against Ms X breached requirement xxiv of his supervision order, which required him to “not commit an offence of a sexual nature during the period of the order”.  As well, Mr Hansen refused to provide an authorised Corrective Services officer with the contact details of a female with whom he was having contact.  This was a breach of requirement xvi of the supervision order. He also admitted to having contact with an identified female by text messages shortly after he was directed to have no further contact with her.  This was a breach of requirement vii of the supervision order. 
12. [12]
    On the basis of his guilty pleas and conviction, and the evidence of the other matters concerning directions, I am satisfied on the balance of probabilities that Mr Hansen contravened these three requirements of his supervision order.  I note that the submissions put on behalf of Mr Hansen included a concession by him that it is open for the Court to find that a breach of clauses vii, xiv and xvi of the supervision order has been established.

Risk of a serious sexual offence

13. [13]
    The immediate consequence of his contravention of the supervision order is that, unless Mr Hansen satisfies the Court on the balance of probabilities that the adequate protection of the community can be ensured by his release on the existing order, the Court must rescind the existing order and make a continuing detention order.  In other words, the onus is on Mr Hansen to demonstrate that “the adequate protection of the community” can be ensured by his release once again on supervision. 
14. [14]
    As the Court of Appeal observed in Kynuna v Attorney-General for the State of Queensland:

“The reference to “the adequate protection of the community” in s 22(2) and s 22(7) is clearly a reference to that term as explained in s 13, that is, adequate protection of the community from the unacceptable risk that the applicant will commit a serious sexual offence, namely one involving serious violence of the kind discussed in Phineasa [2013] 1 Qld R 315, which caused or was likely to cause significant physical injury or significant psychological harm.”^[2]

15. [15]
    In this context it is important to bear in mind that the Court is not considering the risk that Mr Hansen might contravene conditions of his supervision order or that he might commit another offence which cannot be characterised as a serious sexual offence.  Nor, in this respect, is the Court to consider difficulties or inconveniences that might arise for those public officers responsible for supervising Mr Hansen in respect of his compliance with conditions under a supervision order.  The risk being considered by the Court is that of Mr Hansen committing a serious sexual offence. 
16. [16]
    To assist the Court in forming a view about this important question, evidence has been provided from two consultant psychiatrists.

Dr Sundin

17. [17]
    Dr Josephine Sundin interviewed Mr Hansen on 7 August 2020 for the purpose of preparing a report.  Dr Sundin’s report is dated 6 September 2020.
18. [18]
    Dr Sundin made an assessment of Mr Hansen and reviewed relevant material provided to her, including past psychiatrist assessments.  In Dr Sundin’s opinion, Mr Hansen met the diagnostic criteria for each of the following:

    1. (a)
       Paedophilic Disorder – sexually attracted to females – of a non-exclusive type;
    2. (b)
       Major Neurocognitive Disorder acquired as a result of a motor vehicle accident in 1982;
    3. (c)
       Personality changes due to other medical conditions, namely acquired brain injury, disinhibited type; and
    4. (d)
       Substance Use Disorder – cannabis and alcohol – in restrained remission in a controlled environment.
19. [19]
    Dr Sundin administered risk assessment instruments she considered have some predictive accuracy when considering the risk of sexual recidivism.
20. [20]
    On the STATIC-99R measure, Mr Hansen achieved a score of 4.  According to Dr Sundin, this is a lower score than had previously been achieved by him.  The reduction is reflective of the fact that Mr Hansen is now in a group of offenders over the age of 60.  Mr Hansen’s score places him in a group of offenders who are considered to be at above average risk for future offending.
21. [21]
    On the Hare Psychopathy Rating Scale, Mr Hansen achieved a score of 29/40.  This was just below the cut off of 30/40, which would attract the label psychopath.  Dr Sundin cautioned that Mr Hansen’s serious brain injury in 1982 may make this assessment less reliable.
22. [22]
    On the Risk for Sexual Violence Protocol, Dr Sundin noted that the potential scenario for sexual violence by Mr Hansen included both sexual assaults of pre-pubital females and acts of sexual violence against vulnerable females.  Dr Sundin observed that the protocol indicated the risk of psychological harm was “great”, but the risk of physical harm was “not as significant”.  In Dr Sundin’s view, there is little risk that any violence by Mr Hansen would escalate to a life-threatening level.  According to Dr Sundin, the risk of sexual violence by Mr Hansen would not be imminent upon release.  Rather, warning signs would include a reversion to the abuse of substances or a failure to comply with disclosure or association requirements of a supervision order.  However, Dr Sundin described Mr Hansen’s risk of sexual offending as “chronic”.
23. [23]
    After considering the various assessments and her observations in the interview, Dr Sundin considered Mr Hansen to be at high unmodified risk of future sexual violence, characterising the risk for sexual violence as “chronic”.  According to Dr Sundin, this risk is unlikely to change in the near future.  In Dr Sundin’s view, the risk could worsen as the result of Mr Hansen’s impaired judgment and disinhibition associated with his neurocognitive disorder.  This disorder reduces impulse control and causes emotional dysregulation and an absence of empathy.  Cardiovascular risk factors associated with aging are likely to give rise to further cognitive deterioration.
24. [24]
    In Dr Sundin’s view, a supervision order has the potential to reduce Mr Hansen’s risk of sexual recidivism from high to moderate if he complies with the order.  Dr Sundin expressed her views in this way:

“In my opinion, a detention order versus a further supervision order is a somewhat finely judged issue given the high unmodified risk for sexual recidivism posed by this man who has both a Major Neurocognitive Disorder and an Organic Personality Disorder with elevated psychopathy scores.

Detention would simply be for the purpose of containing the potential risk Mr Hansen poses to the public.  It has been amply demonstrated through previous reports that there are no other treatment interventions available that might further mitigate the risk for sexual recidivism posed by Mr Hansen.

Based on past history, it is clear that whilst on a supervision order in the community Mr Hansen contravened on multiple occasions.  There is a high likelihood of Mr Hansen breaching any supervision order by way of non-compliance.

Nonetheless while on his past supervision order he did not sexually re-offend against any girls.  He did re-offend by engaging in a coercive sexual manner with an intellectually impaired woman.  There was no associated physical violence in the index offence.”

25. [25]
    Dr Sundin considered that Mr Hansen’s risk for sexual recidivism presented by his release from custody “could be contained under closely managed supervision”.  Dr Sundin suggested that a supervision order should be in place for a period of 10 years.  Dr Sundin explained this recommendation was influenced by the fact that, as he ages, Mr Hansen is likely to suffer a worsening of his judgment and impulse control to act on underlying sexually deviant cognition.

Dr Harden

26. [26]
    The second witness was Dr Scott Harden.  Dr Harden interviewed Mr Hansen on 21 August 2020.  His report is dated 27 November 2020.
27. [27]
    Like Dr Sundin, Dr Harden administered a number of risk assessment instruments.  He found that, on the STATIC-99R measure, Mr Hansen achieved a score of 5, which was reduced from 8 due to Mr Hansen’s age.  On this score, Mr Hansen was in the above average or moderate to high risk category.  In Dr Harden’s view, the STATIC-99R score may under-represent Mr Hansen’s risk due to the discount the measure gives for his age.
28. [28]
    On the Stable 2007 measure, Mr Hansen achieved a score which placed him in the high needs group in terms of an offender’s dynamic risk.
29. [29]
    On the Hare Psychopathy Rating Scale, Mr Hansen achieved a score of 27.  Dr Harden described this as significantly elevated.   It approached the cut off for a diagnosis of psychopathic personality (30/40).
30. [30]
    On the SVR-20 measure, Mr Hansen achieved a score which placed him in the high risk category with respect to sexually violent risk.
31. [31]
    Dr Harden noted that Mr Hansen had a pre-existing history of substance use and rule breaking before sustaining a head injury in 1982.  Following the injury, Mr Hansen developed a pattern of ongoing criminal behaviour, including substance use, property offences, interpersonal violence and sexual offences.  Dr Harden noted the observations of other psychiatrists who had previously examined Mr Hansen, to the effect that Mr Hansen had developed a personality disorder secondary to brain injury and had associated changes in a number of areas of cognitive function, particularly with regard to executive functions such as impulse control, emotion control and empathy.  In Dr Harden’s view, Mr Hansen has demonstrated little ability to alter his behaviour in the absence of external constraints.
32. [32]
    Dr Harden concluded that Mr Hansen’s future risk of sexual re-offending is high.  On a supervision order, Dr Harden considered the risk of sexual re-offending to be low to moderate.  In Dr Harden’s view, Mr Hansen’s risk factors are not likely to improve with time or therapy.  Rather, the risk would only improve with Mr Hansen’s increasing physical infirmity over time.
33. [33]
    Dr Harden considered that, if Mr Hansen were to re-offend, it would most likely be an offence associated with women who are vulnerable and have pre-pubital female children or with opportunistic access to other vulnerable females.  In Dr Harden’s view, physical harm is unlikely to be caused, but psychological harm is likely.
34. [34]
    Dr Harden expressed the view that, given Mr Hansen’s criminal history and the progress of his psychiatric and neurological conditions, if a supervision order were to be made, it ought to be enforced for at least a further period of 10 years.

Conclusions

35. [35]
    As noted above, I am satisfied to the relevant standard that Mr Hansen has contravened three of the requirements of his supervision order.  The Court may deal with Mr Hansen’s contravention of the now expired order^[3] and may do so pursuant to s 22 of the Act, as a warrant was executed for such relief before the supervision order expired.^[4] 
36. [36]
    The supervision order expired on 6 March 2016, or within a relatively short period of that date.  Mr Hansen did not attempt to show that his release pursuant to that now expired order would ensure the adequate protection of the community.  Frankly, in the circumstances, it would not have been possible for him to do so. 
37. [37]
    The options open to the Court are either to amend the supervision order so that it provides for the adequate protection of the community or to rescind it and make a continuing detention order. 
38. [38]
    The psychiatric evidence before the Court does not provide a sound basis for the rescission of the existing order and the making of a continuing detention order.  It does leave open a finding by the Court that the adequate protection of the community could be ensured by Mr Hansen’s release on a supervision order in an amended form.  That is the course suggested by the Attorney-General and accepted by Mr Hansen.  In the circumstances, by pointing to that evidence, Mr Hansen has satisfied the court, on the balance of probabilities that the adequate protection of the community can, despite the contraventions of the supervision order, be ensured by a supervision order.
39. [39]
    The events that have occurred since the supervision order was last considered by the Court call for a wholesale reconsideration of the requirements necessary to adequately protect the community from the risk of Mr Hansen committing a serious sexual offence.  
40. [40]
    The Attorney-General has proposed, and Mr Hansen has not resisted, an amendment of the existing supervision order involving the deletion of the existing requirements and replacing them with 44 particular requirements.  These provide requirements about reporting, supervision, prohibition of committing a sexual offence or an indictable offence, restrictions on place of residence, restriction on leaving Queensland, curfew directions, wearing of a monitoring device, restrictions on employment or study, use of motor vehicles, restrictions on the use of a mobile telephone, computers and the internet, prohibition of contact with any victim, prohibition on the use of alcohol and drugs, provision for drug and alcohol testing, restrictions on going to licensed premises, restrictions on the use of medicines, rules about rehabilitation and counselling, informing corrective services of planned activities each week, and measures that prohibit and prevent contact with children.
41. [41]
    I have considered each of these carefully.  I am satisfied the existing supervision order should be amended to provide for these requirements to ensure the adequate protection of the community.

Period of the amended supervision order

42. [42]
    Mr Hansen’s custodial sentence for his offences against Ms X will end on 11 February 2021.  It is appropriate that the Court should order that the amended supervision order apply to Mr Hansen from that date. 
43. [43]
    I have considered the opinions and findings of Dr Sundin and Dr Harden and am satisfied Mr Hansen should be subject to the amended order for a period until 11 February 2031.  Such an order will provide for a 10 year period of supervision on the 44 amended requirements. 
44. [44]
    Requiring Mr Hansen to be subjected to the supervision order, as amended, for a period from his release until 11 February 2031 will avoid any confusion as to the period of the supervision order.  This potential confusion might arise from the fact that Mr Hansen spent 62 days from 30 August 2010 to 30 October 2010 in custody.  Pursuant to s 24 of the Act, the existing supervision order was suspended while he was detained.  The period of the suspension order was extended by the 62 days he was detained in custody.  The making of an order in the terms here considered will minimise any future controversy, in February 2031 or before, as to the appropriate end date for the varied supervision order.

SCHEDULE

1. You are being released from prison but only if you obey the rules in this supervision order.

2. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison.
3. You must obey these rules from your release from custody on 11 February 2021 to 11 February 2031.

Reporting

4. On the day you are released from prison, you must report before 4 pm to a corrective services officer at the Community Corrections office closest to where you will live. You must tell the corrective services officer your name and the address where you will live.
5. A corrective services office will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A corrective services officer might visit you at your home. You must let the corrective services officer come into your house.

To “report” means to visit a corrective services officer and talk to them face to face.

Supervision

6. A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a corrective services officer gives you about:
   1. Where you are allowed to live; and
   2. Rehabilitation, care or treatment programs; and
   3. Using drugs and alcohol; and
   4. Who you may and may not have contact with; and
   5. Anything else.

A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation. An instruction that means that you will break the rules of this supervision order is not a “reasonable direction”.

If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it.

7. You must answer and tell the truth if a corrective services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.
8. If you change your name, where you live or any employment, you must tell a corrective services officer at least two business days before the change will happen.

A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday.

No offences

9. You must not break the law by committing a sexual offence.
10. You must not break the law by committing an indictable offence.

Where you must live

11. You must live at a place approved by a corrective services officer. You must obey any rules that are made about people who live there.
12. You must not live at another place. If you want to live at another place, you must tell a corrective services officer the address of the place you want to live. The corrective services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a corrective services officer to live at another place.

This also means you must get written permission from a corrective services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place.

13. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a corrective services officer. You are allowed to leave Queensland only after you get written permission from a corrective services officer.

Curfew direction

14. A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction.

Monitoring direction

15. A corrective services officer has power to tell you to:
    1. Wear a device that tracks your location; and
    2. Let them install a device or equipment at the place you live. This will monitor if you are there.

This is called a monitoring direction. You must obey a monitoring direction.

Employment or study

16. You must get written permission from a corrective services officer before you are allowed to start a job, start studying or start volunteer work.
17. When you ask for permission, you must tell the corrective services officer these things:
    1. What the job is;
    2. Who you will work for;
    3. What hours you will work each day;
    4. The place or places where you will work; and
    5. (if it is study) where you want to study and what you want to study.
18. If a corrective services officer tells you to stop working or studying you must obey what they tell you.

Motor vehicles

19. You must tell a corrective services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the corrective services officer these details immediately (on the same day) you get the vehicle.

A vehicle includes a car, motorbike, ute or truck.

Mobile phone

20. You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a corrective services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone.
21. You must give a corrective services officer all passwords and passcodes for any mobile phones you own or have. You must let a corrective services officer look at the phone and everything on the phone.

Computers and internet

22. You must get written permission from a corrective services officer before you use a computer, phone or other device to access the internet for the first time after your release from custody.
23. You must give a corrective services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a corrective services officer look at the computer, phone or other device and everything on it.
24. You must give a corrective services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things.

No contact within any victim

25. You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you.

“Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.

Rules about alcohol and drugs

26. You are not allowed to take (for example, swallow, eat, inject, or sniff) any alcohol.  You are also not allowed to have with you or be in control of any alcohol.
27. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs.
28. A corrective services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, spit (saliva), pee (urine) or blood when they tell you to do this.
29. You are not allowed to go to pubs, clubs, hotels, nightclubs or bottle shops which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to go.

Rules about medicine

30. You must tell a corrective services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a corrective services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.
31. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor.

Rules about rehabilitation and counselling

32. You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.
33. You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program.
34. You must let corrective services officers get information about you from any treatment or from any rehabilitation program.

Speaking to corrective services about what you plan to do

35. Each week, you must talk to a corrective services officer about what you plan to do that week. A corrective services officer will tell you how to do this (for example, face to face or in writing).
36. You must also tell a corrective services officer the name of new persons you have met.

This includes:  people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly.

37. You may need to tell new contacts about your supervision order and offending history.  The corrective services officer will instruct you to tell those persons and the corrective services officer may speak to them to make sure you have given them all the information.

Contact with children

38. You are not allowed to have any contact with children under 16 years of age.  If you want to have supervised or unsupervised contact with a child under 16 years of age you must first get written permission from a corrective services officer.  If you do not get written permission, you are not allowed to have contact with the child.

“Contact” means any type of communication, including things like talking with them face to face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way.

“Supervised” means having contact with the child while another person is with you and the child.

“Unsupervised” means having contact with the child while there is no other person with you and the child.

39. If you have any repeated contact (that is, more than one time) with a parent, guardian or carer of a child under the age of 16, you must:
    1. tell the person(s) about this supervision order; and
    2. tell a corrective services officer the details of the person(s).

You must do this immediately.  This means you have to tell the person, and tell a corrective services officer, on the same day you have contact with the person.

40. Queensland Corrective Services has power to give information about you, and about this supervision order, to any parent, guardian or caregivers that you have contact with.
41. Queensland Corrective Services also has power to give information about you, and about this supervision order, to an external agency (such as the Department of Child Safety).
42. You must not:
    1. attend any school or childcare centre;
    2. be in a place where there is a children’s play area or child minding area;
    3. go to a public park;
    4. go to a shopping centre;
    5. join any club or organisation in which children are involved;
    6. participate in any club or organisation in which children are involved.

If you want to do any of these things, you must first get written permission from a corrective services officer.  If you do not get written permission, you cannot do any of these things.

43. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence.  You must talk about this with a corrective services officer when asked.
44. You must advise your case manager of any personal relationships you have started.