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Attorney-General v Fisher[2022] QSC 127

Attorney-General v Fisher[2022] QSC 127

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Fisher [2022] QSC 127

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

MARLEY KEENAN LAVELL FISHER

(respondent)

FILE NO:

­­­­

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2022

JUDGE:

Kelly J

ORDER:

The originating application filed 7 February 2022 is dismissed.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant applied for orders under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent had pleaded guilty to two counts of entering a dwelling at night with intent, one count of attempting to enter a dwelling at night with intent, one count of sexual assault and a breach of a suspended sentence – where the count of sexual assault involved the respondent entering a house at night – where the Crown accepted that the respondent did not enter the house with sexual intent – where the respondent came upon the victim sleeping and touched the outside of the victim’s vagina – where a struggle ensued and the respondent slammed the victim’s head into the floor multiple times – whether the offending was an offence of a sexual nature “involving violence” – whether the Court should be satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order.

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(1), s 13(2), s 13(3), s 13(7), sch 1.

Attorney-General (Qld) v Fisher [2018] QSC 74, considered.

Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305; [2012] QCA 184, considered.

Attorney-General (Qld) v Sutherland [2006] QSC 268, considered.

Attorney-General (Qld) v Travers [2018] QSC 73, cited.

COUNSEL:

M Maloney for the applicant

C Smith for the respondent

SOLICITORS:

Crown Law for the applicant

Legal Aid Queensland for the respondent

Overview

  1. [1]
    This is an application by the Attorney-General for a division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”). The application may be made in relation to “a prisoner”, a term defined by s 5(6) of the Act to relevantly include a person serving a period of imprisonment which includes a term of imprisonment for a serious sexual offence. 
  2. [2]
    A division 3 order under the Act can only be made where the Court is satisfied that the prisoner is a serious danger to the community in the absence of that order.[1]  A prisoner will be regarded as a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or if released from custody without a supervision order.[2]  A “serious sexual offence” is a phrase  defined by the Act.[3] In the circumstances of this case, because of the unanimous view of the psychiatrists that the respondent posed no risk to children, the relevant kind of serious sexual offence was an offence of a sexual nature involving violence.
  3. [3]
    The Court may decide that a person is a serious danger to the community in the absence of a division 3 order only if satisfied, by acceptable cogent evidence and to a high degree of probability, that the evidence is of sufficient weight to justify the decision.[4]  Section 13(7) of the Act provides that the Attorney-General has the onus of proving that the prisoner is a serious danger to the community.
  4. [4]
    For the reasons which follow, whilst I am satisfied that the respondent is a prisoner within the meaning of s 5(6) of the Act, I am not satisfied that she is a serious danger to the community in the absence of a division 3 order within the meaning of that expression as contained in s 13(1) of the Act.

Factual background

  1. [5]
    The respondent is a 26-year-old indigenous male on a suspended transgender individual management plan who identifies as female.  Her current custodial end date is 23 June 2022. 
  2. [6]
    On 25 July 2014, she was convicted in the District Court at Ipswich upon her plea of guilty to two counts of entering a dwelling at night with intent, one count of attempting to enter a dwelling at night with intent, one count of sexual assault and a breach of a suspended sentence. She was sentenced to a term of imprisonment of two years and six months with 154 days of time spent in pre-sentence custody declared as time already served.  Her parole eligibility date was set as 25 October 2014.
  3. [7]
    The offending had occurred during the early hours of the morning of 23 August 2013. The respondent formed the intention to break into various homes in Riverview to steal property. When she entered the first home, she was interrupted by the owner and left. At about 1.30 am, she entered the second home and went into a bedroom. The Crown conceded that the respondent did not enter the house with any sexual intent. Once in the bedroom, the respondent came into the presence of the sleeping victim, who was in her late thirties. The respondent pinned the victim down by her thighs, covered the victim’s mouth with one hand and used the other hand to touch the outside of the victim’s vagina. The victim awoke and a struggle ensued. The victim scratched the respondent and they both fell to the floor. The respondent then slammed the victim’s head into the floor a couple of times. The victim’s 18 years old daughter was in the house, heard the sounds of the struggle and came to investigate. Upon seeing the daughter, the respondent fled through the bedroom window. The victim suffered a cut and swollen right lower lip, bruising to her right ankle and abrasions to her knuckles and elbow. She suffered from consequent psychological harm and became timid and frightened at night. Her injuries caused her to be absent from work.
  4. [8]
    After fleeing the victim’s home, the respondent attempted to break into a third home. The homeowner saw the respondent from his veranda and told her to leave. The respondent fled and the police were called. The respondent was apprehended. She told police that she had consumed 12 drinks of rum and bourbon prior to the offending and had broken into the homes looking for cigarettes.
  5. [9]
    Whilst serving her term of imprisonment, the respondent committed further offences.
  6. [10]
    On 25 March 2015, the respondent was convicted upon her plea of guilty in the Magistrates Court at Ipswich to one count of sexual assault. The victim was a female corrective services officer working in the residential unit of the Southern Queensland Correctional Centre. At approximately 2:05 pm on 25 October 2014, the respondent had entered the officer station of the unit and requested assistance from the victim to complete a laundry form. The victim observed the respondent to be physically sexually aroused. The respondent pressed her erect penis against the victim’s arm. She was directed to leave the office and did so. In her sentencing remarks, the Magistrate noted that this particular offence did not involve the victim being in a large degree of danger, nor did it result in a significant level of victim impact.  The respondent was sentenced to one months’ imprisoned to be served cumulatively with her existing sentence and her parole eligibility date was set as 25 March 2015. 
  7. [11]
    The respondent has committed other offences whilst in custody including causing grievous bodily harm on 15 May 2015 and a serious assault of a corrective services officer on 3 April 2017. She has been involved in approximately 35 incidents since 2013 which have variously involved violence against other prisoners and staff, self-harm, damage to property, offensive behaviour and indecent or sexual acts. To the extent that the further incidents have involved sexual behaviour, that behaviour has relevantly involved exposing herself, attempting to touch a female officer on her head or face area, masturbating in front of a female chaplain and rubbing up against other prisoners. The respondent has from time to time interacted with the Prison Mental Health Services and between 15 June and 24 July 2015 was in a high secure facility known as “the Park”. She has been on maximum secure orders for periods between 19 May 2015 to 16 May 2016, 31 May 2017 to 30 November 2017 and 12 July 2018 to June 2019.
  8. [12]
    Whilst in custody, the respondent has been the subject of some psychological and psychiatric reporting, namely a report of Dr Lars Madsen, psychologist, dated 10 April 2016, a report of Dr Ness McVie, psychiatrist, dated 28 December 2016 and a sessional note dated 5 February 2020 prepared by Dr Jeff Nelson, psychologist.
  9. [13]
    Dr Madsen’s report provided an institutional violence risk assessment concerning the respondent while she was at the Maximum Secure Unit in the Brisbane Correctional Centre. A longitudinal analysis of the respondent’s behaviour suggested that her disruptive, defiant and violent behaviour escalated both in terms of seriousness and frequency. Dr Madsen considered the respondent’s risk of engaging in violence to be low and non-imminent. 
  10. [14]
    Dr McVie provided a report in relation to the respondent based on an interview conducted on 6 October 2016. Dr McVie scored the respondent at 28 on the PCL-R. She scored 6 on the Static-99 test which put her in the high risk for sexual recidivism. During the interview the respondent described herself as having a sexual addiction. At that time, she told Dr McVie that she didn’t want to undertake a sex offender program as she did not want to be around people who raped children. Dr McVie regarded the respondent as a person who had difficulties controlling her sexual urges. and recommended the respondent be required to undertake a sex offender program. Dr McVie opined that if the respondent were to be released at that time, she would be extremely difficult to manage on any type of supervision order and would likely breach such an order.
  11. [15]
    Dr Nelson attended on the respondent whilst she was at the Townsville Correctional Centre.  The respondent’s most significant psychological concerns were identified as being her lack of authentic identity and inability to recognise her tendency to mimic and morph into those she connected with.

Psychiatric evidence

  1. [16]
    Three eminently qualified and experienced psychiatrists gave evidence before the Court on the return of the application.  Dr Eve Timmins had prepared a risk assessment report on instructions from Crown Law dated 27 August 2021.  Dr Josephine Sundin had been appointed by the Court at the preliminary hearing for the purpose of a risk assessment pursuant to s 11 of the Act.  Dr Sundin provided a report dated 10 May 2022.  Dr Michael Beech had been appointed by the Court at the preliminary hearing for the purpose of a risk assessment pursuant to s 11 of the Act.  Dr Beech provided a report dated 8 May 2022.  Each psychiatrist gave oral evidence in chief and was cross examined.
  2. [17]
    Dr Timmins’ report was based on an interview with the respondent at the Townsville Correctional Centre on 9 July 2021, as well as extracts from prosecution and Queensland Corrective Services files, the respondent’s criminal history and transcripts of relevant court proceedings.  Dr Timmins’s report detailed the respondent’s previous sexual offending history, prison conduct, family history, education and vocation history and social history.
  3. [18]
    Dr Timmins’ report outlined her material diagnoses, opinions and recommendations as follows:

“DIAGNOSIS

In my opinion [the respondent] does not have evidence of a clear sexual paraphilia. [She] does have evidence of a high sex drive in the community and custody.

[She] also has evidence of an Antisocial Personality Disorder with probable narcissistic traits. I have not scored the PCL-R but [she] potentially has aspects of psychopathy to [her] personality structure. [She] is noted to have scored highly on the PCL-R according to Dr McVie’s report from 2016.

[She] also has a Substance Use Disorder, mainly alcohol and cannabis….

RISK ASSESSMENT

Psychopathy Checklist (PCL-R)

Given that the interview was completed via video link, not in person, due to the Covid-19 pandemic social restrictions, I have elected to not score the PCL-R. …

Static-99R

For the purposes of the scoring of the Static-99R, I consider the Index offence is the 2014 sexual assault in custody. This offence is the most recent sex offence and [she] has committed it after being sentenced for the sexual assault in 2013 thus [she] chose to re-offend sexually after being sanctioned for the 2013 offence. Everything after this 2014 offence is considered part of the index offence.

I am counting the 2012 Enter dwelling[5] with intent as a previous sex offence as the offence involving [her] ruffling the victims bed sheets and acting in a menacing manner with an imitation penis. The victim was noted to have felt uncomfortable with [her] behaviour with the imitation penis. I have counted it as a Category B offence where there is indecency without a sexual motive as the motivation for the offence appeared not to be sexual initially. This offence is also a non-contact offence as are the custodial acts in 2015 and in June 2018.

I am counting the custodial behaviours as one offence as per Static scoring. I have considered whether these could be the Index offence but have elected to see them as part of the Index offence given they occurred in the same custodial episode as the Sexual Assault in 2014 and did not incur formal charges. They come under the ’one charge per sentence rule’ when considering custodial behaviours.

[The respondent] scored 9 which is regarded as WELL ABOVE AVERAGE or HIGH risk of reoffending.

RSVP

I consider [the respondent] to have positive scored for the following relevant items:

 Chronicity of Sexual Violence

 Diversity of Sexual Violence

 Physical Coercion in Sexual Violence

 Extreme Minimisation or Denial of Sexual Violence

 Problems with Self-Awareness

 Problems with Stress or Coping

 Problems resulting from Child Abuse

 Problems with Substance Abuse

 Violent or Suicidal Ideation

 Problems with Intimate Relationships

 Problems with Non-Intimate Relationships

 Problems with Employment

 Non-sexual Criminality

 Problems with Planning

 Problems with Treatment

 Problems with Supervision

I consider [the respondent] to have partial/possible scores for the following items:

 Attitudes that Support or Condone Sexual Violence

 Sexual Deviance

 Psychopathic Personality Disorder

 Major Mental Illness

[She] does not have evidence of:

 Escalation of Sexual Violence

 Psychological Coercion in Sexual Violence

Thus, [the respondent] would be considered as a HIGH risk of reoffending if released into the community at this time according to the RSVP.

OPINION AND RECOMMENDATIONS

[The respondent] has a criminal history dating back to when [she] was 10 years old. [Her] offences are related mainly to drugs, motor vehicle, stealing and burglary but [she] has a significant history of violence in addition to sex offences. [She] has breached various Community Orders. [She] has both juvenile and adult incarcerations. [Her] anti-social behaviours continued in custody, leading to lengthy Maximum Secure Orders and/or criminal convictions.

[She] is a recidivist sex offender with an Enter dwelling with intent charge with sexual overtones in 2012 against an adult female, Sexual Assault in 2013 leading to [her] incarceration, Sexual Assault in 2014 against a female custodial officer and three indecent/offensive acts in custody which did not lead to charges (in 2015, April 2018 and June 2018).

[She] does not have evidence of a sexual paraphilia but there is evidence of a high sex drive. This in combination with [her] personality structure and substance use in addition to poor insight and no relapse management plan mean [her] risk of sexual re-offending is high. This is confirmed by the risk assessment instruments.

With regards to future sexual offending, [her] victims are likely to be adult females. [She] is likely to have a high sex drive, may be emotionally upset, intoxicated or simply take advantage of a situation such as during the commission of another offence such as theft or burglary. [She] may commit penetrative offences against [her] victims but is more likely to touch them or rub [herself] against them. Given the 2013 offence there could be a risk of violence towards the victim. …

In summary, I am of the opinion that [the respondent] will be at a HIGH risk of reoffending in a sexual manner if released into the community at this time without a supervision order.

I recommend [she] undergoes a period of treatment prior to release into the community. [She] has little to no understanding of [her] pathway to offending sexually. [She] has few realistic plans or ideas as to how to manage [herself], [her] substance use, [her] itinerancy or [her] sexual offending if released.”

  1. [19]
    In oral evidence, Dr Timmins accepted that she had no concerns about the respondent being around children because she had found no evidence of paedophilic interest.[6]  She expressed the view that there was a “reasonably high risk of a penetrative offence occurring” but said that such offending was less likely than “an offence that… involves rubbing or touching – those sorts of offences”.[7] That evidence was further explained by her in cross-examination as follows:[8]

I think I’ve said in my conclusions … in regards to future sex offending … that [she] may commit penetrative offences but is more likely to touch them or rub them – … [She] is more likely to do the touching and – and exposure and inappropriate comments, those sorts of things, than, say, a penetrative offence when [she] gets released.”

  1. [20]
    Dr Sundin conducted an interview by video-link with the respondent at the Townsville Correctional Centre on 14 March 2022. Dr Sundin’s report outlined her material diagnosis, risk assessment and recommendations as follows:

“SECTION B: DIAGNOSIS

I consider that [the respondent] meets DSM V criteria for:

 Mixed Personality Disorder – borderline, narcissistic, anti-social personality traits;

 Substance Use Disorder – cannabis, in sustained remission whilst incarcerated.

I found no evidence that [the respondent] suffers from a sexual paraphilia.

I note that in the past [she] has been observed to demonstrate psychotic features. There was no evidence of psychosis at interview or in recent collateral history.

SECTION C: RISK ASSESSMENT

Using the Static-99R, I gave [the respondent] a score of 7, which places [her] in Category 4b. This indicates that [she] is an individual considered to be at well above average risk when compared to others who have been convicted for a sexual offence. (My score is one higher than that of Dr McVie in 2016. I scored [the respondent] using the 2014 sexual offence as the index, thus making the 2013 offence a prior sex offence whereas Dr McVie does not appear to have scored that. Dr Timmins makes reference to an offence in 2012, which she considered had sexual overtones. This is reflected in her higher score of 9 on the Static-99R.)

On the Risk for Sexual Violence Protocol (RSVP), I consider that the following items are relevant:

Under Sexual Violence History:

 Chronicity of sexual violence; and

 Physical coercion in sexual violence.

Under Psychological Adjustment:

 Extreme minimisation or denial of sexual offences;

 Problems with self-awareness;

 Problems with stress or coping; and

 Problems resulting from child abuse, probable.

With respect to Mental Disorder:

 Problems with substance abuse;

 Suicidal ideation; and

 Major mental illness is possible given the 2015 history.

With respect to Social Adjustment:

 Problems with intimate relationships;

 Problems with non-intimate relationships;

 Problems with employment; and

 Non-sexual criminality.

With respect to Manageability:

 Problems with planning;

 Problems with treatment; and

 Problems with supervision.

On this physician’s guideline, [the respondent] would be considered at moderate to high unmodified risk of sexual offending.

On the Hare Psychopathy Checklist Revised, I gave [her] a score of 22/40. This is insufficiently high to meet diagnostic criteria for [her] to attract the label of Psychopath.

SECTION D: DISCUSSION and RECOMMENDATIONS

With respect to the offence in August 2013, in the submissions made to the Judge, I note that the prosecution made no suggestion that [the respondent] entered the house with any sexual intent. It was submitted that [the respondent] had touched [the victim] indecently by touching her on the outside of her clothes on her vagina. There was no suggestion of attempted penetration, and the touching occurred in the context of a struggle which, granted, ended violently with [the respondent] hitting the woman’s head into the floor a couple of times.

In sentencing [the respondent], Judge Koppenol stated: “You touched her on the outside of her vaginal area – not accidentally.” He did not suggest that [the respondent] had attempted touching the genital area on the skin, penetrated the genital area or touched this lady on her breasts.

Before [the Magistrate] in March 2015, on the charge of unlawfully and indecently assaulting SAR on 25 October 2014, it was accepted that [the respondent] pushed [her] erect penis into the female Corrective Services officers arm as [she] leaned across her computer. [The Magistrate] considered that this offence was unlike more serious sexual offences that came before her and that for the Corrective Services officer: “because she probably wasn’t in that much danger, being in a prison, and I don’t think the whole level of victim impact, the fear that she would’ve felt would’ve been as bad as other cases I’ve been referred to.”

The prison violation of masturbating when in [her] cell but being visited by a female chaplain was not the subject of any criminal sanction.

These appear to be the entirety of sexual offences committed by [the respondent] against adult women with only one of the offences involving serious violence, and the sexual component of that offence not progressing beyond touching in the vaginal area on the outside of the complainant’s clothes.

The actuarial and dynamic risk instruments like the Static-99R and the RSVP, indicate that on their face value [the respondent] is an individual at well above average risk for future sexual recidivism.

However, in my opinion, the actuarial instrument fails to adequately reflect the details of the sexual offences committed by [the respondent]. While [the respondent] has a substantial criminal history and a significant history of physical violence; these were not serious, violent sexual assaults committed against adult women.

What struck me about [the respondent] both in the collateral material and at interview with [her] was the severity of [her] personality disorder.

In my opinion, [the respondent] has a severe Personality Disorder with prominent borderline and less prominent narcissistic/anti-social personality traits. [She] appears to have quite marked identity diffusion, fears abandonment and engages in transactional intercourse with men in prison to avoid abandonment, avoid adverse repercussions and to ensure that [she] remains the centre of attention.

It is consistent with that personality structure that [she] has demonstrated volatility of mood, and a capacity for impulsive, aggressive acts against both officers and other prisoners. [She] clearly has difficulty with regulating [her] own emotions.

This personality structure occurs against a profoundly prejudicial background and a degree of genetic vulnerability, as well as intra-familial modelling for violence criminal behaviour and substance misuse.

[The respondent’s] history suggests that [she] has relied on sex as coping through masturbation to pornography or engaging in transactional intercourse with others.

I am not convinced of [her] claimed transgender status. This seems to me to be a product of the identity diffusion that is part of [her] borderline personality structure. It may also reflect some cultural bias against homosexuality or fear of judgement or rejection by the family should [she] identify as homosexual.

Taking all of the factors presented both in the collateral and at interview with [the respondent], I consider that [she] is more at risk of being the victim of a sexual offence rather than a perpetrator of a serious sexual offence against an adult woman.

I do not consider that [she] is at risk of offending against a child. I found no evidence of any paedophilic cognitions.

I do consider that [the respondent] is at significant risk for future violent and criminal offences as part of [her] general emotional volatility, anti-social attitudes and proclivity to poor problem solving and aggressive outbursts.

I consider that [her] risk for physical violence would be elevated in the setting of significant psychosocial stressors triggering emotional collapse, associating with anti-social elements, or a reversion into abuse of substances, particularly cannabis and alcohol.

I am therefore not confident that [the respondent] is the type of prisoner who was envisaged to be covered by the [Act].

With this in mind, I respectfully recommend to the Court that no supervision order be imposed.

Should the Court reject this opinion, considering that there is too great a risk for serious sexual offences against women into the future, then I would recommend that [the respondent] be engaged in treatment with a forensic psychologist to address the personality disturbance which has underlain [her] general and sexual offending in the past.

I do not consider [the respondent] is a suitable person for participating in programmes. The nature of [her] personality dysfunction is such that [she] is unlikely to cope with a programme and is likely to be a disruptive influence within the programmes.

Treatment with a forensic psychologist should ideally commence before [she] is released from prison and then continue upon release. I would recommend a period of three to six months to establish a therapeutic relationship before [the respondent] is released and for therapy to continue thereafter.

Should the Court decide to place [the respondent] on a supervision order, then GPS tracking, curfews, disclosure clauses and abstinence from intoxicants would all be required. I do not consider that [she] would require exclusion zones with respect to children. I do consider that [she] would benefit from referral to an indigenous support service to assist [her] to address issues pertaining to cultural identity and a sense of cultural acceptance.”

  1. [21]
    In oral evidence, Dr Sundin accepted that the respondent did not present any risk to children.[9] She gave the following evidence in chief:[10]

“[Counsel]: And can you indicate for the court if there were to be further sexual reoffending what you consider the form that was likely to take?

[Dr Sundin] Yes, I agree with the opinion expressed by Dr Beech that if there were future sexual offending the most likely form it would take would be impulsive exposure or masturbation in public, perhaps touching women rather than penetrative sexual intercourse.”

  1. [22]
    Later in evidence in chief, Dr Sundin was asked to explain why she had recommended that no supervision order be made.  She answered that question as follows:[11]

“I paid a great deal of attention to the judgment of Judge Koppenol in the original 2013 matter where the judge said that there was no entry into the house with sexual intent but that the touching of the vagina was considered to be deliberate.  In my reading of police reports, “vagina” can cover anywhere from the mons pubis to the vagina itself.  I don’t place a lot of emphasis on the fact that there was touching of the vagina on the outside of the clothes.  What did impress me, though, was there was no penetration, no touching on the breasts, no procession beyond that.  There’s also been no other form of inappropriate sexual intent of that type.  There’s been rubbing.  There’s been exposure with masturbation….  I consider that serious sexual violence involves sexual assaults including violence or penetrative sexual assaults.  I accept that the 2013 incident did involve violence, but I’m not confident that it was violence with a sexual intent.”

  1. [23]
    Dr Beech conducted an interview with the respondent at the Townsville Correctional Centre on 25 March 2022.
  2. [24]
    Dr Beech’s report outlined his material diagnosis, risk assessment and recommendations as follows:

“SUMMARY AND OPINION

[The respondent’s] offender file is replete with evidence of persisting inappropriate if not offensive and indecent sexualised acts towards female officers and male prisoners. This has required administrative responses since at least 2014 “to address issues of impulsivity and self control and general custodial behaviour”. …

The 2014 offending occurred soon after [her] release on a suspended sentence in the context of a history of significant delinquency that included violence. In prison, [she] has been a highly problematic prisoner, often placed on safety orders and individual management plans, and in secure units, detentions units and maximum-security units. This custodial episode has been prolonged by three sentencing dates for four serious assaults. In addition to these aggressive behaviours and indecent behaviours, there is a significant history of affective instability and associated self-harm or threats of self-harm. … There are significant issues related to identity formation, and since 2016 I believe there has been evidence of significant gender and sexual confusion.

… Clinically, I believe that some of [her] difficulties reflect personality disturbance aggravated by having spent all [her] adult years in a custodial setting.

In my opinion, [the respondent] has:

 A severe mixed personality disorder with anti-social, narcissistic, and borderline traits of highly disruptive behaviours, delinquency, inflated self¬esteem, identity diffusion, impulsivity, and repeated thoughts or acts of violence and self-harm

I have assessed [the respondent] with two instruments as part of a structured professional judgement assessment.

On the Static-99R, an instrument that looks at unchangeable factors with a view to giving an actuarial assessment of risk, I gave [her] a score of 8. This instrument has been shown to have moderate validity for the assessment of indigenous offenders in south-east Queensland. Please note, for this assessment, I have not used the 2013 Burglary offence. I have used the June 2018 prison chaplain violation. I have not coded the more recent 2022 complaints by other prisoners.

This score places [her] in the group of offenders who are seen to be at much above average risk of re-offending in a sexual way. An Australian study has shown that the average rate of sexual re-offending is around 18%.

The Risk of Sexual Violence Protocol is an instrument that looks at dynamic factors with a view to risk scenario assessment.

On this 22-item instrument, I have found the following factors relevant:

 Chronicity of sexual violence

 Minimisation of sexual violence

 Attitudes that support sexual violence (inferred from [her] behaviour)

 Problems with self-awareness

 Problems with stress or coping (in particularly the use of sex to cope)

 Problems resulting from childhood abuse

 Psychopathic personality traits

 Major mental illness (personality disorder)

 Violent ideation (inferred from [her] behaviour)

 Problems with intimate relationships

 Problems with non-intimate relationships

 Problems with employment (within the prison system)

 Non-sexual criminality

 Problems with planning

 Problems with treatment ([she] has not undertaken treatment)

 Problems with supervision (reported breaches of community release including suspended sentence in [her] youth)

In my opinion, this is a heavy dynamic load.

Taken altogether, it is my opinion that the likelihood of [the respondent] committing another sexual offence if [she] is released into the community is high.

[She] has a severe personality disorder and is an untreated sex offender. Most worryingly is the persisting sexualised if not indecent behaviour throughout the course of [her] long incarceration, with little sign of remission. [She] is highly sexualised, has reported difficulties controlling [her] urges, and at times uses sex to cope with [her] difficult emotions. I believe [she] has limited awareness of [her] difficulties, limited abilities to control [herself], and a poor understanding of the inappropriateness of [her] behaviour. …

If [she] were to re-offend, in my opinion, the mostly likely scenario is that [she] would commit an offensive or indecent act, similar to the acts [she] has committed in prison more recently. That is, [she] will inappropriately masturbate in a setting where [she] could be seen; [she] will make offensive remarks; [she] will attempt to importune someone; or [she] will try to indecently touch them. The risk is imminent.

In my opinion, there is a much less likelihood that this sexual behaviour will escalate further. From what I can see, [she] has immediately desisted when the teacher, officer, or chaplain resisted [her] or remonstrated with [her]. I think the male prisoners who report [her] behaviour now complain more that it is uncomfortable and persistent rather than [she] has attempted to assault them.

A worse scenario is that on release [she] will return to break and enter offending to support [herself] because [she] has few if any plans for release or appropriate or realistic supports in the community. As in 2013, during the course of break and enter at night, [she] will come across a sleeping female. It is possible that under those circumstances that [she] will act to indecently touch her, and physically assault her in the course of her resistance or struggle. I believe that this is less likely. The risk is not imminent.

I believe that a supervision order would lessen the risk of that worse-case scenario even further by limiting [her] ability to enter the trajectory that would lead to that offending. However, at present, there is little ability for a supervision order to further reduce the risk of the lesser types of offending; realistically, [she] has been unable or unwilling to control [her] behaviours in prison from 2013 to 2022; in the community, I believe that [she] is likely to continue with those indecent behaviours in the presence of both adult males and females.

The risk of that offending might be reduced with treatment. I agree with the program facilitators that before [the respondent] engages in a sexual offender treatment program, [she] should first engage in some form of cognitive therapy, cognitive change, self regulation, or impulse control counselling. [She] has a marked lack of awareness, poor social skills, and has reported difficulty controlling [her] urges. Treatment would assist [her] with self-control, better understanding of what drives [her] behaviour, and a better understanding of appropriate “courtship” behaviours.

If [she] is released to supervision, then I think appropriate conditions would relate to:

 Restrictions on [her] movements in the community

 Curfew

 Abstinence

 Counselling

 Engagement in appropriate pro-social activities such as employment

At this stage, I am hesitant to recommend a sexual offender therapy program that would best suit [the respondent]. Despite the high likelihood of offending, I agree with [her] that [she] does not fit easily into those offenders who might be placed in a high intensity sex offender program. It would be helpful for [her] to undergo a preparatory program so that this could be better assessed….”

  1. [25]
    In oral evidence, Dr Beech said that the respondent did not pose any risk in relation to children.[12] He then gave the following evidence in chief:[13]

“[Counsel]: …in your report, on page 18, you do talk about the nature – the likely nature … of any further reoffending, and you initially start with – the most likely scenario would be committing an offence or indecent act similar to the acts [she] has committed in prison more recently.  So inappropriately masturbate, attempt to importune somebody or [she] would try to indecently touch them.  And you say the risk is imminent?

[Dr Beech]: Yes.

[Counsel] So you say that’s imminent, so an ongoing high risk of that form of conduct?

[Dr Beech] Yes.  And likely to – if released into the community, likely to occur within, you know, the next three months, if you like.

[Counsel] You then go on to say a worse scenario – sorry, before I go to that, the paragraph below where you say that most likely scenario.  You say there is a much less likelihood that this sexual behaviour will escalate further?

[Dr Beech]: Yes.

[Counsel] And what would you see as an escalation in that?

[Dr Beech]: The escalation would be I think the use of violence in the offending, and that would be that [she] – having started some sexualised behaviour, such as indecently touching or rubbing up against a person or something like that, they resisted, then [she] would use violence to restrain them.  And in the course of that, someone would be harmed.  The other scenario would be that, on release, [she] returns to break and enter offences.  And I think it’s – it’s in the nature of break and enter offences at night, that if you’re intoxicated and you break into someone’s house at night, at some point you’re going to come across a sleeping person.  And from there, [she] might start the sexualised behaviour and they might resist and violence would be involved.

[Counsel]: And that’s what you outline in your report as being a worse scenario?

[Dr Beech]: Yes, that the 2014 offending is repeated.

[Counsel]: And are you able to quantify the likelihood of that worse scenario?

[Dr Beech]: It’s much less than the other offending.  So I would say much below average, if you like, that she comes down to low/moderate, something in that order.

[Counsel]: And you’ve just said, and it’s also referred to in your report, the likelihood of violence in any future sexual offending.  Are you able to comment in the sexual offending?

[Dr Beech]: … Well, that’s why I would call it a serious sexual offence because there would be violence.  And I would think there would be below average risk of the violence occurring in the sexual offending.  From what I can see, when – in recent times when they’ve resisted, [she] stopped. … I think the chances of [her] being intentionally violent in a – as [she] offends, to rape someone, if you like, to assault them and commit the sexual offence, I think is below average.”

  1. [26]
    Dr Beech later further explained this evidence as follows:[14]

I would think these days she would be more likely to flee as she fled, I think, some of the other break and enter times when disturbed, and I think she’s more likely to stop, but she does have a history of using violence, so I can’t rule out that it would be – she would respond violently to the – in the struggle.  It’s more likely she would leave….  There’s a risk, I think, that she would use violence as part – as an attempt to restrain the person while she rubs against her or him, or something like that, but I don’t see that as a high risk or even a moderate risk, but there’s a risk.”

Consideration

  1. [27]
    The central questions for determination on this application are whether the respondent is a “prisoner” within the meaning of s 5(6) of the Act and, if so, whether the Court should be satisfied that the respondent is a serious danger to the community in the absence of a division 3 order being made.  The meaning of “involving violence” in the definition of “serious sexual offence” in the schedule of the Act is important to the determination of both questions. 
  2. [28]
    In Attorney-General v Phineasa,[15] Muir JA (with whom White JA and Philippides J agreed) relevantly said:

“An offence, to be a serious sexual offence, must be “of a sexual nature” and involve “violence” unless it is against children.

If the appellant’s argument is to be accepted, the words “involving violence” are virtually otiose.  Any physical contact of a sexual nature would necessarily involve violence.  That would leave outside the definition only offending which did not involve physical contact such as indecent exposure and voyeuristic conduct, as long as the offending conduct did not constitute “intimidation” or “threats”.

It may be doubted that this result was in Parliament’s contemplation.  Many indecent acts involving physical contact are far less culpable in nature and harmful to their victim than indecent acts involving no physical contact.  Such acts may be neither intimidating nor constitute threats yet be grossly offensive, confronting, disturbing or corrupting.

Also it may be doubted that offending against children would have been mentioned separately if any sexual contact, however minor, involved “violence” and was thus capable of constituting a “serious sexual offence”.

The definition of serious sexual offence plays a pivotal role in the operation of the Act. Final orders which may result in a continuing detention order or a supervision order may be made only if the prisoner is a serious danger to the community in the absence of such an order.  A prisoner is, by definition, a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or if released from custody without a supervision order.

A serious sexual offence is thus an offence, the commission, or potential commission, of which may represent “a serious danger to the community”.  One should not attribute to the Parliament in using the words “serious danger to the community” the intention that they have a meaning quite different from, and in fact, the converse of their meaning in normal usage.  If the appellant’s argument is accepted the language under consideration is singularly inappropriate and misleading.

On the appellant’s argument, s 13(1) is to be construed as if it provided:

“This section applies if, on the hearing of an application for a division 3 order, the court is satisfied that there is an unacceptable risk that the prisoner will commit either a sexual act involving an assault or any sexual offence against a child.”

This proposition has only to be stated to be rejected.  Parliament should not be credited with the establishment of a regime under which citizens, who have committed no crime for which they have not undergone just punishment, are deprived of their liberty because of a perceived risk that they might commit relatively minor offences unless the language of the statute compels that conclusion.  On the appellant’s argument, it would be open to a court to make a continuing detention order where, for example, there was an unacceptable risk that a male prisoner might, if released, indulge a predilection for pinching women’s (fully clad) bottoms or surreptitiously touch women’s thighs or bump against women in a sexual way in crowded public transport.”

  1. [29]
    Later, his Honour continued:[16]

“I agree with Margaret Wilson J’s conclusion in Tilbrook[17] that to constitute “violence” for present purposes something more than mere physical contact is required.  I am also of the view that “violence”, for present purposes, does not equate to the application of force, however limited, irrespective of the harm caused or likely to be caused to the person to whom it was applied.

The definition which to my mind best captures the meaning of “violence” in the definition of serious sexual offence is the definition of “violent” in The New Shorter Oxford English Dictionary.  In addition to the meanings quoted earlier, The New Shorter Oxford English Dictionary also gives these meanings:

“1.         Of things: Having some quality or qualities in such a degree as to produce a very marked or powerful effect (esp. in the way of injury or discomfort); intense, vehement, very strong or severe.

  1.            Of persons: Acting with or using physical force or violence, esp. in order to injure, control, or intimidate others; committing harm or destruction in this way;…”

As I trust emerges from earlier discussion, the “violence” referred to in the definition of serious sexual offence is force significantly greater in degree than mere physical contact or even, at least as a general proposition, acts such as pawing, grasping, groping or stroking. The language of sections 8 and 13, in particular, is inconsistent with the application of the Act to sexual offences other than of a very serious kind where offending against adults is concerned. Those sections are addressing conduct of such a nature, that the risk that a prisoner, assumed to be a member of a particular class, might engage in it and harm a member or members of the public if released from custody or if released without a supervision order, is regarded as unacceptable. Consequently, the “violence” contemplated by the Act (excluding for present purposes threats and intimidation) would normally involve the use of force against a person to facilitate the “rape” of that person within the meaning of s 349 of the Criminal Code or which caused (or in the case of predicted conduct would be likely to cause) that person significant physical injury or significant psychological harm.”

  1. [30]
    The offending which occurred in the early hours of the morning of 23 August 2013 began with sexual offending which might not necessarily be regarded as violent, namely touching the outside of the victim’s vagina.  However, the struggle that ensued involved the respondent forcefully slamming the victim’s head into the floor more than once and left the complainant with a cut and swollen lip, bruising and abrasions.  This conduct involved violence in the sense that it involved, relevantly, the use of force to cause physical injury and did in fact cause physical injury.  In my consideration the offending of 23 August 2013 was an offence of a sexual nature involving violence.  Accordingly, the respondent should be regarded as a prisoner because she is currently serving a period of imprisonment which includes a term of imprisonment for a serious sexual offence.
  2. [31]
    A division 3 order can only be made where the Court is satisfied that the respondent is a serious danger to the community in the absence of that order.[18]  The respondent will be regarded as a serious danger to the community if there is an unacceptable risk that she will commit a serious sexual offence if released from custody or if released from custody without a supervision order.[19]  In Attorney-General for the State of Queensland v Travers,[20] Davis J observed:

“It is important for present purposes that the issue is not one of risk of re-offending in general (or even of offending violently) but a risk of re-offending in a particular way, namely by the commission of ‘a serious sexual offence’.”

  1. [32]
    In Attorney-General for the State of Queensland v Sutherland,[21] McMurdo J relevantly observed:

“The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made. What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression “unacceptable risk” within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.”

  1. [33]
    As I have indicated, in the present case, because of the unanimous view of the psychiatrists that the respondent posed no risk to children, the relevant kind of serious sexual offence was an offence of a sexual nature involving violence.
  2. [34]
    In Attorney-General for the State of Queensland v Fisher,[22] Bowskill J relevantly said:

“Importantly, the court may decide it is satisfied the person is a serious danger to the community 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 (s 13(3)). 

This is a statutory expression of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.  As to this, in Attorney-General v Van Dessel [2006] QSC 16 at [17] White J said:

“The Act requires the court hearing an application for a Division 3 order to be satisfied on acceptable and cogent evidence ‘to a high degree of probability’ that the evidence is of sufficient weight to justify the decision. In weighing the evidence and deciding whether to make an order the Act requires the court to have the protection of the community as the paramount consideration. The explanation in Neat Holdings v Karajan Holdings (1992) 110 ALR 449 at 450 of the test in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 of the proper approach to the strength of evidence necessary to establish a fact or facts on the balance of probability may be kept in mind. In R v Secretary of State; Ex parte Khawaja [1984] AC 74 Lord Scarman observed at 113-4

‘The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake.’

Here what is at stake is the fundamental legal right to the unfettered personal liberty of the respondent on the expiration of his term of imprisonment. The serious nature of the inquiry is underscored in the Act by the use of the expression ‘high degree of probability’.

Here, what is at stake is the fundamental legal right to unfettered personal liberty of the respondent, following the expiration of his term of imprisonment and a period of 10 years during which his liberty has been significantly curtailed by a supervision order under the Act, and during which he has not committed a serious (or any) sexual offence.

The purpose of a supervision order is not punishment, but protection of the community against, and to facilitate rehabilitation for, certain classes of convicted sexual offenders.  The paramount consideration is the need to ensure adequate protection of the community (s 13(6)(a)).

What constitutes an “unacceptable risk” is “a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty”.  The test is not satisfied by evidence of any risk that the released prisoner may commit a further serious sexual offence.  What must be established by the Attorney-General, to the requisite standard, is an unacceptable risk, the determination of which involves a balancing of competing considerations.  The notion of an unacceptable risk recognises that some risk can be acceptable consistently with the adequate protection of the community.

In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates. 

As observed in Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [6]:

“Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates.  There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.”

Section 13(4) sets out a number of matters the court must have regard to.  As Boddice J observed in Attorney-General (Qld) v Foy [2014] QSC 304 at [18] the relevant factors to be considered in exercising the discretion under s 19D include the matters specified in s 13 but also factors since the making of the initial supervision order, such as the respondent’s performance on the existing supervision order and the impact of the imposition of a further supervision order on him.”

  1. [35]
    The psychiatric evidence demonstrates to a high degree of probability that, upon her release into the community, the respondent is very likely to commit a sexual offence.  The weight of the psychiatric evidence is that the type of sexual offence likely to be committed is one involving indecent behaviours such as impulsive exposure, masturbation in public or indecently touching someone.  That type of imminent offending does not in my consideration involve violence within the meaning of that term as used in the Act.[23]
  2. [36]
    Dr Timmins in her report relevantly observed that “given the 2013 offence there could be a risk of violence towards the victim”.  In her oral evidence she expressed the view that there was a “reasonably high risk of a penetrative offence occurring” but also expressed the opinion that the respondent was “… more likely to do the touching… exposure and inappropriate comments, those sorts of things, than, say, a penetrative offence when [she] gets released”.  Dr Sundin relevantly opined that the respondent was a person “more at risk of being the victim of a sexual offence rather than a perpetrator of a serious sexual offence against an adult woman”.  She considered that there was no need for this Court to impose a supervision order under division 3 of the Act.  Dr Beech considered that there was a “much less likelihood” that the sexual offending which was likely to occur (masturbation, attempts to indecently touch someone) would escalate further.  He considered that the escalation, if it were to occur, might occur in a scenario where a person resisted the respondent’s attempts to touch or rub up against them or where, as in the 2013 offending, the respondent broke into a house and came across a person sleeping.  Dr Beech said that the likelihood of that further type of offending occurring was “much less… much below average, … down to low\moderate, something in that order”.  Later in his evidence, when considering the risk that the respondent would use violence in the commission of a sexual offence, Dr Beech said “I don’t see that as a high risk or even a moderate risk, but there’s a risk”. In this regard Dr Beech noted that, in more recent times, when confronted with resistance, the respondent has stopped the offending rather than become violent.  Dr Beech considered that it is more likely that, if faced with resistance to her sexual offending, the respondent would be more likely to flee rather than engage in violence.
  3. [37]
    The weight of the psychiatric evidence before me supports the conclusion that there is a much below average risk, which is properly characterised as low, of the respondent committing a serious sexual offence as defined by the Act.  The psychiatric evidence (particularly that of Drs Sundin and Beech) supports the conclusion that, whilst there may be some risk of the respondent committing a serious sexual offence upon her release into the community, that risk may be regarded as acceptable consistently with the adequate protection of the community.  The Attorney-General has not discharged the onus of proving the matter mentioned in s 13(1) of the Act.  I am not satisfied, by acceptable cogent evidence and to a high degree of probability, that the respondent is a serious danger to the community in the absence of a division 3 order. 
  4. [38]
    The originating application filed 7 February 2022 is dismissed.

Footnotes

[1] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(1).

[2] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(2).

[3] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) sch 1: “serious sexual offence means an offence of a sexual nature whether committed in Queensland or outside Queensland – (a) involving violence; or (b) against a child; or (c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years”

[4] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(3).

[5]  The evidence indicated that there had been an incident on 4 February 2012 at around 8.45 am when the respondent had entered a house occupied by a female complainant, ruffled the bed sheets and produced an imitation penis from a wardrobe and waved it around in a threatening manner. The respondent was 16 years old at the time.  

[6]  T1-4 L35.

[7]  T1-4 LL43-46.

[8]  T1-28 L34 - T1-29 L2.

[9] T1-31 L25.

[10]  T1-31 LL19-24.

[11]  T1-33 LL34-47.

[12]  T1-43 L39.

[13]  T1-42 L19 - T1-43 L36.

[14]  T1-56 L17 - T1-57 L20.

[15]  [2013] 1 Qd R 305 at 312-3 [24]-[31].

[16] Ibid at pp 313-4 [36]-[38].

[17] Attorney-General v Tilbrook [2012] QSC 128

[18] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(1).

[19] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(2).

[20] [2018] QSC 73 [30].

[21] [2006] QSC 268 [29].

[22] [2018] QSC 74 [21]-[28].

[23] Attorney-General v Phineasa [2013] 1 Qd R 305 313 [31], 314 [38].

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Fisher

  • Shortened Case Name:

    Attorney-General v Fisher

  • MNC:

    [2022] QSC 127

  • Court:

    QSC

  • Judge(s):

    Kelly J

  • Date:

    17 Jun 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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