Attorney-General v Dunrobin[2022] QSC 129

SUPREME COURT OF QUEENSLAND

1. [1]
   In this proceeding, the Court is required to review a continuing detention order currently in place for the respondent, Mr Dunrobin.  The order was made by Jackson J on 25 February 2019.  It was made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act).  The applicant, the Attorney-General, has applied for the review under Part 3 of the Act. 
2. [2]
   In this review, the Court considers a series of specific questions. 

Is there an unacceptable risk?

3. [3]
   The first question is whether the Court is satisfied that the evidence is of sufficient weight to affirm the decision that, in the absence of an order under Division 3 of the Act, Mr Dunrobin will be an unacceptable risk of committing a relevant offence if he were released into the community.  The evidence, for this purpose, must be acceptable, cogent evidence and such as to satisfy the Court to a high degree of probability. 
4. [4]
   The Court has before it the evidence of two consultant psychiatrists, Dr Timmins and Dr Aboud.^[1]  I find their evidence is acceptable and cogent.  It is sufficient to satisfy me to a high degree of probability and is of sufficient weight for me to affirm the decision that, in the absence of an order under Division 3 of the Act, there would be an unacceptable risk of Mr Dunrobin committing a relevant offence if he were released into the community.  

Should a supervision order be made or should the continuing detention order continue?

5. [5]
   Next, it is necessary for the Court to consider whether Mr Dunrobin should continue to be subject to a continuing detention order or whether he should be released from custody on a supervision order under Division 3 of the Act. 
6. [6]
   In deciding this second question, the paramount consideration for the Court is the need to ensure the adequate protection of the community.  The Court must decide whether adequate protection of the community can be reasonably and practically managed by a supervision order and whether the resources of the relevant public authorities can reasonably and practically manage those matters. 
7. [7]
   The opinions expressed by each of the consultant psychiatrists as to that question are that the high risk of Mr Dunrobin committing relevant offences cannot be appropriately mitigated by the imposition of conditions in the absence of better understanding of the conditions that would be necessary to mitigate that risk.  This is primarily because Mr Dunrobin has not completed a High Intensity Sexual Offending Program (HISOP).
8. [8]
   Mr Dunrobin had not done a HISOP at the date of the hearing.  This is not due to any want of trying on his part.  The Court has been told that for two and a half years at least – perhaps for three and a-half years – Mr Dunrobin has been trying or willing to do that course.  It has not been available to him because of his classification within the Corrective Services system, which has placed him in a maximum security unit (MSU).  Helpfully, some evidence was adduced at the hearing to the effect that changes are being made, or have been made, in respect of his classification and a plan has been formulated to progress Mr Dunrobin within the Corrective Services system.  The effect of these developments is expected to be that, within the next 18 months or so, he will be able, if he chooses, to complete a series of courses, including the HISOP. 
9. [9]
   The Court’s decision about the adequate protection of the community involves, firstly, a consideration of the level of risk of Mr Dunrobin committing a further offence of the kind covered by the Act. I am assisted by the evidence of each of the two psychiatrists that the risk, even with speculated conditions of a supervision order, would remain in the moderate or moderate to high range.  The other important factor in this consideration is the nature of what would occur if that risk were to be realised.  I think there is an increasing understanding within the community of the extraordinary, ill effects upon members of our community when they are subjected to sexual offences while they are at a young age. 
10. [10]
    In my view, if Mr Dunrobin were released on a supervision order, with a moderate risk of committing such offences, that risk would not be an acceptable risk to the community, considering the likely consequences of realising that risk.  I concluded that the adequate protection of the community cannot be reasonably and practically managed by the release of Mr Dunrobin on a supervision order at this time. 

Orders

11. [11]
    On this basis, I made orders, pursuant to section 30(1) of the Act, that the decision that Mr Dunrobin is a serious danger to the community in the absence of an order under Division 3 of the Act is affirmed, and that pursuant to section 30(3)(a) of the Act, Mr Dunrobin should continue to be subject to the continuing detention order that was made in respect of him on 25 February 2019, for control, care and treatment. 

Further reasons

12. [12]
    On 18 March 2022, after reaching the above conclusions and making the consequential orders, I indicated I would provide some further reasons that deal in more detail with the evidence and the submissions before the Court.  I also indicated that I would deal with the position that Mr Dunrobin has found himself in within the Corrective Services system due to issues about his classification, complaints about his conduct, and the limits on the availability of programs within that system. 
13. [13]
    These further reasons are set out below.

Evidence

Criminal history

14. [14]
    Mr Dunrobin’s relevant criminal history begins on 3 April 2001 with a series of convictions in the District Court at Brisbane.  He was convicted on 14 counts on two indictments and four summary charges.  Relevantly, the indictable offences included two counts of indecent treatment of a child under 12, two counts of unlawful sodomy of a child under 12, one count of unlawful sodomy of a person under 18, and three counts of indecent treatment of a child under 16.  He pleaded guilty to each offence.  These offences were committed in about 1999 against four young boys, aged between 9 and 12 years.  Mr Dunrobin was aged 19 to 20 at the time of this offending.  Various sentences were imposed, the longest or head sentence being imprisonment for seven years for the three unlawful sodomy offences.  All the sentences were to be served concurrently. 
15. [15]
    On 16 September 2011, in the District Court at Bundaberg, Mr Dunrobin was convicted on two counts of indecent treatment of a child under 16 and sentenced to imprisonment for four years for each offence.  The offences were committed in about 2008 to 2009, when Mr Dunrobin was about 29 to 30 years of age, against two boys then aged 14. 
16. [16]
    On 17 September 2014, in the District Court at Brisbane, Mr Dunrobin was convicted on one count of rape.  Mr Dunrobin committed this offence in 2008 or 2009, during the same period as the offences for which he was sentenced in September 2011.  The victim was a 17 year old boy.  This count had been the subject of a series of appeals between September 2011 and the sentence date.  The learned sentencing judge considered a nominal head sentence of imprisonment for eight and a half years would have been appropriate had the rape and two indecent treatment offences been dealt with at the same time.  By September 2014, the Respondent had served the four year sentence imposed in 2011 and was still in custody.  Taking this into account, the learned sentencing judge sentenced Mr Dunrobin to a further period of imprisonment for four and a half years for the rape offence.
17. [17]
    Mr Dunrobin was serving the four and a half year sentence for rape when the Attorney filed an application under the Act, which led to the continuing detention order made on 25 February 2019. 
18. [18]
    From Mr Dunrobin’s relevant criminal history, and his pattern of offending over the years, it is open to infer that there is a high risk of him re-offending by committing relevant sexual offences if he were to be released from detention without a Division 3 order.  It was also open to infer that those earlier periods of imprisonment for sexual offending in 1999 had not deterred him from further sexual offending in 2008-2009.

Psychiatric reports

19. [19]
    Mr Dunrobin has been in custody for an indefinite term under the continuing detention order made on 25 February 2019 for control, care, and treatment.^[2]  In the hearing resulting in that decision, the court heard evidence from three psychiatrists. 

First hearing

20. [20]
    Dr Phillips swore an affidavit on 14 June 2018.  In it, Dr Phillips deposed that Mr Dunrobin had been diagnosed with: paedophilic disorder (non-exclusive type, attracted to males and females); vulnerable personality structure characterised by cluster B personality traits (narcissistic, borderline and anti-social); an elevated psychopathy score on the PCL-R that was below the level for a formal diagnosis of psychopathy; and cannabis use disorder (in remission in a controlled environment).
21. [21]
    Dr Phillips expressed the opinion that Mr Dunrobin’s risk of future sexual re-offending falls into the high range.  Dr Phillips expanded on her opinion in this way:

“His risk of physical violence is also in the high range.  It is my opinion that intensive interventions targeting dynamic risk factors for sexual and physical violence, assertive monitoring and environmental restrictions will be necessary to reduce the risk of re-offending.

The risk of sexual re-offending would increase in the setting of increased sexual pre-occupation, rejection of supervision, psychosocial stresses such as relationship breakdowns or perceived rejections, or a lapse to cannabis abuse.  He has limited adaptive coping skills to manage psychosocial stresses and would be at risk of emotional collapse and returning to his long-standing maladaptive patterns of cannabis use or use of sex as coping in the context of psychosocial stresses.  The victim of future offending would likely be a male.  Either pre-pubescent or post-pubescent adolescent.  Although vulnerable adult males may also be a target.  Given the seriousness of the previous sexual offending, including forced anal intercourse against a number of males of varying ages and at least one occasion of use of previous threats of violence, there is the potential for future sexual offending to be of a serious nature.”

…

“He describes a long history of recurrent intense sexually arousing fantasies, urges and behaviours involving sexual activity with prepubescent children.  He has disclosed these previous sexually deviant thoughts during my assessment, during his previous engagement in the sexual offender treatment program in 2004, and also during a previous police interview in May 2010.  While at my assessment, the respondent forwarded that he has not experienced any sexually deviant thoughts involving children, but in the previous two to three years, it is considered that this is unlikely given the chronic nature of the paedophilic disorder.  Even if the thoughts are in abeyance at present in custody, there is the high likelihood they would recur in the future, given the natural history of the condition and the respondent’s refusal to engage in any sexual offender treatment program during the current incarceration.”

22. [22]
    Dr Timmins provided a report dated 19 September 2018.  In it, Dr Timmins gave evidence that Mr Dunrobin had been diagnosed with: paedophilic disorder (non-exclusive type, attracted to males and females); and substance use disorder – mainly cannabis (in sustained remission in a controlled environment).  Dr Timmins preferred to characterise Mr Dunrobin’s personality pathology as mixed personality disorder (anti-social, narcissistic and borderline personality traits).  Dr Timmins considered that Mr Dunrobin met the diagnostic criteria for psychopathy. 
23. [23]
    Dr Timmins expressed the opinion that Mr Dunrobin’s risk of sexually re-offending upon release was high and likely to occur within a relatively short time after his release.  Dr Timmins explained:

“He is likely to return to sexual offending in the near future given his history of sexual re-offending after his previous release.  This appears to have occurred within 12 months of release from his previous incarceration in 2008.

His history shows that he has difficulties coping in the community and he may return to substance use as a way to cope.  He has poor insight into his offending pathway and has no clear ideas of how to manage his emotions or sexual drives, even after completing a sex offender treatment program in 2004.

At some point after release he is likely to offend against a young male child aged from pre-pubescent age upwards.  He may use a position of trust and groom the child or offend impulsively.  He is likely to use substances in order to gain the child’s compliance.  He may resort to rape if the victim is an adolescent or adult.  There would be physical and psychological coercion involved in the offending and a high degree of harm to the victim.”

24. [24]
    Dr Aboud provided a report dated 31 January 2019.  In it, Dr Aboud gave evidence that Mr Dunrobin was suffering from: paedophilic disorder (clear attraction for boys); mixed personality disorder (borderline, anti-social, and narcissistic personality traits); and cannabis dependence (currently in enforced abstinence). 
25. [25]
    Dr Aboud summarised his view in this way:

“it is my opinion that [the respondent] currently presents a high risk of sexual re-offending and that this risk would be considered manageable in the context of a supervision order once he has completed a substance misuse program and a group sexual offender program.  I believe the latter should be completed in custody prior to his release.  Should he be made subject to a supervision order I recommend that it be in place for at least 10 years, given his combination of risk factors, vulnerability factors, poor previous record and his relatively young age.”

December 2020 review

26. [26]
    On 7 December 2020, the Court reviewed the decision of 25 February 2019. Dr Timmins and Dr Aboud provided further evidence. 
27. [27]
    In a report dated 6 September 2020, Dr Timmins raised the likelihood that there was an element of sadism in Mr Dunrobin’s personality, based on his comments around rape fantasies.  Otherwise, her clinical diagnosis was unchanged. 
28. [28]
    In a communication dated 13 November 2020, Dr Aboud advised that his clinical diagnosis was unchanged from that before the court on 25 February 2019.  
29. [29]
    Each of the psychiatrists was cross-examined by counsel for Mr Dunrobin.  Their relevant oral evidence is set out in the reasons for decision published on 16 December 2020.^[3]
30. [30]
    On 16 December 2020, Ryan J affirmed the decision that Mr Dunrobin is a serious danger to the community in the absence of a Division 3 order.  Her Honour ordered that Mr Dunrobin continue to be subject to the continuing detention order made on 25 February 2019.  In reasons published on 16 December 2020, Ryan J observed that:

“the respondent is currently housed in a maximum security setting.  On the evidence, before his release on supervision can be realistically considered, he will require, at best, transition to mainstream and completion of a HISOP or, at least completion of the core components of HISOP in the MSU via individual therapy, even though it is a poor substitute for the HISOP (a group program).

Those responsible for the care, control and treatment of the respondent are encouraged to consider these matters, together with the opinion of Dr Madsen about the respondent’s readiness for transition from the MSU (discussed below), and progress the respondent’s treatment before the next review of his continuing detention order.  For obvious reasons, there are likely to be advantages in capitalising now on the gains made by the respondent in the course of his treatment with Dr Madsen (discussed below) over 2020.

March 2022 review

31. [31]
    For the review hearing on 18 March 2022, Dr Timmins provided a report dated 21 November 2021 and Dr Aboud provided a report dated 24 November 2021.  Neither psychiatrist made any change to their respective diagnostic formulations. 
32. [32]
    The following parts of the reports by Dr Timmins and Dr Aboud were of significance for the decisions made on 18 March 2022.
33. [33]
    Dr Timmins:

“… It seems that his placement in the Maximum Secure Unit [MSU] has contained his inappropriate custodial behaviour but has limited his ability to access the programs required, although he has had access to individual treatment.

His engagement with a forensic psychologist for individual sessions has come to a halt although previous sessions have shown slow progression.  He is noted to have disputed the need for ongoing individual treatment to his treating psychologist in July 2021, almost six months ago.  It seems he has not had individual sessions since.  I am not why he did this.  It may be a manipulation in order to get out of MSU.  It may be that he does not value the sessions to any great extent, and in his black and white world sees the answer in group programs only.  It may be both, or something else.”

…

“I am not confident that his risk could be modified significantly at this stage by a community supervision order under the [Act].  I maintain my view that a Supervision Order at this current time would modify his risk towards the high end of a MODERATE to HIGH risk category.

Very little has changed from my previous risk assessment reports.  The main issue appears to be how to progress Mr Dunrobin from the MSU in order for him to access the sex offender programs and to see how he manages on a unit.” 

… 

“His MSO is in place until February 2022.  I think his progression will be very slow given the risks of institutional sexual violence.  He is untested in a more open custodial setting which would be a reasonable way to trial how he would manage in a less restrictive setting and how he would engage with a group sex offender program.  If he can manage himself and not attract further allegations of inappropriate sexualised behaviours, or even incidents or breaches, and engages well in the group programs with good exit reports then he could be considered for release to a Supervision Order.  This needs to be balanced with the risk he poses in the custodial setting.

An alternative could be re-engaging individual sessions, although Mr Dunrobin is less interested in this option, and seems to have put up barriers to this form of treatment.”

34. [34]
    Dr Aboud:

“Taking into consideration the various instruments used to assess risk, it is my opinion that Mr Dunrobin’s overall unmodified risk of sexual offending would currently be regarded as high.  His risk of non-sexual violence would be moderate, while the risk of general offending would be high.  I take into account: his antisocial and impulsive personality structure; his worrying psychopathic traits; his vulnerability to poor adaptive coping (whereby he uses substances, avoidance, isolation and sexual preoccupation); his sexual deviance, his intimacy deficits and emotional congruence with boys; his deceptive and manipulative self presentation, that has allowed him to win the confidence of others, including potentially professionals.  One is also aware that he has breached criminal justice orders in the past, and he sexually offended when subject to a criminal justice order.  He has demonstrated a tendency toward minimisation and denial, lack of self awareness, and a rather manipulative and deceptive interpersonal style.  His current future plans are not well considered.”

“It is unfortunate that Mr Dunrobin is not significantly further forward now, than he was one year ago.  He has seemingly not been able to participate in group programs due to his MSU placement; and he has not been progressed from the MSU because in August 2021 QCS again attributed to him Maximum Security Classification, due to his sexual risk to other prisoners.”

35. [35]
    Dr Aboud and Dr Timmins were cross-examined at length by counsel for Mr Dunrobin.  Much of the questioning was directed to disclose whether either of them based any part of their respective opinions on allegations that, at an earlier point in time, Mr Dunrobin had been involved in predatory sexual behaviour towards another inmate.  Each said they were aware that charges relating to that alleged predatory behaviour had been denied by Mr Dunrobin and had been discontinued.  Each consultant psychiatrist confirmed that they proceeded on the basis that Mr Dunrobin was innocent of those charges.  Each said the charges and the discontinuance of the charges had no bearing on their opinion about Mr Dunrobin. 
36. [36]
    As their respective reports recorded, each had interviewed Mr Dunrobin, read and considered earlier reports by medical professionals, including those treating Mr Dunrobin, and applied a range of well-accepted diagnostic measures.  Dr Timmins assessed Mr Dunrobin using the Static 99-%, PCL-R and RSVP measures.  Dr Aboud applied those tools as well as the Risk Matrix 2000/S, Risk Matrix 2000/V and HCR-20. 

Psychologist report

37. [37]
    A report by Dr Andrews, a psychologist, dated 21 July 2021, was provided to Dr Timmins and Dr Aboud.  The Attorney relied on parts of Dr Andrews’ report, including the following:

“On the current assessment I was of the opinion that Dr Dunrobin’s risk of sexual violence within custody is moderate to high.  Generally, I was of the view that Mr Dunrobin minimises his past offending, allegations of sexual violence and his potential risk of sexually inappropriate or violent behaviour.  He provides a sanitised version of events and lacks insight into his own emotional and cognitive processes (despite verbose and convoluted introspections regarding his own functioning) that out him at risk of further sexual violence.  His risk is intrinsically linked with his sexual deviance, personality structure, poor psychological and social adjustment and lack of adaptive coping skills.

…

Despite an ongoing lack of insight into his own level of risk, it should be noted that Mr Dunrobin has managed to engage in intervention and reported engaging in some simple coping strategies that may be of some benefit to him, including reading the bible, exercise, meditation and distraction as ways to manage negative emotions or sexually inappropriate thoughts.  However, it appears that these are yet to be tested with a more open environment.”

38. [38]
    Dr Andrews made some specific and detailed recommendations to manage or markedly reduce the risk Mr Dunrobin presents while in custody.  These recommendations were strongly supported by Dr Aboud. 

Submissions for Mr Dunrobin

39. [39]
    Mr Menolotto appeared as counsel for Mr Dunrobin. 
40. [40]
    In his written submissions, Mr Menolotto urged the court that “to the extent that any psychiatrist bases their opinion on mere unproved or discredited allegations, then those opinions should not be relied upon.”  As neither expert witness based their opinion on such matters, to any extent, this submission had no impact on my decision.
41. [41]
    Mr Menolotto attached to his written submissions several documents relating to allegations of misconduct by Mr Dunrobin while in detention under the existing continuing detention order.  These included witness statements and written submissions.
42. [42]
    At the hearing, it was accepted by the Attorney that any relevant charges against Mr Dunrobin had been discontinued.  The two consultant psychiatrists did not formulate their opinions on an assumption that Mr Dunrobin had committed any additional alleged offences. In the circumstances, I did not consider those matters to be of relevance to the decisions to be made at this review under the Act.

Conclusions on the evidence

43. [43]
    As I noted above, I found the evidence of Dr Timmins and Dr Aboud to be acceptable and cogent.  It was sufficient to satisfy me to a high degree of probability and was of sufficient weight for me to affirm the decision that, in the absence of an order under Division 3 of the Act, there would be an unacceptable risk of Mr Dunrobin committing a relevant offence if he were released into the community. 
44. [44]
    Reflecting on the expert evidence, I inferred from Mr Dunrobin’s relevant criminal history, and his pattern of offending over the years, that there was a high risk of him re-offending by committing relevant sexual offences against boys aged between 14 and 17 if he were to be released from detention without a Division 3 order.  I also inferred that Mr Dunrobin’s earlier periods of imprisonment for sexual offending in 1999 had not deterred him from further sexual offending in 2008-2009, and that it was likely his most recent period of imprisonment and continuing detention to the date of the hearing would not, of itself, have been sufficient to deter him from committing further sexual offences against boys, if he were to be released from detention without a Division 3 order. 
45. [45]
    I also accepted as acceptable, cogent, and of sufficient weight, the evidence of Dr Timmins and Dr Aboud that it was not possible to formulate the terms of a supervision order to mitigate the moderate to high risk of Mr Dunrobin committing further sexual offences, without the information that would be identified about that risk were Mr Dunrobin to participate in a HISOP.   

The HISOP issue

46. [46]
    Mr Menolotto also submitted that QCS had “placed obstacles” in the path of Mr Dunrobin, which had prevented him undertaking a HISOP.  He referred to Mr Dunrobin’s classification as a person to be placed in a maximum-security unit. 
47. [47]
    Of course, QCS must manage the risks to custodial staff and prisoners in its various facilities.  In doing so, it should be guided by appropriate professional advice.  The recommendations of Dr Andrews, strongly supported by Dr Aboud, are plainly relevant to the way QCS should approach this task in respect of any risk posed by Mr Dunrobin. 
48. [48]
    There was evidence before the court from a senior QCS officer, Ms Embrey, that the feasibility and operational ability to manage Mr Dunrobin at another centre “to allow for his participation in HISOP” was being currently considered.  A review of Mr Dunrobin’s reintegration was to be conducted on 23 March 2022 and a date for him to move to Wolston Correctional Centre or another suitable placement location would be finalised following that review. 
49. [49]
    This evidence indicates that senior officers in QCS are taking an active interest in the management of relevant risks posed by Mr Dunrobin, and that they are conscious of the importance of taking steps that, according to professional advice, may reduce that risk in time. 
50. [50]
    I anticipate that the Attorney will seek another review of Mr Dunrobin’s continuing detention order and the Court will have to conduct that review at some time over the next 12 months.  For that review, it is likely to be important for the Court to have the benefit of the relevant information about any risk posed to the community by the release of Mr Dunrobin without a Division 3 order and the extent to which any such risk may be mitigated or avoided by the formulation of conditions that could be included in a supervision order. 
51. [51]
    It would be unfortunate if that information were not to be available at the time of such a review, because Mr Dunrobin, although willing to do so, has been unable to complete a HISOP. 
52. [52]
    The interests of the QCS, the community and Mr Dunrobin align in that each would be advanced by Mr Dunrobin undertaking HISOP.