Attorney-General v Salmon[2022] QSC 14

SUPREME COURT OF QUEENSLAND

6. [6]
   By the time he was in his early 20s, the respondent was using methylamphetamine, LSD^[1] and MDMA.^[2] He resorted to committing offences of primarily dishonesty to pay for his drug habit.

7. [7]
   The respondent’s criminal history generally reflects that description of his lifestyle. He appeared five times before the Southport Childrens Court between 2003 and 2007 for a variety of offences, including unlawful entry of a motor vehicle, break and enter premises and commit indictable offences, unlawful use and possession of motor vehicles, wilful damage, and receiving stolen property.

8. [8]
   The respondent’s adult criminal history commenced on 15 June 2007 in the Southport Magistrates Court when he was convicted of unlawful use of a motor vehicle and breaking and entering a dwelling with intent to commit an indictable offence. From that entry in 2007 through to 18 February 2014, the respondent was convicted of various offences of dishonesty.

9. [9]
   On 18 February 2014, in the Bundaberg District Court, the respondent was convicted of sexual offences for the first time. On that day he was convicted of one count of unlawful carnal knowledge of a child under the age of 16.^[3] The complainant child was living with her uncle in Bundaberg. The respondent knew the complainant’s uncle. The complainant was 14 years of age and suffering autism and mild intellectual impairment. The respondent led the complainant off into a garden, pushed her down onto her hands and knees and penetrated her. The intercourse was interrupted by the complainant’s uncle who grabbed the respondent by the throat. That offence occurred on 25 September 2013.

10. [10]
    On the day the respondent pleaded guilty to the charge of unlawful carnal knowledge, he also pleaded guilty to a series of offences of dishonesty and some drug offences. He was sentenced to 18 months imprisonment to be suspended after serving six months with 144 days pre-sentence custody declared as time served on the sentence. Probation orders were also made.

11. [11]
    Between February 2014 and 22 August 2019, the respondent appeared before various courts on various occasions and was convicted of several offences of dishonesty, drug offences and failure to comply with reporting conditions pursuant to the Child Protection (Offender Reporting) Act 2004 (the Reporting Act). He was also dealt with for breaches of suspended sentences that had been imposed and also breaches of community service orders.

12. [12]
    On 22 August 2019, the respondent was convicted of further offences of a sexual nature. On that day, the responded pleaded guilty to 16 counts of supply of a dangerous drug^[4] between 27 June 2017 and 26 July 2017. He was also convicted of two counts of failing to comply with reporting conditions pursuant to the Reporting Act, one count of indecent treatment of a child under the age of 16 with a circumstance of aggravation that the child was under 12,^[5] one count of possession of child exploitation material,^[6] and one count of distributing child exploitation material.^[7]

13. [13]
    The counts of supply of a dangerous drug were not related to the other offending. The seizure and search of the respondent’s mobile phone revealed that over a period of about a month he supplied small amounts of drugs to a number of people. It was accepted that while the motivation was commercial, the respondent’s aim was to feed his own drug habit.

14. [14]
    The sexual offending occurred against a complainant who was then nine years of age. She resided with her family, being her mother, stepfather and four year old sister. The complainant’s stepfather had been in prison with the respondent in 2016 and during the first half of 2017, the respondent lived with the complainant’s family.

15. [15]
    One evening, the respondent entered the complainant’s bedroom which she shared with her sister. He took her into the spare bedroom where he touched her vagina. That was the count of indecent treatment of a child. The complainant’s parents examined the respondent’s mobile telephone. They discovered a video and some messages. The video showed a girl, aged between eight to 10 years, performing oral sex on an adult male. A police investigation located a further video of a young girl (between six to eight years) being penetrated by an adult male. Possession of those two videos constituted the count of possessing child exploitation material. The messages were sent on 24 March 2017. The subject matter were stories of various sexual acts performed upon children. That constituted the charge of distributing child exploitation material.

16. [16]
    Notwithstanding that the respondent was subject to reporting conditions under the Reporting Act, he had failed to report his change of address and failed to report contact with a child under the age of 18. These failures constituted the two counts of breaching the Reporting Act.

17. [17]
    Various custodial sentences were imposed. The ultimate result of that sentencing was that the respondent had a full time release date of 27 February 2022.

18. [18]
    While in prison, the respondent was offered rehabilitative programs. He completed the Medium Intensity Substance Intervention Program but has not to this point completed any sex offender rehabilitation programs.

19. [19]
    On 21 January 2021, the respondent was offered a place in the “Getting Started Preparatory Program” (GSPP). The GSPP is a program which is completed over a six week period and prepares prisoners to undertake programs such as the High Intensity Sexual Offender Program (HISOP). It is common ground that the respondent should undertake and satisfactorily complete the HISOP. The HISOP is delivered over a 12 month period. Both the GSPP and the HISOP are programs delivered to a group of prisoners simultaneously (a group program).

20. [20]
    Some of the respondent’s difficulties are related to substance abuse and it is common ground that the respondent ought to complete the High Intensity Substance Intervention Program (HISIP) which takes about six months to deliver and cannot be delivered simultaneously with the HISOP.

21. [21]
    Ms Claire Kelly is the Acting Manager of the Offender Intervention Unit for Queensland Corrective Services. That role involves program delivery and intervention for offenders. She explained that courses are offered to prisoners at times so they can be completed before eligibility for parole or full time release. Accepting that to be true, here, the system has failed.

22. [22]
    From 21 January 2021, when the GSPP was offered, to the respondent’s full time release date, is about 13 months. As already observed, the GSPP takes six weeks to complete. The evidence was that it could have been commenced on the date after it was offered. However, the HISOP is only run twice a year. There is no evidence as to when the first HISOP would have been available to the respondent had he commenced and completed the GSPP in January 2021. In any event, the HISOP takes 12 months and the HISIP six months, so the whole suite of courses is likely to take about 18 months even though the first of those courses was only offered some 13 months before the respondent’s full time release date.

23. [23]
    Ms Kelly attempted to explain the situation by saying that those delivering the courses may not have had access to all the psychiatric material.^[8] I found that explanation unconvincing. After being taken through the duration of the courses and it being pointed out to her that they could not possibly be completed in the 13 months from when the respondent was first offered the GSPP, Ms Kelly still asserted “Had he engaged,^[9] he would have completed the HISOP in that time”.^[10] That statement is contrary to all the evidence, including her own, and I reject it.

24. [24]
    The respondent did not accept the offer of entering into the GSPP made on 21 January 2021. His response though was not to unreservedly refuse to enter the program, but rather to explain that he could not partake because of his severe anxiety about participating in a group program.^[11] Ms Kelly explained that the respondent’s difficulties were not unique and that there was support available to prepare him for the group program. In cross-examination of Ms Kelly, this exchange occurred:

“So what do you do form?---Certainly. So in those circumstances, we could look to providing individual support - and that’s mentioned in my affidavit, that we could provide a short-term intervention which assists with responsivity and motivation to get into group, but that intervention, I have to be clear, is not about addressing offending behaviour - - -

MR REID:  All right. I under - - -

WITNESS: - - - it would be about actually getting up into a group process.

HIS HONOUR: So when is that done for this man? When was he offered that?---He has not been offered that to date, your Honour.”^[12]

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

41. [41]
    Orders which can be made under s 8 include orders that a prisoner undergo psychiatric examination. This was ordered by Applegarth J on 2 November 2021. The evidence so obtained is then relied upon by the Attorney-General on the application brought under s 13.

The psychiatric evidence

42. [42]
    As already observed, the respondent was examined by three psychiatrists, Doctors Timmins, Moyle and Brown.

43. [43]
    Dr Timmins diagnosed the respondent as follows:

“In my opinion Mr Salmon most likely meets the DSM-V criteria for Paedophilia, attracted to females, non-exclusive. His behaviour and sexual offending pattern indicates an underlying attraction to underage girls that is revealed when he is intoxicated with substances, stressed and has a potential victim in the vicinity.

He also has evidence of an Antisocial Personality Disorder with possible narcissistic traits. I have not scored the PCL-R but he potentially has aspects of psychopathy to his personality structure.

He also has a Substance Use Disorder, mainly methamphetamines, cannabis and alcohol. This disorder is to the level of dependence. He has used inhalants and ecstasy to harmful levels in the past.

He is currently prescribed medication for depression but does not have any active symptoms of this illness.

He reported anxiety symptoms, particularly when in groups and being judged by others. He possibly has an Unspecified Anxiety Disorder or even a Social Anxiety Disorder.”

44. [44]
    Dr Moyle’s diagnoses are:

“DIAGNOSIS(DSM)

94. I am unable to diagnose a primary mental illness in Mr Salmon, who does not demonstrate the features of PTSD nor Major Depression but his personality development went from being a Conduct Disordered, under-socialised and aggressive child to an adult with Antisocial Personality Disorder and possibly high levels of Psychopathy, with callous disregard for his behaviours of an illegal nature, both abusing the rights of other individuals in society and assaultive behaviours and drug-taking and selling behaviours. While there was a suggestion that brain injury and a plate put in his head may have contributed to the frontotemporal damage, there is insufficient evidence in any testing I gave him of severe effects on frontotemporal function, with the exception of his mild limitations on immediate and short term recall and therefore memory retention and impulsivity. This would suggest, therefore, that he will need repeated opportunities to learn and therefore an intensive and prolonged program. Other than this, his short stature and possible arthritic problems with sciatica and possible ankylosing spondylitis are being treated currently, and his lifelong sleep difficulty is modified by the use of sedative doses of an antidepressant called mirtazapine, not at the sort of doses one would normally use for antidepressant effect.
95. Psychosocially, he is chronically stressed with little capacity to trust others and there are few that he can call on to provide support in the community although he can name a few he would like to get support from, that might include his own father down in Goulburn. However, there is no evidence such people are offering this support. He would like to think he can develop skills to be able to use dozers or excavators, but he is yet to get all the tickets needed for this. I hope he can. Employment is a factor that might lower his risk. He would like to believe that he is over lying and being dishonest, but then says lies come out of his mouth with regularity. The stressors include a lack of accommodation, a lack of a support network, a lack of occupation, a lack of recreational activities that are pro-social rather than antisocial, and questionable survival skills although it is possible he may know how to cook and look after himself in that way. Far more powerful are the impulsive decision- making, disregarding the rights of others, and with callous indifference to the harm he might cause others by chasing what he calls fun irrespective of whether it is illegal or harmful to victims.

96. His adaptive functioning is very poor, with impulsivity, emotional dyscontrol, rage, criminal attitudes and behaviour.”

45. [45]
    Dr Brown thought:

“DIAGNOSES

Mr Salmon most likely has a diagnosis of paedophilic disorder (non- explosive type) based upon his offending pattern. His sexual drive towards children is more overt when he is intoxicated and disinhibited.

Mr Salmon also has a diagnosis of antisocial personality disorder. He presented with conduct disorder as a child. He engages in serial antisocial behaviours and he does not particularly profit from punishment. He is manipulative and deceptive towards others, in particular when placed on parole. He is consistently irresponsible and fails to meet his obligations. He is generally impulsive and fails to plan ahead. He shows a reckless disregard for his safety and that of others.

Mr Salmon also has a diagnosis of severe substance use disorder (amphetamine, cannabis and alcohol) which is currently in enforced remission in a custodial environment. He has prioritised substance use over other activities, he has used despite imprisonment and deterioration in his mental and physical health, he has not been able to consistently reduce or stop use of substances and he has failed to meet obligations due to substance use.

Mr Salmon also has a diagnosis of chronic post traumatic stress disorder in relation to the sexual abuse that he experienced in childhood. He has intrusion symptoms, he is hypervigilant, socially anxious, avoidant of crowds, he has a restricted range of activities and his sleep is poor. He has negative thoughts about himself. He has engaged in reckless behaviours and he self medicates his symptoms with substance use.

I note a previous head injury (with the suggestion of acquired cognitive deficits) and a past diagnosis of ADHD. At interview Mr Salmon did not present with any obvious cognitive problems and his attention and concentration was good. However, further exploration of these conditions may be required if Mr Salmon is seen to struggle with offender management programs in the future.

SECTION F: RISK ASSESSMENT

I have used three risk assessment tools to assess Mr Salmon’s risk of sexual reoffending.”

And later:

“119. Mr Salmon is now 31, with Conduct Disorder, aggressive and under-socialised as a child developing into an Antisocial Personality Disorder, .the only diagnosis, long term, combined with Substance Use Disorder when not in custody. He now has evidence of multiple paraphilic interest and has actively acted through CEM on many the most concerning being paedophilic with hands on offending and through communication devices sexual sadism, necrophilia and paedophilic sexual sadism to lust murder.”

46. [46]
    All three psychiatrists observed in their reports that the respondent is an untreated sex offender with a severe personality disorder, a substance abuse disorder and paedophiliac traits. As such, his risk of sexually reoffending against children is high.

47. [47]
    All three doctors thought that sexual offender treatment programs ought to be completed by the respondent before release into the community. All opined that it would be unlikely that he could comply with a supervision order. In that respect, the personality disorder was relevant as is his general antisocial behaviour and criminal history which evidences an inability or unwillingness to comply with court orders.

48. [48]
    Doctors Brown and Timmins in particular thought that it was clear that the respondent cannot commence the GSPP at present given his anxiety levels. What is necessary is one on one treatment. That treatment may lead to him being capable of entering a group program such as the GSPP or may lead to the conclusion that treatment should be done on a one-to-one basis.

49. [49]
    I found Dr Brown’s evidence on this issue impressive. These exchanges occurred during her evidence:

“So are you still of the view that he should be attempting to undergo group sexual offending treatment programs?---Well, I think he can’t. I mean, he - he’s indicated that. He’s been offered it three times. You know, he’s - he’s not going to be able to do that now. I think he needs some individual treatment and then, hopefully, that will enable him to gain some skills to then be able to move forward, ideally with a group program, because it’s - as we’ve heard already, it’s - it’s - there are advantages to that. If, though, he goes through a period of individual treatment and then he attempts the group program and he’s unable to do that, then, of course, the alternative pathway would be more individual treatment, and how much he needs and how he responds to that remains to be seen.

Now, you’ve seen the affidavit of Ms Monson? Have you seen - - -?-

--Yes, I have, yes .

So at paragraph 34 she talks about, if he’s detained, that they will:

There will be an arrangement for an initial period of individual treatment to encourage the respondent to engage meaningfully, participate in the Getting Started program, give further consideration to continuing individual treatment during that program and then reassess the necessity for continued individual treatment based on the outcome, so whether he’s been able to manage [indistinct] or not.

So there’s a:

The consideration will be assessed as he progresses.

Is that - does that meet your views as to what’s needed?---1 think so. As she’s described it, I think that’s the same as what - what I just said, yes.”

And later:

“HIS HONOUR: As I understood your evidence, though, you seem to accept that, and accept it to the extent that he can’t, at this point in time, go into the preparatory program without some one-on-one before that?---Yes, that’s right.

Yes?--- So I think - but to answer the question I - as I understood it, there’s two parts to his anxiety. There’s the general anxiety that many people have before they go into a treatment program, and then specific to him, he also has, I think, some chronic post-traumatic stress related to his childhood sexual abuse.

But the upshot of all - of that opinion - - -?---Yes.

- - - as I understand it, is that whatever particular type of stress it is, you accept that he needs one-on-one before he is going to be able to cope with the preparatory program?---I think so. Yes. Yes.

Yes.

MR REID: And you would accept that would take more than the 10 hours that Ms Kelly spoke of?---In short, I don’t know how long it will take for him to get to the point where he feels more able to engage in group programs. That will be informed by the therapy as it unfolds, and you would want to see a progress report from that psychologist as to what’s occurred in those therapy sessions. I appreciate that it can’t be open-ended but I - but I just don’t know whether it would be enough. I - I tend to agree with Dr Moyle that it may take longer, given the severity of his disorders, but he may respond very well to it.

HIS HONOUR: He might have an epiphany or he might struggle?--- He - he may he may respond well . I mean, it really depends on - on how well he engages and how he engages with the therapist, I think, but it may take longer than 10 sessions.

And I assume that just like the MISOP - sorry - the HISOP, the psychologist will be making assessments as well as giving treatment?---Yes. So - so, generally, they provide a - a - a progress report - - -

Yes?--- - - - which - - -

But - - -?---Yep.

• - - to then, presumably, tailor the - - -?---Yes.
• - - appropriate treatment?---That’s right. Yes.”

The issues

50. [50]
    By s 13 of the DPSOA, the first question is whether there is an unacceptable risk that the respondent will commit a serious sexual offence if released, or released without a supervision order.^[15] Here, the relevant “serious sexual offence” is an offence of a sexual nature against a child.

51. [51]
    Experienced counsel appearing for the respondent conceded that the Crown had proved the jurisdictional fact giving rise to the discretion to make an order under s 13.

52. [52]
    The second question is whether a continuing detention order, a supervision order, or no order,^[16] ought to be made in exercise of the discretion. In determining that issue, “the paramount consideration is to be the need to ensure adequate protection of the community”^[17] and whether “adequate protection of the community can be reasonably and practicably managed by a supervision order”.^[18]
53. [53]
    Counsel for the respondent conceded that there was no evidentiary basis upon which the proper exercise of discretion could result in any order other than a continuing detention order.

54. [54]
    Counsel’s cross-examination of the doctors and the Corrective Services staff was not designed to promote any realistic alternative to the making of a continuing detention order. The point of the cross-examination was to identify the treatment needs of the respondent^[19] and expose the failures of Queensland Corrective Services in providing that treatment. Those things are all relevant to the respondent’s ongoing treatment needs and rehabilitation, and to annual reviews of the continuing detention order.^[20]

Conclusions

55. [55]
    The concessions made by counsel for the respondent were properly and sensibly made.

56. [56]
    The respondent has a history of significant sexual offending against vulnerable children. He has been diagnosed as suffering a serious personality disorder, a substance abuse disorder and he exhibits paedophiliac traits. He has not undertaken treatment.

57. [57]
    I accept the evidence of the psychiatrists that, while untreated, the respondent poses a serious risk of sexually reoffending against children.

58. [58]
    I am satisfied that the respondent poses an unacceptable risk of committing offences of a sexual nature against children unless he is the subject of an order under the DPSOA and is therefore a “serious danger to the community in the absence of an order” under the DPSOA.^[21]
59. [59]
    The respondent has shown an inability to comply with various orders that have been made against him in the criminal justice system. I accept the evidence of the doctors that while untreated, he is unlikely to comply with the terms of a supervision order.

60. [60]
    I conclude that the adequate protection of the community cannot reasonably and practicably be managed by a supervision order.^[22]
61. [61]
    It is therefore appropriate to make a continuing detention order.

62. [62]
    The making of a continuing detention order in the circumstances of this case was inevitable because the respondent has not undertaken treatment. Various factors have contributed to that eventuality. Firstly, despite the evidence of Ms Kelly that programs are offered to prisoners in a timely way so that they can be completed before parole eligibility, or at least full time release date, that did not occur here. The respondent was in custody for over two years before he was offered any treatment. The programs which are necessary for his rehabilitation will take at least 18 months and he was offered the first of those programs only 13 months before his full time release date.

63. [63]
    Secondly, when it became apparent that the respondent could not undertake the GSPP because of his state of anxiety, no proper measures were taken to address that problem. Instead of securing one-to-one counselling to prepare the respondent for a group program, the only response was to offer the GSPP to the respondent on two further occasions and then assert in the application before me that the respondent had refused treatment on three occasions.

64. [64]
    The court has no jurisdiction to direct Queensland Corrective Services to provide treatment, let alone treatment of any particular type.^[23] However, the objects of the DPSOA include “to provide … care or treatment …” to prisoners within the DPSOA’s scheme.^[24] The uncontested evidence here points to the need for one-on- one treatment to prepare the respondent for further sexual offender treatment.

Orders

65. [65]
    For the reasons I have explained, I order that:

The Court, being satisfied to the requisite standard that the respondent, Timothy Salmon, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), orders that:

1. Pursuant to s 13(5)(a) of the Act, the respondent be detained in custody for an indefinite term for control, care, or treatment.