Attorney-General v Guy[2022] QSC 174

SUPREME COURT OF QUEENSLAND

1. [1]
   Almost 20 years ago, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was passed.  It targeted what were expected to be a dozen or so of the very worst sexual offenders.^[1]  Since then, the number of persons who are subject to continuing detention orders and supervision orders under the Act has grown far beyond original expectations.
2. [2]
   The facilities to accommodate them have not developed to meet a constantly-increasing demand.  The few “precinct” houses near prisons that are intended to provide temporary accommodation for individuals released under supervision orders are overcrowded.^[2]
3. [3]
   The precinct accommodation at places like Wacol is not suitable for young indigenous men from Far North Queensland.  It is not suitable for many middle-aged men with significant mental health problems or whose institutionalisation makes it practically impossible for them to undertake many daily activities without support and guidance.  The precinct accommodation certainly is not suitable for elderly men whose physical and mental health requires secure, nursing home care.
4. [4]
   But what nursing home would prefer to accommodate a released sex offender rather than someone without such a terrible history?
5. [5]
   The absence of suitable, secure accommodation in the community means that people like the respondent are detained in prison years after they have completed their full-time sentences.  This is despite expert evidence and the acknowledgement of the Attorney-General that they might be released under strict supervision orders if suitable accommodation were available.
6. [6]
   Government policies make the search for suitable accommodation for someone like the respondent akin to an impossible mission.

7. [7]
   The Supreme Court of Queensland has become a very expensive accommodation agency.  The financial cost of the government not arranging suitable, secure accommodation for individuals who are or might be subject to supervision orders must be enormous.  It is borne by the public.  The public pays for psychiatrists to opine, for barristers to appear and for judges to observe a system that operates like a revolving door.
8. [8]
   The respondent has been in such a revolving door for several years.
9. [9]
   He is 69 years old.  In 1998, he was sentenced to 10 years’ imprisonment for 35 sexual offences against children.  He served most of that sentence before release on parole.  Subsequently, he committed incest with a vulnerable young woman and was sentenced to nine years’ imprisonment.

The original hearing in 2017

10. [10]
    In March 2017, the then Chief Justice heard an application under the Act that sought a continuing detention order.  At the time, the respondent was aged 64 and appeared to be of low intelligence.  He had not been able to work for much of his life.  Parkinson’s disease meant that he required the assistance of a carer in custody.
11. [11]
    Because of his disabilities and lack of support outside prison, his placement on a supervision order presented considerable difficulty.  Chief Justice Holmes observed that the respondent could not live in any kind of “independent accommodation”.^[3]  If he ended up living in a place like a caravan, he would pose a risk to vulnerable victims such as children or impaired adults.  Two of the assessing psychiatrists, Drs Arthur and Beech, thought that if the respondent could be placed in supervised accommodation with a high level of support, his risk of offending would be reduced.^[4]  The contingency accommodation provided by Corrective Services in Brisbane, Rockhampton and Townsville was found by the Chief Justice to be “not suitable for someone who requires the level of support which the respondent does.”^[5]  Corrective Services could not locate an available place of supported accommodation in the community.  At that time, it was not thought feasible to expect it to devise supported accommodation designed around the respondent.^[6]
12. [12]
    The Chief Justice observed:^[7]

“It seems to me that a time will come when there are enough offenders in the respondent’s category of age and debility falling within the compass of the Dangerous Prisoners (Sexual Offenders) Act to require the setting up of supported accommodation for them.  It is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option.”

13. [13]
    In the result, a continuing detention order was made.

Subsequent annual reviews

14. [14]
    In 2018, Davis J conducted an annual review pursuant to s 30 of the Act.  Little had changed.  One psychiatrist, Dr Grant, described the respondent as “clearly institutionalised”.  According to Dr Grant, any release into the community would be problematic given the respondent’s need for care.  He was not able to care for himself and would not be able to live in any precinct accommodation.  He required nursing home style accommodation.^[8]  Dr Arthur did not think that the respondent’s risk profile had changed since the continuing detention order was made.  The evidence showed that a nursing home type of facility was needed but a conventional nursing home would provide the respondent easy access to victims.^[9]  As Dr Arthur concluded:

“Ultimately, [the respondent] requires placement in a facility which can meet his medical and emotional dependency needs, whilst also restricting victim access.”

15. [15]
    Davis J concluded:^[10]

“There is no facility outside of prison which can provide the medical care which the respondent requires but at the same time providing the security necessary to ensure adequate protection of the community against the commission by the respondent of serious sexual offences.”

16. [16]
    In the circumstances, the respondent was ordered to continue to be subject to the continuing detention order made by Holmes CJ on 27 March 2017.
17. [17]
    Davis J endorsed the Chief Justice’s comments that I have earlier quoted that it is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option.  Davis J had raised those comments with Counsel for the Attorney-General who advised that the Chief Justice’s comments had been brought to the attention of the Attorney-General.  Davis J concluded that the state of affairs was, “nonetheless deeply troubling”.^[11]
18. [18]
    In 2019, another review was conducted.  Lyons SJA reached the conclusion that a Division 3 order should be made.  The two reporting psychiatrists, Drs Beech and Arthur, considered that there could be a possibility that the respondent might be able to be managed in the community “should suitable accommodation be found”.^[12]  Again, the evidence was that the contingency accommodation at Wacol, Rockhampton and Townsville did not provide a supported accommodation facility and therefore did not provide support and care services of the kind required by the respondent.^[13]  The evidence showed that the respondent required nursing care accommodation.  Enquiries did not locate any community facilities in Queensland that could meet the risk management concerns relating to the respondent.  No ACAT assessment had been progressed.
19. [19]
    Lyons SJA concluded:^[14]

“Both psychiatrists indicate the respondent needs semi-supported accommodation but with the restrictions which would essentially be the restrictions that pertain to him in custody.  He would need to be excluded from all females and children and could not leave the facility unsupervised.  And no such supported accommodation outside custody has been identified.”

20. [20]
    The continuing detention order was continued.
21. [21]
    The next s 30 hearing was before Williams J in September 2020.
22. [22]
    Little had changed.  The respondent did not wish to reside at the precinct because his needs for care rendered such accommodation unsuitable.  He required a significant degree of interpersonal support on release.  He required care with the provision of meals, management of finances, nursing care, on-site medical attention and mobility aids.^[15]
23. [23]
    Prior to the hearing, the respondent had indicated a desire to move to suitable nursing home accommodation.^[16]  However, the parties were unable to find suitable accommodation with the appropriate level of supervision.  In the circumstances, Williams J made an order that the respondent continue to be subject to the continuing detention order made in 2017.
24. [24]
    On 6 September 2021, Dalton J affirmed the finding and ordered that the respondent be subject to the continuing detention order made on 27 March 2017.

The present position

25. [25]
    Given his age and other circumstances, the respondent’s unmodified risk of sexual recidivism on release has been assessed to be moderate or below moderate.  However, the absence of suitable accommodation that would manage that risk, while providing the respondent with the care and assistance that he needs, creates the same “deeply troubling” situation that confronted Holmes CJ in 2017.

Risk assessments

Dr Brown

26. [26]
    Dr Karen Brown interviewed the respondent in May and July 2022.  She concluded that the respondent had some cognitive impairments which may be secondary to childhood hydrocephalus and seizures.  Parkinson’s disease has been diagnosed.  However, it does not appear that this ailment has led to any cognitive decline.  Dr Brown noted that the respondent had an IQ in the borderline intellectual disability range.
27. [27]
    Dr Brown diagnosed a mixed personality disorder with antisocial and dependent traits.  The respondent has behaved in an irresponsible and antisocial way.  He has not learned to correct his behaviour because of incarceration.  He has a low tolerance to frustration, with angry outbursts. 
28. [28]
    According to Dr Brown, the respondent’s offending is not well understood.
29. [29]
    It is unclear if he has a paraphilia.  An alternative explanation for the offending might be sexual frustration caused by rejection by a partner, perceived loss of control over life circumstances and a perceived entitlement to sex.
30. [30]
    Three risk assessment tools were applied by Dr Brown.  One of those static tools meant that the respondent’s score was “significantly reduced” due to his age.
31. [31]
    The evidence indicates that the respondent does not have much insight into his offence cycle.  He would have difficulty in coping in the community.  Sex with victims would appear to be a maladaptive means of coping with stressors.  He has struggled to cope with intimate relationships.  He has no supports in the community.
32. [32]
    In Dr Brown’s opinion, the respondent’s unmodified risk of sexual reoffending is moderate.  The risk is elevated due to the chronicity of his offending, his personality disorder and resistance to treatment.  It is unclear if the respondent has a paraphilia.  Risk is reduced due to advanced age, physical infirmity and reduced sexual preoccupation.
33. [33]
    Dr Brown considered that if the respondent could be released under a supervision order to a “male only nursing home” this would reduce the risk of sexual offending.  He would need to be supervised at visiting times.  The respondent also would need to be supervised in the community to manage the risk of opportunistic offending against a vulnerable female.  Dr Brown considers that “if these safeguards could be put in place, then the risk would be reduced to a below moderate and manageable level”.  However, Dr Brown observes that no such facility has been found.

Dr Arthur

34. [34]
    Dr Ken Arthur, who has previously reported on the respondent, interviewed him in April 2022 by a teleconference.  Dr Arthur did not observe any clinical signs indicative of melancholia, mood elevation, psychosis, or anxiety.  Dr Arthur was unable to observe any change in the respondent’s emotional, physical, or cognitive functioning from when last assessed in July 2021.  Dr Arthur noted the respondent continued to suffer from Parkinson’s disease which was exacerbated by episodic non-compliance with medication.  Dr Arthur could not find any evidence of gross cognitive or functional changes.
35. [35]
    The diagnosis that Dr Arthur previously made remains, being that of a personality disorder with predominant antisocial traits in the context of borderline intellectual functioning.  Dr Arthur recorded very slow-progressing Parkinson’s disease.  Despite a history of the respondent offending against children, Dr Arthur could find no clear evidence of a paraphilic disorder.
36. [36]
    Based upon actuarial instrument, the respondent’s risk factors remained unchanged.  His score under STATIC-99 placed the respondent in the average risk range when compared to the reference population, being a North American sex offender population.  Therefore, the respondent is no more likely to sexually reoffend then the average incarcerated North American sex offender.
37. [37]
    Dr Arthur notes that due to the respondent’s advancing age, the ability of instruments such as the STATIC-99 to differentiate between different risk classes lessens.  Dr Arthur noted that recidivism was rare in persons over seventy.  It is difficult to analyse this risk due to small sample sizes and low frequency of events.  The most significant risk factors for recidivism are the presence of persistent sexual deviance and evidence of severely disturbed personality, such as psychopathy.  Accordingly, taking these matters into account, Dr Arthur opined that the respondent’s unmodified risk of sexual recidivism on release is moderate or below.  This risk could be further reduced by the application of a supervision order which would mitigate the risk by ensuring that the respondent’s needs are met and limiting victims’ access.
38. [38]
    Dr Arthur could not “realistically” envisage any accommodation suitable to the respondent outside of a nursing home.  Notwithstanding the respondent’s advancing age and physical frailty, Dr Arthur considered that it would be prudent to ensure that unsupervised access to females under the age of 16 or vulnerable adult women did not occur.
39. [39]
    Dr Arthur considered the respondent could be safely nursed by female staff.

Will a supervision order be managed so as to provide adequate protection?

40. [40]
    The expert evidence is that the respondent’s unmodified risk of sexual recidivism is moderate or below moderate.
41. [41]
    Were it not for his special needs, being a person who is highly institutionalised and requires a high level of interpersonal support, one might conclude, having regard to the matters required to be considered under s 13(4) of the Act, that the respondent did not pose an unacceptable risk of committing another serious sexual offence.  With suitable supports in the community, and with accommodation and arrangements that limited his access to potential victims, particularly children or women with very low intelligence or cognitive impairment, the risk of the respondent sexually reoffending would be at an acceptably low level.
42. [42]
    If, however, a supervision order was required to ensure his confinement in such a facility and to deprive him of access to victims, then a supervision order would be made.  As has been said many times, if a supervision order can provide adequate protection, then it is to be preferred to a continuing detention order.
43. [43]
    In such a situation, a supervision order would provide adequate protection.  This is not, however, the situation.
44. [44]
    The Court must consider whether adequate protection can be reasonably and practicably managed by a supervision order and whether the requirements of s 16 of the Act can be reasonably and practicably managed by Corrective Services.^[17]
45. [45]
    Counsel for the applicant submits that there is no evidence that Corrective Services can reasonably and practicably manage the requirements of a supervision order in this case and adequate protection cannot be reasonably and practicably managed by a supervision order.
46. [46]
    The applicant submits, and I accept, that the respondent cannot live at the Wacol precinct.  His need for care and assistance would render such accommodation unsuitable.
47. [47]
    The psychiatric evidence supports release to nursing home style accommodation.  However, that type of accommodation is not able to be sourced by Corrective Services.
48. [48]
    The absence of such accommodation means that the risk the respondent presents is not able to be managed in the community.
49. [49]
    Counsel for the applicant submits:

“Absent such accommodation being located, the risk the respondent otherwise presents is not able to be managed in the community.  Accordingly, the risk the respondent presents is not able to be adequately addressed by a supervision order due to the absence of nursing home accommodation that he requires.  In those circumstances, the continuing detention order ought to be affirmed.”

The respondent’s position

50. [50]
    The respondent was somewhat resigned to his situation but questioned at the hearing whether his future was simply to return to the Supreme Court each year on an annual review. He stated: “I just want to know how long am I going to be in here for?”

Conclusion

51. [51]
    The respondent has no supports in the community.  He is not supported by friends or family.  He has no support network.  He lacks the intelligence to make arrangements for accommodation, care and support.  He displays a high level of institutionalisation.
52. [52]
    An elderly, infirm sexual offender who had supports in the community, including friends or family who could help him navigate the aged care system and find supported accommodation that effectively restricted his access to victims, might not be considered to present an unacceptable risk of sexual offending, such that no Division 3 order would be made.
53. [53]
    The respondent does not have those supports in the community.  Although he has undergone sexual offender treatment programs in custody, he has little insight into his offending.  He appears to be of low intelligence.  He has difficulties in coping outside of an institutionalised setting.  Although his unmodified risk of sexual offending is moderate or below moderate, that risk is not reduced by the availability of supports and suitable accommodation in the community.  Therefore, I conclude that he presents an unacceptable risk of committing a serious sexual offence in the absence of an order made under Division 3 of the Act.
54. [54]
    The respondent needs care and assistance that is not currently available at the Wacol precinct, or any other precinct managed by Corrective Services.  He needs accommodation in a nursing home style facility or in some other form of supported accommodation, and in a setting that limits his access to potential victims.
55. [55]
    Such accommodation has not been located by Corrective Services or, unsurprisingly, by the respondent.
56. [56]
    Despite what was said by Holmes CJ in 2017, Corrective Services has not developed any form of accommodation that is suitable for individuals like the respondent.
57. [57]
    The position is thereby reached that the absence of such accommodation means that the risk the respondent presents is not able to be reasonably and practicably managed in the community under a supervision order.
58. [58]
    In this unfortunate state of affairs, I decline to make a supervision order and, instead, order that the respondent continue to be subject to the continuing detention order made on 27 March 2017.

The Act and the absence of suitable accommodation

59. [59]
    In a recent case involving a middle-aged man with a personality disorder, I was persuaded to make interim continuing detention orders because, at the time, he was not a suitable candidate to be transitioned from custody to the precinct.  No accommodation other than accommodation in the precinct was available to him.  When I eventually made a supervision order, the only place that he could be accommodated there was on a trundle bed in a living room of an overcrowded precinct house full of sex offenders.^[18]
60. [60]
    In other cases under the Act, I have encountered the problem of finding suitable accommodation for young indigenous men with serious mental health conditions. Their needs are such that they cannot be suitably accommodated at the precinct and there are insufficient places in secure mental health wards.  The Court attempts to have the parties find such places.  In the meantime, individuals, who need care, support and accommodation in the community, remain incarcerated in maximum security prisons.  Secure units within such prisons are the only places that provide them with a kind of sanctuary.
61. [61]
    I deal with only a small proportion of the applications under the Act that come before the Trial Division.  I should not assume that my experience is typical.  However, there is nothing to suggest that the kind of cases that I encounter are different to those that the Court encounters each week when, typically, one of the two judges listed in Applications does two cases under the Act each Monday.
62. [62]
    In one way or another, the Court is confronted with the fact that suitable accommodation is not available for persons who might be released under supervision orders.
63. [63]
    The precinct does not provide a suitable place for the accommodation of some individuals.  For others, it does, but there are no vacancies.
64. [64]
    This is not a case, like GHS, where the problem was the absence of a room in a house at the Wacol precinct or any other precinct.  Even if there were a vacant room at a precinct house, it would not be suitable for the respondent.  He needs accommodation that will provide care and support for someone with his physical and psychological conditions.  He is institutionalised and unable to care for himself.
65. [65]
    There is not enough contingency accommodation at the precincts to meet demand.  The kind of accommodation that is available at the precinct is not suitable for individuals, young or old, with high needs.  For individuals without high needs who can mostly care for themselves and who are entitled to some level of support under ACAT assessments due to mobility or other health conditions, Corrective Services does not allow paid providers of care to enter the precinct so as to provide the needed support.
66. [66]
    Individuals who are subject to orders under the Act struggle to find private accommodation, particularly under current conditions of a community-wide problem with accessing affordable rental accommodation.
67. [67]
    In short, suitable accommodation is not available for the young, the middle-aged, or the elderly, to enable supervision orders to have a reasonable chance of success.
68. [68]
    One incidental effect of the failure of the State to provide sufficient suitable accommodation for individuals who are subject to the Act is that the Supreme Court becomes a very expensive and rather inefficient accommodation agency.  Resources that might be directed at providing suitable accommodation are spent on litigation.  Expert psychiatrists produce reports and give evidence which confirm the obvious fact that the risk of reoffending under a supervision order will be reduced to an acceptable level if the person can find suitable accommodation and support in the community.
69. [69]
    In 2017, the former Chief Justice observed that “a time will come when there are enough offenders in the respondent’s category of age and debility” falling within the compass of the Act to require the setting up of supported accommodation for them.
70. [70]
    The State has failed to set up any form of supported accommodation and is unable to locate any in the community for someone like the respondent.  The submission is then made that a supervision order should not be made because its requirements cannot be reasonably and practicably managed by Corrective Services, and that, due to the absence of suitable accommodation, adequate protection cannot be provided by a supervision order.
71. [71]
    The failure of the State to find or facilitate suitable accommodation means that individuals who should be released on a supervision order are detained in prison, years after serving the full term of their sentence.  The financial costs of their incarceration and accommodation in prison each year must be significant, not to mention its contribution to prison overcrowding.
72. [72]
    Elderly individuals requiring nursing home care, who have served their sentences, remain in prison.
73. [73]
    Like other judges who have heard the respondent’s case over recent years, I echo, with respect, the observations of the former Chief Justice:

“It is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option.”

A punitive system?

74. [74]
    Another troubling thought is that the State’s failure to provide sufficient contingency accommodation at precincts for persons who can be safely accommodated there and other accommodation for persons who cannot, renders the practical operation of the Act punitive, at least for individuals like the respondent.
75. [75]
    The respondent is a self-represented litigant.  He is aged almost 70.  He appears to be of low intelligence.  He is not in a position to articulate why the failure of the State to arrange supported accommodation for people like him renders the Act’s practical operation punitive, such that it cannot validly apply to him.
76. [76]
    Such an argument would require the assembling of evidence about the practical operation of the Act in his and other cases.  Such an exercise is beyond the ability of an individual in the respondent’s position.
77. [77]
    It remains to be seen for how many years the respondent must remain in the expensive revolving door of the Supreme Court.  It is unfortunate, to say the least, that the government has not heeded what was said in his case in 2017 about the need to set up supported accommodation for individuals in the respondent’s category of age and debility.
78. [78]
    Due to the absence of suitable accommodation for the respondent in the precinct or elsewhere in the community, I concluded that a supervision order should not be made.  There is something that is deeply troubling about a system that consigns someone like the respondent to an indefinite period of detention in prison rather than providing safe and secure accommodation outside of jail under a strict supervision order.
79. [79]
    During the 2003 Parliamentary debates, the then Attorney-General stated:^[19]

“I also think it is important that, because we are exploring in this law uncharted waters in relation to the detention of people of a particular class, we should maximise the capacity for the courts, as an independent source of supervision of this law, to be involved. Although, as I said, this is not part of the criminal law, as I see it it is nevertheless a law under which the tyranny of the state or, indeed, corrective services authorities could seek to continue to detain people for inappropriate or wrong reasons.”

80. [80]
    The position has been reached, I regret to say, where corrective services authorities seek to continue to detain people because of the executive government’s policy of not providing suitable accommodation for persons who could be managed and rendered relatively risk-free with appropriate support and accommodation.
81. [81]
    The need for suitable accommodation has been apparent for years.  Far from involving the courts as an independent source of supervision of the law, suggestions about how the practical operation of the Act could be improved are ignored by the executive government.  This is to the detriment of individuals, the greater good and the public purse.
82. [82]
    Individuals are detained in prison on continuing detention orders because of an executive government failure or refusal to provide suitable accommodation for individuals who could be managed and rendered relatively risk-free under supervision orders if that accommodation were available.
83. [83]
    In the absence of any justification for such a policy by the corrective services authorities or the State, the incarceration of individuals on continuing detention orders, with no hope of a change in government policy, seems punitive.
84. [84]
    The respondent would be well-advised to engage the assistance of the Adult Guardian, Aged and Disability Advocacy Australia, and lawyers to explore whether this is the case.
85. [85]
    It is for the executive government to decide if this situation continues.  Its current policy prefers to expend public resources on the institutional equivalent of revolving doors, prisons, psychiatrists, lawyers and judges than on suitable accommodation outside of prison.
86. [86]
    The respondent’s incarceration in prison is not cost-free.  Therefore, the cost of supported accommodation of the kind the experts say he and others like him need would not be simply an additional cost.  In any case, no financial or resourcing justification has been advanced why suitable accommodation that would render him relatively risk-free cannot be provided.  The government fails to adequately manage and efficiently resource a system of its own making.
87. [87]
    The result was deeply troubling to the Court in 2017.  It remains so.  The absence of any hope that the policy will change in the years to come makes the operation of the Act for someone like the respondent increasingly punitive.
88. [88]
    In 2003, the executive government was conscious of the potential for corrective services authorities to seek to continue to detain people for “inappropriate and wrong reasons”.  Hence the need to have annual reviews.  Yet, for many years the authorities have sought and succeeded in obtaining renewals of continuing detention orders because of their failure to provide accommodation that would allow supervision orders to work.
89. [89]
    This is deeply troubling.  It also arguably affects the valid operation of the Act, as envisaged when it was passed in 2003, and in 2004 when the Act’s constitutional validity was upheld.^[20]  That decision was based upon assumptions about how the Act would operate in practice for individuals like the respondent.  The correctness of those assumptions may be questioned in the light of the Act’s practical operation in cases like this.