Attorney-General v Grant[2022] QSC 180

SUPREME COURT OF QUEENSLAND

1. [1]
   The respondent is aged 78.  His five-year sentence for sexual offences expires on 4 September 2022.  Given his history and the risk assessments that are before the Court, the respondent accepts that the Court will find that he is a “serious danger to the community” in the absence of a Division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
2. [2]
   The evidence, particularly the expert opinions of Dr McVie and Dr Arthur, lead the Attorney-General to acknowledge that the evidence supports a finding that adequate protection of the community may be ensured by the making of a supervision order under s 13(5)(b).
3. [3]
   An issue is whether the contingency accommodation at a precinct like Wacol is appropriate for someone with the respondent’s serious health conditions.  The respondent needs semi-supported, hostel-style accommodation.  However, such accommodation is presently unavailable to him.
4. [4]
   In June 2022, the respondent had an ACAT assessment that deemed him eligible for a Home Care Package Level 3, to support his return to community living.  That level of support will give him about 10 hours of support per week, depending on the provider’s fees.  This would include assistance with personal care, nursing and allied health support.  That ACAT assessment apparently means that the respondent will not be considered for nursing home accommodation.
5. [5]
   The respondent is not in such a frail condition that he cannot walk or attend to his own care.  Still, as the ACAT assessment shows and the medical evidence before me confirms, he needs support.
6. [6]
   Queensland Corrective Services has a policy of not allowing external domestic, daily living or medical supports to be provided at the contingency accommodation.  This is due to safety concerns associated with a risk of assault by someone housed at the accommodation and the absence of staff there.  The concern for the safety of potential entrants into houses at the precinct is understandable.  Yet, the policy extends to not allowing a taxi, that could pick up the respondent and his walking frame, to collect him from the front of the house and take him to a medical appointment.  The policy does not allow a Woolworths delivery driver to leave groceries at the front of the house.  The powers that be would prefer someone like the respondent with poor mobility and a walking frame to collect his groceries from a far-off gate (assuming they could be left there without being stolen).  This policy renders the Wacol precinct unsuitable for the respondent to obtain groceries to cook for himself or even for prepared meals to be delivered to the outside of the house in which he would reside.  It limits his access by taxi to medical services.
7. [7]
   In 2017, the then Chief Justice remarked on the growing need for individuals in the respondent’s age category to receive supported accommodation.^[1]  In the following five years, the government has not arranged any such accommodation.^[2]  If the government is not prepared to provide it for individuals like the respondent in semi-supported, hostel-style accommodation, then it would seem reasonable for it to facilitate external providers accessing the contingency accommodation to provide support to people like the respondent.  Appropriate security for outside care providers might be made available at appointed times.  The evidence is not that the government is unable to arrange security for the occasions when it might be needed for an external caregiver, such as someone providing services under an ACAT Home Care Package or a social worker who supports an elderly person like the respondent.  The government simply prefers to not allow external care providers to supply services at the precinct.
8. [8]
   The government does not provide even limited support to persons who need it at the precinct.  It provides support to persons like the respondent in prison, but not if they are in a precinct. 
9. [9]
   There may be circumstances in which the resource demands associated with conditions of supervised release are so extensive that it would be unreasonable to expect Corrective Services to provide them.^[3]
10. [10]
    The evidence does not explain why the provision of supervision and basic support to the respondent at the contingency accommodation is unreasonable or impracticable.  It would require some adjustment of policies to facilitate external support being provided to someone like the respondent when he needs it.
11. [11]
    Chief Justice Holmes observed in 2017:^[4]

“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.”

12. [12]
    The respondent needs to be supervised under the strict conditions of a supervision order and to receive the support that he requires at contingency accommodation and at whatever home he may be able to find in the future.
13. [13]
    Because of the terrain at the Wacol precinct for someone with mobility problems, and the policy that does not allow taxis to come to houses there, attention at the hearing on 22 August 2022 turned to the feasibility of the respondent being accommodated in a house at the Townsville precinct.  That precinct is far outside Townsville with no access to public transport.  As a result, a minibus can occasionally transport residents to appointments and shopping centres under some supervision.  This makes the Townsville precinct superficially attractive, compared to the Wacol precinct, in the respondent’s case.
14. [14]
    A concern remains about the safety of leaving someone with the respondent’s health complications at such a remote residence, unsupervised and unsupported by staff who could call for an ambulance or help in the event of a medical emergency or deterioration in his condition.
15. [15]
    The issue is not about the safety of the community and access to victims if the respondent resided at a precinct house.  The risk of his sexual offending would be low because he would not have access to potential victims.  The concern of the doctors and the Court is with the respondent’s safety in unsupported accommodation.
16. [16]
    The doctors were surprised that the ACAT assessment did not assess the respondent as eligible for nursing home care, given his multiple and compounding health conditions.  This may be because the respondent overstated his capacity and understated his problems to the physiotherapist who did the ACAT assessment.  In any case, even if the respondent only requires the level of care given under the Home Care Package Level 3 for which he was assessed on 8 June 2022 (which would provide about 10 hours of support each week), Corrective Services’ policy does not allow him to receive it at a precinct house.

Would the respondent be better off in jail?

17. [17]
    The evidence about the respondent’s medical problems and the absence of policies that would enable him to obtain the support to which he is entitled in a precinct house prompts one to ask this question: would the respondent be better off in jail?
18. [18]
    That obvious and confronting question arises in a case in which the Attorney-General’s submissions acknowledge that the evidence supports the finding that “adequate protection of the community may be ensured by the making of a Supervision Order under section 13(5)(b)”.
19. [19]
    At the conclusion of the evidence and oral submissions, I stood the matter down to allow counsel and the solicitor for the respondent to speak to him and take instructions about whether he still wished for a supervision order to be made.  I mentioned the adage of being careful that you might get what you wish for.  I pointed out the problems for him in being housed at the Townsville precinct in the hope that he might occasionally get on a minibus with other residents to be escorted to the city for appointments and to shop.  I stated that the precinct at Townsville was not like a hostel or nursing home where he might buzz for help or get the attention of a domestic worker to call for help in the event of a medical emergency or other crisis in the middle of the night.  I wanted him to reflect on the fact that the support given to him by his ACAT assessment (or a greater level of support under an updated assessment) would not be available to him if he resided at a precinct house.
20. [20]
    When the matter resumed after Counsel received instructions, I was advised that the respondent preferred to have a supervision order made.
21. [21]
    If such a supervision order is made, then the respondent is likely to be subject to a strict curfew upon his arrival at the Townsville precinct and leave there only on supervised trips on the bus for specific purposes in Townsville or for short visits to a doctor or some other appointment.  The prospects of the curfew being lifted to allow the respondent to spend any substantial time in the community on his own are low.  He is unlikely to find, or be given permission by the authorities to live in, private accommodation or public housing where he might have access to and groom adolescent boys.
22. [22]
    This means that a supervision order will render the precinct a practical prison for the respondent for an uncertain period of up to 10 years.
23. [23]
    In such a situation, he will have less access to health care, prepared meals and other support than he will in jail under a continuing detention order.
24. [24]
    The question remains: would he be better off in jail?
25. [25]
    If that were the only question, then the answer would be “yes”.  The central issue, however, is not what is best, in my opinion, for the respondent’s health or longevity.  Nor is the central issue whether the public interest is better served by an elderly man with serious and deteriorating health conditions being cared for and supported in jail rather than living in an isolated house, with other sex offenders, on the outskirts of Townsville, largely unsupported and fending for himself.
26. [26]
    The central issue is whether adequate protection of the community against serious sexual re-offending may be ensured by the making of a supervision order.  The Attorney-General acknowledges that the evidence supports such a finding.  The evidence, which I will summarise at considerable length (this being the respondent’s first Division 3 hearing under the Act), leads me to make that finding.
27. [27]
    I find that adequate protection of the community may be ensured by the making of a supervision order in the form submitted (and which I will make Exhibit 4).
28. [28]
    The difficult question is whether I should exercise my discretion to not make such an order, despite the Attorney-General’s acknowledgement and the respondent’s preference for such an order to be made.
29. [29]
    The discretion under s 13(5) should not be exercised in favour of making a continuing detention order based simply on the view that the respondent would be better off in jail.  That view may be correct, yet not respect the respondent’s autonomy and rights that are protected by law under the Human Rights Act 2019 (Qld) (“HRA”).
30. [30]
    The occasion to exercise my discretion occurs in circumstances in which Corrective Services (which is subject to the HRA) has a policy of not allowing someone like the respondent who is accommodated at a precinct house to obtain the support services to which he is legally entitled.  This raises serious issues about the policy’s compliance with the HRA, including ss 30(1) and 37(1).
31. [31]
    At this stage, I am not inclined to make a supervision order for 10 years that consigns the respondent to precinct accommodation under arrangements that the medical evidence indicates will jeopardise his health.  Nor am I inclined to make a final continuing detention order at this stage that consigns the respondent to indefinite detention (subject to annual review) in jail and the kind of revolving door displayed in Guy’s case.^[5]
32. [32]
    The respondent’s health condition is not the same as Mr Guy’s, who needed nursing home accommodation.  Imprisonment is not the only option for the respondent due to the absence of nursing home accommodation.  However, the respondent is likely to need increasing care as he enters his 80s.  The practical problem of appropriate support and accommodation is the same in both cases.
33. [33]
    The government policy decisions that deny the respondent appropriate support and accommodation in precinct housing or semi-supported, hostel-style accommodation are critical to the proper exercise of my discretion under s 13 of the Act.  It is not evident that those policy decisions comply with the HRA.  Also, the practical operation of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in a case like this makes it distinctly punitive and therefore arguably invalid in its application to the respondent.
34. [34]
    Therefore, I propose to:

1. Make an interim detention order for a certain period, say, two months.
2. Join the Chief Executive, Queensland Corrective Services as a respondent
3. Direct the parties to notify the Queensland Human Rights Commission of the interim detention order and provide a copy of these reasons so it may consider intervening in the proceeding.
4. Adjourn the matter to a date to be fixed.

35. [35]
    Having regard to the matters contained in s 13(4) of the Act, including the risk assessments that I will quote at length, the respondent is correct to concede, and I find, that there is an unacceptable risk that he will commit a serious sexual offence if he is released from custody.  The evidence also supports, as the Attorney-General’s submissions acknowledge, that adequate protection of the community can be ensured by a supervision order in the form proposed.  A supervision order would permit the respondent to be confined under a curfew and other restrictions on his movement at a precinct house or some other place of accommodation.  Those restrictions would deprive him of access to potential victims, particularly post-pubertal boys.
36. [36]
    The issue is whether, having made that finding, I should exercise my discretion to make a supervision order of 10 years’ duration at this stage, given the respondent’s state of medical health, its expected decline in the coming years and current arrangements by Corrective Services that deny him access to required support under his ACAT assessment at the precinct.  Because I am not prepared to make such a supervision order at this stage, I propose to make an interim continuing detention order so that further consideration can be given to any arrangements that will allow the respondent to access the support to which he is entitled to receive under Commonwealth laws.
37. [37]
    I turn now to background facts that are relevant to the findings that I have made.

The respondent’s criminal history

38. [38]
    As noted, the respondent is now aged 78.  He is serving a five-year sentence of imprisonment for sexual offences, including carnal knowledge with an intellectually impaired 15-year-old male.  This offending took place two weeks after his release from custody after serving a full-time sentence for offences of indecent treatment of children.  His criminal history for comparable offending began in 1975.
39. [39]
    The respondent is due for release on 4 September 2022.
40. [40]
    The following table and other information is drawn substantially from the applicant’s written submissions.

41. [41]
    There are no details available for the offence, given its historical nature, for which he was convicted in the Townsville Magistrates Court on 17 March 1975.
42. [42]
    In 1993, he was convicted of indecent dealing with a boy under 14 years on a date unknown in April/May 1987 and indecent dealing with a boy under 16 years on a date unknown between September 1989 and January 1990.
43. [43]
    The same male was the victim for the indecent dealing counts in 1987 and 1989.  On at least four occasions the respondent masturbated in front of the victim and performed oral sex on him.  The male victim for the wilful exposure counts was aged 15 and visiting his cousin on Horn Island at the time.  The cousin was residing in a house with the respondent, who was living with four male youths.  The respondent sexually interfered with the victim and showed a pornographic video of men and women having sex. 
44. [44]
    In August 2015, the respondent pleaded guilty to two counts of indecent treatment of a child under 16 years (indecent film, etc.), two counts of indecent treatment of a child under 12 years and two counts of indecent treatment of a child under 16 (expose).  He was aged 70 years at the time of offending, and had been visiting relatives at Erub Island.  He showed pornographic videos to a group of young boys, aged 11 to 13, and exposed his penis to two of the boys.  He was sentenced to two years’ imprisonment.
45. [45]
    On 16 August 2018, the respondent pleaded guilty to offences of possessing child exploitation material (“CEM”), seven counts of carnal knowledge of children under 16 years, and indecent treatment of a child under 16.  He was sentenced to five years’ imprisonment for the carnal knowledge and indecent treatment counts and nine months’ imprisonment for the CEM count, with 345 days declared as time already spent in custody.  All terms of imprisonment were to be served concurrently.
46. [46]
    The sentencing judge described the contact offending in detail.  I will not reproduce its disturbing contents.  The offending occurred against a 15-year-old boy who had disabilities and whose overall cognitive functioning was extremely low.  Upon his release from jail, the respondent came to live in the boy’s family household.  The respondent and the 15-year-old shared a bedroom.  The respondent propositioned the boy for sex.  Various sexual acts occurred in late August and early September 2017.
47. [47]
    The respondent also has a criminal history of stealing, unlawful possession of weapons, and failing to comply with reporting requirements.  This includes a conviction on 16 August 2019 for failing to disclose that he was residing with a seven-month-old baby. 

Medical history

48. [48]
    There is no history or report of alcohol or drug abuse.
49. [49]
    The respondent is diabetic.  In 2002, he underwent open heart surgery.  He also reported prostate problems and renal failure.  The respondent takes medication for cholesterol, lipids, blood pressure and related conditions affecting his heart, lung and kidney.

Programs and assessment in prison

50. [50]
    Since 2018, the respondent has been assessed for classification and other purposes in prison.  He was recommended for different programs.  He participated in a Getting Started: Preparatory Program (“GS:PP”) between October and December 2018.  He participated in a Medium Intensity Sexual Offending Program (“MISOP”) between January and June 2019.
51. [51]
    He demonstrated limited empathy for his victim.  The respondent continued to blame the victim for initiating the sexual offending and displayed cognitive distortions including failing to identify any issues with befriending teenagers.  The treatment needs identified included significant social influences, capacity for relationship stability, general social rejection or loneliness, lack of concern for others and co-operation with supervision.  A Staying on Track: Sexual Offenders Maintenance Program (“SOMP”) was recommended.
52. [52]
    The respondent participated in this program between May and July 2020.  He was considered an engaged participant.  High risk factors identified included boredom and isolation.  However, he continued to present with avoidant coping strategies.  A recommendation was that he would benefit from completing the SOMP again, in the community if the opportunity arose, and professional counselling.
53. [53]
    The respondent applied for parole in April 2020.  The application was deferred in November 2020 pending a psychologist’s risk assessment report.  The report of Kylie Lavers dated 16 January 2021 was commissioned by the Parole Board.  It concluded that the respondent displayed poor insight and judgment, with unrealistic future plans.  His risk of sexual recidivism was assessed as being in the high range despite his being of an age when sexual recidivism tends to decrease.  It was recommended the respondent not be granted parole.  The overall risk to the community and likelihood of recidivism was assessed as high.  The parole application was not granted due to this risk and unsuitable accommodation.

Neurological assessment

54. [54]
    Ms Anderson was engaged to conduct a neuropsychological assessment on the respondent.  Her summary and conclusions are as follows:

“On this occasion Mr Grant presented as a cooperative 78 year old man.  On cognitive testing he demonstrated average to low average memory and intellect, which was consistent with his likely premorbid level of function, so there was no evidence of a generalised cognitive decline.  In fact, he was able to demonstrate average to high average recall of novel verbal information.  He had greater difficulty with the visual tasks, suggesting a combination of visuospatial and executive difficulties.  The main areas of dysfunction related to the executive areas, with poor planning, impulsivity (rule breaking, errors), poor sequencing and poor strategy generation.  Whilst this may reflect the early phase of a degenerative condition, it is also noted that has cerebrovascular risk factors which may have also brain changes capable of producing this pattern.  Further investigation as to the likely cause may be helpful in determining if there is likely to be a deterioration over time.”

Dr McVie’s report dated 25 October 2021

55. [55]
    Dr McVie’s report was prepared for the purposes of a risk assessment for a potential application under the Act.  She interviewed the respondent on 25 August 2021 and administered tests.  Her assessment suggested mild cognitive impairment that led to the neurological assessment by Ms Anderson.  The respondent’s cognitive state seems to have been poor when Dr McVie interviewed him.
56. [56]
    Dr McVie observed:

“Mr Grant appeared to display limited insight into the nature of his offending, no victim empathy and limited understanding of concerns raised about his future plans.”

57. [57]
    Her report continued:

“Mr Grant presents with multiple risk factors including his history of chronicity of offending from at least 1975, escalation of severity of sexual offending in 2017, psychological coercion of victims and extreme minimisation of his offending.  He also has a history of ignoring ANCOR reporting requirements and failure to progress in previous sex offender treatment programs.”

58. [58]
    I shall quote the summary of Dr McVie’s report:

“Mr Grant is a 77 year old single man who probably has a lifetime history of sexual interest in young boys.  Though no details are available, his first conviction was in 1975.

He has resided in remote areas with vulnerable populations.  He has completely lost contact with his birth family and changed his surname.  He underwent surgery receiving a penile implant in 2000, possible evidence of an ongoing high level of sexual preoccupation.  His version of his personal history contains several inconsistencies, particularly in regard to the number of siblings in his family, and how many children he has fathered.

From 1987 to 2017 he has continued offending against boys aged 12 to 15 years with a variety of offences including indecent treatment, carnal knowledge and use of pornography.  This offending has resulted in three prison sentences, and he is currently approaching the end of a five year sentence.  His last episode of offending occurred within two weeks of his release from his previous sentence in August 2017, penetrative sexual intercourse with a vulnerable male child.

I would consider Mr Grant meets criteria for a diagnosis of paedophilia, though the DMS 5 diagnostic criteria specify prepubescent children usually under the age of 13 years.  Mr Grant’s interests are more towards pubescent boys, a disorder of hebephilia, sexual interest in boys aged 12 to 15 years.

Mr Grant does not meet criteria for any major mental illness.

…

On cross sectional interview and review of the material, he did not appear to have psychopathic features or to meet criteria for a diagnosis of any other personality disorder.

He does present with significant medical problems including cardiac and renal problems which impact on his daily functioning.

Though he has now completed three programs designed to address sexual offending, Mr Grant has failed to acknowledge the harm he has done to his victims and has failed to identify clear risk factors which have led to his offending.

I would consider he continues to present a high risk of re-offending sexually against boys.  His likely victim would be a vulnerable male child aged 12 to 15 years with whom he has close contact.  Based on his 2017 offending, this sexual activity is likely to inflict significant harm to the victim.”

59. [59]
    Dr McVie made the following recommendations:

“He would also benefit from an Occupational Therapist assessment in relation to his current functioning.

It would be helpful to have access to his recent Prison Medical Records, to enable a better understanding of his current physical health issues, in particular, the prognosis of any renal failure or cardiac failure.

Though I consider his risk to be high, this could be managed and reduced to moderate to low under the strict conditions of a supervision order.

Mr Grant is unlikely to benefit from further courses, though should be engaged with a qualified experienced forensic psychologist to provide ongoing monitoring of his sexual preoccupation and functioning, as well as supportive counselling and reinforcement of prosocial behaviours.”

(emphasis added)

Dr Arthur’s report dated 22 July 2022

60. [60]
    Dr Arthur was appointed by the Court at the preliminary hearing for the purpose of a risk assessment pursuant to section 11 of the Act.  The assessment was undertaken through an interview with the respondent at the Townsville Correctional Centre on 27 May 2022.
61. [61]
    Dr Arthur provided this formulation and diagnosis:

“167.  He has an extensive history of offending against teenage boys dating back to 1975 (when he was around 30 years of age) which resulted in 6 months’ imprisonment.  There were further sexual offences involving a 12 year old boy when prisoner Grant was in his forties which consisted of grooming, fondling and performing oral sex on the child. He was also convicted of exposing teenage boys to pornographic material and these offences resulted in a further period of imprisonment in 1993.  There was a third tranche of offences in 2014 (age 70) when he exposed teenage boys to pornographic material as well as exposing his penis to them which resulted in his third period of incarceration.

168. The index offences occurred within weeks of being released from jail after serving his full sentence for the preceding offences.  He had been taken in by a family he was friendly with and despite his CPOR requirements, failed to report the family had an infant child and a 15 year old disabled son.  Prisoner Grant shared a bedroom with the boy and engaged in sexual talk which led to repeated contact offences including oral and anal sex.  The sentencing Judge considered prisoner Grant’s behaviour to be predatory, with some attempt at secrecy.  The offending caused physical and psychological harm to the victim, who responded with emotional dysregulation and aggressive acting out.

169. Prisoner Grant has maintained claims that the child initiated consensual sexual contact, although following treatment now acknowledges it was his responsibility to set boundaries and disengage.  At interview he denied engaging in penile anal sex, claiming he cannot maintain an erection (which is not consistent with the official documentation), displayed little in the way of victim empathy and continued to make neutralising permission statements.  He denied the possession of child exploitation material and although made guarded admissions to exposing teenage boys to pornography, denied the previous contact offences ever occurred.

170. He completed the MISOP in mid-2019 and whilst he was felt to make limited progress, continued to deny any deviant sexual interests, engaging in minimisation and victim blaming.  He did identify immediate risk factors including feeling “careless”, lonely, depressed and proximity to the victim.  He was also able to identify permission statements.  Although he went on to complete the Sexual Offender Maintenance Program the following year, he minimised the relevance of previously identified risk factors and displayed poor planning.

171. Due to the limited and at times contradictory history given, little is known about prisoner Grant’s psychosexual development.  He has consistently claimed to have grown up in a large but happy rural family and denied any exposure to neglect or abuse.  He has reported on a number of long term heterosexual relationships and denies any interest in homosexuality despite his repeated offences against teenage boys.  He appears to have suffered from erectile dysfunction secondary to diabetes for at least 20 years but had penile implant surgery in 2000, presumably allowing him to maintain erections.

...

175. Despite his reports of long term relationships, he appears to have attachment deficits and could identify only one support in the community (a previous business partner) and described his associations with others in a business-like manner without warmth or depth.

176. It appears that he has spent the majority of his life moving between rural Australia and Papua New Guinea/Torres Strait Islands where he has engaged in somewhat isolative employment.  Even though he has owned property he has always been somewhat itinerant.  Whilst his employment record is good, there is no evidence he has shown any sustained interest in his many children nor provided them with any financial support.

177. His plans for the future lacked clarity and reflected a somewhat fatalistic view of how he would spend the remainder of his life.  His claims of owning gold mines and knowing the position of shipwrecks cannot be disproven but seemed fanciful.

178. Prisoner Grant displayed little interest in managing his risk of sexual recidivism and was indifferent to the prospects of a supervision order.

179. Whilst Dr McVie had previously raised concerns about his cognitive functioning, on the basis of my clinical assessment he appears to have improved since Dr McVie’s assessment.  This was consistent with a recent neuropsychological evaluation which showed no evidence of significant cognitive decline.  It is likely that prisoner Grant experiences fluctuations in his mental state due to the effects of his numerous physical complaints and is at risk of further deteriorations should these conditions worsen.”

62. [62]
    Dr Arthur’s diagnosis was as follows:

“180. Despite his claims to the contrary, prisoner Grant’s offending history is consistent with a diagnosis of Hebephilia, a paraphilic disorder relating to deviant sexual interests in post-pubertal boys.  This appears to be non-exclusive.

181. There is no evidence of a major psychiatric illness.  He displays prominent avoidant coping strategies and attachment deficits indicative of a Personality Disorder Not Otherwise Specified.

182. He has a number of significant medical conditions, the most serious being chronic Insulin-Dependent Diabetes with secondary organ damage, Ischemic Heart Disease with episodes of congestive cardiac failure and Chronic Renal Impairment.  He is HIV positive and on antiviral treatment with low viral loads.  Given his age and health conditions, a degree of cerebrovascular disease is highly likely.  I suspect he has experienced periods of mild encephalopathy or delirium in the past when acutely unwell, but at the time of assessment did not display any significant cognitive impairment.”

(emphasis in original)

63. [63]
    Dr Arthur administered a number of actuarial risk assessments, the details of which I will not quote.  The following is a table summarising Dr Arthur’s assessment of risk:

64. [64]
    Utilising a structured clinical judgment, Dr Arthur considered the respondent’s risk of sexual recidivism to be high, or “well above average”.  He concluded:

“196. Despite his advancing age, physical frailty and reported sexual dysfunction, he appears to have a persistent and powerful deviant sexual interest in teenage boys.  Despite treatment programs, there has been little shift in his underlying attitudes or willingness to take responsibility for his offending.  He currently has a somewhat fatalistic view of his future which is concerning given that he has previously identified feelings of “carelessness” as a risk factor for past offending.  There appears to be little in the way of internal inhibition or wish to change which might inhibit further offending against adolescent boys if given the opportunity.

197. Despite his physical fragility, prisoner Grant has proven capable of identifying and grooming vulnerable adolescents.  The critical risk factors for recidivism appear to be the presence of deviant sexual interests and attitudes supporting sexual offending.”

65. [65]
    Dr Arthur made the following recommendations:

“198. A supervision order would lower the risk of sexual recidivism from “well above average risk” to “low.” This would predominantly be via the mechanism of reducing victim access.

199. Given prisoner Grant’s advancing age and stage of life, I do not believe that psychological therapy or future group programs will be of great benefit in addressing his deviant sexuality.  Whilst I might consider antilibidinals in younger and less frail offenders, the potential side effects of these drugs would preclude their use in this case.

200. I would anticipate that prisoner Grant’s physical condition will continue to decline over time and I have concerns about his capacity to live independently or even semi-independently in the community.  If not already done, he requires an assessment by Aged Care Services to determine his support needs.  I am confident that prisoner Grant would qualify for a full care nursing home placement.

201. Given that restriction of victim access is the primary risk management tool, providing appropriate accommodation appears to be a critical risk management issue.  Due to his lack of supports and the nature of his offending, it is unlikely that suitable private accommodation will be available.  This leaves the options of semi-supported hostel-type accommodation, placement at one of the precincts or alternatively a nursing home.

202. Prisoner Grant should have no unsupervised access to boys under the age of 16 and given his history of accessing child exploitation material online, there should be restrictions and supervision of his use of internet connected devices, such as computers and mobile phones.

203. Whilst offence-specific treatment is unlikely to be of value, he may benefit from supportive psychotherapy and monitoring of his mental state.  He will also require ready access to specialist medical services.

204. Given that prisoner Grant’s risk of recidivism will persist for the remainder of his life, a 10 year supervision order is recommended.”

(emphasis added)

Dr Brown’s report dated 8 August 2022

66. [66]
    Dr Brown was also appointed for the purpose of a risk assessment.  The assessment was undertaken by a video-link interview at the Townsville Correctional Centre on 2 June 2022.
67. [67]
    Dr Brown surveyed the respondent’s history of employment leading up to the head injury that he sustained in 2014, together with his criminal history and his custodial record.  Dr Brown gave the following report about the respondent’s present condition and intentions:

“Mr Grant was interviewed for this report in June 2022.  His various cognitive distortions regarding his offending were unchanged and he denied all of his offending apart from the index offences (which he greatly minimised).  He reported he was impotent and he denied having a sex drive.  He admitted a past attraction to teenage boys but said that he was not a risk of sexual reoffending.  He stated he would comply with the requirements of a supervision order (no contact with children, GPS tracking), but he insisted that he wanted to travel to North Queensland in order to find gold.

In prison Mr Grant ambulates with a walker and he requires a carer.  He has several significant medical conditions including insulin dependent diabetes, hypertension, nephropathy and cardiovascular disease.  He also has chronic back and shoulder injuries which cause him pain.  He is also HIV positive (it is unclear when or how he contracted the virus).  He is prescribed multiple medication to treat these and other conditions, administered to him by nursing staff.  He also has some cognitive deficits in executive function, the aetiology of which is unclear.  An aged care assessment appears to have been commenced.

Mr Grant has one (adult male) friend that he is in telephone contact with.  He is completely estranged from all of his family members.”

68. [68]
    Dr Brown gave the following diagnosis:

“Mr Grant has some relative deficits in executive function (planning, sequencing), the aetiology of which is unclear, but this may be secondary to a head injury in 2014, cerebrovascular disease or other cause.  His other cognitive functions are intact.  I note that (as per the neuropsychological assessment) Mr Grant presented with limited and small writing, tremor of his hands and (possibly) a slowed and shuffling gait.  Neurological assessment would be helpful, particularly to assess for Parkinson’s Disease.

In my opinion Mr Grant has a diagnosis of narcissistic personality disorder.  He seeks admiration from others (in particular adolescent boys) and he sees himself as a provider and carer of vulnerable children (whilst exploiting their vulnerability).  He routinely believes that others are jealous of him and he presents with an entitled attitude.  He is preoccupied with fantasies of wealth (in particular he took a long time to describe his various occupational achievements and he continues to believe he will make millions prior to his death).  He lacks empathy for others.  Mr Grant also has some antisocial personality traits, including criminal convictions (sexual and non-sexual), externalisation of blame onto others and lack of responsibility taking, particularly with regards to his offences and victims.  However there is no evidence of conduct disorder in childhood and Mr Grant has exhibited stable employment throughout his life.  He therefore does not meet the criteria for a diagnosis of antisocial personality disorder.

Mr Grant presents with (non-exclusive) sexual attraction to boys aged from 11 years upwards (ie pubertal or post pubertal).  He therefore does not meet the criteria for a diagnosis of paedophilia.  This type of sexual attraction to adolescents is called hebephilia, however this is not a diagnosis in DSM-5 or ICD-10/11.”

69. [69]
    Dr Brown also remarked upon the respondent’s “grandiose and unrealistic” plans to search for gold in North Queensland upon his release.  She observed that the respondent has not responded to sexual offender treatment and is unlikely to make significant gains in the future, given his age and degree of treatment resistance.
70. [70]
    Dr Brown arrived at the following assessment:

“It is my opinion that Mr Grant’s unmodified risk of sexual reoffending is high.  His risk is elevated due to the chronicity of his offending, his personality disorder, his sexual deviance, his cognitive distortions (as described) and his resistance to treatment.  Past sexual offending has occurred when Mr Grant has presented himself to adolescent boys as a helper, caregiver, older family member or family friend.  The history suggests that he has befriended many adolescent boys during his lifetime and possibly housed them in his own residence.  He has a tendency to target vulnerable adolescents in remote areas.  He often engages in a process of grooming, with rewards of housing, meals, money or other gifts (access to a car, cigarettes).  Risk would be increased if Mr Grant had contact with adolescent male children (or possibly vulnerable young adult males).  This could be the child of a family member, friend or child/ children that congregate in parks or fishing areas.  He may seek to obtain child exploitation material via the internet.  Risk would also be increased if Mr Grant was under stress due to narcissistic injury (eg loss of status or belongings, rejection from a relationship).  It is possible that he could reoffend in order to return to prison if he perceives that community living is too hard.  Any future victim may suffer major psychological harm.  I also note that Mr Grant is HIV positive and therefore future victims would be at risk of contracting HIV.  (NB: I am unclear as to when Mr Grant contracted HIV.  Dependent on the timeframe, appropriate notifications (via the correct legal processes) to the relevant victims should be made, if this has not already occurred).

Risk is not significantly reduced due to Mr Grant’s age.  The most recent offences occurred when he was 73 years old (and before that when he was 70 years old).  At that time, as per the schedule of facts and sentencing remarks, Mr Grant was able to engage in penetrative sex.  He also told the assessing psychologist in 2021 that he could get an erection.  Therefore his reports that he is impotent / or that his penile implant does not work are unreliable, and in any case, even if he is impotent, that has not prevented him sexually offending in the recent past.

I note that Mr Grant has multiple medical disorders.  However many of his medical conditions have been present for several years.  In my opinion his current level of physical infirmity does not significantly reduce the risk of reoffending.  His deficits in executive function need further assessment, in particular as to the likely aetiology and possibility of progression.  Problems with impulsivity and planning may increase the risk of sexual reoffending.

Mr Grant is profoundly resistant to treatment despite his participation in sexual offender group programs as demonstrated by his presentation to both myself, Dr McVie and Ms Lavers (2021).  Individual psychotherapy may begin to address his narcissistic traits and sexual deviance, however I would not expect the gains to be significant.  Therefore the mainstay of supervision in the community will need to be via external monitoring.

I am unclear as to Mr Grant’s functional ability to appropriately care for himself, but the information available suggests that he would not manage basic activities of daily living in the community.  He is physically limited (requiring a walker) and he would struggle to do his own shopping or cooking.  His medication is currently given to him by custodial nursing staff and it is unlikely that he would be able to correctly administer his multiple medications to himself (including insulin).  His limitations with writing may affect his ability to manage his finances or his other affairs.  I note that he has a carer in prison and he has recently been referred for an aged care assessment.  Mr Grant requires an occupational therapy assessment, but at this stage I am not convinced that he would manage in an environment such as the Wacol / Townsville Precinct.

Overall I am not convinced that release to a supervision order will sufficiently reduce the risk of reoffending.  Mr Grant has no internal risk reducing strategies.  If he were to be released to the precinct, or his own accommodation, unless he was on a strict curfew, with 24 hour supervision he would be able to approach male children in the community and reoffend.  Unfortunately there is almost no evidence to suggest that Mr Grant would refrain from offending on release.

Release to supervision may be possible to a nursing home environment (should he require this to address his physical health needs) where Mr Grant is does not have contact with male children and his access to the community is supervised.

I recommend formal monitoring of cognitive function, particularly as any deterioration will limit Mr Grant’s ability to adhere to the conditions of a supervision order and may change his risk (particularly if he becomes more impulsive or disinhibited).  He would also benefit from a neurology assessment.”

 Oral evidence of the three psychiatrists

Dr Arthur

71. [71]
    Dr Arthur reiterated the difficulty of relying upon actuarial instruments for offenders over the age of 70 who have a deviant sexual interest.  In his oral evidence, he observed:

“So what we have is we have someone with quite a powerful persistent sexual deviant interest, who has continued to offend past the age of 70, who has responded not particularly well to treatment thus far, who shows very little interest in risk management and takes very little responsibility for his behaviour, so all of those factors to me say that he is a significant risk, and I place him at least moderately high or high.”

72. [72]
    Dr Arthur advised that the major risk factor that could be managed was access to victims.  A supervision order would lower the risk of sexual recidivism from well above average risk to low.  This was because the respondent’s target population was post-pubescent boys.  Grooming was an aspect of it, but there was also an opportunistic element.
73. [73]
    According to Dr Arthur, and I accept his opinion, the way to manage risk in the respondent’s case is by “the procedural security of an order, and that means external regulation and control”.
74. [74]
    As to the respondent’s medical conditions, Dr Arthur described the respondent as a “physically frail gentleman” with some serious health conditions.  They included severe renal failure, heart disease and diabetes.  He is a man “who is very fragile and who does need a high degree of medical oversight”.  Dr Arthur had anticipated that the ACAT assessment would approve the respondent for a nursing home.  In jail, the respondent is able to take time to walk between places and has others to assist with medication.  If he resided in the precinct, he would be responsible for his medication and for alerting people if there was a health problem.
75. [75]
    The difference between jail and the precinct is that jail is “a very controlled environment”.  The respondent needed some support with maintaining his personal care and oversight of his health in general.
76. [76]
    Under current policy, where external care providers are not allowed to enter the precinct home, outside carers could not provide Mr Grant with the support and oversight that he requires.

Dr Brown

77. [77]
    Dr Brown’s oral evidence was to like effect.  She confirmed that the respondent’s unmodified risk of reoffending was high because he does not have “internal risk reducing strategies” and therefore requires external monitoring to reduce that risk.
78. [78]
    Putting medical issues to one side, Dr Brown thought that a staged curfew process within a supervision order would reduce the risk.  If, for example, the respondent was released to a precinct, there would be a number of checks and balances, including a stage one curfew that would prevent the respondent from being able to leave the precinct on his own.  This would affect his access to children because children do not go to the precinct.  The respondent would not be able to go into the community and seek out vulnerable young boys.
79. [79]
    A problem would arise once he progressed, and if the curfews were reduced and he progressed to accommodation in the community.  Corrective Services could not properly monitor where children might go.  The respondent has a tendency to target vulnerable adolescents in remote areas.
80. [80]
    Dr Brown thought that a supervision order for 10 years was appropriate because there was unlikely to be any modification of the risk via “internal risk-reducing strategies”.  External monitoring would be required until such time as the respondent became too physically infirm to reoffend.
81. [81]
    If the respondent went to a precinct, the risk would be reduced to much lower than it presently is by virtue of the constraints on visitors.
82. [82]
    As to the respondent’s medical condition, Dr Brown was surprised that he was not thought by the ACAT assessment to require a nursing home placement.  Without support and monitoring of his medical condition, there is a risk that he could deteriorate, become unwell and not administer medications correctly.  The precinct accommodation is not supported accommodation and Dr Brown stated that she was not sure it was the most appropriate place for a man who “questionably needs a nursing home environment” for the reasons that she outlined.
83. [83]
    Under cross-examination, Dr Brown reiterated that the respondent’s risk of offending against young boys could be adequately managed if he resided in a precinct and remained on a curfew so that he is not able to approach vulnerable children in the community.
84. [84]
    Dr Brown stated that from the point of view of risk management, release to the precinct would constrain the risk in the short term but it would not negate all the concerns that she had about his medical management in the precinct.

Dr McVie

85. [85]
    Like the two other psychiatrists, Dr McVie concluded that the respondent’s paraphilia and history of offending, including offending over the age of 70, made his risk of continuing to offend high, but that his risk could be managed and reduced to moderate to low under the strict conditions of the supervision order.
86. [86]
    As to the respondent’s medical condition, the self-report that Dr McVie received was not dissimilar to that given by the respondent to the ACAT assessment team.  However, the respondent’s medical history included some significant episodes of illness.  According to Dr McVie, if the respondent’s needs were as set out in the ACAT assessment, then he would be able to be managed in the precinct.  However, concerns exist about his mobility, particularly over uneven or sloping surfaces at the Wacol precinct.
87. [87]
    While Dr McVie agreed with the other psychiatrists’ reservations about the likelihood that the respondent would benefit from further treatment and counselling, she thought that ongoing attendance by the respondent with an experienced forensic psychologist would assist in monitoring his risk of reoffending.  It would not change his cognitions but would assist in identifying whether his sex drive or preoccupation was changing.
88. [88]
    As to any future deterioration in his mental condition, due to the possible onset of dementia, Dr McVie observed that it was difficult to predict.  Some persons who develop dementia become more disinhibited.  However, a decline in his mental condition, like a decline in his physical condition, may reduce the risk.