Attorney-General v GBE[2022] QSC 187

[2022] QSC 187

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

HINDMAN J

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Applicant

and

GBE Respondent

BRISBANE

2.20 PM, THURSDAY, 11 AUGUST 2022

JUDGMENT

HER HONOUR:   By this application, the Attorney-General, as applicant, seeks orders pursuant to division 3 section 13 of the Dangerous Prisoner (Sexual Offenders) Act 2003, which I will hereinafter refer to as the Act, for a continuing detention order.  In the alternative, a supervision order is sought.  For the respondent, GBE, a finding that the respondent is a serious danger to the community in the absence of a division 3 order is not resisted.  No party suggests that if that finding is made by me that no order under the Act is appropriate. 

Therefore, the disputed issue between the parties is whether a supervision order is apt to ensure the adequate protection of the community, or whether a continuing detention order is required. 

I do find, consistent with both parties’ positions, that the respondent is a serious danger to the community in the absence of a division 3 order, the reasons for which will be obvious enough from what follows, although most of my focus in these reasons will be on the disputed issue.  I make that finding aware of the high standard of proof required by the Act.  I note that, consistent with the decision in Attorney-General v Kanaveilomani [2013] QCA 404, at paragraph 124, per Justice Morrison, that that finding is made by me having regard to the serious danger to the community that the respondent posed, as at 16 June 2020, being the date that the respondent would have otherwise been released from custody in respect of the index offence. 

I do not think that decision, though, requires me to consider what was the appropriate order as at 16 June 2020.  Instead, I think that that assessment as to the appropriate order to be made by me today is to be carried out as at today, including an assessment of the acceptable risks as at today, consistent with the discretion given in section 13(5) of the Act.  To do otherwise would be to ignore over two years of events that may have affected the risk that the respondent poses to the community as at today.  Nor do I think the approach I take to the timing of the relevant assessment offends what was warned about in that case of the Court carrying out an assessment of risk at potentially some indeterminate point in the future, referencing paragraph 133 of the decision, again as per Justice Morrison.

Before I turn to the disputed issue, there is another issue that I deal with first, because it was submitted for the Attorney-General that this preliminary issue may impact on my determination of the disputed issue.  It concerns whether, if I am satisfied that a supervision order is the appropriate order, rather than a continuing detention order, when that supervision order takes effect.  It is the Attorney-General’s submission that any supervision order I make today only takes effect on 23 April 2025, when the respondent completes his full sentence for certain general offending that mostly occurred, and for which the respondent was sentenced, after the full sentence for the index offence had been served. 

In brief terms, the relevant facts for the determination of this preliminary issue are these.  The index offence, a rape, occurred on 1 November 2015.  The respondent’s custodial end date for that offence, and some other offending, including offending committed whilst in custody, concluded on 16 June 2020.  The Attorney-General filed an application for division 3 orders under the Act on 8 June 2020.  Interim orders were made under the Act on 16 June 2020 by Justice Davis, who made the respondent the subject of an interim supervision order. 

Whilst in the community and the subject to that interim supervision order, the respondent committed a series of general offending, including most seriously, armed robbery in company on 28 October 2020.  The interim supervision order was revoked on 29 October 2020 because of the general offending, and the respondent was placed under an interim continuing detention order under the Act. 

The respondent was sentenced in the District Court in respect of the general offending, some earlier offending whilst in custody, and for contraventions of the interim supervision order on 29 September 2021.  The head sentence for the robbery was four years.  The full sentence for that general offending expires on 23 April 2025.  The respondent became eligible to apply for parole in respect of the sentence for the general offending on 15 June 2022. 

However, because the respondent is presently the subject of an interim detention order under the Act, by operation of sections 51(1)(b) and (2) of the Act, that eligibility to apply for parole is presently nullified.  Further, the present division 3 application, whilst undetermined, also stands in the way of the respondent’s eligibility for parole.  That is because of the operation of sections 51(1)(a) and (2) of the Act.

The Attorney-General relies upon the operation of sections 15 and 16 of the Act to contend that any supervision order I may make today only takes effect from  23 April 2025.  As I have mentioned, that is the full sentence date for the general offending.  The argument proceeds as follows.  First, section 15(a) of the Act relevantly provides that a supervision order has effect in accordance with its terms on the order being made or on the prisoner’s release date, whichever is the latter.  Second, in the schedule 2 dictionary to the Act, release date is defined to mean:

In relation to a prisoner, means the day of which the prisoner is due to be unconditionally released from lawful custody under the Corrective Services Act 2006.

Third, the Attorney-General submits that parole is not an unconditional release from lawful custody under the Corrective Services Act.  It is submitted for the Attorney-General that the respondent’s unconditional release from lawful custody will now only occur when the full sentence for the general offending is served.  Fourth, accordingly, it is submitted for the Attorney-General that any supervision I may make today under the Act will only have effect on 23 April 2025.

The Attorney-General does not submit that a supervision order made by me today, only having effect from 23 April 2025, would prevent the respondent from applying for and obtaining parole.  No prohibition on eligibility for parole would arise from section 51 of the Act if the respondent were the subject of a final supervision order under the Act, as distinct from an interim supervision order.  That would seem, therefore, to permit the possibility that parole might be granted to the respondent by the Parole Board prior to 23 April 2025, releasing the respondent into the community, but the supervision order made by me would only become operative on 23 April 2025. 

That seems to me, on first glance, to be an extraordinary proposition.  The underlying interaction of the various Acts, as can be seen, for example, in section 51 of the Act, presumes that this Court’s powers under the Act trump parole and trump the respondent’s rights to otherwise be released without conditions under the Act at the end of the index offence sentence.  If the respondent is to be in the community, my initial reaction is that it must be subject to the supervision requirements that this Court imposes under the Act.  Parole conditions might be supplementary to that.

One might also be concerned that if the Attorney-General’s submissions are correct, that the Parole Board, knowing the Supreme Court has imposed a supervision order under the Act, which could only take effect at the end of the respondent’s full sentence, might be hesitant to grant parole as there may be a perception that granting parole would undermine the purpose of the Court’s orders under the Act. 

Those are just preliminary and instinctive concerns.  Whether the Attorney-General’s submission is correct, regardless of these misgivings, turns on the proper construction of the Act.  To consider what is the proper construction of the Act, I first consider the usual operation of the Act. 

Section 5 of the Act identifies the persons who may be the subject of an application under the Act.  It includes a person who has obtained parole but has been returned to prison during suspension of a parole order.  The definition of prisoner in section 5 does not appear to extend to a person who is not in actual custody, for example, a person who is on parole which is operable.

The Attorney-General can make an application under the Act in the last six months of the prisoner’s period of imprisonment, that is section 5(2)(c), which can include a period a person is kept in prison during the suspension of a parole order.  The preliminary hearing occurs.  An interim order can be made if application is not likely to be finally determined by the prisoner’s release date, which will be sometime within the next six months. 

A date for final hearing will be set if the Court is satisfied that there are reasonable grounds for believing that the prisoner is a serious danger to the community in the absence of a division 3 order (section 8(1)).  The prisoner will then not be eligible to apply for parole because the division 3 application will have a date set for hearing but be finally undetermined at that time (section 51).

If an interim supervision order is made at the time, it is not that the prisoner is then necessarily immediately released.  They will need to serve the remainder of their sentence if any remains to be served at that time, noting that they will not then be eligible to apply for parole, given the division 3 application is not finally determined, and it is only when released that the supervision order will take effect.

Likewise, a continuing detention order, if made, would not take effect until the whole sentence is served, if not already served.  That is the operation of sections 14 and 15 of the Act.  It is consistent with the Act not being concerned to let anyone out early - that is what parole is concerned with.  The Act is concerned with managing people after they are otherwise eligible for unconditional release.  In respect of supervision, that is also clear from section 16 of the Act.  The orders are concerned with, under that section, supervision on the prisoner’s release from custody.

If an interim or final continuing detention order is made, the prisoner is not eligible to apply for parole (section 51) whether or not the order has taken effect.  A circumstance where it would not have yet taken effect is if the full sentence is not yet expired, but a final continuing detention order made.  That is also consistent with the operation of the Corrective Services Act.  A detained dangerous prisoner sexual offender is not eligible for parole, referring to the third definition of prisoner in schedule 4 to the Corrective Services Act.  That is, a person subject to a continuing detention order, which is also defined in schedule 4 of that Act. 

Finally, the restrictions in section 51 of the Act, on applying for parole, do not apply to a person who is the subject of a final, as distinct from an interim, supervision order.  So a prisoner subject to a final supervision order can apply for parole and would remain in custody until parole was granted or the full sentence served. 

So having looked at the ordinary operation of the Act, I move to the task of statutory construction.

The relevant principles of statutory interpretation were set out in R v A2 (2019) 93 ALJR 1106, at 1117 to 1118, paragraphs 32 to 37, per Chief Justice Kiefel and Justice Keane, with whom Justices Nettle and Gordon agreed, at page 1136, paragraph 148.  Also relevant here to the issue of statutory construction is section 32A of the Acts Interpretation Act 1954, which provides that:

Definitions in or applicable to an Act apply, except so far as the context or subject matter otherwise indicates or requires.

Turning then to my analysis of the issue.  I accept that giving the words, “Prisoner’s release date”, in section 15A of the Act, their defined meaning that the Act would operate as submitted for by the Attorney-General, with the consequence that any supervision order I make today would not take effect until 23 April 2025, being the date that the respondent is now due to be unconditionally released from lawful custody under the Corrective Services Act. 

However, I consider on the proper construction of the Act, in line with the principles in the High Court decision I referred to, that one of two positions is the correct position, each with the same outcome and contrary to the submissions made by the Attorney-General.  Either:  first, the words “Prisoner’s release date” in section 15A do not have their defined meaning and instead have their ordinary plain English meaning - what is contemplated by those words in section 15A of the Act is the date that the prisoner is released from prison, including, if applicable, on parole;  or second, the definition of “Prisoner’s release date” should be construed as referring to the date that the prisoner was due to be unconditionally released from lawful custody under the Corrective Services Act in respect of the index offence.  I prefer the first position for reasons I will explain.

To construe the provisions as the Attorney-General submits results in perverse outcomes inconsistent with the purpose and objectives of the Act.  That is, because there is no prohibition on a person the subject of a final supervision order, who is otherwise eligible for parole applying for parole, it would mean that in two circumstances there is a possibility of a person applying for and obtaining parole when the Court has already ordered a final supervision order under the Act, but with the supervision order not coming into effect until a time after the person has been granted parole.

The two circumstances are:  first, where the person’s original index offence sentence is not complete and a final supervision order is made, if the person then obtains parole, the supervision order will not take effect until the full sentence date for the index offence is served;  or second, the possible situation here, which is where there is a new sentence which is not complete and a final supervision order is made, if the person then obtains parole, the supervision order will not take effect until the full sentence date of the new sentence.  I would not conclude that is how the Act operates, unless the terms of the Act compel me to that conclusion, and I do not consider myself compelled to that conclusion.  Here, on the first construction I prefer, I consider that the definition of “release day” does not apply in section 15 of the Act.  Section 32A of the Acts Interpretation Act permits that outcome.  As I have mentioned, it says that:

Definitions in or applicable to an Act apply, except so far as the context or subject matter otherwise indicates or requires.

Here, in my view, the context and the subject matter otherwise indicates or requires that the prisoner’s release date in section 15A of the Act means the day that the prisoner is released from custody.  Reading section 15A in that way:  avoids the impractical result mentioned above; is consistent with section 16, which contemplates that the prisoner’s release from custody is to be supervised with particular conditions; and is consistent with section 51, not prohibiting a person on a final supervision order being eligible to apply for parole.

I note the language difference in sections 14 and 15 of the Act.  Under section 14, the continuing detention order has effect at the end of the prisoner’s period of imprisonment, the definition for which confirms that it is concerned with actual imprisonment.  In section 15, the supervision order has effect on the prisoner’s release day.  I note the construction I have preferred has the effect of reading, “Prisoner’s release day”, in section 15, as if it accorded with, “Prisoner’s period of imprisonment”, found in section 14. 

That different language is found in adjacent sections, both dealing with the effect of particular orders, has caused me to pause, because that would usually suggest that the difference in language was deliberate.  But ultimately, that does not dissuade me from the conclusion I have reached. 

The difference in the language between those two sections did not always exist.  Section 15, when it was originally passed, provided:

A supervision order has effect in accordance with its terms:  a) on the order being made, or at the end of the prisoner’s period of imprisonment, whichever is the latter, and; b) for the period stated in the order.

So originally, as passed, it reflected the language in section 14.  But in 2010, section 15 was amended by section 9 of the Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Act 2020. The amendment omitted from section 15 the phrase:

at the end of the prisoner’s period of imprisonment

and inserted:

on the prisoner’s release day

That change appears to have been as a consequence of wanting to use the same language in section 15 as was originally proposed to be used in a new section 13A, which was being inserted at that time.  It was section 8 of the same amending Act that introduced section 13A.  Section 13A at the introduction of the relevant bill read:

One, the Court makes a supervision order, the order must state the period for which it is to have effect; two, the period cannot end later than five years after the prisoner’s release day.

The second reading speech indicated that the purpose of this new section was to limit the time a person could be on a supervision order so as to not place undue stress on those supervising prisoners.  There was, effectively, to be a cap on supervision of five years.  However, by the time of the third reading of the Bill, the wording of the section had changed to what now appears in the Act, so that section 13A(3) provides that:

The period cannot end before five years after the making of the order or the end of the prisoner’s period of imprisonment, whichever is the latter.

That is, the reference to the prisoner’s release date, in the proposed section 13A, was changed to, “The prisoner’s period of imprisonment”, and at the same time, the changes meant that there was not to be a cap on supervision at five years, but rather a requirement for supervision orders to be a minimum of five years.  Despite those changes in the proposed language of section 13A, the proposed change to the language of section 15 occurred, even though it did not reflect what was ultimately enacted in section 13A. 

That, difference in language between sections 13A and 15 also, in my view, supports the construction that I prefer.  The concept of a period of imprisonment is picked up in section 13A in respect of the fixing of a period of the supervision order.  The minimum period is five years after the making of the order or the end of the prisoner’s period of imprisonment, whichever is the latter.  The construction of section 15 of the Act that I find is correct avoids what would otherwise be a curious operation of section 13A in conjunction with section 15. 

On the Attorney-General’s construction, for this respondent, if I made a supervision order today for five years, and the respondent successfully obtained parole, say, at the end of the month (for the sake of this example), the supervision order would expire on the 31^st of August 2027, then five years from the end of the prisoner’s period of imprisonment under section 13A.  But because the supervision order would not, on the Attorney-General’s construction, take effect until 23 April 2025, it will have actually only operated for a period of two years and four months.  That also, in my view, points to why the Attorney-General’s construction should not be preferred.

Further, I note that I have considered each of the other places in the Act in which the words “Prisoner’s release date” are found, which are in sections 8(2)(b), 9A(2), 19D(1)(d), 41(2) and 43(4).  In each of those sections, the sections appear to operate sensibly by implementing the specified definition of the phrase.  But again, ultimately, that does not dissuade me from the conclusion I have reached as to the proper operation of section 15A of the Act.

The alternate construction I have mentioned with the same result is to construe the definition of, “Prisoner’s release date”, as referring to the date the prisoner was due to be unconditionally released from lawful custody under the Corrective Services Act in respect of the index offence.  The definition, construed in that way, seems to work in all the other provisions of the Act in which the phrase is mentioned.  My only hesitation, and why I prefer the first construction, is that if that is the proper construction of the definition itself, then it perhaps does not work quite so well in section 15. 

That is because, in the usual case, the prisoner’s release date in respect of the index offence will have passed by the time the final supervision order is made.  In the circumstances as here, that would mean the supervision order would take effect on the day the order is made, albeit the prisoner will actually still be in custody, having not yet obtained parole for the latter general offending.  The supervision order would not be able to actually take effect according to its terms in a practical way from the date of the order, noting the requirements of the order under section 16, whilst the prisoner remains in custody.  For that reason, I prefer the first construction I have mentioned above.

Turning, then, to the assessment of whether a supervision order or a continuing detention order is the appropriate order today.  Starting with some background of the respondent.  GBE is a young indigenous man, presently aged 22.  His antecedents are not entirely consistent through the various records that I have available, but I do the best I can with the information I have. 

He grew up in the Torres Strait with his grandmother.  He was exposed as a child to acts of violence by his father against his mother.  Despite that, there were no significant early childhood issues.  However, prior to the age of 13, the respondent was engaging in antisocial behaviour, including vandalism, smoking cigarettes and inhaling petrol and aerosols.  The respondent moved to Cairns around the age of 12.  He was largely unsupervised by the family member he was residing with at that time. 

He began to hang out with the wrong crowd.  His behaviour at school was poor, and into his early teenage years, he commenced engaging in substance abuse and a range of antisocial and criminal behaviours.  He truanted from school, was verbally aggressive at school and was eventually expelled from school after a number of suspensions.  The respondent’s criminal history shows quite extensive general offending during the period between March 2014 and February 2015, when the respondent was 14 years of age.  The types of general offending were a number of enter premises, burglary, parole breaches, dangerous and unlawful use of vehicle offences, for which he was given probation and community service. 

The respondent’s first and most serious sexual offending occurred when he was only 15 years old on 1 November 2015, namely a rape.  The circumstances of that offending are as follows.  The victim was a 24 year old female not known to the respondent.  She had left a nightclub in the evening.  She was walking along a road, trying to hail a taxi.  She saw the respondent and two other males walking towards her.  The others kept walking, but the respondent approached her.  The respondent began making lewd comments towards her, so she tried to leave.

As she walked away, the respondent took a hold of her arm and said, “Please, sister.”  He asked her for sexual favours.  She said no several times.  He pulled her by her arm towards a car park.  The respondent pulled her behind a barrier and pushed her to the ground.  She repeatedly asked him to stop and said that he did not want to be the kind of person who does this to a girl.  The respondent continued to say, “Please, sister,” before pulling her underwear to the side, raping her with his penis while holding her to the ground.  The victim was not sure how long it lasted but stated that the respondent did not wear a condom.  He did not ejaculate.  She left as soon as he let go of her and sought assistance.

There was an associated offence of deprivation of liberty founded on the respondent holding the victim while she was trying to escape.  Whilst holding her, he masturbated his exposed penis and tried to kiss her.  The respondent was sentenced to differing terms of detention for the offences, which formed a total period of detention of four years, and it was ordered that he serve 65 per cent of the detention order before being released. 

This is the type of offending of which there is an unacceptable risk of reoccurrence, the serious sexual assault or rape of an adult female, likely opportunistic offending and likely while the respondent is intoxicated.

The second sexual offending occurred on 1 November 2016 whilst the respondent was in custody.  In relation to the offence of sexual assault, the female victim was a 24 year old.  She worked as a detention youth worker at the centre where the respondent was held.  She had dealt with him almost daily since 2014.  The victim was escorting a group of offenders from a unit to a program.  As she was walking, the respondent put his hand on her buttocks and squeezed it.  She stepped back in shock.  The respondent attempted to grab her in the arm, smiling at her as he did so.  Another worker saw what had happened and told him to get away from her.  The group was told to stop, which they did, but the respondent kept walking.  He became aggressive when approached and said, “What the fuck?  I didn’t fucking touch her.”  A couple of weeks later, the victim saw the respondent at an activity.  He approached her and apologised, saying he was sorry for touching her and asking that she did not charge him.  She complained to the police shortly afterwards, and the respondent was charged some months later.

The third offence which contained a sexual element occurred between 9 November 2016 and 12 November 2016 whilst the respondent was in custody.  On 10 and 11 November 2016, the respondent and a number of other youths rioted at the detention centre, causing significant property damage.  During that riot, the respondent and other males broke into the female juvenile detainees’ building and made threats to rape all the girls and asked them to show the boys their genital areas. 

Plainly, the second and third sexual offending are not of the same violent and serious character as the first offending, but they are consistent with a concerning pattern of behaviour by a person of the respondent’s youth. 

Turning then to the other offending and conduct in prison, the respondent has a broader criminal history that encompasses rioting causing grievous bodily harm;  contraventions of court orders, including supervision orders made under this Act;  armed robbery;  unlawful use of a motor vehicle;  wilful damage;  serious assault on a Corrective Services officer  amongst other offending.  The respondent’s conduct in prison has been poor, with a significant violation history.  He has been in custody since approximately 2016 until the present day, with only some limited time spent in the community under parole (some three days), and under an interim supervision order under this Act (less than four months in total).

In that respect, the respondent was released from parole on 14 December 2018.  He was returned to custody only three days later on 17 December 2018 for breaching parole.  He was released on an interim supervision order under this Act on 16 June 2020, and he was returned to custody for breaches on 21 August 2020, only some two months later.  He was released again on the same interim supervision order under this Act on 4 September 2020 but was again placed back into custody on 29 October 2020, less than two months later, for further breaches.  He has been in custody since.  None of the matters that have seen the respondent return to custody on each of those releases have involved any sexual offending of any type.

The respondent presently has a full-time custodial end date of 23 April 2025.  However, subject to the respondent not being detained under this Act, the respondent is otherwise presently eligible to apply for parole, that is, if a supervision order were made by me today rather than a continued detention order, the respondent could make application for parole.  Whether or not he would be granted parole, particularly in light of his past history breaches of parole and other supervisory orders, is a matter for the Parole Board to consider.

Turning to the respondent’s more recent treatment for sexual offending.  In November 2018, the respondent indicated that he was willing to engage in individual sex offender treatment sessions with a psychologist.  It appears he was then engaged with Dr Nelson, but the treatment did not progress well.  Dr Nelson withdrew.  In December 2018, the respondent was referred for support services but declined those services, saying he had substantial family support in the Cairns area and did not need assistance.  He has had regular checks with mental health services but has been found not to be suffering from any major mood disorder or other mental health disorder.

On 19 April 2021, it was discussed with the respondent that he could undertake what is known as the MISI and MRT programs to do with substance abuse and moral therapy.  On 7 May 2021, the respondent commenced those programs at Lotus Glen.  He is yet to complete those programs.  His progress has been delayed for reasons including lockdowns, restrictions on attendance resulting from his individual management plan, and a lack of motivation.  He has had difficulty participating in the programs.  He has progressed slowly, but there have been times where he has engaged positively.  It is expected that he will complete those programs in September 2022.

Until the present time, the respondent has not been assessed as suitable for participation in a group treatment program for the sexual offending.  Because his offending, in particular the rape, occurred whilst the respondent was a juvenile, he has been ineligible to participate in the sexual offender program for Indigenous males, also known as SOPIM.  In February 2023, SOPIM will be decommissioned.  It is to be replaced with another program known as Strong Solid Spirit or the SSS Program that is scheduled to commence around February 2023.  It appears that the respondent would be eligible to participate in the SSS Program should he wish to do so, and he would be able to complete his MISI/MRT programs prior to the commencement of the SSS Program. 

The respondent has not received any further individual treatment since his present period of custody commenced.  That is because Corrective Services had been unable to provide a psychologist to attend at Lotus Glen.  The respondent had been offered a transfer to Townsville, where individual treatment could have been facilitated.  He did refuse that transfer, but that is unsurprising, given his youth and the fact that his family is closer to Lotus Glen.

Turning then to the expert evidence, I note that there is expert evidence going back as far as 2016.  Whilst I have read all of the expert evidence, I am hesitant to place too much weight on the early reports.  A child at 16 years of age may be quite different to a young man at 22 years of age.  A lot of maturing may occur during that time.  And I also note that at least some of the tools used to assess the risk of sexual offence recidivism are not reliably used on adolescents, at least in isolation.  So I focus here on the most recent reports although noting the context provided by the earlier reports, which are of some assistance in assessing the respondent’s present trajectory.

Dr Sundin has provided a psychiatric risk assessment report of 3 June 2020 done on the papers.  A further report, dated 26 October 2020, was prepared after an interview with the respondent and a further report, dated 9 June 2022 after a further interview with the respondent.  As to Dr Sundin’s view about the respondent’s diagnosis and his sexual offending risk profile, Dr Sundin has noted that the respondent demonstrates a conduct disorder in adolescence and antisocial personality disorder in early childhood.  Reference has been made to the presence of emerging psychopathic traits.  An assessment was carried out on the respondent’s risks for future sexual recidivism on the static 99R as having a score of nine, which is well above average.

Dr Sundin considers that the respondent meets the diagnostic criteria for antisocial personality disorder and substance use disorder, not in remission.  No evidence was found of any paraphilia.  No evidence was found that the respondent suffers from either a major mood disorder, anxiety disorder or psychotic disorder.  On the Hare psychopathy scale, the respondent achieved a score of 27 out of 36, which was described as an elevated score indicative of emerging psychopathy.

No evidence of post-traumatic stress disorder was located or identified.  Dr Sundin also applied a tool known as the RSVP instrument to assess the risk of sexual reoffending.  It was noted that the future risk scenario for the respondent was in the setting of intoxication where he had a risk of becoming emotionally dysregulated and physically violent.  Within that setting, it was said that the respondent would be at risk of committing a serious sexual offence against an adult female, who would be at a significant risk of physical harm.

As to the respondent’s treatment needs, Dr Sundin has noted that the respondent has significant outstanding treatment needs, that a male psychologist should be the respondent’s treatment provider, that there may be no benefit in requiring the respondent to participate in a group sex offender program and that it would be better for the respondent to receive treatment with an experienced psychologist.  That is because of reservations she has as to the respondent’s likely participation and suitability for a group program, but she has not ruled out that the SSS Program may be suitable.

As to the respondent’s possible response to supervision if released on a supervision order, Dr Sundin noted the previous diagnosis of a conduct disorder and a poor record of response to community supervision and that the respondent has presented a significant management challenge both in prison and in custody.  That seems to be because the respondent is vulnerable to emotional dysregulation and reactive violence.  He has little insight, a poor record of community supervision and a poor record of behaviour in prison. 

It is noted that the respondent has a general disregard for authority figures and has been actively resentful in the presence of supervision orders.  On the other hand, it is noted that there has been some small progress since his last review and that he has not committed any further sexual offence whilst on supervision. 

Otherwise, as to the respondent’s risk, Dr Sundin indicates that the respondent represents a high unmodified risk of sexual reoffending and that that risk will be elevated in the presence of intoxicants.  A proposed supervision length that Dr Sundin indicates is for a period of 10 years. 

Dr Timmins provided a report of 7 August 2020 after an interview with the respondent;  a further report dated 6 September 2020 after a further interview with the respondent;  a further report dated 29 March 2022 on the papers;  and a further report dated 3 June 2022 after an interview with the respondent. 

As to Dr Timmins’ view of the respondent’s diagnosis and sexual offending risk profile, Dr Timmins was of the view that the respondent meets the diagnostic criteria for a diagnosis of antisocial personality disorder and that the respondent is likely to have at least some psychopathic tendencies.  Dr Timmins considered the respondent had polysubstance use disorder, mainly alcohol and cannabis, that there was no evidence of a sexual paraphilia and that the respondent does not appear to suffer from any psychopathy or major mood disorder.

Dr Timmins also applied a number of tests.  On the Static-99, the respondent achieved a score of nine, which placed him in the high or well-above-average risk category of reoffending sexually.  In respect of the RSVP, which I should have mentioned before is the Risk for Sexual Violence Protocol, on a number of items, the respondent was found to have positive scores and on other items possible or partial scores, which, by the application of that instrument, means that the respondent is to be considered at high risk of sexual reoffending.  Dr Timmins considered that:

A possible scenario for the future sexual offending could be that the respondent falls in with previous associates, becomes intoxicated with alcohol or cannabis.  He will see an attractive woman who may or may not be known to him.  He will disregard any refusal of sex and try to engage in sexual intercourse.  His behaviour is likely to be opportunistic and may or may not extend to penetration or aggression, and there is a risk of psychical and/or psychological harm to any victim.  The sexual offending is likely to be part of his propensity to engage in criminal and violent behaviours rather than representing any sexual deviance.

She expects that he is more likely to offend with general violent offending before offending sexually.  Dr Timmins considers that the respondent is at a high risk of reoffending in a sexual manner if he was released into the community without restriction, that he requires stable accommodation, employment and contact with prosocial individuals. 

As to the respondent’s treatment needs, Dr Timmins indicated that he requires treatment in the form of a group program and should consult with a forensic psychologist.  She noted the respondent’s variable performance in relation to individual treatment, which, she observed, might arise from the respondent not taking the situation seriously. 

As to the respondent’s possible response to supervision, Dr Timmins noted that he requires accommodation, employment, contact with prosocial friends, Indigenous community members and elders and that relationships should be monitored as well as the respondent’s online activities.  He should remain abstinent from alcohol and illicit substances as that would be likely to increase the risk of offending sexually.  His movement should be monitored, and curfews should be in place, which would limit any engagement in after-hours parties.

Dr Timmins thinks that in response to supervision, it is likely that the respondent will continue to use substances, test boundaries and be difficult on the precinct interpersonally.  He will not be forthcoming and disclose his movements and may commit general or violent offences.  In respect of the use of substances, which is likely to be associated with any sexual offending, regular and frequent testing will assist to mitigate that aspect of the risk.  She warns that he will be difficult to manage in the community and that a supervision order ought be for a period of 10 years.

I note that in oral evidence, Dr Timmins thought it was going to take a longer time rather than a shorter time for GBE to really understand himself enough and his risk factors and his pathway to offending to enable him to manage his risk and for it to be dropped to low.  She noted, though, that when GBE was on the interim order, he has not actually offended sexually on those two occasions and that if he was released on supervision, what is, in fact, reducing the risk to a moderate level is the strictures of the order as distinct from him managing his own risk factors himself.

The final report to mention is that of Dr Harden.  He provided a report of  7 June 20022 after several interviews. 

As to Dr Harden’s diagnoses of the respondent and the respondent’s sexual offending risk profile, Dr Harden again used various test instruments, including the Static-99R, the STABLE-2007, the HARE Psychopathy Checklist, the SVR-20 and PROFESOR, all of which show elevated risk of sexual offending.  Again, there was no suggestion of sexual deviancy. 

Dr Harden considered that the respondent’s future risk of sexual reoffence is high but that a supervision order will reduce the risks to moderate.  It was noted, though, that the respondent will be generally non-compliant with the provisions of the supervision order.  Dr Harden strongly recommended that the respondent undertake SOPIM, which, for reasons I have already explained, is not, in fact, presently available to the respondent but Dr Harden seem content that the SSS Program would be an adequate replacement.  The purpose of undertaking that sort of program was to see if it could produce within the respondent some greater understanding and skills relevant to a prosocial lifestyle and preventing further offending when he was eventually released.

Dr Harden also considers that the respondent has significant outstanding treatment needs.  In terms of the group program, there is a risk that the respondent will be a disruptive participant.  Dr Harden recommended release on a continuing supervision order with requirements for the respondent to be abstinent from intoxicants, to comply with random breath tests and urinary screens and to continue in counselling.  He recommended that the supervision length should be for a period of a minimum of five years. 

Whilst Dr Harden was prepared to entertain the risks as moderate under a strict supervision order, it was noted that the respondent had already failed under that type of supervision in the past and that he had limited confidence that the respondent would not fail again in some way.  He did note in oral evidence when he was asked about the likelihood of a failure in the nature of a serious sexual offence if released on supervision:

I think the program in the community on a supervision order reduces his risk to the moderate or average range is what I said in my report.  That’s still quite substantial for someone who’s been on a supervision order because supervision orders – very few people reoffend sexually whilst on a supervision order.  But his characteristics that place him at risk of sexual reoffending are not currently modified, so his personality issues.  If he were to abscond and use substances, I don’t know what would happen, your Honour, and there is a chance that whatever offending occurred might include sexual assault.  It would probably be against an adult stranger female, in my view.  It might not happen.  And if we say average, then we’re talking about a 15 per cent chance over five years, roughly.  He was also prepared to consider the possibility of group therapy in the community although noted that that sort of therapy would not usually be as high intensity as that offered whilst in custody.

I am satisfied that a supervision order is the appropriate order in this case.  None of the medical experts, bar Dr Sundin in oral evidence, assert that a supervision order would not be appropriate at the present time.  I accept that the respondent, particularly because his lack of significant treatment in respect of sexual offending, does not within himself have much to offer by way of protective features against future offending.  The reduction in risks, therefore, to an acceptable level is heavily reliant upon the strictures of the supervision order, which will be stringent.

The proposed supervision order, in my view, will reduce the risks of the respondent committing a serious sexual offence to a level that I consider is acceptable.  The respondent needs to focus on abstinence and individual treatment to ameliorate against the relevant risks, and that is part of what the supervision order requires. 

Despite the somewhat negative views of the experts, in my view, there are some reasons to be hopeful.  The respondent is young.  The most serious sexual offence was over six and a-half years ago.  And although the respondent has not been in the community very much since that time, he has not committed any further sexual offending in the community, and the sexual offending committed whilst in custody, whilst important, is nowhere near as serious.

I do not consider it appropriate to hold the respondent in detention to undertake the SSS Program, which may be available early next year, when the outcome of participation in such program is speculative.  I consider that my assessment of risk should be carried out today.  And as at today, the course is not available and has not been undertaken by the respondent.  If I consider the risk acceptable today, as I do, then I consider the respondent should have the benefit of the supervision order.  I do not consider myself at liberty to keep the respondent in custody if I consider the risk acceptable now just because something that might happen in the future has the possibility of reducing the risks even further.

Of course, if the respondent remains in custody because he is not granted parole, then he should be encouraged to complete the SSS Program.  It may assist to reduce his risk even lower.  In the meantime, individual treatment should be offered either now or when the respondent completes the substance abuse course he is presently undertaking albeit presently at an apparently slow pace.  Again, that type of treatment may lower the risks further, but even without those treatments, I consider the risks as at today are acceptable.

I understand the problems that meant that individual therapy was not previously available at Lotus Glen had been rectified at least at the present time.  It is not unreasonable that a man of the respondent’s youth has a preference to stay closer to family whilst in custody. 

GBE, as I said, it may be that you will not obtain parole, and then you should undertake the SSS Program.  You should also be encouraged to continue to complete the substance abuse program underway as intoxication appears to be a serious risk factor when it comes to consider the risk of future sexual offending.

One might think, GBE, that if you take steps to complete all of that now, you will have a better chance of complying with the supervision order because if you do not comply with the supervision order, you are going to end up back in custody.  You have already seen that happen in the past. 

Whilst I am saying the risks are acceptable as at today and that is why I am prepared to make a supervision order, if you really want a good chance of making it on the outside, do all the courses that are available to you before you get parole, if you get parole.  Do that all, and that might help you stay out in the community.  As you well know by now, if you do not comply with the conditions of your release, you will likely be returned to custody very quickly.

GBE, I think that with proper support and a significant change by you, you should be able to get your life on a better track.  You can and you should do better. 

I consider that a supervision order length of five years is appropriate.  I think that if the respondent can comply with a supervision order for that period of time, he will be at a point in his life when he is an acceptable risk without a supervision order, given that will mean he will not have committed any further serious sexual offending for at least about 12 years since the rape occurred in 2015. 

Adjourn the Court.

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