Attorney-General v Porter[2022] QSC 21

SUPREME COURT OF QUEENSLAND

1. [1]
   The Attorney-General applies for an order pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) that the respondent be detained in custody for an indefinite term for control, care or treatment.  Alternatively, the Attorney-General seeks an order that any release of the respondent from custody ought be subject to a supervision order.^[1]
2. [2]
   The respondent, who appeared for himself, opposed any order being made under the DPSOA.

Background

3. [3]
   The applicant is an indigenous man born on 16 December 1964.  He is now 57 years of age.
4. [4]
   The respondent was raised in Brisbane as one of a sibship of six.  He is one of the middle children and was mainly raised by his mother after his father’s death when the respondent was 11.
5. [5]
   The respondent reported to psychiatrists a long history of substance abuse starting when he was about 17 years of age. 
6. [6]
   The respondent’s criminal history corroborates long term drug addiction.
7. [7]
   In 1981, the respondent was convicted in the Childrens Court of breaking and entering a dwelling house with intent to commit an indictable offence and was placed in care and control.
8. [8]
   The respondent spent time as a child in institutions and was the subject of sexual abuse.
9. [9]
   By 1982, the respondent was legally an adult for the purposes of the criminal justice system.  His adult criminal history commenced in February 1982 with a conviction for evading a rail fare.  From that point, his offending escalated.  He was imprisoned for the first time in February 1983 for a breach of the Bail Act 1980.  From that point, he has received several custodial sentences.  In the period between February 1982 and his conviction for rape and other offences on 18 January 2008, the respondent appeared before various courts on over 70 occasions.  As a result, he has spent most of his adult life in prison.
10. [10]
    That offending consisted mainly of:

    1. offences of dishonesty;
    2. drug offences;
    3. offences of violence;
    4. street offences, including various weapons offences.
11. [11]
    Of particular significance in the respondent’s criminal history are numerous convictions for failing to comply with bail conditions and numerous orders revoking fine option orders.  This indicates an apparent inability to comply with orders or other obligations imposed upon him.  There are numerous convictions for resisting police, obstructing police and assaulting police.  This generally indicates a lack of ability or willingness to submit to authority.
12. [12]
    It was not until 20 February 2007 that the respondent committed a sexual offence.  A series of events on that day resulted in his conviction and sentence on 18 January 2008 for the following:

Count 1:  burglary with violence - 10 years imprisonment

Count 2:  deprivation of liberty - three years imprisonment

Count 3:  robbery with personal violence - seven years imprisonment

Count 4:  sexual assault - five years imprisonment

Count 5:  rape - 10 years imprisonment

Count 6:  rape - 10 years imprisonment

Count 7:  rape constituted by sexual intercourse - 15 years imprisonment

Count 8:  sexual assault - five years imprisonment.

13. [13]
    All sentences were ordered to be served concurrently.  Three hundred and twentytwo days spent in pre-sentence custody was declared imprisonment served under the sentences.  Because the sentences exceeded 10 years imprisonment, it was mandatory for the sentencing judge to declare the offences as serious violent offences resulting in the respondent having to serve 80 per cent of the sentence (here, an effective 15 years) before being eligible for parole.^[2]
14. [14]
    The convictions on 18 January 2008 were as a result of a trial which followed the respondent’s pleas of not guilty to all counts on the indictment.
15. [15]
    An appeal was mounted by the respondent against the convictions but that appeal was dismissed.^[3]
16. [16]
    The complainant’s version at trial was described in the judgment of Muir JA^[4] in the Court of Appeal as:

“[4]  The complainant, a 19 year old female student, gave evidence to the following effect. On 20 February 2007 the complainant was residing in a house at Wooloowin. She was expecting an electrician to call at the house that day. At 10.15 am she heard a knock on the door and expecting the electrician, she opened it. The man standing at the door said that he was looking for Louann Street and asked if she had a street directory. She noticed that he had ‘very bad body odour’ and detected a smell ‘slightly like marijuana’. She said she couldn’t find the street directory and directed the appellant to a corner store. She then locked the door behind her.

5. [5]
   The complainant had a shower, got dressed and was searching for her watch when she again noticed the smell which had earlier come from the person at the front door. She was then grabbed from behind by a person who held a hand over her mouth. She started to scream and was warned to be quiet. She was taken to her bedroom and told to lie on her stomach on the bed. She did so and the intruder tied her hands behind her back.
6. [6]
   In the course of discussion which ensued, she asked the intruder not to sexually abuse her and was told not to worry, that ‘this is just a robbery’. A little while later, the complainant was blindfolded with a pillow case and her hands were tied tightly behind her with an electrical cord. The complainant told the intruder that her money was on the kitchen bench and that she had about $250 in her wallet. She then heard footsteps going in the direction of the kitchen and returning.
7. [7]
   The intruder turned the complainant onto her back, pulled her shirt down and commenced to rub her breasts roughly. Shortly afterwards he commenced to lead the complainant, it would seem, out of the house. She screamed for help and tried to escape from the house. After a struggle, the intruder commenced to strangle the complainant, who may have lost consciousness briefly. She recalls being back on the bed with the intruder lying beside her. He commenced to kiss her and out of fear, she kissed him and he put his tongue in her mouth. He asked her if she wanted to have sex, was told no, but nevertheless placed his penis in her mouth and pushed her head up and down. The complainant told the intruder that she was going to be sick. After a pause, the intruder continued his actions and the complainant tasted semen. The intruder then removed the complainant’s underwear, spread her legs apart and placed his tongue inside her vagina. He then had penile intercourse with her. During this conduct, the complainant experienced a great degree of pain. Her hands were tied behind her back and she was forced to lie in awkward positions.
8. [8]
   The intruder made the blindfolded complainant go to the bathroom where he showered her, washed her body, particularly her breasts, and then departed. After she was sure that the appellant had left the house, she freed her hands from the electrical cord, rang triple 0 and made a complaint of rape. She then rang her sister and her mother, also complaining of rape. Two hundred and fifty dollars was found to be missing from the complainant’s purse. The sheets which had been on the complainant’s bed prior to the intruder’s entry into the house were also missing. 
9. [9]
   When the police arrived at the complainant’s house at 12.13 pm, a length of black electrical cord was attached to her right wrist, a piece of green material was tied around her neck, she appeared to have been crying, she had wet hair and her breasts were covered with a towel. Security cameras recorded images of the appellant at the Eagle Junction Railway Station between 9.41 and 9.44 am on the day of the incident and at the Wooloowin Railway Station at 12.26 – 12.27 pm. 
10. [10]
    Medical examination revealed injuries to the complainant’s right wrist, bruising and abrasions to her elbows and knees, a suction bruise and three other bruises on her left breast, many other small marks and bruises to the thighs, limbs and back, and a tiny shallow split at the back of the vagina. Near the split or ‘laceration in the mucosa’ was a one centimetre area of intense localised redness. The split and redness were consistent with an injury having been caused by penetration by a penis. A vulval swab taken from between the complainant’s inner and outer labia was found to contain semen and spermatozoa. The DNA profile extracted from the latter was consistent with the appellant’s DNA profile, which was also found on a perianal swab and on the inside crotch of the complainant’s underpants. On examination the complaint’s outer labia were seen to be reddened and swollen and a ‘sticky, wet secretion’ was observed on her inner and outer labia.”

17. [17]
    While the respondent did not give evidence at his trial, a version of events was put to the complainant in cross-examination.  That was summarised by Muir JA in the Court of Appeal as:

“The appellant’s version of events

11. [11]
    The appellant did not give evidence. The version put to the complainant in cross-examination was to the following effect. The appellant first met the complainant outside a shop near the Wooloowin train station on 19 February 2007 at about 12:30 pm. The appellant and the complainant had a mutual friend and the appellant approached the complainant and asked if she was ‘Sarah’. They then spoke generally. The appellant went to her house at about 10 am on 20 February where the two smoked a joint of marijuana and conversed. The appellant asked the complainant to have sex with him and she acquiesced on his agreeing to give her ‘half a gram of speed’. The complainant and the appellant then engaged in oral sex in the course of which the appellant ejaculated down the front of the complainant’s body. There was no vaginal intercourse.

12. [12]
    Before leaving the complainant’s house the appellant took back the ‘speed’ and removed two boxes of morphine from the complainant’s bathroom. The complainant made false complaints because of her anger at the taking of her drugs. The complainant refuted all of these assertions.”

18. [18]
    In dismissing the appeal against the convictions, the Court of Appeal held that it was open to the jury to convict the respondent.  In addition to the complainant’s evidence:

1. there was evidence of prompt complaint by the complainant;^[5]
2. there was extensive bruising and abrasions consistent with the complainant’s evidence and inconsistent with the appellant’s version of events;^[6]
3. there was evidence of the complainant’s distressed condition immediately after the incident;^[7]
4. DNA testing and other medical evidence made it clear that the applicant had unprotected sexual intercourse with the complainant as she alleged.^[8]

19. [19]
    While in prison, the respondent’s conduct and behaviour has not been exemplary but given the length of his sentence, the number of violations is relatively low.  Between July 2008 and July 2019, he attracted 19 violations of prison conduct requirements. The offending in prison includes assaulting another prisoner, offensive behaviour and recently failing to provide a urine sample for analysis.  The frequency and seriousness of the violations have reduced since 2016.  
20. [20]
    The psychiatrists who gave evidence in the present application generally thought:

    1. the respondent’s behaviour in prison was acceptable;
    2. the respondent copes well in prison;
    3. there is no evidence of illicit drug use while in prison.
21. [21]
    As part of her consideration of bringing proceedings under the DPSOA, the AttorneyGeneral retained Dr Ken Arthur, Psychiatrist, to examine the respondent and prepare a risk assessment report.  Dr Arthur attempted to interview the respondent on 9 April 2021 via video link to Wolston Correctional Centre.  Shortly after the commencement of that interview, the respondent terminated his conversation with Dr Arthur.  Dr Arthur produced a report dated 4 May 2021 and an addendum report dated 15 February 2022.

22. [22]
    On 4 November 2021, Freeburn J made the following order:^[9]

“THE COURT, being satisfied that there are reasonable grounds for believing that the respondent, Stephen Bruce Porter, is a serious danger to the community in the absence of an Order made under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’), ORDERS THAT:

1. The application for a Division 3 Order be set for hearing on 21 February 2022.
2. Pursuant to s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists, being Dr Elizabeth Ness McVie and Dr Josephine Sundin, who are to prepare reports in accordance with s 11 of the Act.

AND FURTHER:

3. Pursuant to s 39PB(3) of the Evidence Act 1977, the court directs that Dr Ken Arthur, Dr Elizabeth Ness McVie and Dr Josephine Sundin give oral evidence to the court other than by audio visual link or audio link.”

23. [23]
    Drs McVie and Sundin, both registered psychiatrists, attempted to interview the respondent but he would not cooperate with either of them.  They were left to base their opinions on other material that was available.  Dr Sundin produced a report dated 27 January 2022 and Dr McVie produced a report dated 3 February 2022.
24. [24]
    The refusal of the respondent to cooperate with the psychiatrists may not have come as a great surprise.  The respondent has been offered various treatment programs but in the main has declined to participate.  Claire Kelly, the Acting Manager of the Offender Intervention Unit, summarised the respondent’s treatment history as follows:

“From QCS records available to me, I am aware that ongoing attempts to engage the respondent in programs have been made. The respondent:

1. declined to participate in a sexual offending program on 26 April 2013.
2. was offered and declined to participate in the Getting Started Preparatory Program (GS:PP) on 21 February 2014;
3. was offered and declined a place in the Cognitive Self Change Program (CSCP) on 7 January 2016;
4. commenced the Medium Intensity Substance Intervention Program (MISI) on 08 June 2018, however, self-exited the program on 31 August 2018 having completed on 26 of the required 50 hours of the program;
5. was offered and declined a placement in the Cognitive Self Change Program (CSCP) however accepted placement on the waitlist for the Medium Intensity Substance Intervention Program (NISI) on 23 August 2019;
6. was offered and declined placement in the Getting Started Preparatory Program (GS:PP) on 13 August 2020;
7. was offered and declined a placement in the Medium Intensity Substance Intervention Program (MISI) on 22 March 2021;
8. on 12 October 2021, attempts were made to speak with the respondent regarding potential participation in programs. The respondent refused to speak with staff; and
9. was offered and declined placement on the waitlist for the Getting Started Preparatory Program (GS:PP) on 19 October 2021.”

25. [25]
    The complainant to the rape offences made a detailed submission which was tendered.^[10] It is unnecessary, and perhaps undesirable, to descend to a detailed examination of it in a judgment which will be publicly available.  In summary, she explains the impact which the respondent’s offending has had upon her and submits that conditions should be imposed on the respondent’s release (if that occurs) which will ensure that he has no contact with her.

The statutory context

26. [26]
    Section 3 of the DPSOA describes the objects of the legislation as follows:

 “3  Objects of this Act

The objects of this Act are—

1. (a)
   to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and
2. (b)
   to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

27. [27]
    The objects of the DPSOA are fulfilled by a scheme providing for the detention of prisoners beyond the expiry of their sentences, or alternatively their release upon supervision. An object of the DPSOA is the treatment and rehabilitation of offenders caught by the legislation.
28. [28]
    Pursuant to s 5 of the DPSOA, the Attorney-General may apply for both an order under s 8 of the DPSOA and also an order under Division 3 of Part 1.  Division 3 of Part 1 provides for final orders.  Applications can only be brought under s 5 against a “prisoner”.

29. [29]
    Section 5, which authorises the application for orders and which contains the definition of “prisoner”, is as follows:

“5  Attorney-General may apply for orders

1. (1)
   The Attorney-General may apply to the court for an order or orders under section 8 and a division 3 order in relation to a prisoner.
2. (2)
   The application must—

   3. (a)
      state the orders sought; and

   3. (b)
      be accompanied by any affidavits to be relied on by the Attorney-General for the purpose of seeking an order or orders under section 8; and

   3. (c)
      be made during the last 6 months of the prisoner’s period of imprisonment.
3. (3)
   On the filing of the application, the registrar must record a return date for the matter to come before the court for a hearing (preliminary hearing) to decide whether the court is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order.
4. (4)
   The return date for the preliminary hearing must be within 28 business days after the filing.
5. (5)
   A copy of the application and any affidavit to be relied on by the Attorney-General must be given to the prisoner within 2 business days after the filing.
6. (6)
   In this section—

…

prisoner—

1. (a)
   means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section…”

30. [30]
    The definition of “prisoner” in s 5(6) introduces the concept of “a serious sexual offence”.  That term is defined as follows:

“serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—

1. (a)
   involving violence; or
2. (b)
   against a child; or
3. (c)
   against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”

31. [31]
    Section 8 provides for a preliminary hearing.  It is in these terms:

 “8  Preliminary hearing

1. (1)
   If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order.
2. (2)
   If the court is satisfied as required under subsection (1), it may make—

   3. (a)
      an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports; and

   3. (b)
      if the court is satisfied the application may not be finally decided until after the prisoner’s release day – 

   3. (i)
      an order that the prisoner’s release from custody be supervised; or

   3. (ii)
      an order that the prisoner be detained in custody for the period stated in the order.”

32. [32]
    The term “prisoner”, as used in s 8 is defined differently to the definition in s 5(6).  In s 8, the term “prisoner” has the same meaning as that defined for the purposes of the Corrective Services Act 2006.^[11] The distinction is, though, not relevant here,^[12] as the respondent was clearly a prisoner within s 5 and is a prisoner within s 8.
33. [33]
    The hearing pursuant to s 8 resulted in the orders made by Freeburn J on 4 November 2021.
34. [34]
    Section 8 introduces the notion of a “serious danger to the community”.  This term is defined in s 13 which is the pivotal section in Division 3 of Part 1.  Section 13 is in these terms:

 “13  Division 3 orders

1. (1)
   This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).
2. (2)
   A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—

1. (a)
   if the prisoner is released from custody; or

2. (b)
   if the prisoner is released from custody without a supervision order being made.

3. (3)
   On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—

   1. (a)
      by acceptable, cogent evidence; and

   2. (b)
      to a high degree of probability;

that the evidence is of sufficient weight to justify the decision.

4. (4)
   In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

2. (aa)
   any report produced under section 8A;

1. (a)
   the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;
2. (b)
   any other medical, psychiatric, psychological or other assessment relating to the prisoner;
3. (c)
   information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;
4. (d)
   whether or not there is any pattern of offending behaviour on the part of the prisoner;
5. (e)
   efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;
6. (f)
   whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;
7. (g)
   the prisoner’s antecedents and criminal history;
8. (h)
   the risk that the prisoner will commit another serious sexual offence if released into the community;
9. (i)
   the need to protect members of the community from that risk;
10. (j)
    any other relevant matter.

5. (5)
   If the court is satisfied as required under subsection (1), the court may order—

   2. (a)
      that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

   2. (b)
      that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).
6. (6)
   In deciding whether to make an order under subsection (5)(a) or (b)—

   2. (a)
      the paramount consideration is to be the need to ensure adequate protection of the community; and

   2. (b)
      the court must consider whether – 

   2. (i)
      adequate protection of the community can be reasonably and practicably managed by a supervision order; and

   2. (ii)
      requirements under section 16 can be reasonably and practicably managed by corrective services officers.
7. (7)
   The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

35. [35]
    Orders which can be made under s 8 include orders that a prisoner undergo psychiatric examination.  This was ordered by Freeburn J on 4 November 2021.  The evidence so obtained is then relied upon by the Attorney-General on the application for orders under s 13.  
36. [36]
    Section 9AA is the section under which the complainant to the 2007 sex offences made her submission.  That provides, relevantly here:

“9AA Victim’s submission relating to division 3 order

1. (1)
   As soon as practicable after the court sets a date for the hearing of an application for a division 3 order, the chief executive must give written notice of the application and hearing date to the following eligible person—

   2. (a)
      subject to paragraph (b), the actual victim of the serious sexual offence for which the prisoner is serving a term or period of imprisonment;

   2. (b)
      if the victim is under 18 years or has a legal incapacity, the victim’s parent or guardian.
2. (2)
   The notice must invite the eligible person to give to the chief executive, before the date stated in the notice, a written submission stating—

   2. (a)
      the person’s views about any division 3 order or conditions of release to which the prisoner should be subject; and

   2. (b)
      any other matters prescribed under a regulation. …
3. (3)
   The Attorney-General must place before the court for the hearing of the division 3 order any submission received from the eligible person before the hearing date.”

 The psychiatric evidence

37. [37]
    As already observed, examination of the respondent was attempted by three psychiatrists, Drs Arthur, Sundin and McVie.
38. [38]
    Dr Arthur prepared two reports, his initial report of 26 March 2021 and an addendum report of 15 February 2022 after he had seen the reports of Drs Sundin and McVie and some further material.
39. [39]
    In his first report, Dr Arthur diagnosed the respondent as follows:

“67. Based on the available documentation, I believe that prisoner Porter would fulfil the diagnostic criteria for Antisocial Personality Disorder. There is also a strong history of Substance Misuse Disorder, predominantly opiates and also amphetamines and cannabis, presumably in remission in a controlled environment. There is no evidence of a major mental illness such as a psychotic or mood disorder. There is nothing in the history to indicate the presence of a paraphilic disorder.” (emphasis added)^[13]

40. [40]
    As to risk, Dr Arthur was concerned that he was limited in forming opinions by virtue of the fact that the respondent would not cooperate with him.  He then opined:

“79. Based on the limited information available to me, I would estimate that prisoner Porter represents an average to above average unmodified risk of sexual recidivism. It appears that the main risk factors are his underlying Antisocial Personality Disorder and a history of heavy substance use.

80. Whilst a denial of responsibility for the offences does not necessarily increase his risk of sexual recidivism, prisoner Porter’s lack of engagement in any risk assessments or treatment programs does not allow any meaningful analysis of potential risk factors or an appreciation of any protective factors which may be present.
81. I acknowledge that prisoner Porter has only been convicted of a single tranche of sexual offences which occurred relatively late in life. Furthermore, he is now in the age group where one would expect to see a reduction in the risk of further violent sexual offences. However, there remains a lack of any clear evidence of moral development or pro-social goals. As such, there is a significant risk that on release he will (as he has previously suggested) return to a somewhat parasitic lifestyle focused on the acquisition and use of illicit drugs. Should he resume house-breaking as a way of funding his habit, there is a risk of opportunistic sexual offending.

RECOMMENDATIONS

82. In the absence of further information, I believe that prisoner Porter’s risk of sexual recidivism on release could be managed under the auspices of a supervision·order. On general principles, there should be a focus on maintaining abstinence from all drugs of abuse, active engagement in drug and alcohol treatment, a reduction of victim access via the provision of a curfew/electronic monitoring device and the provision of social and vocational rehabilitation. Ideally he should complete a sexual offender treatment program such as the MISOP prior to release to assist further with risk assessment/management.

83. Clearly, more information is required before a firm diagnosis and opinion on risk management can be provided. I am hopeful that after he gains legal advice, prisoner Porter will consent to a more thorough assessment.” (emphasis added)^[14]

41. [41]
    On 10 February 2022, Dr Arthur was provided with the two reports of Drs Sundin and McVie which had by then been completed, together with some further material concerning the respondent’s behaviour in prison.  These were records kept by the prison in the period 11 November 2020 to 27 January 2022.  The information which Dr Arthur thought was relevant is:

“26. The relevant information is as follows -

• On 17 March 2021 there was a negative drug screen.
• On 22 March 2021 he was offered placement on an alcohol and drug program (MISI) which he declined without stating the reasons.
• On 19 April 2021 he was placed on a safety order due to an incident at Walston Correctional Centre. This was later listed to be a partial segregation safety order. No context was given. He declined a yard time.
• It was noted on 6 September 2021 he was accommodated in the secure unit single occupancy cell on a full segregation safety order.
• On 12 October 2021 prisoner Porter refused to attend a meeting for the purposes of discussing his involvement in programs. He stated he was not interested and did not want to discuss the issue.
• On 19 October 2021 he again refused to discuss programs, reportedly stating that he was to be released on his full-time date in the upcoming months. He maintained his innocence in regard to all sexual offences and denied wanting to partake in programs due to this.
• On 29 October 2021 it was noted he refused to attend a psych visit, stating: ‘I’m just gonna do another 10 years anyway’ and was notably upset. The author opined he appeared resigned to the belief that nothing would assist him with his situation.

27. There is a program history (page 6) which notes he completed the SOPA at Walston Correctional Centre on 26 April 2013. The GS:PP at Wolston in 2014 and an alcohol and drugs program ‘Straight Talk 50 Plus’ were listed as incomplete. He declined the Cognitive Self-Change Program in 2016, the GS:PP in 2020 and the MISI (Medium Intensity Substance Intervention) in April 2021. 
28. There is an employment history (page 7) where it appears that he was employed since 2016 as a laundry worker, senior cleaner in residential, industry worker in 2019. His employment as a senior cleaner in residential was terminated on 14 October 2019 (no reason given) and he was employed as an industries worker at Walston Correctional Centre as of January 2021. On 15 February 2021 he was listed as unemployed. 
29. There is a violation history (page 9). This lists 3 incidents and a major breach in 2021. There is a breach on 26 February 2021 relating to failure to provide a sample of urine.
30. There is an incident on 19 April 2021 where he was found fighting with another inmate. This was listed as a disagreement between the two prisoners.
31. There is an incident on 31 August 2021 where prisoner Porter had threatened a correctional officer, stating: ‘I’m out in 6 months, I will see you then.’
32. There is a calculation comment (page 24) which lists his custodial end date as 1 March 2022.”^[15]

42. [42]
    After reviewing that material, Dr Arthur opined:

“33. In my previous report, I noted that more information was required before a firm diagnosis or meaningful opinion on risk management could be provided. Whilst prisoner Porter did not cooperate with my assessment, I was hopeful that after gaining legal advice he may do so at a later date. It appears that he has chosen the path of non-engagement and non-cooperation with the assessment process.

34. Based on the available documentation, prisoner Porter has an Antisocial Personality Disorder and quite likely significant Psychopathic Personality traits. He has an extensive history of criminality, multiple incarcerations and offences that include assault occasioning bodily harm, the use of weapons, stealing with violence and break and enter. The index offences were associated with nonsexual violence. He also has an extensive history of non-compliance with community based orders, with over 25 counts of breach bail, breach fine orders and breach of suspended sentences. The index offence occurred whilst he was on a suspended sentence.” (emphasis added)^[16]

And later:

“36. Ultimately, prisoner Porter remains an untreated sex offender who fails to take any responsibility for the offences or engage in risk assessments or treatment. There is no information on the presence or absence of sexual deviancy and we do not know anything about his level of sexual activity/sexual preoccupation or his attitudes in relation to sexual violence. He has not shared his plans for the future or his potential support networks.

37. Whilst a supervision order would act to reduce the risk of sexual recidivism somewhat, this would only apply in the highest levels of supervision and restrictions on his unsupervised access to the community.
38. Prisoner Porter has a long record of non-compliance with community supervision, and his lack of cooperation in the risk assessment process suggests that will continue to be the case on release. I think it unlikely that he will cooperate with individual or group treatment. 
39. For these reasons, I recommend that prisoner Porter be detained in custody to undergo a thorough risk assessment. An important part of this would include involvement in a group Sexual Offender Treatment Program. Even though he continues to maintain his innocence in relation to the index offences, his engagement in a group program would provide useful information regarding his attitudes, capacity for self-reflection, motivation to change and the development of a relapse prevention plan.
40. Should the court release prisoner Porter to the community under the auspices of a supervision order, I would recommend conditions focusing on maintaining abstinence from all drugs of abuse through restricting access and regular monitoring, strict curfew requirements, monitoring and control of associations and mandatory engagement in further psychological assessment and treatment. I believe supervision order of 5 years is indicated.”^[17]

43. [43]
    In his first report, Dr Arthur opined that the respondent is at “an average to above average unmodified risk of sexual recidivism”.  He then went on to express the view that he believed that the respondent’s risk could be managed on a supervision order. 

However, he qualified that comment as having been made “in the absence of further information”.^[18]

44. [44]
    There is a distinction between the identification and assessment of risk and its management in the community.  
45. [45]
    After considering some further material, including the opinions of other psychiatrists,^[19] Dr Arthur turned his attention back to risk management and expressed his views at paragraphs 33, 34, 36, 37, 38 and 39 of his second report.^[20]
46. [46]
    In giving oral evidence, Dr Arthur referred to a number of factors which made managing the respondent’s risk on a supervision order difficult:

    1. There is no information (because the respondent won’t engage) upon which the respondent’s coping strategies in the community can be assessed.^[21]
    2. The only real information which is available concerns the respondent functioning in jail rather than in the community.^[22]

3. There is no sign of any relapse prevention plan being developed by the respondent.^[23]
4. The respondent is an untreated sex offender and little is known of his triggers.^[24]
5. The facts of his non-compliance over many years with court orders and restrictions gives rise to doubts as to the prospect of his compliance with supervision orders.^[25]

47. [47]
    Dr Arthur’s attention was drawn to a file note made on 15 February 2022 of a conversation between a Queensland Corrective Services officer and the respondent.  The file note is in these terms:

“Overall, prisoner Porter appeared willing to engage in discussions with the author. And whilst he is maintaining his innocence, this did not appear to be categorical. And he did not present with any

significant responsivity factors within the interview that would impact him engaging in programs. However, this would need to be assessed via a pre-program interview. He appeared to hold strong anti-authority views and was cautious about discussing his sexual offending due to his denial stance.”^[26]

48. [48]
    Counsel for the Attorney-General asked a series of questions of Dr Arthur about treatment available to the respondent in prison and Dr Arthur said “I have my concerns that he may not cooperate with one-to-one treatment in the community, and that was certainly my impression from the information I gained prior to the 15th of February”^[27] Then:

“Well, he’s not engaged on any other occasion?---It’s encouraging that he at least is not opposed to it in the most recent assessment.^[28] But yes, I would still be concerned about releasing him on the proviso or the assumption that he was going to engage in treatment.”

49. [49]
    The respondent cross-examined Dr Arthur.  He raised some issues which were not in the form of questions which Dr Arthur could answer so I reformulated them and put them to the doctor.^[29] It is unnecessary to refer to those questions as the answers were consistent with evidence already given by Dr Arthur and took the matter no further than Dr Arthur’s evidence as I have explained it above.
50. [50]
    Importantly, in answering those questions, Dr Arthur deliberately turned to face the respondent and directed his answers to him. It was very clear to me that this approach by Dr Arthur caused the respondent to engage with him.  The respondent asked Dr Arthur further questions:

“RESPONDENT: Yeah, I noticed that he mentioned that I was sexually abused as a child, which started when I was made a ward of the State by the Queensland - that’s when all the criminal history started - carrying on from that. Back in those days, I don’t think paedophilia or paedophiles - they had anything to answer to because they seem to have gotten away with it for a lot of years. At the moment, I’m going through the Royal Commission. Do you think it would be wise for me to continue psychological help after being released from prison to deal with those matters?---Yes, I would. Because I’ve spent my life in prison - in boys’ homes and prisons - and I’ve got out onto the streets. The people that I associate with was from - people that I’ve met from prisons, boys’ homes and basically,

in the community, there was a lot of drugs in the community. So that was my associations being released from prison. Just we’re going back 15 years or more. Since I’ve been in jail, obviously I haven’t touched drugs since I’ve been in jail for 15 years. Do you think I should - do I need psychological help upon release?---I feel very strongly that you do, Mr Porter, and, I mean, this is the information that would have been very helpful to have in - in - in your assessment - in your assessment of risk - but, yes, I do and I think that it’s important to recognise that many, many people who have committed sexual offences have their own history of trauma and that’s often relevant and so part of - of your risk management is making sure that - that you gain proper treatment for that.” (emphasis added)^[30]

51. [51]
    Those questions by the respondent and his apparent acceptance of Dr Arthur’s answers are encouraging signs of insight by the respondent and give hope that he will engage in treatment in the future.
52. [52]
    Dr Sundin’s diagnosis is:

“Mr Porter meets DSM-V diagnostic criteria for an Antisocial Personality Disorder.

It is possible that he has elevated scores suggestive of Psychopathy, but this diagnosis cannot be confirmed.

He has a history consistent with Substance Use Disorder, opioids, amphetamines, cannabis - in sustained remission whilst incarcerated.”^[31]

53. [53]
    As to risk, Dr Sundin opined:

“Mr Porter is a 43-year-old man of indigenous heritage with a significant criminal history. As an adolescent his juvenile delinquency was consistent with a diagnosis of Conduct Disorder. As an adult he has a history of persistent antisocial and criminal behaviour.

He has repeatedly failed to comply with community service orders in the past.

He dropped out of a preliminary treatment programme for sexual offenders, and has refused subsequent efforts at engaging him in participating in such a programme. He was incomplete for a drug treatment programme. 

He has continued to assert his innocence, despite a jury trial and review of the case by the Court of Appeal.

Whilst Mr Porter has had no convictions for any prior sexual offences; the index offence was a serious violent offence which was prolonged. It was associated with significant violence and deprivation of liberty.

The only confident risk assessment information available without further assessment indicates that Mr Porter is at above average risk for future sexual recidivism.

Whilst he is now maturing in age and showing evidence of better compliance with institutional requirements in more recent years; there are, in my opinion, far too many unknowns concerning this man.

His persistent drug dependence is only partially treated. He has had no treatment at all with respect to the serious sexually violent offence which he committed. He has a very poor record of compliance with community supervision. He has re-offended whilst on community supervision orders.

In my opinion, Mr Porter therefore presents an unacceptable risk to the community, based on the currently available information.

In my opinion, the likelihood of him complying with a supervision order is low.

I consider it likely that he will rapidly revert to abuse of substances, which would be associated with an escalated risk of both physical and sexual violence. The risk of sexual violence would be further heightened if he resumed his past pattern of break and enters into houses, or if he was to act out his general sense of grievance.

I therefore respectfully recommend to the Court that Mr Porter should be detained for the purpose of both controlling the risk that he poses to the community and for him to complete a sex offenders treatment programme. I consider that completion of a treatment programme is a prerequisite for the Court to have any confidence that the risk he poses would reduce to a tolerable level when he is ultimately placed on a supervision order.

Should the Court not accept this recommendation, then Mr Porter should be subject to a supervision order which involved the usual clauses of GPS monitoring, curfews, regular breath testing and urinary drug screens, referral to an experienced forensic psychologist for one to one treatment, and referral for participation in the community outpatient's drug treatment programme. He would benefit from referral to a men’s indigenous programme in the hope that he adopts more prosocial attitudes on behaviours.” (emphasis added)^[32]

54. [54]
    It can be seen that Dr Sundin’s primary view was quite clear that the risk could not be managed at this stage on a supervision order.  
55. [55]
    Counsel for the Attorney-General asked questions of Dr Sundin as to the benefit of the respondent completing programs:

“And in terms of his risk. Can I ask you to contemplate what benefits, if any, Mr Porter might gain from treatment? Seems to be an issue that he’s raised. What’s your professional view?---I would concur with the advice of both Dr Arthur and Dr McVie, that he would benefit from treatment, not only to address the prejudicial childhood issues that he’s flagged, but to help him to understand how those events and other events in his life have informed his subsequent criminal history, and assist him to develop more prosocial strategies into the future.

Should he be frightened about talking to someone about these things?---Most of the prisoners that I’ve spoken to - and that’s a very large number - about exactly these issues are initially quite uncomfortable about it. They have often carried great feelings of shame, but not particularly fear. It’s more shame, a burden of selfblame, rather than fear.

What role might the Getting Started program have, in terms of lessening that shame or fear or distrust of authorities?---Again, the group process can itself be enormously advantageous. It appears that Mr Porter might have quite an avoidant - a fearful, avoidant coping style. To participate in a program where he is accepted, where others don’t judge him or adversely criticise him for his past offending and assist and welcome him on what is really - effectively a journey to insight can be enormously beneficial, and, again, I’ve spoken to very large numbers of prisoners who will often say they feel better for having spoken to other prisoners.”^[33]

59. [56]
    The respondent did not cross-examine Dr Sundin.

59. [57]
    Dr McVie diagnosed the respondent in these terms:

“The information provided suggests he would meet criteria for diagnoses of antisocial personality disorder and substance use disorder ( cannabis, opiates, and amphetamines.)

He does not appear to have any type of paraphilia.”^[34]

58. [58]
    As to risk, Dr McVie opined:

“Mr Porter has denied committing the offences, saying the sexual activity was planned and was to be in exchange for drugs, though he took the drugs back and that was his explanation for her reporting him. He appealed his sentence and conviction though the conviction was upheld. He has continued to deny the offending.

He does have an extensive past criminal history, probably from adolescence. Most of his offences prior to February 2007 were for stealing, fraud, drugs, assaults including assault occasioning bodily harm and breaches of bail, fine option orders and suspended sentences.

Mr Porter has refused to engage in assessment or treatment for his sexual offending.

He has also refused to participate in interviews in relation to the application under the Dangerous Prisoners (Sexual Offenders) Act 2003. 

Without clinical assessment it is difficult to score most of the instrument required for a risk assessment, particularly the instruments which use structured clinical judgement.” (emphasis added)^[35]

And later:

“His sexual offending in 2007 was most likely in the context of ongoing drug use and general criminal offending.

Though the actuarial tool, the Static 99R, does suggest his risk is in the ‘well above average’ range for reoffending sexually, his type of offending is such that his risk would decrease with age. Unfortunately, he has not attended for clinical assessment so this cannot be confirmed for him.

In my opinion, based on the material provided, he presents a moderate to high risk of reoffending sexually if released without a supervision order.

A supervision order could decrease this risk to moderate to low.

In my opinion, based on his custodial behaviour to date and his refusal to talk with psychiatrists, he is unlikely to engage with any therapy if he remains in custody.

Recommendations:

I would recommend a supervision order for five years.

Mr Porter needs to engage with a treating psychologist experienced in assessment and treatment of sexual offenders. Based on the results of this assessment, he may benefit from inclusion in a group program such as the MISOP (Moderate Intensity Sexual offenders Program) in the community.

He needs to remain abstinent from alcohol and all illicit drugs. He would also benefit from counselling to address his drug use.

He will need assistance to develop a prosocial lifestyle with work or other meaningful activities.”^[36]  (emphasis added)

59. [59]
    Dr McVie’s report reflects a different position to that adopted by Drs Arthur and Sundin.  Dr McVie’s view is that a supervision order would modify risk to moderate to low and she recommended release on supervision.

60. [60]
    In her report, Dr McVie noted that the respondent is unlikely to engage with therapy if he remains in custody.  That view is relevant to this exchange which occurred when she was giving evidence:

“There is a difference of view between Dr Arthur and Dr Sundin and yourself. I should give you the opportunity of making any comments that you may wish to make about their reviews. You will remember, Dr Sundin says, ‘Do not, at this point, let him out,’ and Dr Arthur is saying, ‘He needs to undertake a risk assessment process’?---Yes. My view, on reading the material, was that this man was highly unlikely to engage in any process to either assess his risks or to manage his sexual offender, either with an individual psychologist or in a group program. And I thought that, based on what I’d read when I wrote my report, that we would be back here in two years’ time in exactly the same situation. It was good to hear Mr Porter in court this afternoon say that he’s keen to get some psychological treatment, so - and to hear the information from Corrective Services that he has suggested he might engage with a psychologist. So that’s a positive, so I’m probably a little less set on my recommendations that I wrote in my report.”^[37] (emphasis added)

61. [61]
    The reference to being “back here in two years’ time in exactly the same situation” is a reference to the fact that if a continuing detention order is made it must be reviewed and the first review must be completed within two years.^[38] Dr McVie’s point is that if a continuing detention order is made and the respondent does not engage in treatment over the following two years, he will remain as an untreated sex offender and will have not progressed.
62. [62]
    At first blush, Dr McVie’s approach seems odd.  She initially recommended that the respondent be released on supervision. That was when the respondent was not cooperating with those trying to treat him.  However, Dr McVie then opined that if the respondent is likely to cooperate as the 15 February 2022 file note might suggest, then she was more inclined to recommend that he be detained in custody for treatment.
63. [63]
    However, when properly understood, Dr McVie’s approach is perfectly reasonable and logical.  She takes a pragmatic approach.  The respondent has not cooperated by obtaining treatment while in custody.  If he remains in custody and maintains that stance then he will not receive treatment and will not progress. If released on supervision, he may cooperate with treatment and will progress. Therefore, logically, one possibility is to release him.  However, the preferable course is for the respondent to remain in custody if he is receiving treatment.
64. [64]
    That pragmatic approach by Dr McVie is one based in her medical knowledge and experience.  Applying the relevant legal principles, the release on supervision of a person so he may obtain treatment in the community does not necessarily answer the relevant considerations of risk required of the court by the DPSOA.  That though is hardly a matter upon which Dr McVie should be expected to comment on or consider.

Consideration

65. [65]
    The first question is whether the respondent is a serious danger to the community in the absence of an order under s 13 of the DPSOA.^[39] That is determined by assessing whether there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody or released from custody without a supervision order.^[40] That is ultimately a matter of judgment.^[41]
66. [66]
    In making that judgment, the court must have regard to the matters prescribed by s 13(4).  The respondent committed a serious and violent sexual offence which gives rise to considerations of public protection.^[42] He has a long criminal history which include many instances of failing to comply with undertakings and court orders.^[43] While, since 15 February of this year, there has been some indication of a willingness by the respondent to participate in rehabilitation programs, as yet, he has taken no steps to do so or to otherwise address his offending behaviour.^[44] Here, there are reports from psychiatrists,^[45] although the respondent did not cooperate in the examination of him by the psychiatrists.^[46] All three psychiatrists place the relevant risk as at least above average.  The main risk factors are his anti-social personality disorder and history of heavy substance use.
67. [67]
    I accept the evidence of the psychiatrists and conclude that there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody or released from custody without a supervision order being made.
68. [68]
    It is then necessary to consider what order, if any, is made.  The possibilities are:

    1. to make a continuing detention order;^[47] or
    2. to make a supervision order;^[48] or
    3. to make no order.^[49]
69. [69]
    If I am satisfied that adequate protection of the community can be ensured by a supervision order, then I should order the respondent’s release on supervision rather than order his continued detention.^[50]
70. [70]
    In considering what order should be made, the paramount consideration is the need to ensure adequate protection of the community,^[51] and in considering that, I must consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order.^[52]
71. [71]
    Section 16 of the DPSOA prescribes the requirements for supervision orders.  Section 16(1) provides mandatory conditions and s 16(2) provides that the order may contain other requirements that are appropriate to ensure adequate protection of the community.  Section 16(1)(da), which is a mandatory condition, is that the respondent comply with a curfew direction and s 16(1)(daa) mandates a condition requiring the respondent to comply with other lawful directions of a Corrective Services officer.^[53]
72. [72]
    The respondent is an untreated sex offender.  He has failed to engage with the psychiatrists.  All three psychiatrists are concerned as to the lack of information that they have to assess risk in the circumstances where they have been unable to interview the respondent.  The evidence of Drs Arthur and Sundin is quite clearly that there is simply insufficient evidence to make a prediction as to the respondent’s manageability under supervision.  Dr McVie recommended release on supervision.  However, for the reasons I have explained, that was a pragmatic approach in the hope that the respondent would engage in, and respond to, treatment given in the community.
73. [73]
    I cannot be satisfied that the respondent can be managed on a supervision order in the community or that a supervision order will reduce his risk of the commission of a serious sexual offence to an acceptable level.
74. [74]
    In the circumstances, I make a continuing detention order.

Orders

75. [75]
    I make the following order:

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

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