Attorney-General v GHS[2022] QSC 29

SUPREME COURT OF QUEENSLAND

1. [1]
   The respondent had what psychiatrists, lawyers and judges would describe as a “profoundly prejudicial” early life.  He was the victim of emotional, physical or sexual abuse by some members of his family.
2. [2]
   This led to a personality disorder, developmental and behavioural problems, and encounters as a youth with the criminal justice system.  His lengthy criminal history consists mostly of property rather than violent offences.  His mother and step-father suicided when he was a teenager, and he has a history of self-harm.
3. [3]
   By 2007, the respondent was aged 30, was on parole, had work and was in a long-term relationship.  He was living with his father (with whom he had a good relationship) and his step-mother.  However, in late 2007 and early 2008 his life unravelled.  The relationship with his girlfriend ended, he abused alcohol and drugs, accessed pornography and would masturbate while sitting alone in a car, looking at women who attracted his attention. 
4. [4]
   The serious sexual offences he committed in early 2008, including two digital rapes, occurred early in the morning when he was drunk or intoxicated by drugs.  On 9 March 2010, he was sentenced to nine-and-a half years for offences committed on 2 March and 8 June 2008.  He subsequently confessed to sexual assaults he had committed on 7 February 2008, and received an additional nine months’ imprisonment. 
5. [5]
   The respondent is now aged 44.  He has completed sex offender courses and benefitted greatly from individualised therapy in recent years provided by Dr Andrews, a Clinical Psychologist and Neuropsychologist.
6. [6]
   Absent the respondent’s deep-seated personality disorder, which manifests itself in resistance to authority, there would be no question that a supervision order would provide adequate protection from the risk of serious sexual offending.  
7. [7]
   Dr Sundin, who assessed the respondent in May 2021 for the purpose of a possible application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”), thought at the time that he was suitable for a supervision order.  However, the respondent’s behaviour deteriorated after May 2021.  The threat of being subject to a continuing detention order under the Act and other matters triggered disciplinary breaches in prison.  He was admitted to the Princess Alexandra Hospital Secure Unit in July 2021 with an infection.  He was locked in a cell and urinated in his pants.  This triggered a recollection of being locked in a room by his mother as a child and left to urinate on himself. 
8. [8]
   The respondent damaged property in the secure unit and an officer was hit by an object he threw.  Charges over that incident are pending, and are subject to a submission that they be discontinued. 
9. [9]
   Since that incident, the respondent’s condition has improved after a period in isolation in a Maximum Security Unit (“MSU”) at Woodford Correctional Centre and ongoing support from Dr Andrews.  At the time of the hearing before me on 21 February 2022, he was expected to transition to an open unit in March 2022.
10. [10]
    In the light of the respondent’s behaviour in 2021, Dr Timmins’ report of 8 February 2022 stated:

“He needs to display a period of healthy coping on a normal unit in order to see progress in managing his emotions as this is a risk factor for [the respondent]. If he can do this for 12 months and stay out of the DU, Safety Unit or MSU, not use substances and continue to engage with regular sessions with his treating psychologist along with appropriate behaviour towards QCS staff, then he may be in a better position to manage in the community under a Community Supervision Order. I believe this demonstration of emotional stability needs to occur before release is considered. If he has a goal that he can see will serve him, he is more likely to work towards this goal and move forwards.”

Dr Sundin agreed with this proposal when asked for her opinion in February 2022.

11. [11]
    Dr McVie adopted a different view.  In short, she thought that a supervision order would reduce the risk of the respondent sexually offending to “moderate to low” and that he was unlikely to commit a contact offence without a decline in his behaviour and escalation in risk being observed by those who observe and treat him.  His usual response to stress was to damage property and self-harm.  A continuing detention order increased the risk of suicide.  The respondent had treatment needs that cannot be addressed in custody.  In Dr McVie’s view, a supervision order, but not a continuing detention order, would enable the respondent to demonstrate what he had learnt from individual therapy. 
12. [12]
    The Attorney-General did not prefer either of these views, or submit that a continuing detention order or supervision was the preferred outcome.  Very fairly, that question was said by Mr Tate of counsel to require judicial determination. 
13. [13]
    My main task is not to choose between different psychiatric opinions.  It is to decide if adequate protection of the community against the risk of serious sexual offending by the respondent can be ensured by a supervision order.  The assessment of what level of risk is unacceptable or what order is necessary to ensure adequate protection of the community is not a matter for psychiatric opinion.^[1]  As McMurdo J (as his Honour then was) stated in Attorney-General for the State of Queensland v Sutherland:^[2]

“It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”

14. [14]
    That said, to the extent that the admissible opinions of psychiatrists on matters within the area of their expertise differ, I prefer Dr McVie’s analysis of the situation and the benefits of a supervision order.
15. [15]
    For the reasons that follow, I am not persuaded that a supervision order will afford inadequate protection to the community.  I express my conclusion that way since it reflects the onus in a case such as this.^[3]  Expressed differently, I consider that a supervision order is likely to provide adequate protection provided that those who have the task of managing the respondent’s supervision are aware of the insights provided by the psychiatrists in this proceeding, the respondent’s behavioural problems, his need for clear boundaries and his need to have regular and frequent contact with Dr Andrews who can advise the respondent and the authorities on strategies for him to positively engage with others and to comply with the order.
16. [16]
    It will also provide adequate protection if the respondent is able to transition in the coming weeks from the MSU to a general unit in the prison and then to the Precinct after several weeks in a general unit.  As a result, I made an Interim Detention Order on 2 March 2022 to facilitate that transition.

Summary of Reasons

17. [17]
    The respondent is not a hardened or recidivist sex offender.  The serious sexual offences he committed in 2008 were associated with the abuse of alcohol or drugs and the opportunity to access victims early in the morning.  They followed a deterioration in the respondent’s mental state and behaviour over a substantial period.
18. [18]
    A supervision order will prohibit the respondent from using alcohol or illicit drugs and ensure he is randomly tested.  For a substantial period until he earns the trust of the authorities, the respondent will be subject to curfews and limits on his movements.  He will be accommodated at the Precinct at Wacol. 
19. [19]
    If he begins to misbehave, for example by threatening staff, damaging property or engaging in self-harm, then his behaviour will come to the attention of those supervising him and his treating psychologist. 
20. [20]
    The psychiatric opinion that I accept is that he is unlikely to progress, without warning, to contact offences involving serious sexual assaults.
21. [21]
    Serious contraventions of the order will trigger proceedings and a return to custody.
22. [22]
    The distinct possibility that the respondent will commit minor contraventions of the supervision order, acting out his deep-seated personality disorder and resistance to authority, is not a sufficient reason to consign the respondent to the consequences of a continuing detention order. 
23. [23]
    The making of a continuing detention order is not required for the respondent’s treatment.  Such an order may prove counterproductive and prompt a process of disengagement and disobedience.
24. [24]
    In any case, as Dr McVie explained in her oral evidence, it is very difficult to address certain issues in a custodial environment “where people don’t have access to a community to be able to demonstrate that they have made…gains and are capable of living a pro-social lifestyle”.
25. [25]
    Consistent behavioural management can reduce the risk of either serious or minor contraventions of a supervision order.  Dr Sundin explained that staff working with the respondent should have the same set of rules that are designed for his management by a senior psychologist like Dr Andrews, so that he gets a “degree of reproducibility and predictability”.  To assist with his progress, the respondent needs “Clear boundaries, clear road map, clear direction, predictable outcomes, [and] reinforcement of those predicable outcomes”.
26. [26]
    The respondent is accepting of a supervision order and has an updated relapse prevention plan.  To quote Dr McVie, “the mere fact that…he’s thinking about what he’s going to do when he gets out is a very strong positive”.
27. [27]
    A further period of at least 12 months in custody under a continuing detention order during which the respondent shows that he is able to live without major disruptive behaviour in an open prison setting may give psychiatrists, corrective services and the court greater confidence in the respondent’s ability to observe a supervision order. This, however, is not a sufficient reason to make a continuing detention order.
28. [28]
    As noted, a continuing detention order is not required for the respondent’s treatment: the psychiatrists do not suggest that it is. This is not a case in which a continuing detention order is required to solidify the results of a new drug treatment, for the respondent to complete a course in custody, or to receive treatment that is only available in custody.  The individualised psychological treatment that the respondent requires from an experienced expert like Dr Andrews can be provided under a supervision order, and may be more effective if provided in that environment.
29. [29]
    A continuing detention order under which the defendant remains in prison for an indefinite period, subject to annual review, is not required to inform us of things about the respondent that we already know.
30. [30]
    A 12-month long experiment about how the respondent copes with life in an open unit may end well or not so well.  In 12 months’ time the situation would be essentially the same, irrespective of whether the defendant commits 2 or 22 disciplinary infractions.  Whether he commits 2 or 22 infractions during that 12-month period is largely a product of happenstance and situational triggers, rather than a sure guide to the respondent’s long-term future.
31. [31]
    We already know that at times the respondent can perform fairly well in custody, for example, in the period in late 2020 and early 2021 before these proceedings were initiated.  Therefore, a continuing detention order that lasts for at least 12 months is not required to show that.
32. [32]
    We also know that he has a personality disorder and disposition to challenge authority, to engage in self-harm, and to damage property when he is distressed.  That is a fact that authorities must continue to address either in a prison or in the Precinct. 
33. [33]
    We also know that a supervision order offers things that a continuing detention order does not:  an opportunity to demonstrate that a person is capable of slowly implementing strategies for coping with life in the general community and living a pro-social lifestyle.
34. [34]
    The respondent should be given the opportunity to progress down a well-defined and closely supervised path.
35. [35]
    Community safety, particularly against the risk of serious sexual offending, is adequately protected by containment, curfews, strict controls on movement, denial of access to illicit drugs and alcohol, random testing, and individualised treatment by professionals like Dr Andrews who understand the respondent’s complex personality and treatment needs.
36. [36]
    Good behaviour under a supervision order should be rewarded by a gradual increase in privileges.  Poor behaviour should be addressed by a restriction on privileges, and, in the case of serious contraventions that warrant the initiation of proceedings, by a return to custody.
37. [37]
    In circumstances in which the respondent’s past offending and the evidence indicate that it is unlikely that he will progress to a serious contact offence without a marked deterioration in his behaviour that is observable by those who supervise him or treat him, management of a supervision order is likely to provide adequate, but not risk-free, protection of the community from the risk of serious sexual offences being committed by the respondent.

Background

38. [38]
    As noted, the respondent was the victim of emotional, physical or sexual abuse by some members of his family.  His mother reportedly threw him into a fireplace and fractured his skull when he was aged two-and-a-half.  She was an alcoholic who made the respondent perform sex acts on her.  Her sexual abuse of the respondent only stopped when he was aged 13.  After school one day the respondent witnessed the aftermath of his mother’s attempted suicide with a shotgun.  His step-father, who also had attempted suicide, later succeeded in killing himself.
39. [39]
    Unsurprisingly, the respondent’s disturbed family relationships made it hard for him to relate to people and he behaved badly at school.  He was expelled from schools and by the age of 15 was living on the streets.
40. [40]
    At some stage he developed a deep-seated personality disorder.  His parlous circumstances, resistance to authority and reckless behaviour brought him into contact with the criminal justice system at an early age.  He spent time in youth detention before graduating to adult prisons where he has spent a significant part of his life.  He was exposed to violence and sexual assaults in juvenile detention and in his early days in adult prisons.
41. [41]
    Until he committed serious sexual offences in early 2008, the respondent’s criminal history did not feature acts of violence.  His criminal history did, however, include a large number of property offences, wilful destruction committed while in custody, armed robbery, theft, kidnapping, stalking, driving and weapons offences.  Many of those offences were committed in company in order to obtain money for drug use by him or his friends.  He was sentenced to five years’ imprisonment in Victoria in 2003 for such offending and was paroled. 
42. [42]
    The respondent came to Queensland and initially did well, holding down a job as a project manager building exhibition sites.  Previously he had worked briefly as a storeman and as a “brickie’s labourer”.  Otherwise he has been largely unemployed in the community.

Relationship history

43. [43]
    The respondent has had relationships with women since he was 15 or 16 years old.  None of them lasted very long and some of them were in custodial settings.  As an adult he was involved in three established relationships that lasted a year or more.  After he came to Queensland he was in a relationship with a woman from September 2007 to February 2008, but they did not cohabit.  At the time, the respondent was living with his father and his step-mother. 

The respondent’s descent into committing serious sexual offences in 2008

44. [44]
    The respondent’s first sexual offence was in 2002 when he was aged 25.  He did not have a sexual partner at the time and was sentenced for wilful exposure after he was found driving in his car and masturbating.  He had engaged in similar behaviour in his early twenties.  When asked why he did this, he explained that “it felt safe from rejection from females”, he found it “exciting” and that he “sold it to [himself] that [he] was not hurting anybody so it’s not that bad”.
45. [45]
    Sometime before Christmas 2007, the respondent had a conversation with a female cousin who spoke about the sexual abuse she had experienced from one of the respondent’s close relatives who the respondent reported also sexually abused him.  The respondent reported to Dr Timmins that after his female cousin’s disclosure of sexual abuse “everything went to shit”.  He began to binge on alcohol, experiment with cocaine and use ecstasy tablets each day.  He started watching a large amount of pornography and could not talk to people.  The relationship that he had started in September 2007 was troubled by his partner’s mental health problems.  It ended in February 2008.  Eventually, the respondent lost his job.
46. [46]
    In late 2007 and early 2008 when he was using pornography every day, he would sit in his car, see a woman who attracted his attention and masturbate.  Sometimes his actions were observed and it was such an offence that brought the respondent to police attention, after which he admitted committing those sexual offences and also the serious sexual offences that resulted in his imprisonment for the last 10 years.
47. [47]
    With hesitation I describe some details of the offences.  Those facts are an essential part of my reasons and the Act requires me to have regard to any pattern of offending.  The publicly released version of these reasons will be anonymised so as to avoid unnecessary identification of the respondent’s 2008 victims. 

7 February 2008

48. [48]
    These two sexual assaults were committed at around 6:30am on 7 February 2008, when the respondent was 30 years old.  He followed his victim, aged 16, down a side-street and grabbed her from behind, pulled down her singlet and bra and touched her on the left breast.  He used his other hand to touch the outside of her shorts in the vicinity of her vagina and tried unsuccessfully to unbutton her shorts.  The victim was able to run away and call police, who arrived shortly thereafter.  However, the respondent was not apprehended at the time.

2 March 2008

49. [49]
    The night before these offences, the respondent had been working at an exhibition centre helping building stands.  The offences occurred at 5:30am and the respondent’s recollection is that he was quite intoxicated at the time.  His victim was walking to work, and as she walked past him he put his hands around her neck and told her not to say anything.  The victim fell to the ground and suffered minor injuries.  The respondent then used his body to pin her to the ground and used his right hand to move her pants to one side, after which he inserted one of his fingers into her vagina.  After this digital rape the respondent walked away.  The victim telephoned police. 

8 June 2008

50. [50]
    This offence followed a similar pattern to the one committed on 2 March 2008.  It occurred at about 5:30am.  The night before the respondent had been at a nightclub, had used ecstasy and was sexually preoccupied.  He approached a woman who was walking to work, a violent scuffle ensued, and he rubbed and squeezed the victim’s breasts.  He used his physical dominance to subdue her and took her to a nearby grassed area where he forced her to lie on her back.  He stifled her cries for help, ripped her clothes, pulled down her bra and squeezed her breast before rubbing her shorts near the vagina.  He then inserted his finger into her labia and rubbed the vaginal area.  During the incident he slapped the victim across her face.  After the digital rape he shoved the victim and walked away.

Apprehension, confessions and convictions

51. [51]
    As noted, during this period in early 2008 the respondent was in the habit of consuming pornography and then masturbating while seated in his vehicle.
52. [52]
    On 12 July 2008, he was doing this was while his vehicle was parked across a driveway and a woman saw what he was doing.  She reported the matter to police.  The respondent was apprehended as a result of her obtaining registration details of his car. 
53. [53]
    When confronted by police the respondent made admissions. 
54. [54]
    The respondent was subsequently charged with the sexual offences that were committed on 2 March 2008 and 8 June 2008.  He pleaded guilty and was sentenced to a total period of nine-and-a-half years imprisonment for the two counts of rape and lesser concurrent terms of imprisonment for the other offences.  By then he had served 524 days in custody, which were declared as time already served. 
55. [55]
    When police initially spoke to the respondent about the 7 February 2008 offences he denied any involvement.  However, while imprisoned he asked to speak to police about other offences of a sexual nature.  The respondent’s voluntary admissions and subsequent interviews with police in 2017 led to his conviction for the 7 February 2008 offences.  His admissions and totality considerations meant that the sentencing judge in July 2019 moderated what otherwise would have been the sentences for the sexual assaults.  He was imprisoned for an additional period of nine months and given a parole eligibility date of 23 July 2019. 
56. [56]
    The following table from the applicant’s submissions summarises his relevant Queensland criminal history:

57. [57]
    The respondent’s sexual offending in 2007-2008 falls into two categories.  The first consists of indecent acts committed whilst masturbating in a car, some of which have an element of exhibitionism.  In his interview with Dr Sundin the respondent described this masturbation/exposure behaviour as occurring extremely frequently in the first seven months of 2008.
58. [58]
    The second category, which qualify as serious sexual offences for the purpose of the Act, are sexual assaults that involved contact and the violence that occurred on 7 February, 2 March and 8 June 2008.  The pattern of this offending included intoxication, an opportunistic attack on an adult female victim in the early morning, force used to contain his victim, and digital rape or an attempt at digital rape, after which the respondent walks away. 
59. [59]
    Both categories of sexual offence during this period coincided with the respondent’s abuse of alcohol or illicit drugs and his consumption of vast quantities of adult pornography. 

Events in custody

60. [60]
    Because of the respondent’s personality disorder and other traits that have been the subject of diagnosis and which will be discussed more fully below, the respondent is resistant to authority and has an extensive violation history while in custody, including numerous violations for threats against staff, offensive behaviour, property damage, offensive language and failing to provide samples for drug tests.
61. [61]
    Dr Sundin helpfully analysed his history of violations over a five year period.  They included:

• 46 separate counts of property damage or damage;
• 17 threats against staff;
• 17 episodes of offensive behaviour;
• 2 security breaches;
• 2 possessions of a prohibited article;
• 2 positive urinary drug screens;
• 1 count of abusive language;
• 4 counts of other violations; and
• 3 episodes of self-harm occurring in July 2016, June 2017 and May 2020.

62. [62]
    Dr Sundin reported that the history of violations showed quite distinct clusters of violations, with as many as 16 violations occurring in one month in 2017.  There were other smaller clusters suggesting “difficulty with emotional self-regulation and poor problem solving skills”.  At the time she reported, Dr Sundin did not have the violation record for 2021 but noted that there were no incidents between June 2020 and 11 December 2020.
63. [63]
    Dr Timmins reports a similar picture of the respondent having engaged in violent behaviour towards himself or property and, on occasions, threatening staff.  She regarded some of his misbehaviour as an attempt to manipulate and control those around him, describing it as being “instrumental in nature”.
64. [64]
    Dr McVie summarised the respondent’s custodial conduct as follows:

“His custodial behaviour has been challenging from 2008 and he has required lengthy periods of Intensive Management Orders, Safety Orders, and detention in the DU and in the MSU. There have been periods of relative stability during which he has been able to engage in employment in custody.

From mid-2021, there was a further escalation of his problematic behaviours including destroying cells in the PAH Secure Unit, and incurring charges for assaulting an officer who was hit by a television [the respondent] had thrown out of a cell.

His relationship history includes his having formed sexual relationships with Correctional staff, including with an officer shortly after he was remanded in custody in Brisbane in 2008. In July 2021, he was recorded as having attempted to engage with another female officer by making inappropriate sexual comments.

He has also made serious threats to harm staff, both male and female.”

65. [65]
    The respondent’s self-harming behaviour in custody is recorded as far back as July 2008.  Some of these earlier self-harming episodes occurred when he was unmedicated.  I have had regard to the respondent’s violation history as set out in exhibit JS-21 to the affidavit of Ms Steppa filed 9 February 2022 and to exhibit JM-70 to the affidavit of Ms Monson filed 18 February 2022 (court documents 39 and 46).

Courses while in custody

66. [66]
    The respondent successfully completed the following sexual offender treatment programs in custody:

    1. (a)
       Static-99 (risk) and Stable 2000 (treatment needs) assessments (15 October 2010);
    2. (b)
       Getting Started: Preparatory Program (GS:PP) (18 July 2011 to 29 August 2011); and
    3. (c)
       High Intensity Sexual Offenders Program (HISOP) (6 September 2011 to 28 June 2012).
67. [67]
    In 2013 he commenced a Sexual Offending Maintenance Program, but exited the program some months later after attending eight sessions when he was transferred to another centre.

Individualised treatment in custody

68. [68]
    The respondent has benefited greatly in recent years as a result of the individualised treatment he has received from a clinical psychologist, Dr Michele Andrews.  She commenced treating him on 14 March 2017 and at the date of her report of 12 February 2022 had seen him at 138 sessions.
69. [69]
    Dr Andrews’ recent affidavit exhibits a number of reports and sessional summaries. 
70. [70]
    In February 2021, Dr Andrews reported on the respondent’s ongoing intervention needs as well as his significant progress in the previous four years:

“[The respondent] has progressed significantly across the past four years. There has been a significant reduction in behavioural incidents, and he has managed extended periods of time out of the MSU. As indicated in my previous reports [the respondent] has a complex presentation including Severe Personality Disorder (Antisocial, Borderline and Psychopathic traits), fluctuating mental health include periods of depressed mood and Post Traumatic Stress symptoms. He has also spent extended periods in the MSU resulting in reduced tolerance of interpersonal interactions and a reduction in general interpersonal and social functioning. In addition to this he presents with a disorganised attachment style, which constitutes a responsivity factor in developing therapeutic relationships and managing his interpersonal interactions with others. This is an area which [the respondent] requires ongoing intervention with an experienced clinician who is aware of, and able to manage, therapeutic processes of transference and maladaptive attachments.”

71. [71]
    Dr Andrews reported in February 2021 that the respondent had not engaged in sexually inappropriate behaviour for an extended period of time but required further intervention to address broad issues around issues of sexual offending.  Dr Andrews identified the respondent’s primary treatment needs as sexual deviance, use of sex as coping and sexualisation of relationships.  She identified the following ongoing treatment needs in relation to the respondent’s sexual offending:

• sexual self regulation;
• sexual deviance;
• interpersonal skills and appropriate relational boundaries;
• appropriate management of intimacy deficits;
• development of adaptive coping skills;
• antisocial and authoritarian attitudes; and
• sexualisation of interactions and relationships.

72. [72]
    Dr Andrews’ later reports refer to the circumstances in which the respondent came to be admitted to the Secure Unit at the Princess Alexandra Hospital for a medical illness in July 2021 and his behaviour when he subsequently came to be accommodated in a secure unit for observations due to his ongoing risk of self-harm and suicide.  Dr Andrews reported in September 2021 that he continued to improve.  In December 2021, the respondent reported wanting a period of stability in the Maximum Security Unit so he could refocus on what he needed to do to contain his behaviour and manage himself through the DPSOA process.
73. [73]
    In a report dated 12 February 2022, Dr Andrews remarked about the significant period of destabilisation that followed the respondent’s admission to the Princess Alexandra Hospital and that his unstable behaviour required him to be moved to Woodford Correctional Centre.  Even then the respondent was not able to settle and he was admitted into the Maximum Security Unit.  Dr Andrews also reported:

“Of note a significant contributor to [the respondent’s] destabilisation included the commencement of an application brought forward by the Attorney-General to place [the respondent] under the Dangerous Prisoner (Sexual Offender) Act 2003.”

74. [74]
    Dr Andrews advised that after a month in the MSU the respondent reported a significant improvement in his mood although he remained highly anxious about these proceedings and was engaging in “a lot of catastrophic thinking” about his future.  He reflected on the fact that making threatening statements only sabotaged himself and he expressed regret about his actions that resulted in his being placed into the MSU.  Dr Andrews reported that he was able to develop a more realistic appraisal of the DPSOA process.  In Dr Andrews’ opinion, the respondent was able to reintegrate into a general population unit and she actively discouraged the respondent from seeking further time in the MSU.  She reported on 12 February 2022 that whilst it is more challenging, the respondent had demonstrated an ability to cope in a general population unit and had expressed a willingness to reintegrate.
75. [75]
    In a report dated 8 February 2022, Dr Timmins helpfully summarised a number of treatment recommendations that Dr Andrews had made.  They include:

• “Consistent therapy with an appropriately trained practitioner who is able to manage the Prisoner's tendency for maladaptive attachment.
• Therapy should be structured in treatment episodes to allow review of progress toward goals and development of appropriate therapeutic boundaries.
• Therapy should focus on skills building with a view to developing strategies to improve impulse control, frustration tolerance and emotional regulation.
• Cognitive and behaviour modification strategies to reduce compulsive masturbation and identification of alternative activities for stimulation and emotional management.
• Cognitive Behavioural treatment approach for trauma symptoms - strategies to manage intrusive symptoms.
• [The respondent] would benefit from a formal sexual violence risk assessment to better understand his sexual deviance, risk factors and to inform specialised sexual offender treatment.”

76. [76]
    Dr Andrews is experienced in this field, being a Clinical Psychologist and a Clinical Neuropsychologist.  She has treated the respondent over a period of five years, documented his risk factors and protective factors and made recommendations about his treatment needs.  She has observed periods when the respondent has coped well in custody and other periods when he has not.  Whilst Dr Andrews was not asked to provide a formal risk assessment for the purpose of these proceedings or to opine about how the respondent would likely perform on a supervision order, I have regard to her identification of the respondent’s risk factors as well as the respondent’s protective factors.  His protective factors include a good intellectual understanding of sexual offending concepts, motivation to engage in treatment, ability to take responsibility for his actions and improved emotional regulation skills.
77. [77]
    Dr Andrews was not required to give oral evidence.  I accept the analysis and opinions contained in the reports exhibited to her affidavits. 

Transition to an open unit and relapse prevention plan

78. [78]
    If the respondent is to be given an opportunity to be released under a supervision order and if the authorities responsible for management of the supervision order are to be given information and an opportunity to enable it to be effectively managed, then there should be an orderly, but not prolonged, transition of the respondent from the Maximum Security Unit to an open prison environment and then to the Precinct when a supervision order takes effect. 
79. [79]
    To transition the respondent directly from a Maximum Security Unit to the Precinct would not be in the respondent’s interests or serve the community.  Dr Andrews, whose opinion I accept, says that the respondent has demonstrated an ability to cope in a general population unit.  Some period in a general unit will equip the respondent to better cope with life under a supervision order, initially at the Precinct.  It will enable him to demonstrate the strategies he has developed to deal with staff and other residents in a general unit which, hopefully, will demonstrate a similar capacity to deal with staff and other residents in the Precinct.
80. [80]
    A direct transition from the Maximum Security Unit to the Precinct would reduce and possibly jeopardise the chances of the respondent succeeding under a supervision order. 
81. [81]
    A period of several weeks in an open prison unit will also allow the authorities responsible for administering a supervision order to inform themselves about the respondent, the challenges which supervision of him will present, his treatment needs and the advice of Dr Andrews and others about the strategies to be adopted.
82. [82]
    It was for these reasons that I made an order on 2 March 2022 adjourning the hearing of the application to 28 April 2022 and made an interim detention order until that date.  At that time an order requiring the respondent to be held in a Maximum Security Unit was to expire on 11 March, but it was anticipated that his transition to an open unit could occur sooner. 
83. [83]
    Another reason to review the matter on 2 March 2022 was that the disastrous floods that affected South East Queensland would have made it practically impossible for the respondent to transition on 2 March 2022 upon the expiry of his term of imprisonment to the Precinct, even if a supervision order had been made that day.  The Precinct is in an area of Brisbane that was severely affected by floods, correctional facilities were short-staffed as a result of the floods, and it would have been practically impossible to transport the respondent in any event.  However, having heard submissions on 2 March 2022 and having reflected on the matter after the hearing on 21 February 2022, the principal reason to adjourn the proceeding and to make an interim detention order was to allow for an orderly transition of the respondent from the MSU to release under an anticipated supervision order, to allow the respondent to demonstrate his ability to cope with life in an open unit and to allow the authorities sufficient time to prepare for his reception at the Precinct if he conducts himself reasonably well in the open prison environment and a supervision order is made on 28 April 2022. 
84. [84]
    This period also will allow the respondent to review and refine his relapse prevention plan, to show it to Dr Andrews and others, and to prepare for a significant transition in the event a supervision order is made at the end of the interim detention order.

Risk assessment reports

85. [85]
    I do not propose to detail the contents of the risk assessment reports that were obtained for the purpose of these proceedings.  Dr Sundin’s report runs to 69 pages including appendices.  The body of Dr McVie’s report is 27 pages and includes annexures in relation to actuarial instruments.  Dr Timmins’ report runs to 60 pages.  I have read, and re-read them.  It is sufficient for this judgment to concentrate on their respective diagnoses of the respondent, their risk assessments and their recommendations.  It is helpful to set out the diagnosis of each reporting psychiatrist. 

Dr Sundin

• Mixed Personality Disorder (antisocial and borderline personality traits);
• Unspecified Paraphilic Disorder (past rape fantasies);
• Exhibitionistic Disorder (sexually aroused by exposing genitals to physically mature individuals, in a controlled environment); and
• Substance Use Disorder: alcohol, stimulants, cannabis and nicotine (in sustained remission in a controlled environment).

Dr McVie

• Paraphilic Disorder (exhibitionism);
• Other Paraphilias (probable);
• Severe Personality Disorder with cluster b features (antisocial, borderline, and narcissistic traits);
• Significant Psychopathic Traits; and
• Substance Use Disorder (heroin, cannabis, alcohol, ecstasy, and cocaine).

Dr Timmins

• Unspecified Paraphilia with sadistic fantasies;
• Psychopathic Traits;
• Mixed Personality Disorder (with narcissistic, anti- social and borderline traits); and
• Substance use disorder (multiple types of illicit substances including cannabis, ecstasy, amphetamines and opioids in addition to alcohol).

Dr Sundin

86. [86]
    Dr Sundin assessed the respondent on a number of risk assessment instruments and in her report dated 23 June 2021 expressed the following opinion on the question of risk:

“Whilst [the respondent] has responded extremely well to the treatment with Dr Andrews over the past four years, he is an individual who is highly institutionalised and who has a high unmodified risk for future sexual offending.

He is therefore in my opinion a person who should be subject to a continuing supervision order in the community with requirements pertaining to curfews, ongoing psychological treatment and abstinence from alcohol and other intoxicants.

His history does suggest past hebephilic cognitions. This should be taken into account when determining the supervision clauses of any supervision order.

I note that the possibility of Bipolar Affective Disorder has been flagged with [the respondent] in the past whilst incarcerated in Victoria. Certainly the 2008 sexual offending in Queensland was associated with heightened sexual preoccupation and decreased need for sleep associated with the use of stimulant substances. Beyond this, [the respondent] denied all other symptoms of hypomania.

[…]

Should [the respondent] ultimately be placed on a community supervision order, I would recommend that the order needs to be in place for a period of 10 years.”

87. [87]
    Dr Sundin gave this risk scenario:

“With respect to Risk Scenarios, the greatest risks for [the respondent] will arise if he should become isolated again and lack access to a support system. In such a situation he is likely to regress back into reliance upon sex as coping, excessive use of pornography and regress back into sexual violence. This behaviour would be escalated if he reverted to use of intoxicants; particularly alcohol but also stimulants.”

88. [88]
    Dr Sundin was asked to provide an addendum opinion in the light of the material contained in additional affidavits, including the report of Dr Timmins.  Dr Sundin concurred with Dr Timmins’ opinion and recommendations.  Her email of 15 February 2022 did not explain her reasons, but her oral evidence on 21 February 2022 did.  Dr Sundin referred to the large number of violations that the respondent had committed since July 2021 and doubted whether the respondent would be able to be “adequately contained within the precinct”.  Dr Sundin agreed with an observation that I made at the commencement of the hearing on 21 February 2022 that to immediately place the respondent in the Precinct on a supervision order might be to, in effect, set him up for failure.
89. [89]
    Dr Sundin went on to remark about the profound difficulty of managing someone with a severe personality disorder of the type the respondent has.  Psychotropic medications would not necessarily be helpful.  Earlier in these reasons I have quoted Dr Sundin’s oral evidence about the need for consistent behavioural management so that staff are working with the respondent and all abiding “by the same set of rules that have been designed for his management by the senior psychologists at the prison” and Dr Andrews as his treating psychologist.  By this process, the respondent will be able to manage himself better by a degree of “reproducibility and predictability”.
90. [90]
    Dr Sundin remarked that Dr Andrews’ December 2021 report noted that the respondent has said that he does better when he has less contact with people, but on other occasions he says he does better when he has more contact with people.  This was part of the uncertainty that goes with his severe personality disorder.  As earlier quoted, Dr Sundin said that the respondent needed clear boundaries, a clear road map, clear direction, predictable outcomes and reinforcement of those predictable outcomes in order to make the progress that is hoped for. 
91. [91]
    Dr Sundin concurred with Dr Andrews’ view that the respondent has demonstrated a capacity to manage within the mainstream of the prison population, often for months at a time.  This was in evidence between May 2020 and July 2021.
92. [92]
    Dr Sundin supported Dr Andrews’ recommendations for a gradual reintegration process.  She observed that the respondent “will not deal well with a sudden dramatic change of circumstance”.  Such a change would overwhelm him by the demands of being in the community.  He was said to be “so highly institutionalised”.  There was a risk that he may act out by using drugs or by assaulting a corrective services officer.
93. [93]
    Dr Sundin acknowledged Dr McVie’s opinion to the effect that a supervision order at this point would be sufficient to manage risk.  Dr Sundin recognised that from amongst the three psychiatrists giving evidence Dr McVie has had the most direct experience with managing individuals within prison and in high security units. 
94. [94]
    Dr Sundin preferred that the respondent demonstrate his capacity to manage better within the ordinary prison environment over a period of 12 months.  This reflected the view of Dr Timmins.
95. [95]
    Dr Sundin accepted the validity of the view expressed by Dr McVie that someone with the respondent’s personality structure, history of trauma, and complex personality disorders is particularly poorly suited to being regulated in a prison environment.  While prison is a difficult environment for anybody, someone with the respondent’s personality structure and traits was said to react to a sense of being controlled and feeling helpless.  Dr Sundin accepted that the respondent had not demonstrated any sexualised behaviour in the last six months.
96. [96]
    As to the respondent’s risk scenario, Dr Sundin’s oral evidence articulated the kind of risk scenario that was outlined in her report.  If the respondent became more emotionally dysregulated then there would be a progression.  There would be a progression to self-harm and then harm to others, and the more out of control he felt there would be a greater risk for sexual recidivism.
97. [97]
    Dr Sundin accepted that measures such as a curfew, requirements to abstain from alcohol and other intoxicants, random testing and ongoing psychological treatment were apt to highlight any escalation in the respondent’s risk of self-harm or harm to others and of some escalation in the specific risk of him committing a serious sexual offence.
98. [98]
    Although there was not necessarily going to be “a clear prequel” to an escalation in the risk of serious sexual offending, Dr Sundin thought it more likely than not that there would be some signs of emotional decompensation.
99. [99]
    As for behavioural control under a supervision order, Dr Sundin accepted that behavioural control would include a “step-wise progression” from a 24 hour curfew on the basis of the respondent’s behaviour.
100. [100]
     This aspect of Dr Sundin’s evidence highlights the fact that the management of the respondent, either in prison or in the Precinct, will involve a similar process of behavioural control, with the respondent being given a very specific behavioural program with targets, goals and expectations.  Pro-social behaviours and compliance would result in relaxation of restrictions and other benefits. 

Dr McVie

101. [101]
     Dr McVie assessed the respondent on 18 November 2021 and reported on 25 January 2022.  I have earlier noted her diagnoses of the respondent.  On the basis of risk assessment instruments and her clinical assessment of the respondent, Dr McVie considered that his overall risk of reoffending sexually remained high.  She reported as follows:

“He appears to have had a high sex drive and has used sex as a means of coping with emotional stress. He currently reports decreased sexual preoccupation. He attributes this improvement to his ongoing therapy with Dr Andrews. His documented behaviours from July 2021 do not support this improvement.

If he were to re-offend sexually, the most likely type of offence would be driven by his exhibitionism, masturbating in public or where he can ensure a female would observe him. This appears to be a long standing behaviour.

His sexual assaults in 2008 may have occurred in the context of his reliving his childhood sexual abuse and did occur in the context of substance intoxication. It is possible these were also part of a longer pattern of behaviours, though he has no previous convictions for this type of offending. If he were to repeat this behaviour, the most likely victim would be a young adult female stranger.

His overall risk of reoffending sexually remains high.

Though he has completed the High Intensity Sexual Offenders Treatment Program and has engaged in one-to-one therapy, he still presents with significant outstanding treatment needs which cannot be addressed in custody.

[the respondent] also presents a significant risk of suicide which would be increased if he were to remain in custody.

RECOMMENDATIONS:

Actuarial and structured clinical assessment, indicates [the respondent] would be a high risk of reoffending sexually if released from custody without a supervision order.

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

He is likely to require intensive therapy, at least weekly initially, and support by his treating psychologist to facilitate his adaptation to the precinct environment. This is based on his history of problematic custodial behaviour with deterioration following transfer to new environments, the length of time he has already spent in custody, and his lack of external personal supports.

[…]

His supervision order should be in place for ten years.”

(emphasis added)

102. [102]
     In her oral evidence Dr McVie questioned the description of the respondent as “institutionalised”, saying that he was “the antithesis to institutionalised”, having fought institutions for his whole life.  He has fought containment back to his days in youth detention and still “fights being locked up”.  Dr McVie observed that people with such a disposition “do very badly when they’re contained in custody”.  They need to be transferred to settle and relax in a therapeutic environment but do not stay there long because they do not have a mental illness.  They go back to jail and deteriorate again.  Dr McVie saw the respondent as someone that had “a severe complex personality structure”.  She continued in her oral evidence:

“He has borderline traits, antisocial traits, narcissistic traits.  He doesn’t respond to being told what to do very well.  And it’s not just once, it’s over and over again.  And he doesn’t respond to being contained in handcuffs and body belts.  He told me that one of the problems with the PA secure unit was there was no external aspect of the cell and being in a – a closed environment for a lengthy period of time really continued to work on him and distress him.  Not just that particular event where he was left on the floor, which reminded him of an incident which had occurred to him as a child.”

103. [103]
     Dr McVie observed that the respondent was not “straight out anti-social” and had not engaged with other anti-social people in jail to cause problems with them.  Everything he did was on an individual level.  Although his actions had included serious threats and some staff had been harmed by virtue of his actions, his actions were mainly self-harming and wilful damage.  He also had a limited history outside of custodial environments.
104. [104]
     Dr McVie, who reviewed the respondent’s time in custody, noted that he had not gone for lengthy periods in a general unit without creating incidents and regressing to a detention unit or maximum security unit.  In recent years the longest period was about 10 or 11 months.  He deteriorated with stress and struggled to maintain behaviour in a general unit.  She was concerned that he might never be able to manage in a general unit for more than a few months at a time.
105. [105]
     As to any outstanding treatment needs, Dr McVie thought that those were best addressed by the respondent’s treating psychologist.  She then made the following important observation:

“… it’s very difficult to address these issues in a custodial environment where people don’t have access to a community to be able to demonstrate that they’ve made improvements and gains and are capable of living a pro-social lifestyle.”

106. [106]
     Dr McVie noted that in recent times Dr Andrews had re-directed her attention away from the respondent’s sexual offending to address his in-custody behaviour and to give him techniques that would improve his in-custody behaviour.  Dr McVie shared the view that an unplanned change creating stress and problems was a matter of concern.  However, the respondent had been thinking about a change to a supervision order, had talked to Dr Andrews about it, had made “progress in his mind as to what he wants to do when he gets out” and was accepting of a supervision order.  The fact that he had prepared an updated relapse prevention plan was a “very strong positive”.
107. [107]
     Under cross-examination Dr McVie expanded upon the idea that the respondent is the opposite to an institutionalised person, who responds to the institution, complies with rules, is nice to staff, and who superficially appears to get on well, but will then “fall to pieces” when they get out of the institution.  Instead, the respondent starts to “play up” if he gets distressed and makes threats. 
108. [108]
     Dr McVie anticipated that if the respondent was to be released on a supervision order the restrictions would be very tight to start with and that he might progress more slowly than the average person who was released on a supervision order.
109. [109]
     Importantly, Dr McVie had concerns that putting the respondent on a continuing detention order was going to significantly increase his risk of self-harm and significantly increase his risk of death by misadventure.
110. [110]
     Dr McVie thought that there was a very low chance of the respondent being able to demonstrate incident-free behaviour in an open unit in prison over a 12 month period.  The stress that he experiences in a custodial environment was said to corral his ability to be treated further.  Dr McVie thought that the respondent would be subject to less stress on a supervision order while still subject to fairly strict control.  Still, one could not be sure what the respondent would do in response to containment and monitoring by corrective services under a supervision order. 
111. [111]
     As to the risk of what were described as “contact-type offences”, Dr McVie thought there would likely be a period in which there was a change in the respondent’s behaviour or some indicia that his risk was escalating.  For example, non-compliance with conditions in his order, in particular by using substances, would indicate that his risk of sexual reoffending was increasing.  Notably, the serious sexual offences that the respondent committed occurred early in the morning and when he was intoxicated.
112. [112]
     According to Dr McVie, it was unlikely that the respondent would go directly to committing a contact offence.  It was more likely that it would be some observable change in his behaviour that would indicate to corrective services that his risk of committing a serious sexual offence was escalating.  The respondent’s usual response was self-harming and damaging property.

Dr Timmins

113. [113]
     Dr Timmins assessed the respondent on 4 February 2020 and reported on 8 February 2020.  As to the risk of future sexual offending, Dr Timmins reported:

“With regards to future sexual offending, [the respondent] is likely to become distressed at some family difficulty, loss of employment or emotional upheaval that will cause him to isolate from supports and those who can help him. He will become increasingly sexually preoccupied and engage in frequent masturbation for many hours of the day, using pornography but with increasingly deviant themes, before going out to seek potential victims in the streets. He may then drive around and masturbate in his car while watching adult females who are alone. If intoxicated with alcohol and/or drugs, he may go on to contact offences of rape. Concerningly, his behaviour may go undetected for several months before he is caught. The potential physical and psychological harm to the victim is high.

On a positive note, [the respondent] has engaged in sex offender programs, albeit ‘bluffing’ his way through them. He seems to have taken his psychological intervention with Dr Michele Andrews more seriously, having engaged with her in individual sessions since early 2017. Apart from some periods where sessions have been difficult to access, he seems to have engaged as well as to be expected given his current situation in the Maximum Secure Unit. He reports that he has family support.”

114. [114]
     Like the other psychiatrists, Dr Timmins administered a number of risk assessment instruments that supported her opinion that the respondent was at a high risk of reoffending in a sexual manner if released into the community at this time without a supervision order.  She concluded on the question of risk:

“I think although he has not had any sexualised behaviours in the custodial setting since 2013, his aggression and manipulative behaviours towards others leading to long periods in more contained environments such as the Detention Unit or MSU require addressing. I cannot see how he could be effectively managed in the community on an order without [the respondent] showing that he can manage his emotional state, sexuality and aggression in healthy ways. His behaviour currently is being driven by his own worries about his safety but also is instrumental in nature designed to have an outcome he thinks will be beneficial for him occur. Even in the contained MSU environment he manages to cause harm. Translating this into the community would mean if he was triggered by something or someone, he is more at risk of leaving his place of accommodation and engaging in harmful behaviours towards others. He has indicated that females have been a target in the past as they are less able to defend themselves. He has indicated that at times of distress, he becomes sexually preoccupied and he continues to have a relatively high sex drive.

Currently I am not confident his risk will be significantly modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003

He needs to display a period of healthy coping on a normal unit in order to see progress in managing his emotions as this is a risk factor for [the respondent]. If he can do this for 12 months and stay out of the DU, Safety Unit or MSU, not use substances and continue to engage with regular sessions with his treating psychologist along with appropriate behaviour towards QCS staff, then he may be in a better position to manage in the community under a Community Supervision Order. I believe this demonstration of emotional stability needs to occur before release is considered. If he has a goal that he can see will serve him, he is more likely to work towards this goal and move forwards.”

115. [115]
     In her oral evidence Dr Timmins remarked upon the respondent’s violation and history, noting that there was a period that he was able to integrate and manage for a period in late 2020 and the first half of 2021.  This was said to be very positive and to show the respondent can manage himself and implement the things that he has learnt from the treatment with Dr Andrews.  However, after July 2021 there were 61 incidents when he was emotionally dysregulated. 
116. [116]
     Dr Timmins was not confident that a supervision order would effectively manage the respondent because he does not like restrictions and being told what to do.  According to Dr Timmins, some of the respondent’s behaviour is reactive whereas other behaviours are instrumental or within his control.  She thought that if the respondent could demonstrate good behaviour and not act out then he would be in “a better position” to then manage his risk of sexual reoffending in the community.
117. [117]
     Dr Timmins’ concern is that if the respondent lacked support and felt isolated that he might act out in a less contained environment in the Precinct, leave, go into the community and use drugs and alcohol, then go on to reoffend sexually.  Dr Timmins was not “entirely convinced” that he would show indicia before his risk of committing a serious sexual offence escalated.
118. [118]
     Dr Timmins favoured the respondent being detained for control so as to demonstrate over a period of perhaps months in the regular prison community that he was able to self-regulate. 
119. [119]
     I raised during the hearing the proposition that in the light of the respondent’s lengthy history, an indefinite period under a continuing detention order with an annual review after 12 months would be unlikely to tell us things that we do not already know about the respondent, namely that he has periods of good behaviour and bad behaviour, that he is resistant to authority and that his personality which leads to emotional dysregulation and infractions in custody is deep-seated.  In response, Dr Timmins thought that observing his behaviour in custody during the calendar year 2022 “will tell us more” about his behaviour and how he manages it.  The point of a further period in custody would be to modify his behaviour with assistance and to demonstrate more clearly the reduction in risk that would be achieved in the community on a supervision order.

Analysis of Expert Evidence

120. [120]
     There is broad agreement between the three psychiatrists about the respondent’s diagnosis.  On any view, he has a personality disorder, with anti-social, borderline and narcissistic traits.  He has other disorders associated with exhibitionism and a substance abuse disorder that is in remission in a controlled environment. 
121. [121]
     There also is broad agreement about the respondent’s complex personality, his difficulties in dealing with persons in authority and others, and his risk of being emotionally dysregulated by severe stress. 
122. [122]
     The expert opinion and the other evidence identifies the relevant risk if the respondent is released into the community without a supervision order.  The risk is that during a period of distress and dysregulation, he will resort to alcohol or drugs, abuse them, become obsessed by sex, and use sex as a means of coping.  His offences may be indecent exposure, but could involve repetition of the kinds of serious sexual offences to which he pleaded guilty.
123. [123]
     Under supervision and while receiving treatment from Dr Andrews or a similar expert, signs of dysregulation and poor behaviour are likely to be observed before the risk of serious sexual offences substantially escalates to a point where the respondent is likely to commit a serious sexual offence.  Such a rapid, unobserved deterioration and rapid escalation in risk cannot be excluded as a possibility, but it seems unlikely.
124. [124]
     The opinions of the experts about the respondent’s likely performance on a supervision order or on a continuing detention order and other evidence indicates that it is unlikely, given the respondent’s history and complex personality, that he will go for extended periods under either a supervision order or a continuing detention order without coming into conflict with authorities, and probably committing infractions of prison discipline rules or the requirements of a supervision order. 

Issues and Non-issues

125. [125]
     There is no contest, and the evidence satisfies me, that the respondent is a serious danger to the public in the absence of an order under Part 2, Division 3 of the Act.  The central issue is whether a continuing detention order is necessary to provide adequate protection to the community against serious sexual reoffending by the respondent because a supervision order has been shown  not to ensure adequate protection against that risk. 
126. [126]
     It is unnecessary to analyse the caselaw about the statutory scheme and I remind myself that in exercising my discretion, the paramount interest is protection of the community. I have had regard to the matters stated in s 13. 
127. [127]
     Subsidiary issues in deciding whether a supervision order will provide adequate protection are:

     1. (a)
        the advantages and disadvantages (including risks) associated with making a supervision order; and
     2. (b)
        the advantages and disadvantages (including risks) associated with making a continuing detention order.
128. [128]
     If a supervision order will provide adequate protection, and can be reasonably and practically managed, then it should not be refused simply because a period of at least 12 months under a continuing detention order will provide psychiatrists, corrective services and the court greater confidence in the respondent’s ability to observe a supervision order.  The issue is not one of greater confidence but whether a supervision order will reduce the level of risk to an acceptable level. 
129. [129]
     For the reasons summarised at [29]–[33] a continuing detention order under which the defendant remains in prison for an indefinite period, subject to annual review, is not required to inform us of things about the respondent we already know.  We already know that at times the respondent has performed fairly well in custody, for example, in the period between late 2020 and mid-2021 before these proceedings were initiated.
130. [130]
     The unfortunate but predictable fact is that the respondent is likely to present behavioural problems irrespective of whether a continuing detention order or a supervision order is made.  He will do so in either environment in responding to constraints and directions.
131. [131]
     There is cause for some optimism that with ongoing assistance and treatment from Dr Andrews and others, he will implement strategies that he has learnt, be able to follow a detailed “roadmap”,  and be granted greater privileges as a reward for generally good behaviour.  However, to imagine that the respondent will not misbehave on occasions and test boundaries in either environment would be the triumph of hope over experience. 
132. [132]
     In accordance with s 13(6)(b) of the Act I have considered whether:

     1. (a)
        adequate protection of the community can be reasonably and practicably managed by a supervision order; and
     2. (b)
        requirements under s 16 can be reasonably and practicably managed by corrective services officers.
133. [133]
     I have considered the affidavit of Ms Monson filed 18 February 2022 about the limits on the supervisory capacity of the High-Risk Offender Management Unit within Queensland Corrective Services to manage the respondent’s problematic behaviour in an environment such as the Precinct at Wacol.  Surveillance officers and case managers do not have the powers of restraint to control some of the respondent’s complex and challenging behaviour or the medical training to address them.  The environment at the Precinct does not have the same structure or low-stimulus environment afforded in a maximum-security unit.
134. [134]
     Ms Monson expresses the opinion that until the respondent is able to cope in a general unit environment that mirrors the higher stimulus environment of the community, his prognosis for successful reintegration would be limited. 
135. [135]
     This concern is legitimate and provides support for a transition from the MSU to a general unit in March before any further transition to the Precinct under a supervision order.  It does not justify the making of a continuing detention order at this stage that would require the respondent to be detained for an indefinite period for the purpose of control, subject to annual reviews which, in my experience usually are listed more than 12 months after a continuing detention order is made.
136. [136]
     I am not indifferent to the risk that the respondent may behave badly during the course of a supervision order, resort to self-harm and property damage, and threaten staff.  There is a risk that he will do the same under a continuing detention order, but that would be in a more secure environment than in the Precinct.  The safety of staff and other residents is important. 
137. [137]
     I would expect those who manage a supervision order would have, or would develop, strategies to protect staff and other residents from challenging behaviour.  The respondent’s lengthy history of infractions suggests that he tends to resort to self-harm and destruction of property and threats to staff, rather than intentionally assault them.  That is a serious challenge, and wilful destruction of property warrants a police response.
138. [138]
     Increasingly dysregulated behaviour would warrant medical intervention by those able to treat the  respondent’s complex condition. 
139. [139]
     In general, I consider that adequate protection of the community can be reasonably and practicably managed by a supervision order and that requirements under section 16 can be reasonably and practicably managed by corrective services officers.  If the respondent begins to misbehave, for example by threatening staff, damaging property or engaging in self-harm, then his behaviour will come to the attention of those supervising him and his treating psychologist.  Criminal or threatening conduct will justify police intervention.  Serious contraventions of an order will trigger proceedings and a return to custody.
140. [140]
     The distinct possibility that the respondent will commit minor contraventions of a supervision order, acting out his deep-seated personality disorder and resistance to authority, is not a sufficient reason to consign the respondent to the consequences of a continuing detention order. 
141. [141]
     Section 13(6) does not require a court to be satisfied that a respondent is likely to comply with all of the requirements of a supervision order.  I am, however, satisfied, that if a supervision order is made, then its requirements can be reasonably and practically managed by corrective services officers. 
142. [142]
     This is likely to be the case, if:

     1. (a)
        the respondent spends the coming weeks in an open unit where his behaviour is monitored; and
     2. (b)
        a detailed plan for his management under a supervision order is developed, in consultation with Dr Andrews, so as to provide the kind of “roadmap” about which Dr Sundin spoke for the respondent and the authorities to follow.
143. [143]
     The risk of either serious or minor contraventions of a supervision order can be reduced by consistent behavioural management.  Dr Sundin explained that staff working with him should have the same set of rules, designed for his management by a senior psychologist like Dr Andrews, so that he gets a “degree of reproducibility and predictability”.  To assist with his progress, the respondent needs “Clear boundaries, clear road map, clear direction, predictable outcomes, [and] reinforcement of those predicable outcomes”.
144. [144]
     The respondent is accepting of a supervision order and has an updated relapse prevention plan. To again quote Dr McVie, “the mere fact that… he’s thinking about what he’s going to do when he gets out is a very strong positive”.
145. [145]
     While the Precinct is a different environment to a correctional facility, it is a controlled environment in which the respondent may be subject to curfews, monitoring, drug and alcohol testing, and reasonable directions from a correctional services officer.
146. [146]
     Plans of the kind envisaged by the experts would address the extent to which the respondent was encouraged to isolate in his room or to mix with other residents, and how to negotiate relationships with staff and other residents.  It might map out a process by which the respondent is to engage in pro-social activities, volunteer, and improve his vocational skills and education.  
147. [147]
     The custodial environment of a prison offers a level of security that is not available at the Precinct.  However, as Dr McVie explained, it is very difficult to address certain issues in a custodial environment “where people don’t have access to a community to be able to demonstrate that they have made improvements and gains and are capable of living a pro-social lifestyle”.
148. [148]
     I also have regard to the disadvantages of making an order for the respondent’s continuing detention for an indefinite period (subject to the annual reviews provided for in Part 3 of the Act). Dr McVie reports that the respondent presents “a significant risk of suicide which would be increased if he were to remain in custody”.  I accept that opinion. 
149. [149]
     Leaving aside that risk, there is a risk that making an order for the respondent’s continuing detention for an indefinite period will lead to the kind of dysregulation that the bringing of this proceeding did, or worse.  To be clear, the possibility that there may be decline in the mental wellbeing of a person who becomes subject to a continuing detention order does not mean that a continuing detention order should not be made.  A continuing detention order should be made, despite those disadvantages, is a supervision order is unlikely to provide adequate protection of the community.  However, the adverse consequences, as well as the benefits, of making a continuing detention order need to be assessed. 
150. [150]
     Having considered all of the matters I am required to consider under s 13, I have reached the view that the respondent should not be denied at this stage the opportunity to progress to a supervision order in the next few months. 
151. [151]
     The matter that militates against making a supervision order at this time is the need for the respondent not to be exposed to the distress of transitioning in early March 2022 from an MSU directly to the Precinct.  The expert evidence is that such a transition would be difficult for the respondent to manage.  It would carry the unnecessary risk of his failing to adjust to the more open environment of a general unit in prison and then the environment of the Precinct. That risk can be mitigated by his transiting to a general unit in the weeks ahead, during which time he can demonstrate his ability to cope, as best he can given his difficult personality, with life in the general prison population.  
152. [152]
     That period should not be unnecessarily long.  A period of several weeks will also allow detailed plans to be developed for the respondent’s management and treatment should a supervision order be made when the interim detention order expires on 28 April 2022. 
153. [153]
     I anticipate that if the respondent copes reasonably well in the coming weeks in a general prison unit and prepares himself for transition to a supervision order, then a supervision order will be made on 28 April 2022.
154. [154]
     A period of at least 12 months in custody under a continuing detention order during which the respondent shows that he is able to live without major disruptive behaviour in an open prison setting may give psychiatrists, corrective services and the court greater confidence in the respondent’s ability to observe a supervision order. This, however, is not a sufficient reason to make a continuing detention order for an indefinite period.  Also to make such an order carries the significant risks that I have identified of a marked deterioration in the respondent’s condition and behaviour, and an increased risk of suicide.
155. [155]
     As noted, a continuing detention order is not required for the respondent’s treatment: the psychiatrists do not suggest that it is. This is not a case in which a continuing detention order is required to solidify the results of a new drug treatment, for the respondent to complete a course in custody, or to receive treatment that is only available in custody.  The individualised psychological treatment that the respondent requires from an experienced expert like Dr Andrews can be provided under a supervision order, and may be more effective if provided in that environment.
156. [156]
     There is no point in making a supervision order if it does not give the respondent a reasonable opportunity to succeed under it.  Making a supervision order that took effect from 2 March 2022 would not have given him that opportunity.  Expert opinion supports the conclusion that he should first deal with the challenges presented by living in a general unit.  Dr Andrews is of the opinion that he is able to cope with that environment.  I do not expect that his period in an open unit will be free of difficulties.  However, that experience will equip him to cope better with the environment of the Precinct, including dealing with staff and other residents.

Conclusion

157. [157]
     The respondent is likely to present behavioural problems in any environment, despite the improvement in his behaviour in recent years that is due largely to his individualised treatment by Dr Andrews. 
158. [158]
     The respondent presents those challenges to authorities because of the anti-social personality disorder he developed from being abused in many ways as a child. 
159. [159]
     Dr McVie gave persuasive evidence that a person with his unusual personality is likely to perform better outside of a prison environment.  She explained that  it is very difficult to address certain issues in a custodial environment “where people don’t have access to a community to be able to demonstrate that they have made improvements and gains and are capable of living a pro-social lifestyle”.
160. [160]
     The evidence persuaded me that community safety, particularly against the risk of serious sexual offending, is likely to be adequately ensured by a supervision order.  It will provide that protection by containment, curfews, strict controls on movement, denial of access to illicit drugs and alcohol, random testing, and individualised treatment by professionals like Dr Andrews who understand the respondent’s complex personality and treatment needs.
161. [161]
     In circumstances in which the respondent’s pattern of past offending and the evidence indicate that it is unlikely that he will progress to a serious contact offence without a marked deterioration in his behaviour that is observable by those who supervise him or treat him, management of a supervision order is likely to provide adequate, but not risk-free, protection of the community from the risk of serious sexual offences being committed by the respondent.
162. [162]
     This did not mean that a supervision order should take immediate effect, requiring the respondent to transition on 2 March 2022 directly from a MSU to the Precinct at Wacol.  That course risked the supervision order not having its desired effect because the respondent would be unable to cope with such a dramatic change in his environment.  According to Dr Andrews’ 12 February 2022 report, the respondent has demonstrated an ability to cope in a general population unit and wants to reintegrate.  She favoured a slow transition through the detention unit, where his mood and behaviour could be monitored.
163. [163]
     If the respondent is able to cope in prison outside of the MSU in the coming weeks, then there will be a higher probability that he will be able to cope with the demands of a supervision order and life in the Precinct.  I do not expect the respondent to behave perfectly under an interim detention order in the coming weeks, or under a supervision order if, as I anticipate, one is made on 28 April 2022.  It would be surprising if he did, given his past problems and difficult personality.  However, he has behaved reasonably well for extended periods, for example in late 2020 and early 2021.  He has the benefit of Dr Andrews’ help and advice in implementing strategies to cope with transition from the MSU to a different custodial setting, and then to a supervision order.
164. [164]
     For these reasons, I decided on 2 March 2022 (his full-time release date) not to make a supervision order that day.  Instead to give the respondent a better chance to succeed under a supervision order, and for the authorities to prepare to best manage such an order, I made the following orders:

1. The hearing of the application pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) be adjourned to 28 April 2022 at 10am.
2. Any further material to be relied on by either party be filed by 4pm 21 April 2022.
3. Pursuant to s 9A(2)(b) of the Act, the respondent be detained in custody until 4pm 28 April 2022.
4. Liberty to apply.