Attorney-General v Brennan[2022] QSC 3

SUPREME COURT OF QUEENSLAND

OVERVIEW OF APPLICATION AND DECISION

1. [1]
   The Respondent is serving a period of imprisonment of seven years for sexual offences committed upon girls and women aged between 12 and 22.  This period of imprisonment has been his first time in custody.  His full-time release date is 19 January 2022. 
2. [2]
   The Attorney-General contends, and the Respondent accepts, that he would be a “serious danger to the community” (that is, an unacceptable risk of committing a sexual offence against children or involving violence)^[1] were he to be released from custody on that date without any restrictions on his liberty.  Accordingly, she applies for an order under Division 3 of the Act for the Respondent’s detention in custody for an indefinite period, for control, care, or treatment (a “continuing detention order” or “CDO”), or his release, subject to appropriate management and restrictions (a “supervision order” or “SO”).  Without an order under Division 3, the Respondent would be released tomorrow without parole or other supervision. 
3. [3]
   The Respondent has not undertaken sexual offender treatment programs in custody, because he denies his offending.  An offender who is in denial about their sexual offences may still be successfully treated (although not in custody) and their risks of re-offending thereby reduced.  However, the Respondent’s denial revealed a profound lack of self-awareness and any treatment-based reduction in his risk would require intensive one-on-one therapy over a long period of time.
4. [4]
   In this case, three experienced and well-respected psychiatrists provided written reports and gave oral evidence: Drs Michael Beech, Karen Brown and Ness McVie.
5. [5]
   In broad terms –

   1. (a)
      Dr Beech’s written opinion was that the risk posed by the Respondent could be reduced to below average by a supervision order.
   2. (b)
      Dr Brown’s written opinion was that the risks posed by the Respondent could not be managed in the community.
   3. (c)
      Dr McVie’s written opinion was that the Respondent’s further treatment in custody ought to be attempted before his release.
6. [6]
   In her written submissions,^[2] the Applicant sought a CDO for the Respondent, relying on the written reports of Drs Brown and McVie, and the fact that the Respondent was an untreated sexual offender, in denial. 
7. [7]
   Before evidence was called at the hearing, the Applicant foreshadowed a change in the opinions of Drs Brown and McVie and submitted that the matter was “moving towards” the making of a supervision order for the Respondent – but she “maintained” her application in the alternative.
8. [8]
   It is fair to say that there was a shift in the opinions of Drs Brown and McVie between their written reports and their oral evidence.  But it was not a particularly dramatic shift.  Both remained cautious about the prospects of the Respondent’s responding to appropriate treatment in the community (whilst under supervision) and his ability to put risk prevention strategies into practice. 
9. [9]
   In offering their revised opinions that the imposition of an SO on the Respondent would reduce the risk he posed to moderate, the psychiatrists relied upon the restrictions on the Respondent’s movements and associations which could be achieved under an SO.  Those restrictions would prevent the Respondent’s access to potential victims and thereby reduce his risk.
10. [10]
    The Respondent is not a psychopath and the evidence did not suggest that he would be driven to breach the restrictive provisions of an SO.  Also, the matter proceeded on the basis that, if the Respondent were released under an SO, he would receive tailored therapy from a skilled psychologist designed to reduce his risk.  However, there was uncertainty about whether he would ever reach the point at which he could instigate or apply “internal” risk reduction strategies.  On the other hand, he was aging, and there would likely be an age-related reduction in his risk.
11. [11]
    Although the Applicant Attorney-General stated that she “maintained” her application in the alternative, she did not, at the hearing, suggest that a CDO was required for the Respondent.  Indeed, she said nothing at all about the need for a CDO, instead “acknowledging” that the adequate protection of the community could be ensured by the making of an SO.  She submitted that the SO ought to be in place for between five and ten years.
12. [12]
    The Respondent relied particularly on Dr Beech’s opinion and submitted that he ought to be released on an SO, on relevant conditions, for a period of five years.
13. [13]
    The weight of the evidence of the psychiatrists, and the other evidence before me, supported a conclusion that the community would be adequately protected from the risk posed by the Respondent by a ten-year supervision order which removed his access to victims for a lengthy period, whilst allowing for an age related reduction in risk.  Of course, if, whilst subject to supervision, the Respondent became able and willing to also apply internal risk reduction strategies, then the community would be further protected from the risk he poses.
14. [14]
    I therefore make an order for the Respondent’s release, subject to the terms of an order for his supervision, for ten years, on certain conditions, as per the draft order attached to these reasons.  The conditions include (but not only) conditions permitting the imposition of a curfew on the Respondent and his electronic monitoring.  They include conditions which prohibit his contact with children under 16 (without the written permission of a Corrective Services Officer) and which prohibit him from attending any place at which children, including teenage children, are likely to be or congregate (without the written permission of a Corrective Services Officer). 
15. [15]
    My reasons, in more detail, follow.

EVIDENCE

16. [16]
    I have summarised below the evidence presented to me which I considered to be of most relevance and weight in this application.

The Respondent’s serious sexual offending

17. [17]
    The Respondent is now 42 years of age. In his early thirties, he committed serious sexual offences – that is, sexual offences involving children or violence – upon seven girls or women victims.  The victims tended to be vulnerable because of their age or for other reasons.  The Respondent’s offending included groping, indecent touching and, on one occasion, the rape of an unconscious young woman.
18. [18]
    Sometime between 1 August 2011 and 30 August 2013, the Respondent offended against JJB, a 12-year-old.  JJB and her father were living with the Respondent and his family.  The offending occurred in the Respondent’s bedroom.  He was then aged 32 to 34.  The Respondent put his hand up JJB’s pyjama shorts and touched JJB’s leg and vagina on the outside of her underwear.  The contact was short.  No words were exchanged.  The Respondent smiled and laughed.  JJB made a complaint to police on 19 April 2014.  The Respondent attended the police station on 8 November 2014.  He denied the offence, declined an interview, was arrested, charged, and granted bail.
19. [19]
    On 14 October 2013, the Respondent offended against a 15-year-old, SKJ.  He was then 34.  SKJ was in the company of her friend.  She and her friend had been reported as missing persons.  The Respondent asked SKJ whether she and her friend could babysit his girlfriend’s infant son overnight.  They agreed and he drove them from Riverlink Shopping Centre to a unit at Bellbird Park.  At the unit, the Respondent grabbed and hugged SKJ; then rubbed her back, grabbed her bottom and breasts, and rubbed her vagina on the outside of her clothing.  SKJ felt scared and pulled away.  She went to the spare room, where her friend was, and locked the door.  Later that night, the Respondent used a butter knife to unlock the spare room door.  He suggested to SKJ that they be together when he and his girlfriend broke up.  SKJ made it clear that she was not interested.
20. [20]
    SKJ was very distressed the next day.  Police approached her as she threatened to jump from a wall near the Brisbane River.  She disclosed the Respondent’s offending to them.  When the Respondent was located and questioned by police, he admitted knowing SKJ but did not disclose that he had been with her the night before.  He was released without charge. 
21. [21]
    The Respondent offended against BLP while she was a 14 or 15-year-old, residing in a care facility.  She had a trauma history, which impacted upon her overall level of functioning.  She presented, developmentally, as well below her chronological age.  She had significant trust issues and was highly vulnerable to exploitation. 
22. [22]
    At the relevant time, between 31 July 2014 and 5 October 2014, the Respondent was 35 years old.  He offended against BLP on two occasions.  The first was in August 2014 when, en route to a water park in Ipswich, the Respondent rubbed his hands on BLP’s leg and tried to put his hands down her pants.  At the water park, he hugged BLP and smacked her on the bottom.  On another occasion, the Respondent picked up BLP and her friend, KB, and drove them to a unit in Ipswich where they drank alcohol.  At one point, BLP was alone in a bedroom.  The Respondent lay next to her, rubbed her arm and tried to pull her closer.  He became angry when she said she did not want to be in a relationship with him.  He told KB to “bash” BLP because she was “nothing but a slut”.  He then made advances towards KB, touching her leg and stating that he would respect her if she was with him.  This made KB uncomfortable and both she and BLP left the unit and walked to Queens Park.
23. [23]
    The Respondent followed them.
24. [24]
    At one point, BLP fell behind KB.  The Respondent took that opportunity to strike her on the shoulder blade and punch her stomach.  BLP fell to the ground, hit her head and became unconscious.  The Respondent removed her tights and underwear.  He was sentenced on the basis that he digitally raped her.  BLP disclosed the Respondent’s offending to police.  On 7 November 2014, the Respondent provided a DNA sample.  He was arrested on 20 January 2015.  He denied sexual contact with the victim and said there would be no reason his DNA would be associated with her.  He subsequently said that his DNA could be associated with the victim as she had cut his beard and hair in 2014.
25. [25]
    On 21 September 2014, the Respondent met the 22-year-old V when he drove her and three friends to a park in Churchill.  During the drive, he encouraged V to break up with her boyfriend.  At the park, the Respondent tried to hug V, but she resisted.
26. [26]
    The group then drove to a park in North Ipswich.  When V was alone with the Respondent, he tried to hug her.  He grabbed her by the waist and lifted her on to his lap, commenting that he would make a better boyfriend.  Later, he rubbed her breast outside her clothing and her vaginal area underneath her underwear.  V told him to stop but he put his tongue in her mouth.  He told her not to disclose what he had done and said that he would be there for her.
27. [27]
    V disclosed the offending to a friend and left the park, going to a friend’s unit.  The Respondent turned up and threatened to shoot everyone inside.  The police were called.  The Respondent was told to leave.
28. [28]
    V made a formal complaint to police on 3 February 2015.  The Respondent denied the offending.
29. [29]
    Between 1 November 2014 and 16 January 2015, the Respondent offended against AMS, who was aged 14 or 15, and HD who was 12 years old.  The Respondent was 35 years old.
30. [30]
    AMS and HD had been drinking alcohol when the Respondent drove them, and others, to various locations around Ipswich.  He was aware of their ages and searched the age of consent on his mobile phone, which he showed to them.  He flirted with AMS and told HD that she could have sex with him when she was ready.  The group continued to drink throughout the night.
31. [31]
    At one point during the evening, AMS received an upsetting phone call.  The Respondent insisted on being left alone in a room with her to speak to her.  He kissed AMS’s head and touched her thigh and vagina outside her clothes.  AMS left the room and disclosed the offending to HD.  The Respondent then asked to speak to HD alone.  He picked her up by the waist, kissed her neck, hugged her, and squeezed her bottom.  HD disclosed the offending to AMS and they both left the unit.
32. [32]
    A police complaint was made on 15 January 2015.  The Respondent denied the allegations and denied knowing either victim. 
33. [33]
    In December 2014, the Respondent offended against JJD, who was 14 years old.  The Respondent was 34 years old.  They’d met before.  On a previous occasion, the Respondent sat too close to JJD, who asked him not to and moved away.
34. [34]
    On 8 December 2014, the Respondent drove JJD and her four friends to Cribb Park, North Ipswich.  He supplied them with alcohol.  When they were disturbed by a passer-by, he drove them to Kholo Gardens.  The gardens were locked so they entered via a hole in the fence.  The Respondent led the girls to a place within the gardens.
35. [35]
    JJD found herself alone with the Respondent who proceeded to touch her left breast and vaginal area outside of her clothing.  JJD became upset.  She disclosed the offending to her friends.  The girls ran from the Respondent.  All but JJD were able to jump the locked gate.  Their screaming and calling out alerted nearby residents.  The police were called.  The Respondent drove up to the girls (other than JJD) and told them to get into the car as they were going to get him into more trouble.  When they accused the Respondent of touching JJD inappropriately, he drove off at speed.  The caretaker of the gardens arrived and unlocked the gate for JJD.
36. [36]
    JJD disclosed the offending to the police and made a formal statement on 1 January 2015.  When the Respondent attended the police station on 20 January 2015, he denied the allegations.
37. [37]
    On 12 December 2016, the Respondent pleaded guilty to one count of rape; eleven counts of indecent treatment of children under 16; three counts of sexual assault; and one count of common assault, arising out of the conduct referred to above. 
38. [38]
    He pleaded not guilty to similar offences charged on two other indictments and he was acquitted of those offences. 

Psychiatric Reports and Risk Assessments

39. [39]
    I have set out relevant parts of the written opinions of each of the psychiatrists, followed by a summary of their oral evidence.  The extracts from the reports below accurately reveal a little more about the Respondent’s offending.

Dr Karen Brown, Consultant Psychiatrist (21 February 2021)

40. [40]
    Crown Law asked Dr Brown to assess the Respondent’s risk of sexual recidivism, and to provide a written report, to inform the Attorney-General’s decision whether to bring this application.
41. [41]
    In her clinical formulation of the Respondent, Dr Brown emphasised his cognitive distortions around, and implausible denials of, his offending and his inability to engage in logical discussion about it.  She described his angry sense of entitlement to sexual activity and his lack of empathy.  She said –

“In adulthood he lived with his parents in Ipswich and he probably spent the majority of his time at home. He may have helped his parents with home maintenance and other tasks. He also played computer games for long periods. Prior to the first offence in 2012, he did not have a criminal history but he had attracted penalties for traffic violations.

His social medial posts (which were angry and threatening at times) suggest that he was actively seeking a partner and that his self esteem was low (he concluded he might be too unattractive to find a girlfriend). His relationship history is unclear but he did have a couple of short term (possibly cohabiting) relationships with women in their late teens. He has a son, now aged 6 years, whom he has never met.

It is likely that Mr Brennan sought contact with vulnerable teenage children (many were from the care system) as he was unable to find an age appropriate girlfriend and he was lonely and sexually frustrated. He presented himself to these teenagers as an older male that could drive and supply alcohol and he was able to groom and engage some of them for periods in a variety of isolated locations including public parks. Once he had engaged them he became possessive, jealous, controlling and at times aggressive. His past description of these girls as ‘welfare brats’ showed that he had a lack of respect for the victims and he demonstrated an angry sense of entitlement to sexual activity with them. It was in this context that he repeatedly sexually offended over a period of 2-3 years. The 16 offences, involving 7 victims, included multiple counts of sexual assault and indecent treatment, as well as the rape of an unconscious 15 year old girl in a park.

When initially interviewed by police about the offences, Mr Brennan attempted to manipulate a friend into giving him a false alibi. He also told police he was homosexual and that he had a male partner. The various police reports also suggest that Mr Brennan had intimidated and threatened his victims and that some of them only came forward when he was remanded into prison. Some of the victims had changed their numbers and addresses so that Mr Brennan could not locate them.

At interview Mr Brennan reported that he was told to plead guilty by his legal team with respect to the charges against him. The Court transcripts suggest a much more complex situation involving a change in legal team and an agreement with the Crown to ensure that a particular charge was discontinued.

He also reported that he did not commit any of the offences and denied that he knew some of the victims (including victim BP, who was located by police in his car about a month before the offences, to whom he sent text messages and on whom his DNA was found). He consistently reports that the offences were fabricated by friends of his ex-partner in order to prevent him having contact with his son. His self report is completely implausible given the various witness statements and other evidence against him, of which he is dismissive.

[…]

He reports that he is illiterate and unable to write even basic sentences, however this was not the case at interview and his social media postings and text messages were almost certainly written by him (and not his ex-girlfriend as he claimed at interview), demonstrating basic literacy. It is unclear as to why he underreports his skills. He also reports a history of strokes, heart attacks and fractures, for which there is no medical evidence.

He is unable to participate in a logical discussion relating to the evidence against him, instead he has dismissed this as fabricated by police, or due to typographical error (ref. the report by Dr Harden). His self report that he has never had sexual intercourse and that he has no current sexual interest or drive is implausible. His parole applications have all been denied on account of his failure to acknowledge his offending or to successfully participate in sexual offender treatment. During the Getting Started program he was noted to lack empathy for his victims and to engage in victim blaming in relation to the offending. Motivational psychology sessions were not able to change his views (and instead he formed the view that the therapist had agreed with him that he was innocent). He presents with multiple cognitive distortions in relation to himself and his offending behaviour and his various statements associated with his denial of offending are unsophisticated and inconsistent.”

42. [42]
    Dr Brown noted the Respondent’s various personality vulnerabilities and the possible presence of paedophilia and intellectual disability.  She identified reasons for difficulties in reaching robust diagnoses about his paraphilia (although it was unlikely that he had any), his personality and his level of functioning.  She recommended certain further assessments, which were undertaken by Dr Michele Andrews (see below) –

“Mr Brennan has largely offended against pubescent teenage girls. Some of the victims were in the care of the department of child safety or similar and therefore vulnerable. Mr Brennan befriended these girls when he was unable to find a girlfriend his own age due to his intellectual and social limitations. He probably does not have a primary paedophilic drive (as his victims were pubescent), although his refusal to acknowledge the offending or to discuss his sexual drives and preferences on even a basic level means that a paraphilia cannot be robustly excluded.

Formal intelligence testing has not been performed, however based on the history and presentation at interview, it is likely that Mr Brennan has some degree of intellectual impairment (either congenital or acquired or both). The picture is confused by his limited schooling and also by his unreliable self report of his skills (eg his self report that he is illiterate, which does not fit with his ability to use social media). Future neuropsychological testing should include a test of effort.

Mr Brennan also presents with anxious avoidant, dependent and antisocial traits. He presents with a history of anxious isolation from others (particularly similar aged peers), fear of criticism from others, and dependency on his family unit. His self confidence is increased when he presents himself in a position of power or authority, for example as on older male to the teenage victims or as a security staff at the local pub. In these circumstances he demonstrates antisocial behaviours and he continues to present with an antisocial attitude in prison, in particular a failure to take responsibility, externalisation of blame upon others and a marked lack of empathy. Personality disorder diagnosis is complicated by the likely presence of intellectual impairment and associated interpersonal deficits. The administration of a structured personality assessment would enable more detailed diagnostic conclusions and guide future therapeutic interventions.

Mr Brennan has used alcohol in the past (and supplied it to minors). However there is not enough evidence that he regularly consumed alcohol to excess and therefore he does not meet criteria for a diagnosis of substance misuse disorder. Further exploration of his alcohol use is required as it is likely that he has minimised his past use.”

43. [43]
    Dr Brown assessed the Respondent on a number of risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the following results:

    1. (a)
       Static-99R: the Respondent scored 3, placing him at the ‘moderate or average’ range – although Dr Brown considered that this underestimated the risk of re-offending including because he was charged with the offences at the same time, even though they occurred over a period of years;
    2. (b)
       Psychopathy Check List – Revised (PCL-R): scored 18/40, which is not elevated;
    3. (c)
       Risk for Sexual Violence Protocol (RSVP): on this dynamic risk instrument, the Respondent demonstrated evidence for 15 (possibly 16) of the 22 risk factors as follows –

“Sexual Violence History:

Evidence of: Chronicity of sexual violence / Escalation of sexual violence / Physical coercion / Psychological coercion

Sexual violence history risk factors include a pattern of chronic offending over the course of almost 3 years. The offences escalated from genital touching to the rape of an unconscious child.  Some of the acts were psychologically coercive in that he groomed vulnerable teenage girls with alcohol and rides in his car. He physically assaulted one of his victims prior to raping her.

Psychological Adjustment:

Evidence of: Denial of sexual violence / Problems with self awareness / Problems with coping

Mr Brennan does not admit that he committed the offences for which he is convicted. His various claims in relation to his innocence involve multiple cognitive distortions (denial, minimisation, rationalisation) and include that he does not know some of the victims, that he was set up by his ex-partner to prevent his contact with their son and that his sexual drive is absent. On another occasion he claimed that a typographical error of his surname in a report demonstrated his innocence. His various claims are implausible, inconsistent and illogical, however he has no awareness of these limitations. He also lacks self awareness into his sexual preferences and his interpersonal deficits.

In the past he has struggled to cope with his lack of partner and it is likely that the offences were in part secondary to frustration and sexual entitlement. When he did form superficial relationships (usually with vulnerable females) his dysfunctional personality was more pronounced and he presented as possessive, jealous and aggressive.

Mental Disorder:

Evidence of: Possible sexual deviance / Problems with substance use / Suicidal and violent ideation (past)

Mental disorder risk factors include mixed personality disorder as described above, although he does not meet criteria for psychopathy. There are additional possible diagnoses of post traumatic stress disorder and possible alcohol use disorder (although it is unclear how much he generally consumes).

In the past Mr Brennan has attempted suicide, reported suicidal ideation in prison and engaged in violent behaviours and threats of violence.

His sexual preferences and drives are unclear. His self report that he has no sex drive and that he has never had sexual intercourse (other than when sexually assaulted by his ex-partner resulting him fathering a child) is almost certainly fabricated. His unreliable self report means that a paraphilia cannot be ruled out, however it is more likely that his offending is secondary to his personality and cognitive deficits rather than a paraphilia.

Social Adjustment:

Evidence of problems with intimate relationships / Problems with non-intimate relationships / Problems with employment

Mr Brennan has major problems in this domain. He has significant interpersonal skills deficits, difficulties making age appropriate friends (other than those more vulnerable than himself) and he has not been able to sustain an intimate relationship. He lacks personal support outside of his family unit. His various personality and cognitive deficits have limited his ability to work and he lacks stable routine (although he has achieved this in prison).

Manageability:

Evidence of: Problems with planning / Problems with treatment / Problems with supervision

Mr Brennan has completed the Getting Started preparatory sex offender treatment program; however he maintained denial and was noted to engage in victim blaming and collusion with others that denied their offending. His attention and memory were also noted to be poor and limited his ability to engage with the program. He is therefore essentially an untreated sexual offender.

It is unclear as to whether he will engage in supervision, however I note that police had warned him in the past about supplying alcohol to minors and other concerning behaviours, which he essentially ignored. His ability to plan and self regulate may be limited by his (likely) cognitive impairment.

He is able to plan, however his self management is impaired by use of avoidant coping strategies including excessive alcohol use and tendency to overwork (particularly in employments where he is transient or away from home). His plans to work as a truck driver (with associated transient lifestyle) is again evidence of his poor self awareness with regards to his risk factors.”

44. [44]
    In Dr Brown’s clinical opinion, the Respondent’s unmodified risk of sexual re-offending was moderate to high.  At the time of writing her report, she was of the view that the risk posed by the Respondent could not be safely managed in the community.  In her view, he required further treatment, implicitly in custody.  She said –

“It is my view that Mr Brennan's unmodified risk of sexual re-offending is moderate to high. Although he does not have an elevated score on the Static-99R or the PCL-R, the RSVP assessment indicates multiple risk factors which are unaddressed. Risk factors include his disordered personality structure, his extremely poor self awareness, his inconsistent and unreliable reporting self report and his failure to benefit from treatment. His sexual drives and preferences are essentially unknown and therefore cannot be addressed. His sexual offending risk is complicated by his likely cognitive deficits, which will continue to compromise his interpersonal functioning.

Sexual offending risk would be significantly increased if Mr Brennan had access to underage or vulnerable females and further increased if he (and/or the victim were intoxicated). Offending may be impulsive or planned and would most likely involve relatively new acquaintances either met online or in person. Offending may include sexual acts with those that are unable to consent, (either due to their age or other vulnerability), or those that do not give consent but are more easily physically or psychologically coerced. He is most likely to seek out vulnerable teenage children and groom them with lifts in his car or the supply of alcohol (and possibly other substances). His risks would escalate in context of social isolation, sexual frustration or rejection.

[…]

It is possible that Mr Brennan is concealing a high sexual drive which he finds difficult to manage. This should be explored if at all possible and, if indicated, he may derive benefit from SSRI medication. This medication will also treat his symptoms of anxiety (which may also be limiting his ability to successfully engage in treatment) and post traumatic stress.

At the time of writing, Mr Brennan has not engaged in sexual offender treatment and therefore he has not developed a relapse prevention plan. Based on his current presentation, I am not convinced that he will be able to employ even the most basic risk reduction strategies. In my view therefore, his risks cannot be safely managed in the community at this time. Future engagement with treatment, (inclusive of an assessment and management of his sexual drives as indicated), may reduce his risk so as to allow for supervised community management. Supervision conditions in the future should include abstinence from alcohol, monitoring of online and in person associations and restricted (or no) contact with children.”

45. [45]
    In oral evidence, Dr Brown affirmed the opinions expressed in her written report.  She said that the Respondent’s risk of sexually re-offending fell within the moderate to high range.  She nominated the following as risk factors: his “somewhat diverse” history of chronic offending; his poor self-awareness/profound denial of his offending; his unreliable self-report; his implausible denial of sex drive; the uncertainty around whether he had a paraphilia; his lack of treatment; and his lack of relapse prevention strategies.
46. [46]
    Dr Brown expressed concerns about whether an SO could modify the Respondent’s risk because it was difficult to create a meaningful risk reduction plan for the Respondent.  The Respondent serially offended over a period of nearly three years before he was apprehended and ultimately imprisoned.  But the experts were no further advanced (than they might have been at the time of his apprehension) in understanding the motivation for his offending.  The Respondent’s lack of self-awareness meant that he could not identify when he was at risk of offending.  He possibly had problems with substances.  It was not known whether he had a sexual deviance.  It did not bode well for his future risk if his risk factors could not be identified (and thereby modified).  Having said that, the pattern of the Respondent’s offending was quite recognisable. 
47. [47]
    The cognitive distortions involved in his protestations of innocence precluded him from properly engaging with treatment.  Issues around his IQ (formally assessed at 71) could be overcome.  But notwithstanding the overwhelming evidence against him, he was in denial and therefore unable to respond to his offending in any logical way.  Any treatment of the Respondent needed to take place over a long period of time, in the context of a one-on-one therapeutic relationship.  All Dr Brown could do was consider the Respondent’s age to inform her as to when the Respondent might develop internal strategies to address his risk.  She thought it was illogical for the Respondent to suggest (as he did) that he did not have a sex drive.  It was likely that the Respondent in fact had an active and quite overwhelming sexual drive.  At the time of the offences, he very much wanted a girlfriend or a partner.  That he did not have one chronically frustrated him and was a concern.  Dr Brown considered that the Respondent’s sex drive might decrease with age.  That was more likely as he approached 50 or perhaps 60.  However, because he would not discuss it, she had no idea where he fell on that spectrum.  The risk of sexually offending in all types of sexual offenders reduces by the time they hit 60 which supported an argument for a 20-year supervision order in the Respondent’s case.
48. [48]
    Ultimately, in Dr Brown’s opinion, reduction in the Respondent’s risk under an SO depended upon external management strategies. 
49. [49]
    As to the Respondent’s IQ and its relevance to the way he was likely to respond to an SO, Dr Brown made it plain that adaptive function mattered more than IQ.  The Respondent’s adaptive function was variable.  In prison he had not required assistance.  He did reasonably well with structure and help.  He had not repeatedly breached discipline.  He could adapt and he could learn.  He was able to manage in the community to a certain extent with the support of family.  It was not known how he would be able to function outside that structure.  He had, of course, been able to use a mobile phone; drive a car and use public transport. 
50. [50]
    Dr Brown did not expect Mr Brennan to fully understand all aspects of an SO straight away although he would have a basic understanding of it.  She anticipated that, with support, he would do reasonably well on the order if he adhered to it and if he understood it properly.  In that way, his risk could be considerably mitigated by it.  She agreed with an opinion expressed by Dr Andrews (see below) that, because of the Respondent’s intellectual deficits, he would struggle to develop age-appropriate relationships to meet his intimacy, interpersonal and social needs.  The development of age-appropriate relationships would be critical to the reduction of his ongoing level of risk.
51. [51]
    An appropriate SO would be one which contained conditions which managed his risk of forming relationships with vulnerable underage girls; tracked his movements (for example, he ought not to be permitted to go to public parks); and monitored his associations (including his online associations). 
52. [52]
    Dr Brown said such restrictions, in combination with long term individual therapy, would reduce his risk.  But the experts did not know how long it would take the Respondent to assimilate strategies internally – or indeed whether he would ever reach that point.  It was very difficult to answer the question when Mr Brennan’s unmodified risk would reduce to a low level.  She observed that, in her original report, she did not think he should be released – but she was no longer of that view.  She explained:

“I’ve had time to read the reports of my colleagues, read the report of Dr Andrews.  I have reflected on that.  Essentially it probably is determined at the moment really by age, because we don’t have anything else to sort of go on.  I think over time his risks will reduce simply because he is going to get older.  He will be less physically attractive to younger girls.  He will have less reason to have connections with them.  And his sex drive will be lower.  So, from that point of view, I think that he will need you know monitoring on a supervision order at least for 7½ years if not 10.  I don’t feel comfortable with 5 years.  I don’t think it’s long enough because I think that what will happen is – as has happened in custody – he will do ok and then as soon as that supervision order is ceased he’ll return to those risk increasing behaviours.  And I think you could make an argument that it needs to be longer than 10 years, but I think that there’s probably a balanced approach, which is to look at where his risk is likely to reduce sufficiently.  Would I say it would be low in 10 years?  Honestly, I just don’t know.  But in terms of making a balanced prediction, I think it would certainly be a lot lower than it is now.”

53. [53]
    Dr Brown explained that the recognisable pattern to the Respondent’s offending included that he befriended vulnerable young women by associating with them and their friends.  A number of his victims were in the care system and a number of them frequented parks or other areas where groups of young people gathered.  Those gatherings were not easily detectable by the general public.  Therefore, monitoring his associations and seeing who he was spending time with would assist in management of his risks.  Similarly, curfews and monitoring conditions would also reduce his options for meeting young, vulnerable women.  Because of the predictability of his offending, the Respondent was a little easier to contain than someone who offended within and/or outside a relationship, or with people of any age.  If, while he was being monitored, the Respondent made any attempts to attend at places where young people might congregate, or he sought out associations with parents of people in the age group of his victims, then that would be a warning sign for those supervising him.  Another warning sign would be whether he was attempting to purchase alcohol.
54. [54]
    In Dr Brown’s view, eternal management strategies (such as geographical restrictions, abstinence and curfews) would work to reduce risk in the short term.  However, as to concurrent therapy, there was presently no indication that the Respondent would benefit from it although the hope was that he would.  Nevertheless, Dr Brown had concerns that he would not get to the point where the restrictions imposed upon him by the supervision order could be relaxed.
55. [55]
    She summarised her position in this way:

“This is a man who we have, you know, significant concerns that he’s never going to get to the stage where he can, essentially, self-apply a set of basic rules in a – that he has assimilated and internalised to manage his own behaviour.  So you could make an argument that he should not be released because, essentially, he’s never going to benefit from treatment.  I think that’s probably too far the other way, having had regards to the other reports, and reflected on it, but I do think that there’s a reasonable chance that he may not be able to be moved on from the precinct.”

56. [56]
    Dr Brown’s hope was that the Respondent would respond sufficiently to therapy over the course of 10 years and that his response, coupled with the oversight in place under an SO would reduce the risk from what it was presently. 

Dr Ness McVie, Consultant Psychiatrist (8 November 2021)

57. [57]
    On 19 August 2021, Dr McVie was appointed by the Court to undertake a risk assessment in relation to the Respondent. 
58. [58]
    Dr McVie diagnosed the Respondent as suffering from a Mild Impairment in Intellectual Functioning; and Paraphilias (possible).
59. [59]
    The results of her actuarial risk assessments follow. 

    1. (a)
       Static 99-R: the Respondent scored 4, placing him at the ‘above average risk’ category;
    2. (b)
       Psychopathy Checklist (PCL-R): scored 21/40, which is well below the clinical cut-off for a formal diagnosis of Psychopathy;
    3. (c)
       Stable 2007: on this treatment intervention instrument, Dr McVie records:

“On my assessment Mr Brennan has significant outstanding treatment needs including social influences (his parents could be considered a negative influence if they do support his innocence stance as he reports); capacity for relationship stability, lack of concern for others, poor cognitive problem solving skills and sex drive preoccupation (as he claims no sex drive).”

4. (d)
   Risk for Sexual violence Protocol (RSVP): on this dynamic risk assessment instrument, Dr McVie identified significant dynamic risk factors and observed that he did not appear motivated to comply with any future imposed restrictions:

“Mr Brennan presents with significant dynamic risk factors including his history of chronicity of sexual violence with escalation as well as both physical and attempted psychological coercion. He has poor psychological adjustment with his complete denial of offending and lack of self-awareness and  lack of adaptive coping strategies. I note others have considered he has anxious, avoidant, and dependent personality traits though he does not have a clear personality disorder. He may have had some problems with depression and anxiety though there is limited information in relation to this. He clearly has at least borderline intellectual functioning and probable learning disorder. Though alcohol is related to his offending, there is no clear history of substance abuse problems.

Mr Brennan demonstrates significant problems with planning, having made no plans for any future changes in his life, he has rejected treatment due to his inability to take responsibility for his offending and thus has not been able to gain any insights or consider any risks related to his offending which could be managed in the future to decrease his risk of re-offending, and while he has no history of being subject to supervision in the past, his does not appear motivated to comply with any future imposed restrictions.”

60. [60]
    On the question of risk, Dr McVie emphasised that the Respondent was untreated and was unlikely to engage with treatment. She recommended further treatment in custody prior to his release.  She said:

“Mr Bradley Brennan is an untreated sex offender.

Assessment, actuarial and structured clinical, indicates Mr Brennan presents at least a moderate to high risk of re-offending sexually if released from custody without a supervision order. If he were to fully resume his previous lifestyle, this risk would be high.

A supervision order might reduce this risk to moderate though this would depend on his full cooperation with such an order. His lack of engagement with treatment suggests this is unlikely. He would require conditions preventing access to children under the age of 16 years as well as abstinence from alcohol and illicit substances.

Having regard to his age and nature of offending and his ongoing denial, a supervision order would need to be in place for at least ten years.

I would recommend further attempts at treatment in custody prior to any release. He should first be engaged with an experienced forensic psychologist for individual work including further exploration of his sexual functioning, his offending behaviours and his risks, and treatment including making plans appropriate to enable modification of risk of re-offending.”

61. [61]
    In oral evidence, Dr McVie said that her view as expressed in her written report had been influenced by the Respondent’s unsophisticated attempts to justify his denial of offending.  She was not particularly concerned about his level of intellectual functioning as a risk factor.  Having reflected on things, she said that, whilst ideally the Respondent would have already engaged in treatment in custody, if he were to stay in jail, on a CDO, he would be “stuck there” for another 12 months^[3] and may not get treatment for some time.  If he were released on an SO, he would be engaged in treatment more quickly; given an opportunity to demonstrate his understanding of relevant concepts; and work with someone to produce a better plan for his future. 
62. [62]
    Dr McVie was satisfied that the Respondent would understand what it would mean to abide by the constraints of an SO such as not drinking or abiding by curfew.  But she was not entirely sure whether he would comply or not because he had not been tested.  I asked her what might drive the Respondent’s non-compliance.  She said she did not know because she did not have a good feeling for his background.
63. [63]
    With respect to the duration of any SO, Dr McVie predicted that effective psychological treatment would take a long time.  In addition to issues with his intellectual functioning, the Respondent needed “a lot of work” to identify why he offended and how to prevent it from happening again.  He needed a lot of “work” on his relationships and a lot of work on how to live a socially productive lifestyle.  She suggested that a 10-year order was warranted.

Dr Michael Beech, Consultant Psychiatrist (13 October 2021)

64. [64]
    Dr Beech was appointed by the Court to undertake a risk assessment of the Respondent.  He diagnosed the Respondent as suffering from Borderline Intellectual Impairment (with some evidence of adaptive functioning but heavy reliance on family support: and Unhelpful Personality Traits (dependence, entitlement, and possibly avoidance).
65. [65]
    Actuarial risk assessments produced the following results:

    1. (a)
       Static 99-R: the Respondent scored 4, placing him at the ‘moderate-high (above average)’ risk group;
    2. (b)
       Psychopathy Checklist (PCL-R): scored 14/40, indicating he was not psychopathic;
    3. (c)
       Risk for Sexual violence Protocol (RSVP): on this dynamic risk assessment instrument, Dr Beech noted –

• “The chronicity of the offending over 2.75 years with seven complainants

• The use of physical coercion

• The use of psychological coercion

• Denial of sexual violence

• Problems with self-awareness

• Problems with stress or coping

• Intellectual impairment

• Suicidal ideation (past)

• Problems with intimate relationships

• Problems with planning

• Problems with treatment

• Problems with supervision (concerns on bail)

These are moderate to high dynamic risk factors.”

66. [66]
    Dr Beech provided the following overview of the Respondent’s risk and the reduction of it which might be achieved by an SO:

“Bradly Brennan is a 42-year-old single man who was convicted in 2017 on a raft of sexual offences that had occurred in the 2011-2014 period. There were seven complainants. For the most part, the offending involved the indecent touching of female adolescents. There was one offence of rape when he penetrated an unconscious female he had knocked to the ground. Many of the complainants were disadvantaged persons, some in care. There are indications of similar non-litigated behaviour and complaints from family members and the Prosecution material refers to associated behaviour such as being street-checked at night in the company of children, supplying alcohol to minors, and associating with others who had committed similar offences. After his arrest, Mr Brennan attempted to harass a complainant and to deceitfully effect an alibi. Although he pleaded guilty to the offences, he has since adamantly and persistently denied culpability. This has precluded him from appropriate sex offender rehabilitation programs.

Mr Brennan has a history of learning difficulties. Clinically, he has intellectual impairment, probably into the borderline intellectual impairment category. He has though been “street smart” and able to obtain a driver’s licence. The Prosecution material refers to his associates and supportive network, with concerns that his family and environment were not protective. Otherwise, there are no indications of mental illness. He has become anxious and stressed at times in prison but there is no indication of a major depressive disorder. He has supplied alcohol to some of the complainants but there are no indications that he has a substance use disorder himself. There is no other history of delinquency to indicate an anti-social personality disorder but there is evidence of anti-social traits.

The offending is notable for its persistence over more than two years, the number of the complainants, and the predatory and opportunistic manner in which he sought out victims. Mr Brennan had provided alcohol and inducements, preyed on vulnerable people, and taken them to isolated areas. The offending occurred despite their resistance. His continued stance of innocence indicates a lack of remorse, a failure to accept responsibility, and a lack of insight into factors that would mitigate future risk. Although he may have the support of his parents and family, Mr Brennan says that they support his innocence; that and the earlier concerns of the Prosecution imply a lack of pro-social support in the community on release. At interview, Mr Brennan described what I would consider to be unrealistic plans for his release and unsuitable strategies to manage risk.”

[…]

Mr Brennan should be seen as an untreated sex offender. If anything, since his arrest, he has become entrenched in his denial, which not only precludes appropriate treatment but acts in this case to increase his risk of re-offending. There are concerns that this would be supported by his associates and family. He has no reasonable plans for release and cannot point to any reasonable risk mitigation strategies. Against that, it should be noted that there is no other criminal history. There has been a single sentencing date. He has been relatively settled in prison and commended for his employment by the Parole Board.

[…]

I agree with Dr Harden that the risk group involved is predominantly female minors. If he were to re-offend, it is likely that Mr Brennan will return to old ways — preying upon disadvantaged minors, offering them inducements such as lifts and alcohol, and taking them to isolated areas. There, he would coerce them into some form of sexualised activity, predominantly groping or indecent touching. There is a lesser risk that this would escalate to penetrative assault. The victims are likely to be distressed.

The risk could be substantially reduced, below average or moderate, by a supervision order. This would be particularly so if supervision conditions facilitated his release into the community to a supported pro-social environment, stable accommodation, and appropriate psychological support. The latter would, in the context of his innocence stance, focus on pro-social development, adjustment to release, and the development of realistic long-term plans and goals. It would reduce the risk if he would come under the influence of anti-social associates. It would significantly reduce his ability to prey upon others or to opportunistically offend.”

67. [67]
    Dr Michele Andrews conducted a neuropsychological assessment of the Respondent which was provided to the reporting psychiatrists.  It is discussed below.  In relation to it, Dr Beech said –

“This report from Dr Andrews does not alter the opinions expressed in my earlier report. If anything, it confirms my opinions. Mr Brennan is an untreated sex offender with poor insight into his offending with no reasonable risk mitigation strategies for release. I believe he would benefit from sex offender treatment program that was modified for his intellectual deficits. Otherwise, the risk of re-offending would be substantially reduced by a supervision order. He might struggle with that order but it would provide the community support and structure that he requires.”

68. [68]
    In oral evidence, Dr Beech confirmed his written opinions.  The Respondent was a man with an intellectual disability, in denial about his offending and without a relapse prevention strategy.  It was difficult to get anything from him about the intensity of his sex drive or other dynamic risk factors.  However, Dr Beech was less concerned about the Respondent’s denial and more concerned about his lack of self-awareness and lack of a relapse prevention plan.  His lack of self-awareness and lack of an appropriate plan meant that, without supervision upon release, he was going to go back to where he was prior to his imprisonment.  In Dr Beech’s view, the procedural security of an SO would provide adequate protection to the community by ensuring that the Respondent did not have access to victims.  The community would be further protected were the Respondent to receive tailored treatment including treatment designed to assist him to come up with a relapse prevention plan.
69. [69]
    Dr Beech thought that the Respondent would be able to comply with the requirements of a supervision order.  Dr Beech would not have been so sure “back in the beginning” because he continued to offend by breaching bail.  Also, he tried to create a false alibi.  But his time in prison had allowed for maturity and he demonstrated much more settled behaviour. 
70. [70]
    In reaching his conclusion that an SO could reduce the Respondent’s risk, Dr Beech noted that the Respondent’s pattern of offending involved his preying upon young women who were disadvantaged or vulnerable.  He picked them up in his car, gave them alcohol, took them to isolated places and then psychologically coerced them, and groped or touched them, until they resisted.  In one instance, his offending was opportunistic.  At its worst, it involved the penetration of an unconscious young woman.  In Dr Beech’s view, the risk of the Respondent’s re-offending could be substantially reduced to below average by an SO that kept him away from picking up girls in his car, taking them out at night, and giving them alcohol.
71. [71]
    Dr Beech stated the problem with treating the Respondent was his entrenched denial of his offending.  One might assume, from his personality style, the nature of his offending, and his lifestyle, that the Respondent was a loner who had difficulty in social relationships.  Dr Beech suspected that he had been unable to form appropriate peer relationships and that had led to his offending.  Treatment of the Respondent could focus on the sexual offending per se or on assisting him to find an appropriate social network, to engage in appropriate pro-social activities and to form an appropriate relationship with an adult woman, which would reduce his risk.
72. [72]
    Dr Beech said there was not much more that could be done for the Respondent, in terms of programs or rehabilitation, in prison.  Rehabilitation hereafter would need to be in the community where he might be shown other ways of forming relationships and an alternative way of being in society and of meeting people.  It would take a long time and it would take a lot of repetition and he would have to be taught many things, but in Dr Beech’s view “five years would do it”.  As I understood Dr Beech’s evidence, an order persisting for 10 years was certainly better than a shorter order, but Dr Beech was prepared to be optimistic about five years being enough.  Dr Beech was not concerned about the respondent’s intellectual issues interfering with his therapy.  He was more concerned about how the respondent’s borderline intellectual functioning might get in the way of his forming appropriate relationships and perhaps understanding issues around consent.

Dr Michele Andrews, Clinical Psychologist and Neuropsychologist (28 October 2021)

73. [73]
    It may be recalled that Dr Brown recommended further neuro psychological testing of the Respondent.  Dr Michele Andrews was asked to undertake that testing. 
74. [74]
    Dr Andrews reviewed relevant material about the Respondent, including Dr Brown’s report and the IOMS, which included the results of the preparatory programs the Respondent had undertaken. 
75. [75]
    Dr Andrews found the Respondent to present with an obvious level of intellectual difficulty.  He had basic thinking and conversational skills.  After taking a history from the Respondent, Dr Andrews conducted a neuropsychological assessment of him using relevant instruments.  She noted his reduced effort on certain tests.  The results revealed that the Respondent suffered from a clear impairment in verbal cognitive skills and basic literacy skills, against a background of generally lower intellectual functioning.  More broadly, he had impairments (borderline to extremely low range) across verbal and visual memory, working memory span, processing speed, verbal fluency, executive functions such as planning/organisation, inhibition, abstract reasoning, and simultaneous processing.  His intellectual impairment seemed to be congenital. 
76. [76]
    In Dr Andrews’ opinion, the Respondent’s cognitive and social deficits made him vulnerable to engaging with younger or impaired individuals, who were more likely to be congruent with his own social, emotional, and cognitive functioning level.  He would struggle to develop age-appropriate relationships in order to meet his intimacy, interpersonal and social needs.  She observed that the development of age-appropriate relationships was “central to his ongoing level of risk”.  He lacked insight into the possible harmful effects of engaging inappropriately with younger people.  His lack of insight would contribute to his cognitive distortions and misunderstanding around intimacy and relationships. 
77. [77]
    Although he had demonstrated a capacity to abide by rules and supervision whilst in custody, he was likely to have some difficulties with compliance in a less structured environment.  She continued –

“Should he be placed on a supervision order in the future, he is likely to take some time to understand the extent of such an order, to appreciate why certain conditions would be necessary and to comply with conditions across time.  Due to his concrete thinking, he is likely to struggle with generalising information from one setting to another.  He will require concrete and consistent routines and boundaries.  However I am of the opinion that these are issues that with time, and repeated explanations, he is likely to be able to manage with support.”

78. [78]
    Dr Andrews considered that the Respondent would benefit from intervention from a denial framework.  Individual therapy was likely to be more beneficial to him than group therapy.  Dr Andrews offered her opinion as to appropriate topics for therapy and appropriate strategies, which I do not need to detail in these reasons.

CONSIDERATION OF ISSUES

Is the Respondent a serious danger to the community in the absence of a Division 3 order?

79. [79]
    The first question for the court on an application for a Division 3 order for a Prisoner is whether the Prisoner/Respondent would be a serious danger to the community upon their release in the absence of such an order.  The relevant test for the present Respondent is whether there is an unacceptable risk that he would commit a sexual offence upon children under 16, or involving violence (a “serious sexual offence”), if released without a Division 3 order.
80. [80]
    The evidence before me (which includes the reports referred to above and other material relied upon by the Applicant) established that the Respondent’s unmodified risk of committing a serious sexual offence upon his release from custody (without a Division 3 order) is moderate to high.  He is an untreated sex offender, in denial, with cognitive limitations, a profound lack of self-awareness, and no relapse prevention plan, who would likely return to his “old ways” if he were released from custody without constraints upon his liberty.  His “old ways” include groping and sexually touching vulnerable female children and young adults.  There is less of a risk that his re-offending would include rape.  The evidence before me is sufficiently cogent to allow me to be satisfied, to the high degree necessary, that the Respondent would be a serious danger to the community were he to be released without a Division 3 order. 

Which Division 3 order ought to be made?

81. [81]
    In deciding between a CDO and an SO, the paramount statutory consideration is the adequate protection of the community. 
82. [82]
    The Attorney-General is the Applicant in these matters.  In Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, McMurdo J explained that if the Attorney-General sought a CDO for a Respondent, then the Attorney-General must prove that adequate protection of the community can be ensured only by such an order or, in other words, that an SO would not suffice. 
83. [83]
    In the present case, notwithstanding the content of her written submissions, by the time of the hearing, the Attorney-General did not attempt at all to prove that an SO would not suffice to ensure adequate protection of the community from the risk posed by the Respondent – even after I raised questions about the practicability of imposing restrictive restraints upon the Respondent for up to ten years.  With due respect to her, the Attorney-General “maintained” her application in the alternative in form only.  She made no submissions of substance – indeed, she made no submissions at all – in an attempt to prove that the imposition of a CDO, rather than an SO, was necessary to ensure the adequate protection of the community.
84. [84]
    In deciding between the two orders, I am required, by section 13(6)(b) of the Act, to consider whether the adequate protection of the community can be reasonably and practicably managed by an SO and whether the requirements of section 16 of the Act (the mandatory conditions of an SO) can be reasonably and practicably managed by corrective services officers.  The mandatory conditions of an SO include conditions that a Respondent be under the supervision of a corrective services officer and comply with curfews

Evidence from Corrective Services Queensland

85. [85]
    The affidavit evidence relied upon by the Applicant in this matter included an affidavit of Ms Jolene Monson, the Manager of the High-Risk Offender Management Unit, within Community Corrections, Queensland Corrective Services (QCS) dated 1 December 2021.  Obviously, her affidavit had been prepared on the strength of the written reports of the expert psychiatrists and Dr Andrews.  It did not take into account the revised opinions of Drs Brown and McVie.
86. [86]
    In her 1 December 2021 affidavit, Ms Monson expressed concerns about: (a) the Respondent’s willingness to comply with any order made by the court to adequately manage his risk to the community; and (b) QCS’s ability to reasonably and practicably apply an SO to the identified risks posed by the Respondent.
87. [87]
    Nevertheless, Ms Monson explained that if an SO were made for the Respondent, then QCS would tailor an order for him, taking into account his offending history offence pathway, risk factors and psychiatric evidence.  He could be monitored electronically.  He could be required to report to those supervising him.  Those supervising him could conduct home visits and make collateral checks.  He could be subject to drug and alcohol testing and surveillance.  Those supervising the Respondent would adopt a strategy which was directed at ensuring, as far as practicable, that the Respondent avoid the circumstances which placed him at high risk of committing a serious sexual offence – as informed by the reports of the experts. 
88. [88]
    Ms Monson’s affidavit outlined the various ways in which the Respondent would be supervised and supported on an SO.  She explained that, whilst constant physical surveillance could not be achieved, the Respondent could be monitored electronically.  That would provide an overview of his movements.  Psychologist, Dr Luke Hatzipetrou, was available to treat the Respondent upon his release.  Also, the Respondent had an approved NDIS plan, which included funding to assist him in personal domestic activities, access to community, transport, and assessment and support co-ordination.  Other supports and treatments would be made available to him through QCS.   
89. [89]
    Ms Monson explained that there was a position available for the Respondent at the Wacol Precinct were he to be released.  
90. [90]
    Ms Monson was not called to give evidence at the hearing.  Nor was she required for cross-examination by the Respondent.
91. [91]
    The expert evidence of Drs Brown and McVie, and to a lesser extent, Dr Beech, left me with the impression that, in offering their opinion that an SO could reduce the Respondent’s risk of sexually re-offending, they relied heavily upon the fact that an SO could constrain the Respondent’s movements and associations for (in the case of Drs Brown and McVie) up to ten years.  Having regard to the concerns expressed by Ms Monson, I wished to be satisfied that QCS was able to – reasonably and practicably – restrict the Respondent’s movements and associations as anticipated for a lengthy period.  At the hearing, counsel for the Applicant told me that he had oral instructions that QCS could.  I told him I required evidence to that effect, and I adjourned the hearing to allow that evidence to be obtained.
92. [92]
    During the adjournment, Ms Monson provided another affidavit, affirmed on 14 December 2021.  She had been provided with a transcript of the hearing on 6 December 2021 for the purposes of preparing this second affidavit.
93. [93]
    Having considered the transcript, Ms Monson stated that QCS continued to hold concerns about its ability to apply, reasonably and practicably, an SO to the identified risks posed by the Respondent.  She said that, if I were to make a CDO for the Respondent, then he would be provided with therapeutic interventions in custody. 
94. [94]
    If the Respondent were to be released subject to an SO, she explained that QCS’s capacity to minimise his risk through the use of curfews was limited, and balanced against his need to reintegrate.  In effect, she expressed a concern that electronic monitoring of the Respondent might not curtail his ability to offend opportunistically, in a public place where he had reasonable cause to be.

Conclusion: an SO, imposed for a period of ten years, can ensure adequate protection of the community

95. [95]
    Having considered Ms Monson’s second affidavit, the Attorney-General’s position was unchanged.  She did not attempt to submit that a CDO rather than an SO was required for the Respondent. 
96. [96]
    Whilst QCS’s concerns, as expressed in Ms Monson’s affidavits, are reasonable ones, her evidence does not amount to evidence that QCS does not have the resources to manage the Respondent under an SO. 
97. [97]
    On the evidence, the Respondent has matured whilst in custody and has demonstrated satisfactory behaviour there.  He has the capacity to abide by the conditions of an SO – even if he does not quite understand the link between the conditions and his risk of re-offending. 
98. [98]
    As Dr McVie observed, whether the Respondent will in fact comply with an SO’s conditions remains to be seen.  However, the fact that the Respondent might breach an SO is not (of itself) a reason to make a CDO instead.  The relevance of a potential breach of an SO, including a breach which demonstrates an escalation in risk, was explained by Applegarth J in Attorney-General for the State of Queensland v Tiers [2020] QSC 135 at [31], referring to the decision of Jackson J in Attorney-General for the State of Queensland v Robinson [2017] QSC 332, at [62].  Applegarth J said:

“The mere fact that a Respondent may, in the future, breach a supervision order in a fashion which may demonstrate an escalation of risk does not preclude a supervision order being made. In Attorney-General for the State of Queensland v Robinson, Jackson J observed:

“In my view, it is important to keep in view that the only relevant question is the risk of the Respondent committing a serious sexual offence. If the Respondent’s contrariness causes him to contravene conditions of his supervision order, and that leads to both proceedings against him for an offence of contravening the order and tighter surveillance and more trouble for QCS officers, those are prices to be paid for being subject to and costs of administering the DPSOA system but, in my view, that does not necessarily reflect an increased risk of the Respondent committing a serious sexual offence.””

99. [99]
    Also, as was explained in Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, an SO need not be risk free – otherwise it could never be made.  Adequate protection is a relative concept.  Some risk (associated with an SO) may be consistent with the adequate protection of the community.  The assessment of the acceptable level of risk is not for the psychiatrists.  It is a matter for judicial determination, requiring a value judgment of the risk to be accepted against the serious alternative of depriving a prisoner, who has served every day of the period of imprisonment imposed upon them for their offending, of their liberty: see Attorney-General for the State of Queensland v Edwards [2007] QSC 396.
100. [100]
     I considered whether, on the evidence, and bearing in mind the Applicant’s and Respondent’s submissions (see below), I was able to conclude that an SO would be “efficacious in constraining the Respondent’s behaviour by preventing the opportunity for the commission of sexual offences”: Attorney-General for the State of Queensland v Fardon [2011] QCA 111, [29]; and whether its likely effect was to significantly restrict opportunities for the Respondent to engage in sexual activity with vulnerable girls and women and thereby reduce his risk to an acceptably low level: Attorney-General for the State of Queensland v Beattie [2007] QCA 96, [19].

Submissions from the parties

101. [101]
     As I have said several times, the Applicant did not contend that a CDO was called for in this case.  She stepped back from the position she took in her written submissions and “acknowledged” that the evidence supported a finding that the adequate protection of the community could be ensured by the making of a suitable SO. 
102. [102]
     The Respondent placed weight on Dr Beech’s opinion that an SO could substantially reduce his risk to below average or moderate; and Dr Beech’s recommendation for the order to remain in place for five years, to ensure stability and adjustment. 
103. [103]
     The Respondent submitted that the adequate protection of the community could be ensured, reasonably and practicably, by his management under an SO.  On the Respondent’s behalf, it was submitted that, “Despite the Respondent’s intellectual difficulties, … his involvement in work while in custody, his reasonably good behaviour while in custody and his completion, twice, of the Getting Started Program would support a finding that he can be reasonably and practicably managed by corrective services officers if released to the precinct and managed therapeutically as recommended by Dr Beech”. 

Discussion and conclusion

104. [104]
     As Ms Monson explained, if the Respondent were to be released under an SO, QCS’s strategy would be directed at ensuring, as far as practicable, that he avoided the circumstances which placed him at high risk of committing a serious sexual offence.  The predictability of the Respondent’s offending enables the crafting of conditions of release designed to reduce his risk, such as those which would keep him away from potential victims. 
105. [105]
     A draft SO was provided to me by the Applicant.  It incorporated the recommendations of the psychiatrists as to risk reduction.  The Respondent’s release under it would inter alia –

     1. (a)
        restrict his movements and associations;
     2. (b)
        ensure that he lives only in premises approved by QCS; and works only in employment approved by QCS;
     3. (c)
        prohibit his contact with children under 16, without the written permission of QCS;
     4. (d)
        not permit him to attend places where children are likely to be, including (but not limited to) shopping centres and parks, without the written permission of QCS;
     5. (e)
        not permit him to join, or participate in any activity of, a club or organisation in which children are involved, without the written permission of QCS;. 
     6. (f)
        subject him to a curfew;
     7. (g)
        provide for his monitoring for the purposes of detecting potential breaches;
     8. (h)
        allow for monitoring of his phone and internet use by QCS officers;
     9. (i)
        prohibit his consumption of alcohol and illicit drugs;
     10. (j)
         not permit him to attend licenced premises without the written permission of QCS;
     11. (k)
         require him to engage in tailored therapy, designed to reduce his risk; and
     12. (l)
         require him to development a management plan to address the risk of his re-offending sexually.
106. [106]
     Overall, the evidence of the psychiatrists, and the other evidence before me, supported a conclusion that the community would be adequately protected from the risk posed by the Respondent by an SO in the terms of the draft provided to me.  Compliance with its conditions will ensure that the Respondent does not find himself in circumstances in which he might come into contact with potential victims – unless those supervising him consider it appropriate to permit him to, for example, go to a public park: a point which is unlikely to be reached for years.
107. [107]
     I consider it necessary for the Respondent to be subject to the SO for a period of ten years.  The Respondent’s intellectual limitations and his profound lack of self-awareness mean that it is likely to take some time, and intense therapy, for him to develop an “internal” risk-reduction strategy.  The Respondent might develop such a strategy within five years, as Dr Beech optimistically suggested.  But until he develops such an internal risk reduction strategy, the community’s adequate protection will depend on his compliance with the restrictive conditions of the SO.
108. [108]
     Although the Respondent may never reach the point at which he is able to apply an internal risk reduction strategy, he cannot stop the march of time and the age-related reduction in risk which goes with it.  The Respondent is still a relatively young man.  I consider it necessary to have a supervision order in place until he reaches an age by which it is probable that his risk will have naturally reduced.  As Dr Brown explained, that will be in about ten years.  If, whilst subject to supervision, the Respondent becomes able and willing to also apply internal risk reduction strategies, then the community would be further protected from the risk he poses.
109. [109]
     My formal order is that, having been satisfied that the Respondent is a serious danger to the community, the Respondent is to be released from prison and must follow the rules contained in the draft supervision order attached to these reasons for a period of 10 years, until 19 January 2032.

ANNEXURE A

SUPREME COURT OF QUEENSLAND

REGISTRY:Brisbane

NUMBER:BS 8933/21

AND

SUPERVISION ORDER

Before:Ryan J

Date:18 January 2022

Initiating document: Originating Application filed 4 August 2021

THE COURT is satisfied that Bradley Wayne Brennan, is a serious danger to the community. The rules in this order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003.

THE COURT ORDERS THAT Bradley Wayne Brennan be released from prison and must follow the rules in this supervision order for 10 years, until 19 January 2032.                                         

TO Bradley Wayne Brennan:

1. When you are released from prison you must obey the rules in this supervision order.
2. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison.
3. You must obey these rules after you are released from prison for the duration of this order.

Reporting

4. On the day you are released from prison, you must report before 4 pm to a corrective services officer at the Community Corrections office closest to where you will live. You must tell the corrective services officer your name and the address where you will live.
5. A corrective services officer will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A corrective services officer might visit you at your home. You must let the corrective services officer come into your house.

To “report” means to visit a corrective services officer and talk to them face to face.

Supervision

6. A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a corrective services officer gives you about:
   1. where you are allowed to live; and
   2. rehabilitation, care or treatment programs; and
   3. using drugs and alcohol;
   4. who you may and may not have contact with; and
   5. anything else, except for instructions that mean you will break the rules in this supervision order.

A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation.

If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it.

7. You must answer and tell the truth if a corrective services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.
8. If you change your name, where you live or any employment, you must tell a corrective services officer at least two business days before the change will happen.

A “business day” is a weekday (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday.

No offences

9. You must not break the law by committing a sexual offence.
10. You must not break the law by committing an indictable offence.

Where you must live

11. You must live at a place approved by a corrective services officer. You must obey any rules that are made about people who live there.
12. You must not live at another place. If you want to live at another place, you must tell a corrective services officer the address of the place you want to live. The corrective services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a corrective services officer to live at another place.

This also means you must get written permission from a corrective services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place.

13. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a corrective services officer. You are allowed to leave Queensland only after you get written permission from a corrective services officer.

Curfew direction

14. A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction.

Monitoring direction

15. A corrective services officer has power to tell you to:
    1. wear a device that tracks your location; and
    2. let them install a device or equipment at the place you live. This will monitor if you are there.

This is called a monitoring direction. You must obey a monitoring direction.

Employment or study

16. You must get written permission from a corrective services officer before you are allowed to start a job, start studying or start volunteer work.
17. When you ask for permission, you must tell the corrective services officer these things:
    1. what the job is;
    2. who you will work for;
    3. what hours you will work each day;
    4. the place or places where you will work; and
    5. (if it is study) where you want to study and what you want to study.
18. If a corrective services officer tells you to stop working or studying you must obey what they tell you.

Motor vehicles

19. You must tell a corrective services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the corrective services officer these details immediately (on the same day) you get the vehicle.

A vehicle includes a car, motorbike, ute or truck.

Mobile phone

20. You are only allowed to own or have (even if you down not own it) one mobile phone. You must tell a corrective services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone.
21. You must give a corrective services officer all passwords and passcodes for any mobile phones you own or have. You must let a corrective services officer look at the phone and everything on the phone.

Computers and internet

22. You must get written permission from a corrective services officer before you are allowed to use a computer, phone or other device to access the internet.
23. You must give a corrective services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a corrective services officer look at the computer, phone or other device and everything on it.
24. You must give a corrective services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things.

No contact within any victim

25. You must not contact or try to contact any victims of a sexual offence committed by you. You must not ask someone else to do this for you.

“Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.

Rules about alcohol and drugs

26. You are not allowed to take (for example, swallow, eat, inject, or sniff) any alcohol.  You are also not allowed to have with you or be in control of any alcohol.
27. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs.
28. A corrective services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath or pee (urine) when they tell you to do this.
29. You are not allowed to go to pubs, clubs, hotels, nightclubs, bottle shops or businesses which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to go.

Rules about medicine

30. You must tell a corrective services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a corrective services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.
31. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor.

Rules about rehabilitation and counselling

32. You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.
33. You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program.
34. You must let corrective services officers get information about you from any treatment or from any rehabilitation program.

Speaking to corrective services about what you plan to do

35. You must talk to a corrective services officer about what you plan to do each week. A corrective services officer will tell you how to do this (for example, face to face or by phone).
36. You must also tell a corrective services officer the names of new persons you have met.

This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly.

37. You may need to tell new contacts about your supervision order and offending history.  The corrective services officer will instruct you to tell those persons and the corrective services officer may speak to them to make sure you have given them all the information.

Contact with children

38. You are not allowed to have any contact with children under 16 years of age.  If you want to have supervised or unsupervised contact with a child under 16 years of age you must first get written permission from a corrective services officer.  If you do not get written permission, you are not allowed to have contact with the child.

“Contact” means any type of communication, including things like talking with them face to face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way.

“Supervised” means having contact with the child while another person is with you and the child.

“Unsupervised” means having contact with the child while there is no other person with you and the child.

39. If you have any repeated contact (that is, more than one time) with a parent, guardian or carer of a child under the age of 16, you must:
    1. tell the person(s) about this supervision order; and
    2. tell a corrective services officer the details of the person(s).

You must do this immediately.  This means you have to tell the person, and tell a corrective services officer, on the same day you have contact with the person.

40. Queensland Corrective Services has power to give information about you, and about this supervision order, to any parent, guardian or caregivers that you have contact with.
41. Queensland Corrective Services also has power to give information about you, and about this supervision order, to an external agency (such as the Department of Child Safety).
42. You must not:
    1. attend any school or childcare centre;
    2. be in a place where there is a children’s play area or child minding area;
    3. go to a public park;
    4. go to a shopping centre;
    5. join any club or organisation in which children are involved; and
    6. participate in any club or organisation in which children are involved.

If you want to do any of these things, you must first get written permission from a corrective services officer.  If you do not get written permission, you cannot do any of these things.

Offence Specific Conditions

43. You must not collect photos/ videos/ magazines which have images of children in them without prior approval of a Corrective Services officer.

If you have any you may be asked to get rid of them by a corrective services officer.

44. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence.  You must talk about this with a corrective services officer when asked.
45. You must advise your case manager of any personal relationships you have started.