Attorney-General v BYM[2022] QSC 305

SUMMARY OF INDIVIDUAL TREATMENT SESSIONS

3. 5.
   Treatment sessions with [the respondent] adopted a cognitive and behavioural model approach targeting his dynamic risk factors and criminogenic needs in relation to his risk of sexual violence. In particular, treatment focused on enhancing his ability to cope with stressful living circumstances and life events, enhancing adaptive coping resources and skills to manage negative affectivity, forming and implementing prosocial plans, developing plans regarding professional services to facilitate positive adjustment to community life, managing antisocial behaviours and attitudes, managing substance use problems, establishing positive social support network, maintaining non-conflictual interpersonal relationships and enhancing compliance with his Supervision Order requirements. In general, [the respondent] demonstrated motivation and willingness to attend treatment, take prescribed medication and conform to the requirements of his Supervision Order. He engaged well in intervention and would seek information or assistance with generating solutions and plans to manage his difficulties. He was able to demonstrate periods of stable psychosocial adjustment. However, there were occurrences where [the respondent] acted in an impulsive and irresponsible manner without considering alternatives or the consequences of his actions, and where he failed to utilise appropriate problem-focused and emotion-focused strategies to manage stressors and negative emotions. It appears that these incidences of poor general self-regulation and emotional regulation contributed to his non-compliance with respect to his Supervision Order requirements.

RECOMMENDATIONS

3. 6.
   [The respondent] seems to benefit from treatment designed to address his deficits in psychosocial adjustment and manage his sexual violence risk. However, it is apparent that he continues to exhibit difficulties with respect to general self-regulation and emotional regulation. [The respondent] would benefit from ongoing participation in psychological treatment targeting his dynamic risk factors and criminogenic needs with respect to:

• Problems with stress and coping (e.g. maladaptive coping mechanisms, stress vulnerability, emotional self- regulation)
• Problems with substance use (e.g. maladjustment stemming from illicit substance use)
• Problems with planning (e.g. ability to problem solve and regulate impulses)
• Problems with supervision (e.g. ability to comply with the demands of his supervision order)”

16. [16]
    Dr Michael Beech, psychiatrist, was also retained to prepare a risk assessment report following the alleged contravention. The report dated 15 June 2022 sets out Dr Beech’s current opinion. Dr Beech at page 8 of his report states as follows:

“SUMMARY AND OPINION

[The respondent] is a 49-year-old single man who was released on a supervision order in June 2021 to reside at the Wacol Precinct. He was arrested in February 2022 when he produced a urine sample that tested positive for methamphetamine. This contravened a condition of his supervision order that he abstain from illicit substance use.

There is a significant history of general criminal offending that indicates the development of an anti-social personality disorder. [The respondent] has struggled with psychological and emotional difficulties that have arisen most likely from prejudicial childhood circumstances. They have affected his ability to form and maintain relationships, but he has been able to maintain at least one long-term relationship in the past. When he struggles emotionally, he is prone to substance use and he has developed substance use disorders.

In 2000, he was convicted on one count of rape, one count of attempted rape, and one count of sexual assault while pretending/is armed. After his partner had left him and taken his children, [the respondent] had suffered an emotional collapse and turned to drugs. On one occasion, he entered a residence at night and raped a woman. On another occasion, he entered a residence and, with the threat of a knife, indecently assaulted the two women. There was a nine-day period between those two incidents during which he had presented several times to hospital in a distressed state. Ultimately, he completed the full custodial sentence. On release, he settled initially with the support of extended family members and found work. Matters deteriorated when he left that support and formed a relationship with another woman. [The respondent] was subsequently convicted in 2015 on a charge of the rape on [redacted]. He had gone to her room at night and digitally assaulted her, using a pretext that she had wet the bed. [The respondent] went to great lengths to remove incriminating evidence, which led to a conviction for attempting to pervert the course of justice. Drug use likely was involved in that offending too.

In his last custodial episode, his refusal to admit culpability for the 2015 episode and one of the 2000 incidents, precluded him from high intensity sex offender program. This, and the assessed high risk of re- offending, meant he remained on a continuing detention order from 2018 to 2021. During that period, he underwent psychological intervention with an experienced forensic psychologist, Dr Oertel.

Following his release in June 2021, he resided at the Precinct. There is limited IOMS material until February 2022. However, [the respondent] reports that he struggled at the Precinct to live with the residents. They offered him drugs and pestered and annoyed him. Substance use was rife. Insightfully, he offered that he does not get on well with others and there was conflict. He had the support of family members and counselling agencies, which included continued sessions with Dr Oertel. There was a call from the 2015 complainant and [the respondent] said he remained on the phone to her despite knowing this contravened the order. After that, his phone was confiscated which meant a severe restriction on his ability to communicate with his supports and undertake the general day to day logistics that included appointments. I think it is fair to say that he struggled on supervision and over time there are indications of emotional collapse notwithstanding the support he found from his former partner and others. [The respondent] indicated the methamphetamine use was a one-off impulsive act. As it was, he appears to have caused the severe headache that required treatment. For a few days, he avoided drug screening.

These days, in addition to his general grievance about the living circumstances on his release, he articulates regret for his behaviours. He finds it difficult in prison and misses the brief period of freedom that he had experienced and the contact with his family and his ex- partner.

In my opinion, [the respondent] has:

• Substance use disorder (in enforced remission)
• An anti-social personality disorder that is slowly maturing

As before, it is difficult to explore the nature of the 2015 offending, so it is difficult to rule in or rule out a paedophilia interest. Nonetheless, he has certainly formed adult relationships and there is no indication that he identifies emotionally with children or, during his release, has sought out child-related materials. If he has paedophilia, it is dormant. I agree with previous assessors that the child offending was more related to substance use, anti-social attitudes, and opportunity.

His risk measured on the Static-99R, an instrument that looks at static factors, has a score of 5 or 6 that places him in the above to much above risk group. On the Stable-2007, he has a score of 13/26, indicating high dynamic risk factors and high treatment needs. In my opinion, the lapse into substance use during his release indicated he was moving towards emotional collapse, which, unsupervised, would have placed him at heightened risk of sexual re-offending.

However, the monitoring, testing and observations that occur under the supervision order acted to quickly detect his substance use before his state had deteriorated further. In this matter, the supervision order acted as it is supposed to do: to pre-emptively detect increasing risk of re-offending and put in place structures that reduce the risk.

In my opinion, now, the acute risk has settled. [The respondent] remains at above average risk of re-offending but that could be managed with a supervision order, which would reduce the risk to below moderate at least.

The difficulty is going to be his ability to find suitable accommodation and support. I suspect that if he returns to the Precinct, there will be a return to conflicts, exposure to substances, and restrictions on his access to support. I strongly recommend that his phone is returned to him to facilitate his communication generally with others, especially his supports. It would also reduce the conflict that must ensue when he borrows other people’s phones.

It is preferrable that he is placed in suitable accommodation outside the Precinct. However, I imagine that this would require at the very least a nominated residence and an intensive home assessment process. Failing that, it is like[ly][sic] there are few options available, and he will need to return to the Precinct. He will need access to continuing emotional support from agencies that included his general practitioner, Drug Arm, and Dr Oertel. These should resume as quickly as possible. I do not think that he requires treatment in custody before his release, but he should have quick and timely access to outside agencies.”

17. [17]
    Importantly, Dr Beech identifies that the supervision order in effect acted as it was supposed to by pre-emptively detecting increasing risk of re-offending and putting in place structures that reduce that risk.

18. [18]
    Importantly for today’s considerations, Dr Beech also concludes that the acute risk has settled. In his opinion, the respondent remains an above average risk of re- offending that can be managed with a supervision order which reduces the risk to below moderate, at least.

19. [19]
    Dr Beech also makes some other comments about the management of the respondent, including recommending that his mobile phone be returned to him to facilitate his communication generally and with others and he also makes some recommendations about suitable accommodation and the need to access continuing emotional support from agencies, including his general practitioner, Drug ARM and Dr Oertel.

20. [20]
    I would encourage the authorities and those managing the respondent to consider these comments further.

21. [21]
    Dr Scott Harden, psychiatrist, also provided a further risk assessment report for the purposes of the contravention proceedings. This report, dated 5 August 2022, outlines Dr Harden’s opinion. Dr Harden’s report at page 24 states as follows:

“OPINION

[The respondent] was a 49 year old man of indigenous heritage who had committed two groups of sexual offences. The first group of offences was against adult women in their own home at night by breaking into their homes and sexually assaulting them using threats and weapons. The second sexual offence was against an eight-year-

old girl under circumstances where there was easy access to her as a victim.

There is no other clear information to be certain of the presence of a paraphilia. The photographs of the eight-year-old female’s genitalia on his phone, are however possibly suggestive of a paedophilic interest.

Initially he denies committing any of the offences. Over time he admits and accepts that he committed the first set of offences. He has now undertaken significant individual therapy in custody regarding this and seems to have developing insight into his sexual offending and the factors that contribute to this albeit that he maintains denial of the more recent offence against a child [redacted].

He previously appeared to have little or no concern for his previous victims and minimised and distorted any potential risk of future offending. This appears to have steadily improved since the 2018 assessment with his admissions that his substance abuse in particular poses a risk with regard to future offending and his consideration of factors associated with his early life exposure to sexual behaviour and his subsequent attitude towards women.

He has a long and robust history of polysubstance abuse probably with a preference for amphetamines but also marked use of opiates. This has included lots of stealing and also dealing in drugs to maintain his substance use in the past. It has also resulted in relationship breakdown, loss of employment and estrangement from support structures.

He reported initially coming from a reasonable family of origin and having a fair degree of stability in his early years. More recently he has become more aware of a series of very adverse events in his earlier life and family life that may have contributed to his later offending. In his adolescence he began to have more and more conflict with his peers and authority, started using substances with the assistance of his uncle and embarked on a chronic pattern of substance misuse and then criminal behaviour.

He has a history of depressive symptoms in the context of relationship breakdown, polysubstance abuse and stressors associated with being charged with and convicted of sexual offences.

He has a multitude of physical complaints including joint and back pain, gastrointestinal problems, atypical chest pain and other concerns. These previously resulted in him being placed on narcotic analgesia in custody.

He has some strengths in that he can maintain interpersonal relationships with adult women and he does have a trade qualification that will make it easier for him to obtain productive employment in the community. He now also has developing insight into both his substance abuse problems and his sexual offending problems with positive reports from his treating psychologist albeit relatively early days with regard to this insight.”

22. [22]
    Dr Harden’s current view is that a supervision order reduces the risk to below moderate by decreasing his use of substances, monitoring his activity and enforcing further treatment intervention. The ultimate recommendation is that he continue on the current supervision order regime.

23. [23]
    In respect of the respondent’s position on the second stage, it is submitted that the psychological and psychiatric material supports the contention that the respondent’s risk of sexual recidivism can be managed by a supervision order.

24. [24]
    It is in these circumstances that it is ultimately submitted that the respondent has discharged the onus placed upon him pursuant to section 22(2) and that the risk of him committing a serious sexual offence can be adequately reduced by his return to his supervision order so as to ensure the adequate protection of the community.

25. [25]
    The assessment of risk and what terms of the supervision order will provide for the adequate protection of the community is not a matter for expert opinion alone. It is a matter for the Court. As recognised by McMurdo J in Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at 30, the exercise requires a value judgment as to what risks should be accepted against the serious alternative of the deprivation of a person’s liberty.

26. [26]
    In this case, the views of the psychiatrists and the psychologist are of assistance in the task of evaluating the risk in respect of the respondent and I accept the opinions of the two psychiatrists and the psychologist. The question is whether the risk of serious sexual offences unacceptable in the context discussed by Justice Bowskill, as the Chief Justice then was, in Attorney-General for the State of Queensland v DBJ [2017] QSC 302.

27. [27]
    In the circumstances, I am satisfied on the basis of the psychiatric evidence and the other evidence before the Court that the adequate protection of the community can, despite the contravention, be ensured by the respondent returning to the existing supervision order.

28. [28]
    In the circumstances, it is appropriate to make the orders sought. It is also necessary and appropriate to make declarations in respect of the time that the respondent has spent in custody for the period of 13 days and to clarify the consequence of the operation of section 24 of the DPSO Act which would extend the period of the supervision order by 13 days.

29. [29]
    In the circumstances, the Court declares that:

1. The respondent was in custody serving a term of imprisonment for a period of 13 days between 23 March and 4 April 2022 for an offence other than an offence of a sexual nature.
2. By operation of section 24 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the period for which the supervision order made on 9 June 2021 has effect is extended by 13 days to 22 June 2031.

30. [30]
    Further, the Court being satisfied to the requisite standard that the respondent has contravened a requirement of the supervision order made on 9 June 2021, the Court orders that the respondent be released from custody and continue to be subject to the supervision order made by me on 9 June 2021.

31. [31]
    I make that order as per the amended draft.