Attorney-General v Good[2022] QSC 69

SUPREME COURT OF QUEENSLAND

1. [1]
   On 29 April 2020, the court ordered that the respondent, Anthony Charles Good, be detained in custody for an indefinite term for control, care or treatment. That order was made pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).^[1]
2. [2]
   By s 27 DPSOA, such orders must be reviewed at statutorily prescribed intervals, and this is the first such review. On the hearing of the review, the court must have regard to the various matters set forth in s 13(4) DPSOA (such as any psychiatric assessment made in relation to the prisoner and/or efforts on his or her part to address the cause of the offending behaviour through participation in, for example, rehabilitation programs) along with any report produced by the applicant pursuant to s 28A DPSOA.
3. [3]
   By s 30(2) DPSOA, the court may affirm a decision that the prisoner is a serious danger to the community in the absence of a Division 3 order only if it is satisfied, by acceptable, cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight to do so. If the court affirms the decision, it may order either that the prisoner continue to be subject to the continuing detention order or be released from detention subject to a supervision order: s 30(3) DPSOA. In deciding whether to make such an order, the paramount consideration is the need to ensure the adequate protection of the community: s 30(4)(a) DPSOA. The court must also consider whether the adequate protection of the community can be reasonably and practicably managed by a supervision order and whether the requirements under s 16 DPSOA can be reasonably and practicably managed by Corrective Services officers: s 30(4)(b) DPSOA. If a supervision order can ensure the adequate protection in the community having regard of the risk posed by the prisoner in question, an order for supervised release should be made in preference to a continuing detention order.^[2] Lastly, if the court does not make a continuing detention order, it must rescind the existing continuing detention order: s 30(5) DPSOA.
4. [4]
   The respondent is 38 years of age. His adult criminal history commenced in 2001 and contains a significant number of entries for property, drug and domestic violence offences. He has also been convicted of breaches of community-based orders. On 2 October 2013 he was dealt with for possession of child exploitation material and sentenced to six months imprisonment coupled with a three-year probation order. Between 2015 and 2017, he breached his reporting obligations under Part 4 of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) on six occasions. Relevantly, on 21 August 2015, he was convicted of two charges of failing to comply with his reporting obligations after a check on his residence revealed that he had been living with at least two teenage children and had not reported their presence. Then, on 23 February 2016, he was again convicted of two offences of failing to comply with his reporting obligations, along with one offence of contravening a police direction or requirement. The circumstances of this offending were particularly concerning; the respondent was in the company of a 14 year old boy at a shopping centre and, on another occasion, in the company of three children aged six, 13 and 14 years respectively, in a room at a private residence.
5. [5]
   On 1 August 2016, the respondent was convicted of one charge of using a carriage service to menace or harass after he sent an obscene image of himself to an adult female.
6. [6]
   Turning then to the index offences, on 27 November 2017, the respondent was convicted in the District Court at Maryborough of three counts of indecent treatment of a child under the age of 12 years, one count of indecent treatment of a child under the age of 16 years, three counts of making child exploitation material and one count of possession of child exploitation material. In the reasons accompanying the making of the continuing detention order under review, Williams J summarised this offending as follows:

“On 27 November 2017, the respondent was convicted in the Maryborough District Court on three counts of indecent treatment of children under 16 (child under 12 years), one count of indecent treatment of children under 16 (take photograph etc), three counts of making child exploitation material and one count of possessing child exploitation material. These are the index offences. He was also convicted of the offences of common assault, failing to comply with child offender reporting obligations and contravening a probation order.

This offending occurred at the home of a friend of the respondent’s partner who had nine children. The respondent and his partner were visiting the friend’s home and the respondent was alone in the backyard with the children. The respondent took a number of photographs including some of the young children being approximately three to four years of age. The respondent pulled open the nappy of one of the girls and took a photograph of her exposed vagina, then used his fingers to spread the child’s vagina and took a photo. Further, he then used his fingers to spread her buttocks and took a photograph of her exposed anus and vagina. He also took further photographs, including further photographs where he exposed the girls’ vaginas by pulling open their nappies.

The respondent’s partner discovered images of the children on the respondent’s mobile phone and confronted him. She reported the matter to police and upon investigating the respondent’s mobile telephone, police were able to recover deleted child exploitation material in addition to the photographs. There were 491 images, which can be classified as falling within the most serious and the second most serious categories of material.

The respondent also disclosed to police that he had taken images of a child undressing at a swimming pool but had deleted those images.”^[3]

7. [7]
   The respondent was sentenced to an effective head term of three years imprisonment with parole eligibility on 21 March 2018 but, of course, he was never admitted to parole and was made the subject of the detention order under review before he reached his fulltime release date.
8. [8]
   At the time when that order was made (29 April 2020), the court was assisted by the provision of evidence from three psychiatrists who had assessed the respondent: Drs Beech, Sundin and McVie. Drs Beech and McVie assessed the risk that the respondent might commit a serious sexual offence as “high” with Dr Sundin putting it at “very high”. Previous attempts at assessing and treating the respondent had been unsuccessful for a variety of reasons including his hostility and lack of cooperation, with the recurring theme being an absence of satisfactory insight into his offending behaviour. Although Dr Sundin believed a supervision order might reduce the risk from “very high” to “high”, she remained concerned about whether such an order would be adequate to protect the community. Dr McVie recommended that the respondent stay in custody to complete an intensive sexual offenders treatment program. Dr Beech found it difficult to imagine how a supervision order could reduce the respondent’s risk of reoffending when, in the past, he had such a poor response to community supervision. All three psychiatrists were firmly of the opinion that the respondent required engagement in a formal intensive sexual offenders treatment program prior to release and, following that, a formal plan on his release to reduce his risk of reoffending.
9. [9]
   Since the making of the continuing detention order, the respondent has undertaken, and completed, two programs which are intended to reduce his risk of reoffending, as follows.
10. [10]
    The first program was the Getting Started: Preparatory Program for Sexual Offending (GS:PP) which he commenced on 23 July 2020 and completed on 16 September 2020. According to the completion report, the respondent demonstrated only limited insight into his sexual offending behaviour although he accepted some responsibility for it. He was able to demonstrate general empathy towards others, but the facilitators found it difficult to ascertain his true level of empathy towards his  actual victims. Significant discrepancies were noted regarding the account he gave of his offending behaviour, he omitted a “considerable amount of detail” and he engaged in minimisation. This was thought to impact on the extent to which his “level of ownership for this offending” could be ascertained. Nonetheless, it was thought that his level of engagement with group participants and facilitators improved over time and that he demonstrated “a commitment to change and a willingness to participate in future sexual offending programs”.
11. [11]
    After completing the GS:PP, the respondent was enrolled in the High Intensity Sexual Offending Program (HISOP). This program commenced on 1 October 2020 and was completed by him on 28 October 2021. Overall, the respondent attended 114 sessions across almost 360 hours.
12. [12]
    According to the authors of his completion report, the respondent was motivated to “reintegrate safely and responsibly into the community”. Although he demonstrated a level of increased insight into his “offending pathway and associated risk factors”, of concern was a level of minimisation of the offences and the provision of conflicting information throughout the course. The respondent also had difficulty regulating his emotions and this, in turn, resulted in varying periods of disengagement, aggressive communication and threats to leave, although the facilitators considered that this behaviour improved over the course of the program. The respondent also demonstrated, in the opinion of the facilitators, a good level of insight into his high-risk factors, i.e., relationship breakdowns, unmet sexual and intimacy needs, excessive use of pornography, rejection and so on but he was thought to lack “robust mitigation strategies” and had a “tendency to rely on others to manage his areas of risk”. The facilitators made these recommendations:

“It is considered that prisoner Good would benefit from ongoing support with regards to negative emotionality, healthy relationships and sexual behaviour, open communication, healthy coping, and identifying and managing his emotions. Furthermore, it will be important for the prisoner to explore further his ongoing attraction to children as well as the treatment need pertaining to deviant sexual preference within a professional setting.

Given prisoner Good’s continued pattern of sexual offending behaviour, it is considered that he would benefit from ongoing supervision to assist with reintegration into the community while ensuring that he has the relevant supports available to him. From this, it is recommended that the case manager and other professional supports be made aware of the prisoner’s high-risk factors and their relevancy to his offending pathway as well as his tendency to engage in deceptive behaviours (i.e. providing inconsistent information etc). It is further recommended that prisoner Good’s case manager monitor the prisoner's interactions and relationships with others. The prisoner has demonstrated his capacity to seek out vulnerable women (i.e. trauma backgrounds, cognitive impairments) as well as engage in offence paralleling behaviours (possessing images of children). It will also be important that the case manager monitor the prisoner's ability to meet his sexual needs in a healthy way, given the prisoner's disclosures surrounding ongoing sexualised thoughts towards children. Further, it will be important to monitor prisoner Good’s ability to maintain healthy boundaries with both personal and professional individuals, given his engagement in boundary pushing with facilitators when attempting to build rapport. In terms of increased risk, it is considered case managers will observe the prisoner’s ability to cope with stressors deteriorate, evidenced by increased substance abuse, increased externalisation of blame to others, rumination on perceived injustices/instances of rejection and isolation from his supports. Additionally, he will likely engage in aggressive/passive-aggressive communication and be unwilling to listen to direction/challenges from case managers.”

13. [13]
    All things considered, the completion report was not in terms that instil great confidence in the respondent’s progress under treatment. In that regard, one of the more concerning aspects of the completion report was this:

“Additionally, [the respondent] was noted to engage in offence paralleling behaviours throughout his participation in the treatment program. This was evidenced by [the respondent] having in his possession, images of naked infants/children … which [are] considered to be relevant to his previous offending behaviour involving Category 5 Child Exploitation Material. Within discussions around this, [the respondent] maintained these images were not his focus, rather prefacing focus on a medical article.”

14. [14]
    By way of further information, the respondent’s cell was searched on 10 June 2021. During the search, an edition of the National Geographic magazine containing an image of a naked newborn baby along with several images of babies and young children w discovered. Also in the respondent’s possession was an “altered photograph” of his ex-partner who appeared to be “underage in the photograph” along with a drawing depicting an “Anime young girl” and a diary in which an address for a website was recorded. The website is blocked by the Queensland Corrective Services network for pornography.
15. [15]
    Of even greater concern is that, four days later, information was recorded on a Correctional Centre Intelligence Report to the effect that the respondent and another prisoner were planning future offending on release from prison. They were reported to have been “going around the residential compound attempting to recruit other prisoners to actively participate in making” child exploitation material. The prisoners approached were said to “also have a history of sexual offences against a child” and offers were made for them “to be involved in the production of [child exploitation material] upon release”. There was also a report of the respondent using the game known as Dungeons and Dragons as a pretext to talk to other prisoners about sexual offending.
16. [16]
    The accuracy of the information just summarised (at [13] to [15]) was not contested on the hearing. If it is accepted, as I do, that the respondent engaged in such conduct in June 2021, it must also be accepted that completion of the GS:PP and most of the HISOP failed to have much (if any) moderating effect on the respondent.
17. [17]
    Dr Beech examined the respondent at the Wolston Correctional Centre on 10 December 2021 and provided a report with respect to that examination on 28 January 2022. He provided some additional views by email on 21 March 2022.
18. [18]
    Although his initial opinion was that the respondent had benefited from the HISOP and “responded well to it”,^[4] Dr Beech accepted in the email of 21 March that the conduct summarised above (at [13] to [15]) confirmed an “ongoing paedophilic pre-occupation, militating against any perceived benefit from the HISOP”. He also recognised that the respondent had a tendency to minimise the nature and extent of his offending and a tendency to say what he believes people want to hear. Although Dr Beech remained of the opinion that the respondent would be a high risk of reoffending if he were to be released into the community without supervision, he expressed the opinion that if the respondent was released on a supervision order with appropriate conditions, the risk of reoffending would reduce to “below average”. Any such supervision order should, he thought, be for a period of ten years and include individual treatment of his paedophilia with an embargo on any contact with children. Dr Beech acknowledged that there is a risk that the respondent would not be able to lower his offending related to child exploitation material to “below moderate” but a supervision order should reduce the risk of a “hands-on” offence to “below moderate”.
19. [19]
    This distinction made by Dr Beech became an important one in the context of this case. The protection of the community about which this legislation is concerned is not from general offending; rather, it is the protection of the community from the risk of commission of a “serious sexual offence”, that is to say, an offence of a sexual nature involving violence or against a child.^[5] Whether a sexual offence has been committed against the child or children is a question of fact.^[6] As to that, and although there may be room for debate, the better view seems to be that the possession or distribution of child exploitation material, although involving or in relation to children, are not offences against a child.^[7] That conclusion, however, might not be so easily reached in relation to an offence of producing child exploitation material, because such an offence will not infrequently incorporate offending against an actual child victim. Each case will of course depend on its own facts.
20. [20]
    Dr Beech was called to give evidence at the hearing. He explained what he meant by “hands-on offending”. This was, he said, “interacting with an actual child”.  Dr Beech agreed that a supervision order could not prevent the respondent from accessing child exploitation material, but he held to the view that such an order would reduce the risk that the respondent would engage in a “hands-on” offence. However, he agreed that access to child exploitation material would “add fuel to the (sexual preoccupation) fire” and “keep the fires burning”.  If the respondent is “stressed under the order” and “resorting to viewing pornography”, then this will increase his sexual arousal. If the opportunity then presents, Dr Beech considered that the respondent would be “more likely to act on” his impulses.
21. [21]
    Asked about the information summarised at [15] above, Dr Beech said:

“I never know how much credibility to place on intel because it’s hearsay. …  But if you assume that that’s true, then yes. He’s been talking. But during – this is during the course of the HISOP, not after the HISOP, so maybe he benefited from the extra four months of treatment. Whether it was a one-off thing; whether it’s you know, a conspiracy to continue, I’m not sure.”

22. [22]
    On further questioning, Dr Beech accepted the obvious proposition that the extent to which the supervision order would be effective to stop any contact offending would depend on the respondent’s honesty and compliance with the terms of the order. It would be necessary to look at the respondent’s history of compliance. Dr Beech also agreed that it would be necessary to examine “the extent to which [the respondent] talked the talk, but didn’t walk the walk during the HISOP”. He added that the court would “have to make an assessment of [its] confidence that [the respondent] would abide by the supervision order. As to the HISOP, Dr Beech thought that the respondent had “gained intellectually from it”, but the difficulty is that the respondent “says what he thinks you want to hear”. Under cross-examination, Dr Beech accepted that completion of the HISOP reduced the risk of the respondent reoffending because he had gained insights into his offending behaviour, but said that “there are obviously concerns that during the course of the HISOP he was talking to other prisoners about [producing] child exploitation material”. This was at a point in the HISOP before the respondent had developed a strategy for managing the risk of offending and so this feature should not be overlooked. Dr Beech continued:

“The concern now, of course, is whether he ... can talk the talk but not walk the walk, but he can talk the talk.”

23. [23]
    Dr Sundin examined the respondent at the Wolston Correctional Centre on 14 January 2022 and provided a report with respect to that examination on 8 March 2022. She also provided an addendum report on 15 March 2022 and an email two days later.
24. [24]
    In her report, Dr Sundin considered that the respondent’s unmodified risk for sexual offending to be high but expressed the opinion that, having completed the HISOP, the risk he poses to the community can now be satisfactorily managed by the imposition of a supervision order. Importantly, her addendum report was provided after she had reviewed a copy of the material obtained by the Queensland Correctional Services intelligence unit, summarised earlier (at [13] to [15]). As to this material, she said the following:

“This included photographs of naked infants taken from publicly available magazines and reports of [the respondent] attempting to engage other sex offenders into producing more [child exploitation material] upon release from prison. He was overheard engaging in inappropriate discussions concerning offences against women and children in early and mid-June 2021.

[The respondent] is not intellectually retarded. He would have been aware of the wrongness of his actions. The material gives an insight into the pervasiveness of his paedophilic cognitions.

The material indicates that the respondent remains in need of one-to-one treatment with a forensic psychologist to address his sexual deviance. This treatment can be undertaken within the community but I would suggest that sessions commence before he is released. The material also indicates that if the court releases him under the auspices of a supervision order that HROMU staff will need to maintain a high level of vigilance and undertake regular checks of his associations and material he is reading and producing.

He should not be allowed any private access to the internet. The risk of him seeking to access [child exploitation material] via such an avenue is too great”.

25. [25]
    In her email of 17 March 2022, Dr Sundin expressed the opinion that the respondent’s unmodified risk for sexual recidivism is “high” but that this would reduce to “moderate to high” with a supervision order. She said that “the longer he can remain offence free in the community without reverting to behaviours associated with his Paedophilic Disorder, the more hopeful the outlook will become with respect to recidivism”. She noted his “twenty year history of offences against children” and his relatively young age (38). She thought that his Paedophilic Disorder is “not likely to wane in the next 12 years” and recommended a 10-year supervision order.
26. [26]
    Dr Sundin also gave evidence at the hearing and, it should be noted, she was present during Dr Beech’s evidence. Amongst other things, she was asked about the opinions she expressed in her addendum report and email, and said this:

“I agree with Dr Beech. There were some significant insights that he had gained (from the HISOP) which were beneficial. But as his Honour has said repeatedly and correctly, there’s evidence of him talking the talk but we still need evidence of him walking the walk.”

27. [27]
    It has been said before many times that the legislation does not contemplate that arrangements to protect the community against the risk of a further serious sexual offence must be “watertight”, otherwise supervision orders could never be made. The question is whether the protection of the community can be adequately ensured. As the Court of Appeal said in the case where those observations were first made, Attorney-General v Francis,^[8] if supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the DPSOA upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorise such constraints. However, in this case, not only am I persuaded by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to affirm the decision made on 29 April 2020 that the respondent is a serious danger to the community in the absence of a Division 3 order, I am of the firm view that the respondent should continue to be subject to a continuing detention order.
28. [28]
    The paramount consideration is the need to ensure adequate protection of the community and this requires a consideration, amongst other things, whether adequate protection of the community can be reasonably and practicably managed by a supervision order.  To my mind, it cannot. To answer the question posed by Dr Beech during his evidence, and based on a review of his past conduct, I have no confidence that the respondent would abide by the terms of a supervision order on release. He has already engaged in conduct after completing the GS:PP and most of the HISOP that is of extreme concern and, although this may very well have been at a point in time during the HISOP before he developed a strategy for managing the risk of offending, there is no evidence that he has the capacity, or willingness, to employ any such strategy on release.
29. [29]
    I do not overlook the feature that both psychiatrists expressed the opinion that the respondent’s risk of reoffending in a way relevant to the legislation would be modified in a reducing way by the imposition of a supervision order – either “below average” (Dr Beech) or “moderate to high” (Dr Sundin) – but it must not be overlooked that the question whether or not such a risk is unacceptable must be gauged by taking into account the nature of the risk and the consequence of that risk materialising.^[9]
30. [30]
    The risk here is sexual offending against children of the most profound seriousness. In this regard, the circumstances of the index offences are instructive – the respondent targeted children around three to four years of age, pulling open the nappy of one of the girls to photograph her exposed vagina, then using his fingers to spread the child’s vagina to take another photograph. He then used his fingers to spread her buttocks and took a photograph of her exposed anus and vagina. He also took further photographs where he exposed the girls’ vaginas by pulling open their nappies. As recently as June of last year, he engaged with another prisoner in discussions with other child sex offenders about producing child exploitation material on their release, that is to say, not merely accessing such material but producing it. These sort of discussions must have flown in the face of all he had learned, or at least learned to verbalise, during the GS:PP and the (mostly-completed) HISOP, but the respondent engaged in them anyway. The respondent’s capacity to circumvent the strictures of a supervision order to engage in further offending against children should not be under-estimated.
31. [31]
    The decision made on 29 April 2020 will be affirmed and it will be ordered that the respondent continue to be subject to a continuing detention order.