Attorney-General v Fraser[2022] QSC 7

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application by the Attorney-General for the State of Queensland for orders in respect of the respondent pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act).
2. [2]
   The respondent is currently in custody and his full time release date is 10 March 2022.  The applicant seeks orders for the respondent’s continued detention, or release subject to a supervision order, under the DPSO Act.
3. [3]
   On 12 October 2021, Burns J made orders at the hearing of the preliminary application and on 27 October 2021, Callaghan J listed this application for hearing.

Background

4. [4]
   The respondent is currently 51 years of age.  He pleaded guilty to and was convicted of sexual offences against children on two separate occasions:  in August 2002 and June 2014.

The index offending

5. [5]
   On June 2014, the respondent pleaded guilty in the District Court at Cairns before Everson DCJ to the following offences:

   1. (a)
      One count of maintaining an unlawful sexual relationship with a child under 16, between 1 December 2012 and 12 June 2013;
   2. (b)
      One count of indecent dealing with a child under 16, under 12, between 1 January 2012 and 12 June 2013;
   3. (c)
      One count of rape on a date unknown between 1 May 2012 and 12 August 2013;
   4. (d)
      One count of indecent dealing with a child under 16, under 12, between 1 May 2013 and 12 June 2013.
6. [6]
   The complainant in respect of the first two offences was aged between five and six years of age at the time of the offending.  The offending included touching the complainant on her chest, touching her on the vagina beneath her underwear, kissing her on the mouth and inserting his tongue into her mouth, licking and sucking on her nipples, rubbing her vagina with his hand and licking her vagina.
7. [7]
   The third and fourth offences involved another complainant.  This offending included kissing the complainant on the mouth and inserting his tongue into her mouth, rubbing his penis between her legs while both of them were naked and licking her vagina while his penis was in her mouth.
8. [8]
   The respondent made full admissions to police in a recorded interview.
9. [9]
   The respondent was sentenced to eight years imprisonment on the first count, with lesser concurrent sentences on the other counts.

Previous offending

10. [10]
    On 21 August 2002, the respondent was sentenced in the District Court at Coffs Harbour to 11 offences of a sexual nature against two different children:  one being his son aged two at the time, and his stepdaughter aged between nine and 11 or 12.
11. [11]
    The most serious offences were counts 8 and 11 and the respondent was sentenced to five years imprisonment with a non-parole period of three years, with lesser concurrent terms of imprisonment for the remaining offences.

Psychiatric evidence for DPSO Act application

12. [12]
    Dr Evelyn Timmins, psychiatrist, prepared a report dated 31 May 2021 following an interview by video-link on 9 April 2021.
13. [13]
    Dr Timmins’ diagnosis of the respondent is as follows:

“In my opinion [the respondent] most likely meets the DSM-V criteria for paedophilia, attracted to females and males, non-exclusive.  He appears more interested in female children than males but his offending has included both males and females.

He has an Other Specified Paraphilic Disorder of Urophilia.

He also has evidence of problematic Personality traits with avoidant and dependent traits. … He has evidence of a Substance Use Disorder, alcohol and cannabis, in enforced remission in a controlled environment.”^[1]

14. [14]
    Dr Timmins also undertook a risk assessment of the respondent:

    1. (a)
       The Hare Psychopathy Checklist:  due to difficulties with the video-link, a PCL-R score was not undertaken.
    2. (b)
       Static-99R:  the respondent scored 4 which is regarded as above average or moderate to high risk of re-offending sexually.
    3. (c)
       RSVP:  the respondent received a positive score for a number of relevant items.  Dr Timmins concluded that the respondent would be considered as a moderate to high risk of re-offending if released into the community at that time.^[2]
15. [15]
    Dr Timmins in her report also notes that the respondent:

“… tended to minimise his offending and externalised blame to his victims, with ongoing beliefs that he was trying to please them.”^[3]

16. [16]
    In respect of the risk of future offending, Dr Timmins stated:

“With regards to future sexual offending, it may take some years before a situation manifests, but when it does occur [the respondent] may feel anxious about this contact but will tend ignore these internal warning signs.  He will come into contact with a potential victim, most likely a girl child who could be very young, often coming into contact through her family although not necessarily.  The victim may be an underaged male child, but is more likely a young female child that triggers his interest.

After contact occurs with the child [the respondent] will befriend them, spending time with them, babysitting and engaging them in activities so they feel comfortable.  At some point the activities will start to have a sexual flavour to them.  He may play with them in a sexual way or invite them to his bed.  He may visit their bedroom.  He may ask the child to urinate on him or play games where they are urinating together.  He is likely to engage in touching, kissing, cuddling and oral sex but may go on to penetrative offences.  He may offend against other young children around such as siblings or friends.

He will justify this to himself and look for signs, verbal and physical that she wants the attention from him.  His offending is likely driven by his sexual deviances, namely Paedophilia and Urophilia.

[The respondent] appears to plan his offending in that, although it may be opportunistic that a potential victim comes across his path, he is likely to stay around them for a significant period of time in order to groom and then sexually offend against them.  The potential physical and psychological harm to the victim is high.”^[4]

17. [17]
    Further, as to the overall risk and treatment needs, Dr Timmins expressed the following opinion:

“In summary, I am of the opinion that [the respondent] will be at a MODERATE TO HIGH risk of re-offending in a sexual manner if released into the community at this time without a supervision order.

If the court is of a mind to release [the respondent] he will require support from a forensic psychologist to treat his sexual offending and paraphilias.  He needs to understand how he can manage his paraphilic interests such that he decreases his risk of sexual re-offending against children in addition to boundary work and healthy sexuality with adults.  He could also benefit from emotional management techniques especially around his tendency towards avoidance. 

He would also benefit from group maintenance programs to re-visit and reinforce what he may have learnt from the custodial sexual offending programs.

He should have GPS monitoring and curfews.  He should engage in work and have suitable accommodation.  He should engage in appropriate activities and pro-social relationships, both male and female, which will require monitoring especially any intimate relationships or friendships as this is where he may come into contact with potential victims.  He should not have any access to children or parents of children.

He does not specifically need conditions around substance use monitoring or internet monitoring.

His risk may be modified by community supervision order under the Dangerous Prisoner (Sexual Offender) Act 2003.  He would most likely fall into a Low to Moderate risk category.”^[5]

Further psychiatric reports

18. [18]
    On 12 October 2021, Burns J ordered that pursuant to s 8(2)(a) of the DPSO Act, the respondent undergo examinations by Dr Elizabeth McVie and Dr Kenneth Arthur to prepare independent reports in accordance with s 11 of the DPSO Act.

Report of Dr Kenneth Arthur dated 22 November 2021

19. [19]
    Dr Arthur examined the respondent on 22 October 2021 and also on 12 November 2021 for the purposes of preparing his report.
20. [20]
    Dr Arthur undertook a risk assessment of the respondent and concluded as follows:

    1. (a)
       Static-99R:  the respondent scored 5 which places him in the above average risk group.^[6]
    2. (b)
       The Hare Psychopathy Checklist:  the respondent achieved a score of 7 out of 40 which does not indicate a diagnosis of psychopathic personality.^[7]
    3. (c)
       RSVP:  factors relevant to the future risk of sexual recidivism were identified.^[8]
21. [21]
    In respect of the respondent’s propensity to re-offend, Dr Arthur stated as follows:

“His Static-99R score places him in the ‘above average risk’ offender group, based mainly on the prolific and repetitive nature of his offending.  There are a number of current dynamic risk factors identified on the RSVP relating to the nature of sexual violence and psychological/social adjustment.  Whilst [the respondent] claims that he is now fully aware of the harm he has caused to his victims, has matured in jail and now accepts full responsibility and is motivated not to reoffend, he continues to display evidence of minimisation, externalisation of blame, persistence of attitudes that support adult/child sexual relationships and an apparent absence of remorse of guilt.”^[9]

22. [22]
    In respect of the pattern of offending, Dr Arthur commented:

“His offending has predominantly been against prepubertal female children who are known to him.  Whilst contact with these children may be initially opportunistic, he then engages in extensive grooming type behaviours with the use of psychological coercion.  Whilst he reported a salient emotional relationship with one of his victims, the majority have been superficial and based around his justifications of complying with the victim’s request for sexual pleasure.  Once started, his offending continues until the child rejects him or he is discovered.”^[10]

23. [23]
    Further, in respect to the respondent’s attempt to change, Dr Arthur stated:

“To his credit, [the respondent] has actively engaged in the MISOP and Maintenance Programs.  He described some attempt to address deviant sexual fantasies and now acknowledges the harm he has caused his victims.  He has used Christian morality and a desire not to cause harm to his family as further motivation not to reoffend.”^[11]

24. [24]
    In respect of the effects of treatment programs, Dr Arthur also stated:

“As a result of his engagement in treatment programs it appears that [the respondent] has developed a degree of intellectual insight into the drivers and consequences of his offending and now has the courage to speak openly about such matters.  He describes an acceptance of responsibility and an awareness of harm caused.  While this is beneficial, it is concerning that his current understanding of risk factors and his relapse prevention plan appears to have diluted since he completed these programs, suggesting the re-emergence of minimisation, externalisation of blame and justifications for such behaviour.”^[12]

25. [25]
    Overall, Dr Arthur is of the view that the respondent’s unmodified risk of sexual recidivism is moderately high or “above average”.
26. [26]
    Further, in respect of the respondent, Dr Arthur is of the following opinion:

“I believe that a supervision order will reduce his risk from moderately high to low, predominately via the mechanisms of reducing victim access, providing offence-specific psychological interventions and facilitating the development of a stable prosocial network of support.

[The respondent] requires individual psychological therapy to address his paedophilic drives, improve his level of insight and continued work on a relapse prevention plan that incorporates both internal and external management strategies.  He needs further assistance in the development of healthy adult relationships, a better understanding of sexual boundaries and a focus on addressing his avoidant/narcissistic coping strategies.

Revisiting the sexual offender maintenance program in the community would assist him to review and reinforce his understanding of risk factors and risk management strategies.

Minimising victim access will necessitate strict conditions around supervised and unsupervised contact with children under the age of 16, the provision of a curfew and carful curation of his associates.

Whilst there is no evidence that [the respondent] utilised child pornography, it would be reasonable to monitor his functioning online, particularly his access to pornography and social media.

I do not believe that specific conditions around his use of substance is indicated.

I believe that a supervision order in excess of 5 years is indicated to adequately manage his risk based on the nature of his paraphilia, his age, the chronicity and extent of his offending, his limited insight despite involvement in treatment programs and his pattern of avoidant coping.”^[13]

27. [27]
    By email dated 13 January 2022, Dr Arthur provided a further statement as to his opinion in respect of the recommended duration if a supervision order was imposed:

“… After further consideration, I would recommend a Supervision Order of 10 years duration to adequately manage his risk.

Factors suggesting a longer term risk of sexual recidivism include his relatively young age, a persistent paedophilic paraphilia and his history of repeat offending following incarceration.  I will anticipate that he will require a longer period of time on an Order to ensure he gains benefit from specific treatment for his paraphilia, develop small adaptive coping strategies and forms an enduring support network.”^[14]

Report of Dr Elizabeth Ness McVie dated 9 January 2022

28. [28]
    Dr McVie examined the respondent by video-link on 9 December 2021 for the purposes of preparing her report.
29. [29]
    Dr McVie undertook a risk assessment of the respondent as follows:

    1. (a)
       The Hare Psychopathy Checklist:  the respondent scored a 13 which is a relatively low score and well below that of an average offender.^[15] 
    2. (b)
       Static-99R:  the respondent scored a 4 putting him in a group with above average risk of sexual violence recidivism.^[16] 
    3. (c)
       Stable 2007:  the respondent appears to have significant treatment needs, particularly in the areas of emotional identification with children and deviant sexual interest, an area not dealt with in the MISOP program in custody.^[17]
    4. (d)
       RSVP:  the risk factors identified included his history of sexual violence with chronicity and diversity of offending and psychological coercion, grooming behaviour and breach of trust.  Further:

“Psychological adjustment risk factors included his minimisation of offending with some continued victim-blaming and his difficulty shifting from his belief system about childhood sexuality.  He has a diagnosis of sexual deviance, paedophilia and at least one other paraphilia, urolagnia.  He has some difficulties with social adjustment and manageability with previous failed treatment, and breaches of ANCOR reporting and bail.”^[18]

30. [30]
    Dr McVie noted that the respondent did not complete the Sexual Offender Treatment Program in New South Wales and he found it “too confronting”.  However he has completed the GS:PP, the MISOP and the SOMP sexual offender programs in Queensland prisons, though exit reports express some concerns and recommend ongoing treatment with a psychologist or psychiatrist experienced in sexual offending.^[19]
31. [31]
    Further, Dr McVie stated:

“[The respondent] does not have a mental illness or any significant medical problems.  His personality structure present with narcissistic and introspective or possibly schizotypal traits.

[The respondent] meets the criteria for a DSM 5 diagnosis of paedophilia, non-exclusive, sexually attracted to females.  He also has an additional paraphilia, urolagnia.

Risk assessment indicates he remains at moderate to high risk of offending.  This is likely to be a longer term risk, based both on his history of re-offending and his ongoing belief system.”^[20]

32. [32]
    In respect of the risk of further offending, Dr McVie stated:

“A possible scenario for re-offending would be if he was taken in by a family with young female children and he was able to develop a trusting relationship with the family and the children, then, through play, groom the children to engage in sexual activity with him.”^[21]

33. [33]
    Dr McVie concluded as follows:

“If released without a supervision order, [the respondent] would present a moderate to high risk of sexual re-offending.

A supervision order could decrease this risk to low, though it would need to be in place for at least ten years considering his history of offending, failing to significantly alter his belief system through three completed programs in Queensland prisons, and the fact he was offence free for nearly six years in the community following his release from prison in NSW.

While he has made plans to return to his family property in NSW and to look for work again, there is no evidence to support this plan as being protective for him.

If [the respondent] is released on a supervision order, he would need to engage with a treating psychologist for more intense work on his sexual deviance and his underlying cognitive distortions challenging his underlying belief system.

He may benefit from involvement in a program to address substance use.  He has not completed such a program in custody.

He would require conditions or directions to restrict his access to children.”^[22]

Additional report from Dr Timmins

34. [34]
    For the purposes of this hearing, Dr Timmins was asked for a further opinion in relation to the duration of any supervision order. 
35. [35]
    Dr Timmins provided her view in an email dated 15 January 2022 as follows:

“I would recommend the duration of a Supervision Order be 10 years given that [the respondent] has:

• had a long history of sexual behaviour towards young children from the mid-1980’s;
• is a sexual recidivist with two sexual deviances (Paedophilia and Urophilia) driving much of his behaviour and has re-offended despite SOP and treatment in NSW;
• is still relatively young (50 years old);
• has a long period where his behaviour was undetected in the community (i.e. five to six years); and,
• his insight is not fully developed in that he still thinks he has ‘helped’ his victims and is likely to ignore any internal warning signs that he is in a risky situation with a family and/or child.

[The respondent] will need a longer period of monitoring and treatment in order for him to learn how to manage his behaviour such that he can decrease his risk to the community independent of a Supervision Order.”^[23]

Applicant’s position

36. [36]
    Whilst the applicant maintains the application in the alternative, the applicant accepts the evidence supports the making of the supervision order of 10 years duration with appropriate conditions. 
37. [37]
    Further, the applicant acknowledges that the opinions provided by the psychiatrists all conclude that the risk that the respondent poses, namely an offence of a sexual nature against a child, can be adequately managed by a supervision order of 10 years duration with appropriate conditions.
38. [38]
    A draft supervision order has been provided and is set out at Annexure A.

Respondent’s position

39. [39]
    The respondent, in the submissions filed on his behalf, accepts that he is a serious danger to the community in the absence of an order under Division 3 of the DPSO Act.
40. [40]
    The respondent relies on the opinions of Dr Arthur and Dr McVie that the respondent’s release to supervision will reduce the risk of future serious offending to an acceptable level.
41. [41]
    Accordingly, the respondent submits that he should be released into the community under a Division 3 supervision order for a period not exceeding 10 years.
42. [42]
    The respondent has seen the draft supervision order and the proposed terms are not in contention. 

Issues

43. [43]
    The issues for determination in respect of the application are as follows:

    1. (a)
       Whether the Court is satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order; and
    2. (b)
       If the Court is satisfied in respect of (a), considering the matters set out in s 13(6) of the DPSO Act, whether it is appropriate to order that:

       1. The respondent be detained in custody for an indefinite term for control, care or treatment; or
       2. The respondent be released from custody subject to the requirements considered appropriate.

Serious danger to the community

44. [44]
    Dealing with the first issue, it is necessary to make a determination whether or not the respondent is a serious danger to the community in the absence of a Division 3 order.
45. [45]
    Section 13(2) of the DPSO Act provides:

“(2)  A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—

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

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

46. [46]
    Further, pursuant to s 13(3) of the DPSO Act, there is a mandated level of satisfaction required, namely:

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

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

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

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

47. [47]
    Section 13(4) of the DPSO Act outlines the information that the Court must have regard to in deciding whether a prisoner is a serious danger to the community. This includes any reports prepared by the psychiatrists under s 11 and any other medical, psychiatric, psychological, or other assessment relating to the prisoner, the prisoner’s antecedents and criminal history.  It also includes having regard to the risk that the prisoner will commit another serious sexual offence if released into the community, the need to protect members of the community from that risk and any other relevant matter.
48. [48]
    ‘Serious sexual offence’ is defined in the Schedule to the DPSO Act as follows:

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

1. (a)
   involving violence; or

2. (b)
   against a child; or

3. (c)
   against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”

49. [49]
    Section 13(7) of the DPSO Act provides as follows:

“(7)  The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”

50. [50]
    Based on the psychiatric and other evidence, which I accept, I am satisfied that there is acceptable cogent evidence which satisfies me to the high degree of probability required pursuant to s 13 of the DPSO Act that the respondent is a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act.

Which order, if any, should be made?

51. [51]
    The subsequent issue to be determined is whether it would be appropriate to order a continuing detention order or, alternatively, a supervision order in respect of the respondent.  Section 13(5) of the DPSO Act states:

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

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

2. (b)
   that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).”

52. [52]
    In determining what form of order should be made under s 13(5), it is necessary to consider the objects of the DPSO Act as set out in s 3 and also, the considerations outlined in s 13(6).
53. [53]
    Section 3 of the DPSO Act provides:

“The objects of this Act are—

(a)  to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and

(b)  to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

54. [54]
    Section 13(6) of the DPSO Act provides:

“In deciding whether to make an order under subsection (5)(a) or (b)—

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

2. (b)
   the court must consider whether—

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

2. (ii)
   requirements under section 16 can be reasonably and practicably managed by corrective services officers.”

55. [55]
    Section 16 of the DPSO Act provides:

“(1)  If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner—

1. (a)
   report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and

2. (b)
   report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and

3. (c)
   notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and

4. (d)
   be under the supervision of a corrective services officer; and

(da) comply with a curfew direction or monitoring direction; and

(daa)  comply with any reasonable direction under section 16B given to the prisoner; and

(db)  comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and

…

5. (e)
   not leave or stay out of Queensland without the permission of a corrective services officer; and

6. (f)
   not commit an offence of a sexual nature during the period of the order.

3. (2)
   The order may contain any other requirement the court or a relevant appeal court considers appropriate—

1. (a)
   to ensure adequate protection of the community; or

…

2. (b)
   for the prisoner’s rehabilitation or care or treatment.”

56. [56]
    The Court of Appeal in Attorney-General v Francis [2007] 1 Qd R 396 at [39] stated:

“Insofar as his Honour was concerned that, if the appellant began to use alcohol or drugs, he might abscond, the risk of a prisoner absconding is involved in every order under s 13(5)(b). The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. 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 Act 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 authorised such constraint.”

57. [57]
    Also, relevantly, McMurdo J in Attorney-General for the State of Queensland v S [2015] QSC 157 at [38] said:

“Other judgments of the Court of Appeal have expressed the present question somewhat differently. In Attorney-General (Qld) v Lawrence, Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof:

‘[I]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.’

Similarly, in Yeo v Attorney-General (Qld), Margaret McMurdo P (with whom White JA agreed) said:

“[73]  Under s 13(6), the paramount consideration in determining whether to order a continuing detention order or a supervision order is the need to ensure adequate protection of the community. This requires the judge to make a value judgment based on the evidence. It is impossible to eliminate all risk of criminal offending, including offending against children, from a community. A judge must determine what is adequate protection of the community in all the circumstances (Attorney-General v Sutherland [2006] QSC 268, [28]-[30]; Attorney-General v DGK [2011] QSC 73, [28]). The respondent has not persuaded me that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers. It follows that I must release the appellant on an appropriate supervision order.” (footnotes omitted)

58. [58]
    Further, in Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36], Morrison JA, with whom Philippides JA and Douglas J agreed, stated:

“… The means of providing the protection, and avoiding that risk, is a supervision order. When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection.”

59. [59]
    Consistent with the statutory scheme and the case law, the relevant question is whether the protection of the community can be adequately ensured.  An order for supervised release should, in principle, be preferred to a continuing detention order if the supervision is apt to ensure adequate protection.
60. [60]
    The risk being protected against is the risk of the respondent, if released, committing a serious sexual offence and that risk must be of an unacceptable magnitude.  The legislative scheme must accept that some level of risk is acceptable, consistent with the concept of adequate protection of the community.
61. [61]
    The assessment of that risk and what terms of order would provide for adequate protection of the community is not a matter for expert, particularly psychiatric, opinion.  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 judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”

62. [62]
    The applicant has the onus of demonstrating that a supervision order does not afford adequate protection of the community.  If, on all the evidence, a supervision order would be likely to reduce the opportunity for the respondent to engage in serious sexual offending to an “acceptably low level” then the supervision order should be made: Attorney-General for the State of Queensland v Beattie [2007] QCA 96 at [19]. This is subject to there being some evidence that the respondent would be likely to comply with it: Attorney-General for the State of Queensland v Fardon [2011] QCA 155 at [23]-[30].
63. [63]
    In making the “value judgement” required, I have considered the views expressed by Dr Timmins, Dr Arthur and Dr McVie, and the evidence filed in support of the application.  I find that the adequate protection of the community can be reasonably and practically managed by the terms of the proposed supervision order. 

64. [64]
    Further, I find that the requirements under s 16 of the DPSO Act can be reasonably and practicably managed by Corrective Services officers.  This is supported by the matters outlined in the affidavit of Ms Monson.
65. [65]
    I am unable to mandate or make directions in respect of management by Queensland Corrective Services.  However, in the circumstances, I encourage the provision of the relevant risk assessment reports prepared by the psychiatrists and these reasons to the persons appointed to supervise, support and manage the respondent to assist them in understanding the importance of the conditions in the management of the respondent.
66. [66]
    The duration of the supervision order for a 10 year period is appropriate to manage the respondent in the community.

Conclusion

67. [67]
    In summary, I have made the following findings:

1. I am satisfied by acceptable, cogent evidence and to the high degree of probability required by the DPSO Act that the respondent is a serious danger to the community in the absence of a Division 3 order.  Accordingly, the applicant has established, to the high degree of probability required, that if released without a Division 3 order the respondent presents an unacceptable risk of committing a ‘serious sexual offence’ as defined by the DPSO Act.
2. Adequate protection of the community can be reasonably and practically managed by the terms of the proposed supervision order. 
3. The requirements under section 16 of the DPSO Act can be reasonably and practicably managed by corrective services officers.

68. [68]
    Therefore, I order that the respondent be released from custody on 10 March 2022 subject to a supervision order containing the conditions appearing in Annexure A to these reasons.

Annexure A

SUPREME COURT OF QUEENSLAND

REGISTRY: Brisbane

NUMBER: BS 11433/21

AND

SUPERVISION ORDER

Before:Williams J

Date:2022

Initiating document: Originating Application filed 30 September 2021 (CFI no. 1)

THE COURT is satisfied that Paul David Fraser, 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 Paul David Fraser be released from prison and must follow the rules in this supervision order for 10 years, until 10 March 2032.

TO Paul David Fraser:

1. You are being released from prison but only if you 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 for the next 10 years.

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; and
   4. who you may 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 week day (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.

Where you must live

10. 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.
11. 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.

12. 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

13. 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

14. 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

15. You must get written permission from a Corrective Services officer before you are allowed to start a job, start studying or start volunteer work.
16. 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.
17. If a Corrective Services officer tells you to stop working or studying you must obey what they tell you.

Motor vehicles

18. 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

19. You are only allowed to own or have (even if you do 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.
20. 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

21. 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.
22. 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.
23. 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

24. You must not contact or try to contact any victim(s) 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

25. You are not allowed to exceed the general alcohol limit of 50mg of alcohol in 100ml of blood or 0.050g of alcohol in 210L of breath, without the prior written permission of a Corrective Services officer.
26. 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.
27. 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.
28. You are not allowed to go to pubs, clubs, hotels or nightclubs 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

29. 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.
30. 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

31. You must obey any direction a Corrective Services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.
32. You must obey any direction a Corrective Services officer gives you about participating in any treatment or rehabilitation program.
33. 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.
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 in writing).
36. You must also tell a Corrective Services officer the name of new persons you have met.

This includes: people who you spend time 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. be within 100 metres of 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 caravan park;
5. go to a shopping centre;
6. join any club or organisation in which children are involved;
7. 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.

Other 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 are not to get child exploitation material or images of children on a computer or phone from the internet.
45. You cannot get or look at pornographic material of any type without written approval from a Corrective Services officer.  Your treating psychologist may provide advice regarding this approval.

This includes pictures on a computer, photographs, movies, or magazines.

46. You must obtain the prior written approval of a Corrective Services officer before possessing any equipment that enables you to take photographs or record moving images.

“Equipment” means any type of devices, including things like mobile phones, digital or video cameras, computers, laptops, tablets, surveillance cameras including dashboard cameras and drones.

47. You must advise a Corrective Services officer of any personal relationships you have started.