Attorney-General v Dunrobin[2023] QSC 103

SUPREME COURT OF QUEENSLAND

1. [1]
   The Attorney-General for the State of Queensland, the applicant, has applied under Part 3 of the Dangerous Offenders (Sexual Offenders) Act 2003 (the “DPSOA”) for a review of a continuing detention order for the respondent, Shannon Robert Dunrobin. This is the third annual review of the respondent’s continuing detention order. The applicant contends that the order under Part 2 Division 3 should be affirmed and the continuing detention orders should continue.
2. [2]
   The respondent concedes that it would be open to the Court to find on the evidence before it, that in the absence of a Part 2 Division 3 order, the respondent would present an unacceptable risk of committing a relevant offence if released into the community. For the following reasons, I am satisfied that the evidence supports the finding that the respondent is a serious danger to the community in the absence of a Part 2 Division 3 order. I accept that the respondent’s unmodified risk of serious sexual offending remains in the ‘high’ or ‘well above average’ range for the reasons set out below.
3. [3]
   The real issue in the present application is whether the respondent should continue to be made the subject of a continuing detention order or whether he can be released under a supervision order. The applicant contends that the evidence favours the continuation of the continuing detention order. The respondent contends that the Court should adopt the latter, and that the Attorney-General has not established that a continuing detention order is required to ensure the adequate protection of the community.

Relevant background

4. [4]
   The respondent is presently 43 years of age. He has been in continuous custody since 2014 and subject to a continuing detention order under the DPSOA since 25 February 2019. He had an unstable childhood which exposed him to sexual abuse.
5. [5]
   The respondent was declared to be a ‘serious danger to the community’ on 25 February 2019 by Jackson J and was ordered to remain in custody for an indefinite term under a continuing detention order for control, care and treatment.^[1]
6. [6]
   The history of the respondent’s offending of a sexual nature against juveniles relevant to the present application and for which he was convicted, and the nature of the offences as well as his history of other offending, were relevantly set out by Jackson J and I will not repeat them here.^[2]
7. [7]
   His last sexual offending against juvenile boys occurred in 2008 and 2009 and involved indecent treatment against two boys then aged fourteen years, for which he was convicted in 2011, and one count of rape against a boy aged 17 for which he was convicted after a retrial in 2014. His earlier offending, for which he was convicted in 2001, relevantly included two counts of indecent treatment, two counts of unlawful sodomy, one count of sodomy of a person under 18, and three counts of indecent treatment of a child under 16. The offending related to offences committed against four young boys between 9 and 12 years of age.
8. [8]
   The psychiatric evidence, particularly the recent report of Dr Arthur, outlines the respondent’s personal circumstances including his prejudicial upbringing.
9. [9]
   The respondent’s continuing detention order was reviewed by Ryan J on 7 December 2020. Her Honour affirmed the declaration that the respondent is a ‘serious danger to the community’ and ordered that he remain in custody for an indefinite term under a continuing detention order for control, care and treatment,^[3] with her Honour’s findings including:^[4]

“That evidence has been discussed above. It establishes that the respondent’s unmodified risk of committing serious sexual offences upon his release remains high. He still has poor insight and has not undertaken a group sexual offenders’ treatment program – although I note the progress he has made with Dr Madsen. His longitudinal criminal history reveals the risk that he would re-offend in a sexual way upon release even though he has spent a long time in custody. The evidence persuasively establishes that he could not safely be released at this point in time. He remains a serious danger to the community in the absence of a Division 3 order.”

10. [10]
    The respondent had had some one-on-one treatment with Dr Madsen in 2019 and 2020. Dr Madsen considered it was important for the respondent to return to the mainstream prison and undertake the High Intensity Sex Offender Program (“HISOP”). Ryan J noted that while the respondent had made some positive progress with Dr Madsen, the psychiatric evidence did not consider that he showed the internal changes required to reduce risk to an acceptable level. Her Honour found his participation in group programs was essential.^[5]
11. [11]
    The respondent’s second annual review came before Bradley J on 18 March 2022. His Honour also affirmed the declaration that the respondent is a ‘serious danger to the community’ and ordered that he remain in custody for an indefinite term under a continuing detention order for control, care and treatment.^[6] Bradley J accepted that the respondent’s earlier periods of imprisonment for sexual offending in 1999 had not deterred him from further sexual offending in 2008 and 2009, and that it was likely his most recent period of imprisonment and continued detention to the date of the hearing would not, of itself, have been sufficient to deter him from committing further sexual offences against boys if he were to be released from detention without a Part 2 Division 3 order.^[7]
12. [12]
    Relevantly, his Honour found that the evidence of Dr Timmins and Dr Aboud was acceptable, cogent evidence of sufficient weight to satisfy him to a high degree of the probability that there was an unacceptable risk of the respondent committing a relevant offence if released into the community in the absence of an order under Part 2 Division 3 of the DPSOA. His Honour also found that it was not possible to formulate the terms of a supervision order to mitigate the moderate to high risk of the respondent committing further sexual offences. Relevantly his Honour stated that:^[8]

“The Court’s decision about the adequate protection of the community involves, firstly, a consideration of the level of risk of Mr Dunrobin committing a further offence of the kind covered by the Act. I am assisted by the evidence of each of the two psychiatrists that the risk, even with speculated conditions of a supervision order, would remain in the moderate or moderate to high range. The other important factor in this consideration is the nature of what would occur if that risk were to be realised. I think there is an increasing understanding within the community of the extraordinary, ill effects upon members of our community when they are subjected to sexual offences while they are at a young age. In my view, if Mr Dunrobin were released on a supervision order, with a moderate risk of committing such offences, that risk would not be an acceptable risk to the community, considering the likely consequences of realising that risk. I concluded that the adequate protection of the community cannot be reasonably and practically managed by the release of Mr Dunrobin on a supervision order at this time.” (footnotes omitted)

13. [13]
    His Honour accepted the evidence of the psychiatrists that the high risk could not be appropriately mitigated by the imposition of conditions in the absence of a better understanding of the conditions that would be necessary to mitigate the risk, without the information that would be identified about that risk which required the respondent to participate in the HISOP.^[9]
14. [14]
    Both Ryan and Bradley JJ discussed the impediments to the treatment of the respondent due to his placement in a maximum-security unit. The respondent stated that for the purposes of the application being considered by this Court, the apparent inability to manage the respondent through the Getting Started: Preparatory Program for Sexual Offending and into the HISOP during the completion of his sentence or shortly thereafter is not a relevant consideration. I have not therefore addressed that matter further.
15. [15]
    Since the review before Bradley J, the Respondent:

    1. (a)
       commenced and completed the Getting Started: Preparatory Program for Sexual Offending (“GS:PP”);
    2. (b)
       commenced and completed a Stable 2007 Assessment. The Stable 2007 Assessment indicated that the respondent has high treatment needs;^[10] and
    3. (c)
       on 6 February 2023 commenced the HISOP which is due to be completed in February 2024. The HISOP is a high intensity program involving three sessions each week, leading to 351 hours of treatment.
16. [16]
    The respondent was assessed by Dr Aboud and Dr Arthur for the purposes of the third annual review. Oral evidence was given by both of them at the hearing. Their diagnosis of the respondent doesn’t deviate significantly from previous psychiatric diagnoses, Dr Aboud having assessed the respondent previously. According to Dr Aboud,^[11] the respondent suffers from:

    1. (a)
       Paedophilia (no exclusive type, but with a clear attraction for boys);
    2. (b)
       Mixed Personality Disorder (with borderline, antisocial and narcissistic traits); and
    3. (c)
       Cannabis Dependence (currently in enforced abstinence).
17. [17]
    Dr Arthur^[12] broadly agrees with the diagnosis of Dr Aboud, although his opinion is expressed in slightly different terms. Dr Arthur considers that the respondent suffers from:

    1. (a)
       Paedophilic Paraphilic Disorder (non-exclusive, attracted predominantly to males);
    2. (b)
       Mixed Cluster B Personality Disorder (prominent narcissistic, antisocial and some borderline traits); and
    3. (c)
       Cannabis Misuse Disorder (historical).
18. [18]
    Neither diagnose the respondent as being a psychopath although both found he has not insignificant psychopathic traits, which adds to his complex diagnoses.
19. [19]
    In his report Dr Aboud opined based on his use of risk assessment tools and review of the respondent and other circumstances to which he had regard that:^[13]

“Taking into consideration the various instruments used to assess risk, it is my opinion that Mr Dunrobin’s overall unmodified risk of sexual offending would currently be regarded as high. His risk of non-sexual violence would be moderate, while his risk of general offending would be high. I take into account: his antisocial and impulsive personality structure; his worrying psychopathic traits; his vulnerability to poor adaptive coping (whereby he uses substances, avoidance, isolation and sexual preoccupation); his sexual deviance; his intimacy deficits and emotional congruence with boys; his deceptive and manipulative self presentation, that has allowed him to win the confidence of others, including potentially professionals. One is also aware that he has breached criminal justice orders in the past, and he sexually offended when subject to a criminal justice order. He has demonstrated a tendency toward minimisation and denial, lack self awareness, and a rather manipulative and deceptive interpersonal style. His current future plans are not well considered. I remain of the view that successful completion, in custody, of the High Intensity Sexual Offender Program (HISOP) and the Pathways (Substance Misuse) Program would reduce his risk of sexual reoffending from high to moderate-high. It is my opinion that, if released to the community, he would require careful support, supervision and monitoring. In the context of a formal requirement for such community supervision, by way of a supervision order, I would consider his risk of sexual reoffending to be further reduced to below moderate.”

20. [20]
    In his report, Dr Arthur opined based on his use of risk assessment tools and review of the respondent and other circumstances to which he had regard that:^[14]

“Based on the available information, I estimate his unmodified risk of sexual recidivism to be high or “well above average”. Critical risk factors include the presence of a Paedophilic Paraphilic Disorder comorbid with significant personality pathology and elevated Psychopathy. There is evidence of ongoing sexual preoccupation, the use of sex as coping and a history of predatory sexual behaviour.”

21. [21]
    Dr Arthur considered the respondent’s propensity to reoffend, patterns of offending, attempts to change and effect of treatment programs as follows:^[15]

22. [22]
    Evidence was provided by Mr Bruce Tannock the acting manager of the High-Risk Offender Management Unit. He had reviewed the reports of Dr Aboud and Dr Arthur. Mr Tannock considered that given the identified risks of the respondent, a supervision order cannot currently be reasonably and practicably formulated and/or applied to risks posed by the respondent due to his not completing the HISOP, his requirement for controlled management within the prison setting due to his history of behaviour^[16] and diagnostic criteria. Mr Tannock considered that an order may be able to be devised following the respondent’s engagement in the HISOP, depending on his engagement and treatment gains in the program, psychiatric assessment, and custodial behaviour.

An unacceptable risk?

23. [23]
    The Court may only affirm the decision of Jackson J, that the respondent is a serious danger to the community in the absence of a Part 2 Division 3 order, if satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to do so.
24. [24]
    As to the question of whether the respondent continues to pose an unacceptable risk^[17] of committing a relevant offence if he were released into the community or released absent a Part 2 Division 3 order under the Act, the most recent psychiatric evidence based on opinions of Dr Aboud, who previously reviewed the respondent in relation to earlier applications, and Dr Arthur is that he continues to pose a high risk of sexual reoffending against children, particularly young and adolescent boys, if released into the community without such an order.^[18] Both opinions were informed by risk assessment tools or instruments as well as their assessment of the respondent.
25. [25]
    While the respondent concedes that the evidence would support the making of a Part 2 Division 3 order, the respondent challenged Dr Aboud and Dr Arthur’s opinions as to the level of risk posed by the respondent and to the material reduction of that risk if subjected to a supervision order. Having reviewed the reports of Dr Aboud and Dr Arthur and listened to their oral evidence, I do not consider that the matters upon which the respondent’s counsel sought to diminish the opinions of Dr Aboud and Dr Arthur were well founded. Both have considerable experience as forensic psychiatrists and treating sexual offenders and had provided thorough, balanced, and well-considered opinions. They were both candid in cross-examination and made concessions as appropriate.
26. [26]
    The respondent sought to challenge Dr Aboud and Dr Arthur’s opinions based on their view that the undertaking of the HISOP would relevantly reduce the respondent’s risk, particularly because they had not used any empirical data providing a percentage decrease in risk from such programs. The respondent submitted that would lead the Court not to accept the initial assessment of risk or alternatively the need to undertake the HISOP in order to reduce the respondent’s risk to an acceptable level to ensure the adequate protection of the community. In particular, the respondent’s counsel sought to cross-examine Dr Aboud and Dr Arthur as to empirical data which supported the fact that undertaking the HISOP was likely to reduce the respondent’s risk. In the respondent’s submission, the estimated percentage change at least given by Dr Arthur did not correlate with the reduction of risk that the psychiatrists considered could result from the undertaking of the program at least in the case of Dr Aboud to a moderate or low to moderate level. In the respondent’s submission that brought into question Dr Aboud and Dr Arthur’s assessments of the respondent’s risks.
27. [27]
    The challenge to their assessment of the respondent’s unmodified risk at present is ill founded.
28. [28]
    The assessment of risk by Dr Arthur and Dr Aboud was based on their assessment of the respondent. Both had the benefit of seeing the respondent and made similar diagnoses of his psychiatric conditions. Their assessment of the respondent’s risk of sexual reoffending took into account the results of a number of different instruments, including those which involve actuarial risk assessment in their evaluation of risk, others involve the application of professional judgement using both static and dynamic variables, as well as their review of the respondent himself.
29. [29]
    Dr Aboud has undertaken specialised training and has experience in the clinical assessment, risk assessment and management of sexual and violent offenders and worked in the area of forensic mental health since 2002. In Dr Aboud’s case, he has had the benefit of having observed the respondent over time, having interviewed and assessed the respondent in 2019, 2020 and 2021.
30. [30]
    Dr Arthur has worked as Visiting Psychiatrist to the High Secure Unit of The Park Centre for Mental Health and for the Prison Mental Health Service. He treats sex offenders referred by the High-Risk Offender Management Unit as part of his current clinical practice. He had not assessed the respondent before and spent some four hours assessing him as well as reviewing the documentation provided to him, and as part of his report provided an extensive document review.
31. [31]
    Their opinion is consistent with the evidence of other psychiatrists who have assessed the respondent for the purposes of the DPSOA^[19], however take into account the respondent’s participation in GS:PP and the Stable 2007 Assessment. While both Dr Aboud and Dr Arthur regarded the undertaking of the GS:PP and commencement of the HISOP by the respondent as a positive step, neither consider that has resulted in a reduction of the respondent’s unmodified risk. It is the engagement in the HISOP which both considered necessary to address his high risk of sexual reoffending relevant to the DPSOA. They consider any reduction of risk from undertaking the HISOP will only arise from its successful completion. I do not consider the cross-examination of Dr Aboud and Dr Arthur undermined the veracity of their opinions.
32. [32]
    The characterisation of the respondent’s risk is in terms of relevant reoffending under the DPSOA,^[20] if it materialised, is the sexual assault, or rape, of pre- or post-pubescent boys (approximately 7 to 15 years of age)^[21] which may, according to Dr Aboud, involve grooming or the use of substances to incapacitate the victim, inducements or verbal threats holds significant consequences for the victims at least in terms of psychological damage.^[22]
33. [33]
    Having considered the reports of Dr Aboud and Dr Arthur and their opinions as to the respondents’ risk, which are consistent with previous psychiatric opinions, and the respondent’s relevant longitudinal criminal history, I accept their evidence as to the respondent’s unmodified risk of sexual reoffending. I am in the circumstances and having regard to the considerations in s 13(4) of the DPSOA satisfied that there is acceptable and cogent evidence of sufficient weight to satisfy me to a high degree of probability that the respondent remains a serious danger to the community as he poses an unacceptable risk of committing a serious sexual offence if released or if released into the community without a Part 2 Division 3 order. The decision of Jackson J is therefore affirmed. That view is reinforced by the consequences to the potential victims of a vulnerable age if the risks of reoffending materialised.

Supervision order or continuing detention order?

34. [34]
    Having affirmed that the decision of Jackson J that the respondent is a serious danger to the community in the absence of a Part 2 Division 3 Order, the Court’s discretion in s 30(3) of the DPSOA is enlivened and I must consider whether the respondent is to be subject to a continuing detention order or be released from custody subject to a supervision order.
35. [35]
    In determining whether the respondent can be released on a supervision order or whether his care, control and treatment requires him to remain subject to a continuing detention order, the paramount consideration for the Court is the need to ensure the adequate protection of the community.^[23] As was emphasised by the Court of Appeal in the decision of Attorney-General v Francis,^[24] the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorises the constraint. It is for the applicant to establish that the adequate protection of the community can only be ensured by a continuing detention order.^[25] If adequate protection of the community can be reasonably and practicably managed by a supervision order, that is the order which should be made.^[26] In determining the appropriate order, the Court must have regard to the factors outlined in s 13(6)(b) of the DPSOA.
36. [36]
    As set out above, both Dr Aboud and Dr Arthur are of the opinion that the respondent needs to complete the HISOP before he can be in a position where he may be able to be released into the community under a supervision order. In particular, Dr Aboud expressed the view that:^[27]

“I remain of the view that successful completion, in custody, of the High Intensity Sexual Offender Program (HISOP) and the Pathways (Substance Misuse) Program would reduce his risk of sexual reoffending from high to moderate-high. It is my opinion that, if released to the community, he would require careful support, supervision and monitoring. In the context of a formal requirement for such community supervision, by way of a supervision order, I would consider his risk of sexual reoffending to be further reduced to below moderate.”

37. [37]
    Dr Arthur expressed the view that:^[28]

“Prior assessors and treating clinicians have unanimously recommended that he complete the High Intensity Sex Offender Treatment Program prior to his release from custody under a supervision order. His performance in the program will provide valuable insight into his motivation and capacity for change, highlight areas of ongoing risk and assist QCS to formulate a tailored risk management strategy. At this stage I think it is premature to make any specific recommendations.”

38. [38]
    Their view is consistent with that previously expressed by the psychiatrists in the last review, with Bradley J stating that:^[29]

“The opinions expressed by each of the consultant psychiatrists as to that question are that the high risk of Mr Dunrobin committing relevant offences cannot be appropriately mitigated by the imposition of conditions in the absence of better understanding of the conditions that would be necessary to mitigate that risk. This is primarily because Mr Dunrobin has not completed a High Intensity Sexual Offending Program (HISOP). According to the psychiatrists opinions the undertaking of that course is of importance to fully understanding the risks of his reoffending and how they can be managed. Dr Aboud and Dr Arthur in his report has raised the possibility of the respondent using anti-libidinal drugs as a further way of reducing his risk of reoffending, but it is not a course presently proposed.”

39. [39]
    The respondent contends that the Attorney-General has not provided acceptable, cogent evidence to the requisite standard to discharge her onus to satisfy the Court that the adequate protection of the community can only be assured by a continuing detention order. It was contended on behalf of the respondent that it would be open to the Court to not accept that evidence. The respondent further contended that it would be open to make a supervision order given that the length of time that the time that has passed since his last offending in a serious sexual manner is some 14 years, his completion of the GS:PP demonstrates a level of co-operation with the relevant authorities, and the strict conditions able to be included in a supervision order which could be reasonably and adequately managed and ensure adequate protection of the community.
40. [40]
    As set out above, I do accept the evidence of Dr Arthur and Dr Aboud.
41. [41]
    As to the matters raised by the respondent about acceptance of the psychiatrist’s opinions because of the failure to address in a statistical way the expected reduction in risk if the HISOP is undertaken, the opinions provided as to the assessment of risk include consideration of a number of matters but involve the exercise of professional judgment based on experience. Both Dr Aboud and Dr Arthur were well familiar with the HISOP and were aware of empirical evidence which speaks of the reduction of risk for people who complete the HISOP as opposed to those who do not.
42. [42]
    Dr Aboud was not aware of a percentage figure estimating the level of reduction but stated he was willing to research it. He said there would be no data suggesting that someone who started the program but did not complete it was a marker of a reduction of risk, and while he could not speak of a percentage reduction of risk for someone undertaking a completed program, he stated that his understanding of the empirical evidence was that the completion of a sex offender treatment program does serve to reduce risk in the broad group of people that engage in it. He considered the reduction in risk would be at the most a moderate risk reduction or could be low to moderate. He stated that in the case of someone who is high risk, getting them to undertake the HISOP gave them the best possible support to manage the risk in the future. He stated that if the respondent did not undertake the HISOP and was released under a supervision order, his overall risk would be moderate to just above and the reduction in risk would occur because of the external structure of supervision and monitoring. However, he stated as time went on the failure to engage in the HISOP, which is the right intensity for his needs, would become more problematic because the restrictive management that would be afforded through the supervision order would fall away. Without undertaking the program his risk could never fall below moderate or even above moderate.
43. [43]
    Both Dr Arthur and Dr Aboud identified that the HISOP was appropriate for someone with high intensity needs which they consider Mr Dunrobin has. According to Dr Arthur:

“…think it’s fair to say that Mr Dunrobin has unmet treatment needs.

Yes?--- His – his Static-99R score and his STABLE-2007 score would indicate that he has high treatment needs ---

Yes?--- - - - and that’s why he’s been referred to the HISOP.  The HISOP addresses pathway to offending.  It - - -

Yes?--- - - - addresses an offender’s – or helps an offender to understand their offending in the context of their history.  It helps them to develop an understanding of their risk and to formulate a personal risk management strategy, and they’re all very important things for somebody before they leave jail.  The – the HISOP is only available in jail.”

44. [44]
    While Dr Arthur considers it is necessary for the respondent to engage in the HISOP in order to understand and manage his risks, Dr Arthur is circumspect about the reduction in risk that will result because the respondent was resistant to group programs until he was placed on a continuing detention order, which may affect his level of engagement, and given Mr Dunrobin’s elevated psychopathy ratings which can result in people not doing well in group programs.
45. [45]
    Both Dr Aboud and Dr Arthur identified the HISOP as being necessary for the respondent to undertake while in custody. This is because the respondent has significantly high needs with respect to his sexual offending risk and because the HISOP is an intensive program only available in custody. How successful that will be will depend on the level of the respondent’s engagement and response to the program, but both presently consider it will reduce his risks particularly when released into the community. Dr Aboud stated: “I think for an individual who presents with high risk that we should be really trying to provide them with the best possible support to manage that risk into the future given the implications for them if … they are not successful in doing so.”  Dr Aboud holds a more optimistic view of the effect of undertaking the HISOP in reducing the respondent’s unmodified risk of reoffending than Dr Arthur. However, Dr Aboud’s considering it will reduce his relevant risk to moderate to below moderate is based on the respondent being able to successfully complete the program and his professional opinion. It is not an absolute and does not call into question his initial assessment or risk. In that respect Dr Arthur was more circumspect about the level of reduction in risk that may occur but not as to the need of the respondent to engage in the program.
46. [46]
    While it was evident that neither Dr Aboud or Dr Arthur referred to statistical or empirical data specifically in their assessment of the utility of the HISOP in the reduction of risk, it was evident that both were aware that there were studies and that such studies supported the fact that proper engagement in HISOP would serve to reduce risk. Their opinions in terms of the reduction of risk was an evaluative opinion based on informed professional opinion based on the assessment of the respondent and the level and nature of his risks of sexual reoffending rather than being based a statistical exercise. Dr Aboud couldn’t say what the estimated percentage reduction was based on such studies but was aware they supported the reduction of risk. Dr Arthur said it was difficult to estimate the reduction of risk because it depended on many factors. He said that the studies with empirical data on reduction were disparate and varied according to different programs. Dr Arthur considered such data would be of limited assistance given the diverse nature of programs upon which any such percentage would be based. He said he had seen studies which suggested a 10 per cent reduction in recidivism rates compared to people who did not do the program. As he stated in relation to a person with high risks although not huge such a reduction was not insignificant.
47. [47]
    More significantly, both Dr Aboud and Dr Arthur’s opinions were consistent with the psychiatric opinions discussed and accepted by Jackson, Ryan and Bradley JJ that the HISOP was a program which the respondent should undertake as part of his treatment as a high-risk offender to address his risks of reoffending. Dr Arthur pointed to the fact that it is a high intensity sexual offender treatment program which is directed to high-risk offenders such as the respondent which would assist the respondent and those treating him and QCS to identify his risks and the relevant triggers for those risks and develop strategies to manage the respondent’s risk.  That is subject to the respondent’s level of engagement in the HISOP.  The estimated of risk resulting from the program will depend on that engagement and the results of the respondent’s participation. The estimated reduction of risk is evidently based on meaningful engagement. Both were clear that it was the completion of the program, not the mere commencement of the program that would result in a reduction of risk.
48. [48]
    I do not regard the failure to attribute a specific percentage estimate for the reduction of risk if the respondent undertakes the HISOP as a deficiency in the opinions provided and I accept the evidence of Dr Aboud and Dr Arthur and their assessments of risk. In reality, it appears the empirical data is unlikely to inform greatly on an individual’s risks given the range of factors that form the basis for such an assessment. Both Dr Aboud and Dr Arthur considered that the respondent’s treatment needs required him to undertake the HISOP program. Each provided opinions on the likely effect of undertaking the HISOP in terms of the reduction of risk, although Dr Arthur was more circumspect, particularly since it will be affected by the degree to which the applicant is prepared to willingly engage with the program. Until he undertakes the course, the actual reduction of the risk cannot be known.
49. [49]
    I accept that engagement with the HISOP is necessary to address the respondent’s high risk of sexual reoffending and his unmet treatment needs in relation to those risks. Effective engagement with the HISOP will, however, allow the person to understand the factors which are the drivers of sexual offenders and develop strategies which they can use. That provides valuable information to QCS in the management of risk, as does the lapses in the program or evidence of sexual preoccupation while undertaking the program. HISOP addresses risk factors. Dr Arthur stated that what he considered was needed was for the respondent to acknowledge, accept and incorporate his risk factors into a strategy in order for him to be progressed.  Dr Arthur regards the HISOP as a form of treatment, a form of education as well as a form of monitoring to measure someone’s capacity and motivation to change.
50. [50]
    Neither Dr Aboud nor Dr Arthur considered that the risks of the respondent could be materially reduced if released on a supervision order without further treatment intervention through his engagement with HISOP to address, manage and reduce his risks. That opinion has been consistently expressed in the psychiatric assessments of the respondent.
51. [51]
    While aware of the time that has passed since Mr Dunrobin’s offending, neither Dr Aboud and Dr Arthur attributed great weight to that in terms of reduction in risk given his incarceration has minimised any potential for reoffending or demonstrating that he had reintegrated with the community in a way from which it could be inferred that he could control his offending. Dr Arthur considered that the respondent continued to be sexually preoccupied. Neither considered the passing of time while the respondent was in prison had abated the risk or significantly affects his risk profile. The basis of that conclusion was well reasoned, and I accept it.
52. [52]
    Both psychiatrists regarded the respondent as someone with high intensity treatment needs which are presently unmet and considered that the HISOP is specifically directed to someone in the respondent’s position. That is supported by the fact that he previously ceased treatment with Dr Marsden. Previous one-on-one engagement with a psychologist, Dr Marsden, did not lead to the respondent undergoing changes which reduced his risk level significantly, as was discussed by Ryan J. The need for him to engage in the HISOP in order to address his risks and enable those risks to be managed has been consistently identified by psychiatrists. He has admitted in the past to sexual fantasising in relation to young boys. His potential risk is high and his risk of reoffending if it occurred is likely to manifest itself through sexual abuse of a male child or adolescent, which is not considered to be limited to one particular modus operandi. Dr Aboud considered it could be planned and involving grooming or could be spur of the moment conduct associated with opportunism, in particular, Dr Aboud considered that the respondent would attempt to engage his victim in rapidly escalating sexual activity and may use threats. The use of illicit drugs may act to disinhibit and facilitate his potential to offend. Dr Aboud further states, “However, given his deviant drive and impulsive personality, access to a potential victim may be the only necessary factor.”^[30] Similar views were expressed by Dr Arthur who noted once the respondent’s offending behaviour begins, it is most likely to persist despite legal and social consequences, which is given some support by his past offending.
53. [53]
    It is plain that release on a supervision order now would result in some modification of the respondent’s risks, but not in any material way such that the adequate protection of the community could be ensured which is the paramount consideration. The overwhelming weight of the evidence demonstrates that conditions could not be formulated to ensure the adequate protection of the community and which could be reasonably and practicably managed under a supervision order or by QCS. Both Dr Aboud and Dr Arthur considered that the respondent’s risk of reoffending if released under the terms of a supervision order would not be reduced significantly save by its restrictive terms and preventing engagement with the community which is premised on his being in the precinct and not being able to enter the community unsupervised. I accept Dr Aboud’s evidence that even the effectiveness of such an order in such extreme terms will diminish over time. Given the complexity of the respondent’s psychiatric conditions and psychopathic traits he will not be easily managed on a supervision order particularly given he can be manipulative and deceptive according to Dr Arthur. Comments made to Dr Arthur by the respondent about being able to avoid being released on a supervision order indicated to Dr Arthur either a poor understanding of his situation or pathological denial. Some of his responses led Dr Arthur to conclude he was minimising his sexual interest and gave evidence of “positive impression management and avoidance of discussing the negative aspects of his personality” and that his discussion of his pathway to understanding indicated a lack of deeper level of insight.
54. [54]
    The complexity of factors contributing to the respondent’s risks also serve to demonstrate the complexity of the management of his risk to an acceptable level and for the risk to be reasonably and practicably able to be managed on a supervision order. In assessing the respondent’s unmodified risk as high, Dr Aboud stated:^[31]

“I take into account his antisocial and impulsive personality structure; his worrying psychopathic traits; his vulnerability to poor adaptive coping (whereby he uses substances, avoidance, isolation and sexual preoccupation); his sexual deviance; his intimacy deficits and emotional congruence with boys; his deceptive and manipulative self presentation, that has allowed him to win the confidence of others, including potentially professionals. One is also aware that he has breached criminal justice orders in the past, and he sexually offended when subject to a criminal justice order.  He has demonstrated a tendency toward minimisation and denial, lack self awareness, and a rather manipulative and deceptive interpersonal style.  His current future plans are not well considered.”  

55. [55]
    Dr Aboud also highlights a multitude of considerations which would have to be considered if the respondent were to be released under a supervision order to provide him with support to address the complexity of issues that will likely affect him upon release.
56. [56]
    Dr Arthur further highlighted that the exit report from the HISOP provides vital information for Queensland Corrective Services (“QCS”) when they consider what sort of conditions may be appropriate to put in a supervision order and what considerations will be necessary in the short and medium term to manage the risk, the supports that need to be available to the person and how they access those supports, and whether they have taken anything away from the program. Dr Arthur considered that the reduction of the respondent’s unmodified risk to moderate under a supervision order was premised on the respondent being subject to the strictest level of conditions, and having no ability to go into the community unsupervised, would have limited access to triggers which may exacerbate his deviant sexual interests such as pornography and the like, and would need to be closely monitored so to have reduced risk of access to a victim.
57. [57]
    The respondent submitted that if the respondent chose to act in a morally inappropriate manner as a part of consensual relationship it is irrelevant to the Court’s consideration. While morally inappropriate behaviour is not part of the Court’s assessment under the Act, that does not mean such behaviour is necessarily irrelevant. To the extent the respondent appeared to be referring to evidence of a recent sexual encounter with another prisoner in 2022, which was not suggested to be anything other than consensual. Neither Dr Aboud nor Dr Arthur considered it specifically relevant to the assessment of the respondent’s risk. The only apparent relevance of that evidence is it Dr Arthur considered the nature of the public display gave some support to the fact that the respondent had an ongoing sexual preoccupation and poor management of his sexual urges given it may be inferred that he knew the act was likely to be observed by authorities as it was in a public place, which has some relevance to his ability to manage his sexual drive which may be relevant to his risks of reoffending in relation to young or teenage males. Dr Aboud considered it was broadly relevant. Dr Aboud stated in his view nothing pivoted on the engagement but it spoke to the respondent’s poor judgement particularly given he was subject to a continuing detention order. I do not consider anything turned on that evidence for the purposes of the assessment of risk save to demonstrate the respondent’s lack of insight into the potential effects of his behaviour and inability to restrain himself from acting on impulse and difficulties in managing his complex personality.
58. [58]
    Mr Tannock has deposed to the limitations of the supervision of a prisoner in the precinct and that the respondent cannot presently be reasonably and adequately managed by QCS. I accept that a supervision order cannot presently be formulated, which is informed by respondent’s risks of sexual reoffending and how they can be managed in the community and ensure the adequate protection of the community, or that protection can be reasonably and practicably managed by a supervision order or by QCS.
59. [59]
    At the current time, the respondent is a high risk, untreated recidivist sexual offender, with a diagnosis of Paedophilia. His need for treatment of his risks through the HISOP in custody to address his high needs with respect to sexual offending risks has been consistently identified in the evidence of Dr Aboud and previous psychiatric assessments and now Dr Arthur who has reviewed the respondent from a fresh perspective. I am satisfied that there is acceptable and cogent evidence of sufficient weight that if released upon a supervision order at present, without the benefit of having undertaken the HISOP to facilitate the respondent’s understanding of his offending behaviour and his risk factors and how they may be managed to assist with the management of those risks in the community by the respondent and those supervising and treating him, his risk of reoffending remains unacceptably high.
60. [60]
    The opinions of Dr Aboud and Dr Arthur are supported by the nature of the index offences, the clinical opinions of other reporting psychiatrists and the longitudinal evidence, particularly the opinions of Dr Timmins and Dr Phillips which are largely consistent with the views of Dr Arthur and Dr Aboud, as to his risks and treatment needs. I find that there is acceptable and cogent evidence of sufficient weight to the requisite standing to justify the continuation of the continuing detention order.
61. [61]
    There are positive signs of the respondent’s progress, particularly since the changes to his custodial conditions which facilitate the programs he needs to undertake. The respondent did receive a positive report for his engagement in the GS:PP, which recommended he engage in the HISOP. He indicated to Dr Aboud he was willing to engage in the HISOP and appears to be taking positive steps towards addressing his risks. HISOP can only be completed in custody. Dr Arthur however states some circumspection is required due to the complexity of the respondent’s personality due to his psychopathic traits in assessing his personal views as to his progress and participation.
62. [62]
    While it is unfortunate that the respondent has not been able to complete the HISOP before his review, I trust QCS will, to the extent they are able, ensure that there is no further delay in the completion of the course. I accept that the undertaking of the HISOP course is necessary while the respondent is in custody prior to an order being able to be formulated in order to contain his risks to an acceptable level.
63. [63]
    Other matters raised by Dr Aboud and Dr Arthur as to ongoing care and treatment of the respondent and addressing his risks of reoffending do not presently appear to require to be undertaken while in custody.
64. [64]
    Given the respondent’s high risk of sexual reoffending, both Dr Arthur and Dr Aboud considered that the use of anti-libidinals to reduce the respondent’s risk should be raised with him for his consideration. Neither factored its use into their assessment of a reduced risk nor suggested that it was presently necessary to reduce the respondent’s risk to an acceptable level.
65. [65]
    While the psychiatrists consider that he also needs to engage in a substance abuse program as a further program necessary for the respondent to address a relevant risk factor in his offending, neither considers that necessarily has to be done while in custody with appropriate programs being able to be accessed upon his release. Dr Arthur considers the respondent will require one on one psychological treatment for his sexual deviance, but considers that is treatment which may be undertaken in the community and will not necessarily have to occur in custody. 

Summary of conclusions

66. [66]
    As the applicant submitted in the present case the evidence both in this application and historically is all one way that:

    1. (a)
       the respondent has complex diagnoses complicated by psychopathic traits and presents with a high unmodified risk of sexual reoffending in terms of the DPSOA and his risk of reoffending is an unacceptable risk with the material risk being offending against young and teenage boys which could occur in a variety of circumstances;
    2. (b)
       he presently lacks significant insight into his offending behaviour and the accompanying risks and group therapy through the HISOP is the appropriate treatment to address his high risk offending and to gain insight into and develop management strategies to manage and contain his risk to an acceptable level;
    3. (c)
       while his treatment to address his high risk needs has been interfered with by the custodial arrangements he has been subject to, he has now been able to engage in sexual offender programs which it appears he has done so positively his treatment needs as a high risk offender presently requires him to engage in the HISOP to address his pathways to offending and is regarded as the most appropriate form of treatment to reduce his risks. The programs he has engaged in to date, while positive, are insufficient to reduce his unmodified risk in any significant way. Given the complexity of his diagnoses and particularly his psychopathic traits, his willingness to engage in sexual offending programs requires some circumspection;
    4. (d)
       a supervision order cannot presently be formulated to contain his risk to an acceptable level to ensure the risk can be reasonably and practicably managed and ensure the adequate protection of the community;
    5. (e)
       the passing of time since his last offending in custody has not abated his risk in any significant way.
67. [67]
    The present is not a case where the protection of the community could be assured by the court exercising its discretion to make an order under s 30(3)(b) of the DPSOA releasing the respondent from custody on a supervision order. The applicant has discharged the onus upon it to satisfy me that the continuing detention order should continue.

Orders

68. [68]
    The orders that should be made are that:

    1. the decision of Jackson J made on 25 February 2019 that the respondent is a serious danger to the community in the absence of a Part 2 Division 3 order be affirmed;
    2. that the respondent continue to be subject to the continuing detention order made by Jackson J on 25 February 2019.