Attorney-General v Watkins[2023] QSC 143

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application by the Attorney-General under s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act) for review of a continuing detention order.

Previous orders

2. [2]
   On 6 February 2017, an order was made by Brown J that the respondent be detained in custody for an indefinite term for control, care or treatment (continuing detention order) pursuant to Part 2 of Division 3 of the DPSO Act.^[1]
3. [3]
   Section 27 of the DPSO Act provides that if the court makes a continuing detention order, it must review the order at specified intervals.
4. [4]
   The continuing detention order was reviewed:

   1. (a)
      on 12 December 2018, by Burns J;
   2. (b)
      on 16 December 2019, by Brown J;
   3. (c)
      on 1 March 2021, by Williams J; and
   4. (d)
      on 31 May 2022, by Kelly J.
5. [5]
   On each of those reviews, the court:

   1. (a)
      affirmed the original decision of Brown J that the respondent was a serious danger to the community in the absence of a Division 3 order under the DPSO Act;
   2. (b)
      ordered that the respondent continue to be subject to the continuing detention order.

Parties’ positions

6. [6]
   On this review, the Attorney-General submitted that the court would, again, affirm the original decision of Brown J that the respondent is a serious danger to the community in the absence of a Division 3 order under the DPSO Act and order that the respondent continue to be subject to the continuing detention order.
7. [7]
   The respondent accepted that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order, such that the original decision of Brown J should be affirmed.  However, the respondent submitted that the adequate protection of the community can be ensured by the making of a supervision order.  He sought an order that he be released subject to a supervision order for a period of 10 years.

Legislative framework and relevant principles

8. [8]
   On the hearing of the review, the court may affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order only if it is satisfied (a) by acceptable, cogent evidence and (b) to a high degree of probability, that the evidence is of sufficient weight to affirm the decision.^[2]  In reaching that position, the court must have regard to “required matters” which relevantly include the matters mentioned in s 13(4) of the DPSO Act.^[3]
9. [9]
   If the court affirms the decision, it may order that the respondent (a) continue to be subject to the continuing detention order or (b) be released from custody subject to a supervision order.^[4]
10. [10]
    In deciding between those two alternatives, the paramount consideration is the need to ensure adequate protection of the community.^[5]  Having regard to the terms of s 13, pursuant to which the continuing detention order was made, that is to be understood as meaning protection of the community from the risk that the respondent will commit a serious sexual offence.  The court must consider whether the adequate protection of the community can be reasonably and practicably managed by a supervision order, and whether the requirements of a supervision prescribed by s 16 of the DPSO Act can be reasonably and practicably managed by corrective services officers.^[6]
11. [11]
    If supervision of the respondent would be sufficient to ensure adequate protection of the community, having regard to the risk to the community posed by the respondent, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the respondent’s liberty should not be constrained to any greater extent than is warranted by the DPSO Act.^[7]

The respondent’s criminal history

12. [12]
    The respondent is 53 years old.  He has been in custody for approximately 25 years.
13. [13]
    The original offences which brought the respondent within the ambit of the DPSO Act involved violent sexual assaults committed in 1990 and 1998.
14. [14]
    That criminal history was set out by Brown J as follows:^[8]

“[8] In 1990, the respondent pleaded guilty in the Southport District Court to a number of offences which included rape of an adult woman.  The following factual summary of these offences is taken from the sentencing proceedings in the District Court Brisbane on 14 October 1998:

‘Your Honour, dealing with those convictions on 24 September 1990 briefly relating to that, the complainant's residence was on top of a dental technician's office premises. The prisoner and two other people - males - broke and entered this office with the intention of stealing money from a safe that was believed to be there. They were unsuccessful in that and they broke into the dwelling by opening an internal door. A knife or knives was obtained from the kitchen of the dwelling and the male and female occupants of the dwelling were found in bed and they were threatened with the knife or knives.

The prisoner at one stage threatened the female with the knife. The male was taken out of the bedroom and bound, tied up, and…the prisoner then had intercourse with the female without her consent and one of the other offenders had intercourse with her also after that. Property was taken from the two occupants and the prisoner and the other two left in a stolen car.’

[9] The respondent was sentenced to eight years imprisonment for the offence of rape with a recommendation that he be considered eligible for parole after serving two years.

[10] While on parole in respect of those offences, the respondent committed the index offences to which he also pleaded guilty in the District Court which included assault with intent to rape, child stealing, indecent treatment of a child under 12 and rape.  The victim of those offences was a 10 year old girl.  In sentencing the respondent, his Honour said:

‘You have pleaded guilty to 17 separate offences, by far the most serious of which are counts 5 to 8 inclusive, involving as they do various offences committed upon a 10 years old girl arising from your snatching her from the street near her school, forcing her into your car and driving her some distance, requiring her to put on a shirt to disguise her school uniform into bushland, where you demanded she remove her school uniform and lie naked face down on the rear seat of your car. You forced fingers into her anus to a substantial extent and following upon that you sodomised her.

The terror and horror she must have suffered in order for you to gain about one minute's worth of sexual gratification is almost too terrible for any decent citizen, particularly a parent who has had the care of a 10 years old girl to contemplate.

Up until this time she was a normal young girl whose parents were doing all they could to provide a happy and secure upbringing for her and an older sibling. It is no exaggeration to say you have shattered their lives and left them with indelible memories of your disgraceful and degrading behaviour.

At the time of the commission of these offences, you were on parole, to make matters worse, in respect of sentences of eight years for rape, five years for armed robbery, three years for burglary and various other property offences, those sentences being served concurrently and you had almost completed your parole.

The previous rape was committed in serious circumstances on a female in her own home after she was awoken from her sleep. Her partner was disabled and there were threats with a knife or knives and you were in the company with two other persons, one of whom at least proved himself to be a rapist as well as yourself on this occasion.

It is in your favour that you managed to stay out of trouble for a substantial period of time after you were paroled on 26 February 1993, despite a long prior criminal history of various offences, notably offences of dishonesty commencing in December 1985.

It is almost as if the strain of staying out of trouble over the years you were on parole was too much for you to bear, because in January this year you went on a spree of predatory behaviour, stealing from people who had befriended you and shared their accommodation with you, and also stealing from strangers money, car keys, and on a number of occasions, driving off in their cars whilst they slept.

You contemplated a robbery by pretending to be armed on 23 February 1998, but elected instead to kidnap, to put it in ordinary language, this schoolgirl and committed the offences on her I have already outlined.

…

So far as the remorse is concerned, often times one suspects that that is simply in order to gain sympathy from the Court and it is feigned remorse, but in your case I have carefully observed you during the time that I have had you before me, and in all of the circumstances I am prepared to regard the remorse that you have demonstrated as genuine.

You significantly cooperated with police and the authorities and this is an early plea of guilty on an ex officio indictment. Also as I previously mentioned, a matter in your favour is that you had completed most of earlier your parole in respect of the matters. But for all… of the things in your favour have outlined, the sentence for rape in my view would quite properly be fixed at the higher end of the range of 15 to 18 years submitted by the Crown.

I should say I have taken into account also your unfortunate upbringing, your parents apparently leading what you have described as deviant lifestyles for much, if not all, of your formative years which no doubt had a significant damaging effect on you.

I have no hesitation in with counts 5, 7 and 8, that is, assault with intent to commit rape, aggravated indecent treatment and rape, in this case to be serious violent offences under the relevant provisions of the Penalties and Sentences Act and I make any declaration that may be necessary in respect of any or all of those offences. That is not the subject of argument to the contrary by your legal representative, quite properly in the circumstances I should say.’”

Original decision

15. [15]
    Brown J reviewed the psychiatric evidence tendered on the initial application under the DPSO Act and had regard to the matters set out in s 13(4) in concluding that the respondent is a serious danger to the community in the absence of a Division 3 order.  Her Honour expressed her reasons for reaching that conclusion in the following passage:^[9]

“[64] The psychiatric evidence presented indicated that there presently could not be a properly constructed supervision order which could be reasonably and practicably managed to ensure the adequate protection of the community from the risks posed by the respondent, nor that could be reasonably and practicably managed by Corrective Services officers.

[65] While Dr Mc Vie did canvass in her report conditions she thought should be imposed if a supervision order was made, however her oral evidence made clear that she did not think that the respondent could presently be managed under a supervision order. None of the psychiatrists called considered that even if an order providing for close and constant supervision of the respondent was made the respondent was capable of complying with such an order.

[66] Dr Lawrence was of the view that the respondent would have to be supervised 24 hours a day or in a highly secure institution if released and did not consider that the respondent could be managed on a supervision order nor could one be constructed with enough safeguards. She also made comment that because of the respondent’s condition he could be complying with the order but at any point in time he could suddenly, if almost impulsively, as a result for instance of a command hallucination, do something that was very antisocial and could easily be sexually directed. Dr Grant also indicated that with his psychotic symptoms the respondent would not be able to comply with a supervision order as he would see the authority of his hallucinations as being superior. Notwithstanding the apparent view expressed by Dr Stewart in September 2016 (who the respondent did not see in October 2016 and refused to see November 2016) it would seem that if the respondent’s psychotic symptoms had abated to any extent after Dr Grant saw him, they were active again when he presented to Dr Lawrence in November 2016 and were not being properly controlled by antipsychotic medication.

[67] According to Dr Lawrence, because of the unpredictability of the respondent’s condition due to his psychosis, there is no way that one can be assured, so to speak, that he would comply with the requirements of any supervision order. At any point in time he could suddenly, if almost impulsively, as a result of, for instance, a command hallucination telling him to do something which could be very anti-social and could easily be sexually directed to reoffend. Dr Lawrence, in her supplementary report, considered the respondent posed an unacceptable risk to the community. All psychiatrists were also of the opinion that the fact that the respondent is no longer subject to an involuntary treatment order increases the risk of reoffending posed by the respondent, given that the respondent is regarded by the psychiatrists as being a very unwell man presently and compliance with any treatment regime could not be enforced in the absence of such an order. Dr Lawrence in particular noted that the respondent had a history of not complying with treatment. Without such an involuntary treatment order she doubted that even a very closely and supervised supervision order could manage the level of risk the respondent poses to the community.

[68] The psychiatric evidence strongly supports the fact that the respondent needs to have his mental illness addressed and properly treated as a priority before consideration can be given to the respondent being released into the community under a supervision order with or without an involuntary treatment order. Dr Grant expressed the view, that the respondent needs to be placed in a high secure psychiatric institution for long-term psychiatric management and only when his mental illness is stabilised for a number of months could the question of a gradual transition to the community be considered under a supervision order. This view was supported by Dr Lawrence and Dr McVie. Dr Grant considered that such a gradual transition would need to be done through a combination of an involuntary treatment order in conjunction with a supervised order under the Act. That view seems to have some support from the views of Dr Lawrence.”

Review on 31 May 2022

16. [16]
    After reviewing the psychiatric evidence tendered on the most recent annual review, and affirming the original decision, Kelly J stated:

“The Court must consider whether adequate protection of the community can be reasonably and practically managed by a supervision order, and whether requirements under s 16 can be reasonably and practically managed by Corrective Services officers.  Dr McVie has expressed the opinion that the respondent presents a high risk of re-offending with both sexual violence and general physical violence if released from prison without a supervision order.

The respondent is presently in the early stages of engaging in individual therapy.  Relevantly, Dr McVie considers that for a supervision order to decrease his risk, the respondent would have to demonstrate improvement in his custodial behaviour, as well as progress in his therapy.  Dr Sundin expressed the ultimate conclusion that she was not confident that the risk posed by the respondent could satisfactorily be managed in the community under the auspices of a supervision order.  The respondent did not require either psychiatrist for cross-examination.  In all the circumstances, and having regard to all the evidence, I am not satisfied that the adequate protection of the community can be reasonably and practically managed by a supervision order.”

Events concerning the respondent’s mental health and treatment in custody

17. [17]
    In February 2020, the respondent was referred by the High Risk Offender Management Unit (HROMU) within Queensland Corrective Services (QCS) to Dr Lars Madsen, a forensic psychologist, for treatment to address his sexual offending behaviours.  That treatment continued from February 2020 until April 2022.
18. [18]
    In March 2022, HROMU staff were informed of concerns held by psychologists based at the correctional centre where the respondent is detained that his mental health presentation was escalating and becoming heightened after treatment sessions with Dr Madsen. 
19. [19]
    On 5 April 2022, after discussions between HROMU staff and the correctional centre psychologists, the decision was made to temporarily cease the respondent’s treatment by Dr Madsen.  That was done to focus on stabilising the respondent’s behaviour and to determine whether the break in treatment for his sexual offending had a positive effect on those behaviours.
20. [20]
    There was evidence on the present review that the respondent’s mental state, his behaviour and his willingness to participate in treatment intervention have fluctuated since the review in May 2022.  Mr Tannock, the acting manager of HROMU, referred in his evidence to the following:

    1. (a)
       a case note entered into the Integrated Offence Management System (IOMS) maintained by QCS on 1 June 2022, which recorded the respondent’s report of feelings of frustration following the review held on 31 May 2022 and his statement that he no longer wished to engage with Dr Madsen;
    2. (b)
       a case note entered into IOMS on 14 July 2022, which recorded the respondent’s discussion of his fluctuating mental health with an increase in symptoms of anxiety and depression and his statement that he was happy with the reduction in contact with Dr Madsen due to his belief that the sessions with Dr Madsen were being used to collect evidence against him;
    3. (c)
       a notification of concern dated 25 July 2022, which was completed after the respondent presented a letter to QCS staff in which he stated that he was having suicidal thoughts and was feeling unstable;
    4. (d)
       a case note entered into IOMS on 9 August 2022, which recorded the respondent’s statement that he had not been feeling very well and was struggling with his mental health;
    5. (e)
       a notification of concern dated 27 August 2022, which was completed after the respondent presented a letter to QCS staff in which he requested that he be moved into the detention unit because he felt unsafe in the unit he was then accommodated in, he was experiencing strong thoughts of self-harm and suicide, and he was hearing voices which were telling him to self-harm and to harm other prisoners;
    6. (f)
       a case note entered into IOMS on 29 August 2022, which recorded that razors and nail clippers were removed from the respondent’s cell upon his return from the detention unit, although the respondent was assessed as being a low acute risk of self-harm or suicide;
    7. (g)
       a notification of concern dated 31 August 2022, which was completed after the respondent reported having used a razor blade to cut himself on the wrist and neck before attempting strangulation with a shoelace, and that he was experiencing auditory hallucinations commanding him to harm others;
    8. (h)
       a case note entered into IOMS on 5 September 2022, which recorded that the respondent was being accommodated in the detention unit due to a decline in his mental health which included him hearing voices urging him to harm others.
21. [21]
    Between May 2022 and December 2022, the respondent was subject to consecutive safety orders which, as explained by Mr Tannock, are used in the management of a prisoner and provide a mechanism for separately confining a prisoner by imposing restrictions on the prisoner’s out of cell hours or their ability to interact with other prisoners. 
22. [22]
    The respondent is also subject to an Intensive Management Plan (IMP) which, as again explained by Mr Tannock, sets out conditions of his management, including restrictions on his contact with other prisoners, his assessed risks and needs, his triggers, his targeted behaviours and behavioural objectives to support his progression through incremental management plan stages.
23. [23]
    The consecutive safety orders to which the respondent was subject between 22 July 2022 and 15 September 2022, contained full segregation conditions that prohibited the respondent from engaging with any other prisoners.
24. [24]
    The consecutive safety orders to which the respondent was subject between 16 September 2022 and 16 December 2022 contained partial segregation conditions which restricted his engagement with other prisoners in accordance with the conditions of his IMP.
25. [25]
    From April 2022 until December 2022, QCS did not seek to reengage an external treatment provider for the respondent, but the respondent was engaged with centre-based psychologists to assist in stabilising his behaviour.
26. [26]
    On 16 December 2022, after discussions between HROMU staff and the correctional centre psychologists, the decision was made to reengage Dr Madsen to provide treatment to the respondent.  That treatment recommenced on 23 February 2023.
27. [27]
    Subsequent to the recommencement of this treatment, the respondent’s mental health continued to fluctuate, as evidenced by:

    1. (a)
       an incident on the evening of 3 April 2023, where he informed QCS staff that he was feeling unstable and that he may “cut people up”.  The respondent was transferred to the detention unit the following morning.  At that time, the respondent handed a letter to QCS staff in which he requested that he be placed on a safety order in circumstances in which he had experienced voices commanding him to cut someone’s throat;
    2. (b)
       an incident on 8 May 2023, where he informed QCS staff that voices in his head had told him to self-harm;
    3. (c)
       an incident on 9 May 2023, where he informed QCS staff that voices were telling him to assault other prisoners in his unit;
    4. (d)
       an incident on 11 May 2023, where he informed QCS staff that he needed to be removed from his unit immediately or he would hurt other prisoners in that unit.  After informing QCS staff of the location of a cutter he had made from a shaver handle and razor, the respondent was removed to the detention unit.

Evidence of Dr Madsen

28. [28]
    Dr Madsen conducted six sessions with the respondent following the recommencement of his treatment.  He prepared two treatment progress reports for the purposes of this review. 
29. [29]
    In the first report dated 18 May 2023, Dr Madsen described the respondent’s reengagement with his treatment as follows:

“[The respondent] re-engaged well in early 2023 after a break of about one year.  He appeared unbothered by the length of time between our sessions and, within a brief time, seemed very comfortable with the therapeutic process.  Typically, in these sessions, he will spontaneously discuss the various ‘goings on’ in the prison unit, his hobbies (free drawing and playing cards and chess), and any progress he may have made in his bible study course.  He has a garrulous interpersonal style, tending to dominate our interactions with long-winded stories, struggles with being re-directed and displays a propensity to perseverate on issues or concerns for him.  He continues to describe hearing auditory command hallucinations of various voices, though with a dominant one known as Samantha.  He also continues to hold a range of odd perceptions, including a belief that specific people are communicating with him on television (usually female newsreaders on the foreign news channels shown on SBS).  [The respondent] displays little insight into the oddness of these experiences and talks about his relationship with ‘Samantha’ as one would an embodied partner, for instance, by describing supposedly ‘petty’ disagreements about the television programs ‘they’ should watch.

On a positive note, perhaps different to other times I have seen him, [the respondent] appears more accepting of his DPSOA circumstances (i.e., CDO), the need to engage in psychological treatment, and the inevitability of needing to cooperate with further psychiatric evaluations for progressing in the system.  Previously, it has not always been clear that he fully comprehended his situation, as he tended to dismiss the conclusions of the risk assessments, threaten the assessors, and minimise any need for therapy or help to return to the community.

Despite this apparent progress, however, [the respondent] continues to display a vulnerability to become paranoid and a tendency to revert to violence or threats of violence and self-harm to resolve his concerns.  Unfortunately, these tendencies seem to have created a somewhat repetitive institutional pattern wherein he will become paranoid about a person or group of people, acquire a shiv, and threaten to harm others.  These verbal threats trigger his placement in the Detention Unit and sometimes transfer him to another prison.  This pattern appears to have been a reason for his psychological sessions being ceased in 2022.  In our most recent session, he presented from the DU having swallowed a pen, been found with two shivs, and made specific threats towards others.

Regarding these dysregulated behaviours (including threats, acquiring shivs, and self-harm), [the respondent] has consistently identified his interactions with some staff and prisoners as triggers.  He describes the use of threats and violence as a coping strategy but also a method of manipulating the environment (i.e. escaping the unit and the threat) and discharging anger at individuals, the prison and the system (i.e. punishing others).  On some occasions, he reports experiencing auditory hallucinations (i.e. Samantha tells him to arm up or hurt someone).”

30. [30]
    As to the interventions he attempted, Dr Madsen stated:

“Regarding treatment focus, within the individual treatment, I have attempted to focus on improving emotional dysregulation and reducing symptoms, including dysregulated behaviours (i.e. threatening others, violence etc).  The eventual objective of this work is to assist [the respondent] in developing the skills so that he can reintegrate from high secure units to a less restrictive context and eventually the community.  This has, however, been challenging.  [The respondent] presents many of the typical problems experienced by individuals with severe personality disorder, adversely affecting his capacity to ‘engage in’ and ‘benefit from’ psychological treatment.  These challenges are characterised by a pervasive pattern of instability and dysregulation involving unstable emotions, unstable and conflicted relationships, unstable sense of self/identity, unstable cognitive processes, and behavioural instability.  For [the respondent], crises are common and typically experienced by him as a collage of anxiety, fearfulness, despair, sadness, anger, and rage.  His thinking becomes disorganised, and he becomes paranoid and suspicious of others.  During times of stress/emotional dysregulation, [the respondent] will become behaviourally dysregulated and act out in various ways. 

What this ultimately means in terms of his therapy is that between sessions (approximately two weeks) things for [the respondent] can change a great deal.  These constant changes make it hard to maintain a 'therapeutic frame' (i.e., a specific and consistent focus upon an objective/purpose within sessions) as he frequently presents to sessions in emotional turmoil, is experiencing or has recently experienced conflict with others or acted out in some way (i.e., violence, threats, property damage, self-harm etc.).  The implications of this means that the stressors and challenges that he experiences in his day to day are constantly changing between sessions.”

31. [31]
    Dr Madsen then expressed the following opinion:^[10]

“Since my earlier report, little has changed for [the respondent].  He continues to present with many of the challenging behaviours that have contributed to the problems that he has experienced within the general prison context.  Much of the focus of the psychological intervention with me has been on assisting him in developing skills to be better able to regulate his experience of emotional dysregulation.  This, of course, has been challenging due in part to the nature of the context but also the inherent problems and difficulties associated with working with a severe personality disorder.  In this regard, it is important to note that the prison context is ‘set up’, in terms of existing processes, staff and staff training to contain violence and other ‘security-threatening’ behaviours in the prisons.  It is not resourced to rehabilitate or manage offenders with chronically dysregulated behaviours that are a function of personality disorder and trauma, such as what [the respondent] presents with.  In this context, it has not been possible to deliver any ‘sexual offending’ specific treatment due to the need to prioritise [the respondent's] emotional and psychological well-being (i.e. reducing dysregulated behaviour, self-harming behaviours).

Much of [the respondent’s] problematic institutional behaviours appear impulsive and reactive due to his severe personality disorder, mental health issues, and the high-security prison units.  This context has unfortunately amplified the worst personality aspects and most dysfunctional automatic behavioural responses in him.  He has increased mental health difficulties, as evidenced by his predisposition to experience intense anger, paranoia, and inability to self-manage emotion during his regular day-to-day.

The challenge of providing treatment to [the respondent] is significant.  Aside from the situational and contextual factors relating to the physical environment, the dilemma for the prison is that his repeatedly aggressive behaviour results in a need to keep him at the highest level of security.  However, his retention in these environments provides him with limited opportunities to learn the self-regulation skills required to sustain sufficient periods of settled or compliant behaviour to reduce his security classification.”

32. [32]
    Dr Madsen provided a supplementary treatment response report dated 4 June 2023, in which he reiterated the challenge of engaging the respondent in psychological therapy.  Dr Madsen stated:^[11]

“Much of [the respondent’s] problematic institutional behaviours appear impulsive and reactive due to his severe personality disorder and mental health issues.  For instance, a notable characteristic in his functioning has been his propensity to volatility, as apparent in his tendency to become paranoid about a person or group of people and then preoccupied and emotionally dysregulated.  Such incidents often trigger a reasonably rapid deterioration in his mental health and concomitant escalation in his risk of violence, self-harm, and other destructive and threatening behaviours.  The triggers of these incidents appear varied.  He is acutely sensitive to interpersonal dynamics within his environment and prone to hostile attributions of the most innocuous behaviour.  On some occasions, his problematic institutional behaviour seems to occur when [the respondent] has been denied some request or is blocked in some way; he quickly becomes entitled and demanding and then angry and aggressive.  On other occasions, he describes his self-harm as an instrumental coping strategy, manipulating the environment and discharging his anger (punishing) at individuals, the prison, and the system.  Still, on other occasions, he reports experiencing auditory command hallucinations (i.e., Samantha) to do one thing or another.  It isn’t easy to disentangle the degree to which each of these motivations is relevant for [the respondent] at any one time.  …  Afterwards, he seems able to calm down quickly and appears contrite and apologetic to others.  However, within the institution, he continues to be an ongoing risk because of his proneness to rapidly experience anger at the slightest trigger, with little or no consideration of consequences for himself or others.”

33. [33]
    In his supplementary report, Dr Madsen repeated his opinion that the need to keep the respondent within the high security unit or the detention unit “provides him with limited opportunities to learn the self-regulation skills required to sustain sufficient periods of settled or compliant behaviour to reduce his security classification.”  He then expressed the opinion that this left the respondent “woefully unprepared for everyday life’s complex and unstructured environments, such as he would confront at the Wacol Precinct.”
34. [34]
    Dr Madsen recommended therapeutic contact on a weekly or twice weekly basis.  He referred to the possibility of arranging a team approach with the prison with a single person on-site engaging the respondent in a structured intervention and liaising with Dr Madsen.  He observed that periods of stable behaviour would lead to the respondent transitioning to less secure and less stressful areas of the prison.  As to this, Dr Madsen noted:

“In these contexts, although challenging for him, he would likely experience some improved sense of agency over his circumstances and likely motivation for further treatment.  Ideally, he would be able to engage in sexual offending-specific treatment in circumstances where he has been able to internalise skills, self-regulate, and function adequately within less restrictive environments.”

35. [35]
    Dr Madsen also gave oral evidence. 
36. [36]
    During examination in chief, Dr Madsen:

    1. (a)
       expressed the opinion that the respondent feels the environment of the detention unit is safe for him and he feels reassured and calm in that environment but stated that it had been detrimental to the respondent’s treatment for him to spend long periods in the detention unit and cautioned against a continuation of that state of affairs, saying:^[12]

“So I would see that him going into detention units over the next year or over the foreseeable future is something that will just keep - keep happening, and what has happened in the past is that interventions with him have stopped because of that.  I think we need to, kind of, be more flexible about trying to continue to engage [the respondent] when he’s in these moments to assist him with being able to progress in the prison system.”

2. (b)
   stated that the treatment interventions he proposed for managing the respondent’s traits of impulsivity, paranoia and antagonism would overlap and assist with the treatment for his sexual offending, but that ideally the respondent would have mastered those skills and undertaken a focussed period of therapy addressing the sexual offending and prepared a relapse prevention plan before his release into the community.^[13]

37. [37]
    During cross-examination, Dr Madsen:

    1. (a)
       confirmed that, in the period since the last review, there had been a general improvement in the respondent’s behaviour in custody as well as his insight into the risk assessment process under the DPSO Act and his motivation to engage in treatment;^[14]
    2. (b)
       when asked about the effect of the prison environment on the respondent’s response to treatment: referred to the detrimental impact of having to deal with issues arising from the respondent’s anxiety and paranoia; and addressed the cause of the respondent’s behaviour and different possible treatment interventions as follows:^[15]

“And unfortunately, I think, you know, this - this experience - I think what happens for [the respondent] sometimes, I think, is what he’s really saying and what’s really going on from him is he’s feeling anxious, he feels unsafe.  And I think that if … we had a more therapeutic environment, then I think, you know, the intervention might look very different in terms of how we might deal with that.  We might talk to him a little bit more about what he’s upset about; try to problem solve things in … a way that doesn’t lead him to sort of being sort of put back in these harsh environments.  We might try to learn from the experience, we might try to, you know, give someone the benefit of the doubt, perhaps.  So that’s what I mean how … a more therapeutic environment might respond in that way but the way the prison environment responds, responds the same way every time, bang and it hurts, I think, and it just reinforces that this is what the environment’s about.”

3. (c)
   when asked about the optimal therapeutic setting for someone with the respondent’s treatment needs: emphasised the need to consider what could practically be achieved within the prison environment; identified the need for the respondent to have more consistent contact on a week to week basis with someone who understands what he struggles with in the prison environment and who, upon noticing the respondent starting to become dysregulated can try and engage with him in the more proactive way referred to above; stated that kind of intervention would help the respondent transition out of the high-secure areas of the prison to less secure environments;^[16]
4. (d)
   when asked whether he thought the respondent’s treatment would be more effective outside the prison environment, gave the following response:^[17]

“… that’s a really tricky question.  It depends on what that looks like, you know.  I think going out of the prison environment will be a hugely stressful and challenging thing for him. You know, … my mindset has always been trying to help him just get through the next month, to get through … the psychiatric interviews without losing it, trying to get to a less secure place in the prison.  They’d be good goals.  … I think it would be very challenging for him if he gets out from where he’s been at, at the moment.”

Current psychiatric evidence

Dr McVie

38. [38]
    Dr Ness McVie provided an updated risk assessment report dated 22 April 2023, having previously examined the respondent and provided risk assessment reports on four prior occasions.
39. [39]
    In her most recent risk assessment report, Dr McVie expressed the following opinion:

“[The respondent] meets criteria for a diagnosis of psychopathy and antisocial personality disorder. He additionally has significant borderline personality traits. He also meets criteria for substance use disorder and a diagnosis of paedophilia, heterosexual, nonexclusive.

He may have developed a psychotic disorder in custody but I note he did not appear to be on antipsychotic therapy at the time of my assessment in February 2023. He did not present with any evidence of psychotic symptoms at the time of my assessment.

[The respondent] has read and understands the material in previous psychiatrists' reports about him. I note he has retrospectively attributed his sexual offending (in his 1998 offending) to his acting on command hallucinations.

Risk assessment indicates he remains at high risk of re-offending.

His risk is informed by his high score on the Hare PCL-R psychopathy scale. The structured clinical judgement instruments also identify multiple areas which require further treatment including problems with relationships and employment, attitudes to women, deviant sexual interests, impulsivity, problems with coping and problems in cooperation with supervision. He does not accept responsibility for his offending. Substance abuse, gambling and use of pornography were strongly associated with his previous offending behaviour.

At the time of my interview on 25 February 2023 [the respondent] had only recently recommenced sessions with his treating psychologist. There was thus no update report provided by Dr Madsen at that time. There was also no update report provided by his treating psychiatrist from Prison Mental Health Service available at the time of writing this report.”

40. [40]
    Dr McVie’s recommendations were expressed as follows:

“[The respondent] presents a high risk of re-offending with both sexual violence and general physical violence, if released from prison without a supervision order.

He is currently re-commencing individual therapy with Dr Lars Madsen, treating psychologist.

His behaviour in custody clearly deteriorates at time [sic] of stress including upcoming court cases and perceptions of being targeted by other prisoners for various reasons.

His behaviours had reportedly previously settled in the therapeutic environment of high secure and he was able to engage in appropriate rehabilitation programs in hospital. He may benefit by management with NDIS mental health supports and mental health supported accommodation.

It is possible his presentation represents maladaptive behaviours secondary to his severe personality and borderline features which may settle once he is removed from the strict custodial environment.

At this stage, I would recommend continuing individual therapy with his treating psychologist in custody. Ideally he should demonstrate a longer period of stability in custody as well as engagement in therapy with Dr Madsen prior to any release.

If released, I would recommend supervision order for a minimum of ten years, with conditions including prevention of contact with children under the age of 16 years and complete abstinence from alcohol, illicit substances and any medications of addiction such as opioid pain medications.

I had previously considered that in order to minimise risk of re-offending, a comprehensive management plan agreed to by both Corrective Services and Mental Health services, should be in place prior to consideration of any release from custody. This should be reviewed when [the respondent] is able to demonstrate his learnings from his individual therapy.

Thus, at present, I recommend continuation of the detention order.”

41. [41]
    After she prepared that report, Dr McVie received further material, including information concerning the respondent’s recent deterioration which had resulted in periods in the detention unit.  In her oral evidence in chief, Dr McVie said that this further material:^[18]

“… consolidated my opinion that he needs more time in custody and he needs to be able to display an extended period of time in custody without needing to go to the detention unit before he’d be considered suitable for transfer to the precinct.”

42. [42]
    During cross-examination, Dr McVie:

    1. (a)
       acknowledged that there had been a period of about seven months during which there had been a distinct improvement in the respondent’s behaviour in custody, particularly when compared to the last annual review;^[19]
    2. (b)
       described the Wacol precinct as a “risky environment for people coming out of custody” and emphasised that, if released on a supervision order, the respondent was likely to come up against the same causes of frustration he has experienced in the prison environment;^[20]
    3. (c)
       stated that a minimum period of 12 months, where the respondent is able to live with other prisoners in a more open unit, not require transfer to the detention unit and not engage in self-harm, would be required before she would recommend the respondent be released under a supervision order.^[21]

Dr Beech

43. [43]
    Dr Beech provided a risk assessment report dated 3 May 2023.  In that report, Dr Beech stated the following concerning the respondent’s diagnosis:

“I think it is fair to say that he has presented a diagnostic conundrum: there is some divergence of opinion as to whether he has a primary psychotic disorder such as schizophrenia, or whether his presentation is the result of a severe disturbed personality function that might be seen in a person with severe anti-social and borderline personality traits who has suffered childhood adversity. Regardless of the cladistics, he has had repeated trials of antipsychotic medications over the years, including clozapine, which is usually reserved for treatment-resistant schizophrenia.  It is unclear to me from the material whether this has assisted him but there are also indications that once removed from involuntary treatment orders, he has ceased treatment.  Nonetheless, these days, he remains on antipsychotic and antidepressant medication.  The Transcript of Proceedings was [sic] the most recent appearance before the Magistrates Court implies that the prison mental health services now consider he has a persistent psychotic disorder akin to schizophrenia and has been treated for this.  At interview with me, on a cross-sectional basis, [the respondent] presents as someone with a chronic psychotic illness characterised by command auditory hallucinations associated delusional beliefs and persecutory ideation.  I do not think any comfort can be taken from either a diagnosis of severe personality disorder or schizophrenia – in this case, the concerning features are his affective instability, persecutory ideation, impulsivity, and his description of internalised commands and instructions.  Whether these are true auditory hallucinations or the pseudo-hallucinations of a disturbed personality, they represent destabilising symptoms.  [The respondent] continues to report the need to act on these instructions.  His issues are aggravated by his anti-social attitudes and what I see as a preoccupation with vengeance and retribution coincidental with a vulnerability to perceived criticism and grievance.”

44. [44]
    Dr Beech’s own diagnosis was that the respondent has:

    1. (a)
       paedophilia;
    2. (b)
       antisocial personality disorder;
    3. (c)
       substance use disorder in sustained remission in a controlled environment;
    4. (d)
       persistent psychotic disorder.
45. [45]
    Dr Beech addressed the respondent’s progress since the last annual review as follows:

“As I read the Judgment, the CDO was confirmed in order for [the respondent] to demonstrate improved behaviour, to show benefit from therapy, and to develop a more comprehensive plan for his release.  The material available to me shows a mixed progress.  On the one hand, there is a null violation history for the past 12 months.  On the other hand, as I understand it, [the respondent] remains on a full segregation safety order under an intensive management plan.  He has required placement in the detention unit on several occasions.  He has in fact asked to be placed in the DU.  Although he has not acted violently, which I take to be an improvement, and although he has generally maintained appropriate behaviour in the unit, he has as recently as April 2023 intimated violent ideation, vengeful thinking, and a desire to be segregated from noisome peers.”

46. [46]
    Dr Beech observed that the respondent had unrealistic aspirations for his release into the community with no concrete plan or strategies for them.
47. [47]
    After setting out the factors he had identified from his assessment of the respondent as being relevant to the risk of sexual reoffending, Dr Beech stated:

“For the long-term prisoner, factors that predict recidivism are sexual deviance, sexual preoccupation, antisocial attitudes, and psychopathy.  In this case, I think the persistent psychotic illness is an additional risk factor.  Although the risk of committing a rape substantially reduces after the age of 40 years, the presence of psychopathy and sexual deviance acts to prolong the risk.  In this case, I think the risk of re-offending would be more towards a minor given the presence of paedophilia, psychopathy, and his mental state. 

In my opinion, notwithstanding his age and long-term imprisonment, I believe [the respondent] is at above average risk of re-offending.”

48. [48]
    As to the form such re-offending might take, Dr Beech said:

“If he were likely to re-offend, it would probably be during a period of heightened stress or anger.  Most likely, it would be in response to demands or commands from ‘Samantha’ which might represent a command hallucination or an urgent ego-syntonic angry response.  The victim might be an adult female who has frustrated him, but she might simply be a stranger upon whom he has decided to act out his frustration.  He might perceive it as an act if retribution for some perceived slight or grievance.  The victim might also be a young female, in response to his paedophilic urges, again led by ego-syntonic instructions or command hallucinations.  The offending will most likely be impulsive and opportunistic.  In my opinion, there may be little in the prelude to his offending to indicate a heightened risk but close observations might detect evidence of increased affective instability, interpersonal distress, withdrawal, and violent acts or threats.  This might though represent a sudden culmination of issues.”

49. [49]
    As to the question of management of that risk, Dr Beech said the following:^[22]

“In this matter, I believe that a supervision order with the full compliment [sic] of conditions would significantly reduce the risk of [the respondent] committing an offence similar to the 1990 conviction.  Under supervision, I believe it would be highly unlikely that he would engage in an offence which would provide the opportunity for him to overwhelm and sexually assault an adult female, especially during the course of another crime at night.

I also believe that a supervision order would reduce the risk of [the respondent] sexually offending against a minor, but to a lesser extent.

The conditions of a supervision order that would militate against the risk of re-offending include curfew and restrictions on his movement: oversight and monitoring of his associations; monitoring to ensure abstinence; conditions that enforce ongoing psychiatric and mental health services review and engagement; reviews of his mental state by various persons including mental health services, psychology, and case workers; continued enforcement of therapeutic engagement with an experienced forensic psychologist.  It would be important that [the respondent] continues with mental health services regardless of his voluntary status under the Mental Health Act and adheres to prescribed treatment.  He should be precluded from using psychoactive substances, regardless of whether they are prescribed or not.  There should be a condition that he continues to see someone of Dr Madsen's calibre for ongoing treatment.

Those who were with him should be aware of his mental state and take particular note should there be indications of a deterioration in his mental state.

On supervision, I believe there would be a reduction of risk to at least moderate.

The difficulty in this matter is knowing how [the respondent] could be managed on a supervision order.  Although there had been hope that the CDO would lead to comprehensive management plan, I am not aware of one being formulated.  One of the reasons for the CDO was to allow him to continue his engagement in psychological treatment, and develop strategies and a plan for community living.  As I understand it, [the respondent] disengaged from treatment until recent times.  There is no evidence that he has developed any new strategies other than the aspirations he articulated during the interview with me.  On a positive note, I believe the material indicates that his behaviour has improved: there have been no violations over the current CDO.  Most of the comments in the IOMS point to appropriate behaviour. 

[The respondent] was unable to nominate to me where he might reside other than his belief he would go to the precinct.  Realistically, given all the circumstances, I think it is likely he would be placed in a prison precinct.  The problem with that is, in my experience, [the respondent] would be placed in close proximity with other supervisees who are likely to be just as annoying, irritating, and stressful as those in a mainstream prison unit.

It is difficult to know how a QCS case officer could respond to a letter from [the respondent] such as the one he wrote on 04.04.2023 [see [27](a) above].  Under supervision in the precinct, there is no equivalent to a safety order or intensive management plan.  There is no capacity for time out in a detention unit.  It would be a stressful environment for him, which I believe would aggravate his mental health issues.  I think he would struggle psychologically and emotionally, which could lead to a deterioration in his psychotic disorder.  With that might come increasingly urgent commands from ‘Samantha’ on which he might act.  In the first instance, I think he is likely to act against himself or others in the precinct; there is a risk though that he would escalate, act out and breach curfew and monitoring, and from there be at risk of committing a sexual offence against a minor.

In all likelihood, QCS and [the respondent] would have recourse to community mental health services.  However, without clear agreement of diagnosis, management, and crisis intervention, I have a concern about what interventions would be put into place should [the respondent’s] condition deteriorate.  Again, it would be helpful to obtain a report from his current treating psychiatrist and a description of what would be put in place by mental health services in the community to manage [the respondent].  In my opinion, it would be very helpful for QCS and Queensland Health to arrive at some understanding about how to manage [the respondent] in the community. Without an agreed plan in place, I believe that the only option QCS would have would be to return him to custody.

In summary:

• In my opinion, the risk that [the respondent] would commit another sexual offence if released into the community without supervision is in the moderate to high range despite his age
• His behaviour in prison appears to have improved over the past 12 months, but there are no indications of specific benefit from psychological treatment
• There is no comprehensive management plan
• There is uncertainty about how mental health services have formulated the diagnosis and how they would manage him in the community
• A supervision order would reduce the risk of an offence such as the 1990 offence to below moderate
• A supervision order would likely reduce the risk of an offence of the 1998 offence to below moderate, but with caveats that rely upon the ability to quickly detect deteriorations in his mental state
• [The respondent] is likely to struggle in the community, especially in a prison precinct
• I cannot see any easy way for QCS to manage [the respondent’s] mental state in the community
• There should be a strict supervision order, there is a need for a community management plan, and there is a need for comprehensive management plan from mental health services”

50. [50]
    The respondent relied upon Dr Beech’s opinion concerning the extent to which a supervision order would reduce the risk of his committing another serious sexual offence, with other evidence, in submitting that a supervision order, with the conditions identified by Dr Beech, would ensure the adequate protection of the community.  Before I address that submission, it is necessary to set out the further evidence given by Dr Beech.
51. [51]
    After completing his first risk assessment report, Dr Beech was provided with further material, including relevant medical records of the respondent’s psychiatric treatment while in custody, an affidavit of Mr Tannock, the report of Dr McVie dated 22 April 2023 and the report of Dr Madsen dated 18 May 2023.  After considering that further material, Dr Beech prepared an addendum report dated 22 May 2023, in which he stated:^[23]

“This new material does not alter the opinions I expressed in my earlier report dated 03.05.2023.

In my opinion, [the respondent] has a persistent psychotic disorder; it may reflect a ‘non-organic psychotic disorder’; a ‘psychosis not otherwise specified’; a form of schizophrenia, or the brief psychotic states seen in people with severe personality disorders under stress.  None of these diagnoses provide any comfort when it comes to risk assessment.  He has paedophilia.  His substance use disorder is in sustained remission in prison.  He has a severe personality disorder with psychopathy.

I agree that his severe personality disorder in a custodial setting is likely to give rise to dysregulated affective states that in turn lead to maladaptive behaviours. With that comes a cycle of interpersonal difficulties, paranoid thinking, threatening and violent behaviours, the use of weapons, and placement in a detention unit. On release from the DU, the cycle recommences because he struggles to tolerate his environment and the other prisoners.

I do not think this augurs well for his placement in a prison precinct.  It would be extremely risky to consider placement in a less controlled environment outside a transitional rehabilitation process, such as one that Dr Madsen alludes to and Dr McVie mentions, I cannot think of any suitable community accommodation for [the respondent].  I have great sympathy for Dr Madsen who is attempting to treat someone with a severe personality disturbance in prison with fortnightly sessions.  It would be helpful to ask Dr Madsen what he would see as the optimal therapeutic setting.

I had hoped for a more comprehensive treatment plan in the community by mental health services.”

52. [52]
    Dr Beech was then provided with the supplementary report of Dr Madsen dated 4 June 2023 and a further affidavit of Mr Tannock.  He prepared a further addendum report dated 8 June 2023, in which he summarised and concurred with Dr Madsen’s opinions before stating that the treatment schedule proposed by Dr Madsen might assist the respondent to develop better emotional regulation and self-control in a custodial setting.  Dr Beech expressed the view that this proposal should be explored.
53. [53]
    In that further supplementary report, Dr Beech also referred to the evidence of Mr Tannock as follows:^[24]

“Mr Tannock’s supplementary Affidavit confirms that QCS has limited ability to manage compliance with medication.  He notes concerns by clinicians about the practical application of a supervision order.  Any supervision order would be tailored towards individual needs with the usual functions of monitoring, surveillance, curfew, and case management.

There is though, a limited capacity to provide the resources to ensure compliance with the supervision order conditions, to provide escorts in the community, and to ensure an appropriate level of surveillance.  There are no powers of control to manage [the respondent] should the issues escalate.  Instead, [the respondent] would need to manage his behaviours and emotions and demonstrate cooperative engagement.  There is little under the current circumstances to allow confidence (and I would insert, comfort) that [the respondent] could regulate his behaviour sufficiently to comply with supervision.

… I have little confidence at present that [the respondent] would be able to manage in the community.  I accept there are significant restrictions on the ability [of] QCS to monitor him.  I believe that any prison precinct would provide an environment as stressful as a prison setting for [the respondent]; the issue is, in the community he would have no recourse to institutional support such as placement in the detention unit.

I think that supervision would reduce the risk of re-offending but it is highly likely that [the respondent’s] time in the community would be short-lived.”

54. [54]
    In his oral evidence in chief, Dr Beech addressed the ongoing placement of the respondent in the detention unit in prison, before expanding upon the view he expressed in his report dated 22 May 2023 concerning the risk involved in the respondent transitioning out of the prison environment (extracted at [51] above):^[25]

“… it’s difficult to see how you could transition from a system where he is on an intensive management plan, a rolling safety order, frequent placements and current placement in a detention unit, out into the community where he would be accommodated in a prison precinct. … I believe there needs to be a transition between the system of safety order and detention unit placement and community accommodation.  If I were to devise a comprehensive management plan, that comprehensive management plan would actually commence in prison where there’s some system to break up this cycle.  I would see this reflects institutionalisation and the limited capacity of Corrective Services to respond.  … I think there might be a different way to manage this in the longer term that could then be transferred into the community setting.”

55. [55]
    Dr Beech said that he would prefer that, in the short term, the respondent undergo further treatment in custody, but that this should occur in combination with a change in the management of the respondent’s behaviour so that:^[26]

“… an alternative management pathway is devised within prison where if he says he feels unsafe or feels threatened or wants to threaten or something like that, then there is a graduated response to that rather than the immediate default of he goes into the detention unit.  Now, that’s an ideal setting.  I don’t know whether that can actually be done within a prison setting, but that would be, I think, ideal because … he would develop strategies, Corrective Services would develop strategies and then they would say in the community, this is how we’re going to manage it.  We’ve got a graduated response.  Because at the moment, he says he wants to go to the detention unit or, at the moment, he threatens and things like that and the only response really is - that I can see, he has to go to the DU.  Whereas within intensive treatment, you could come up with a management plan that says okay, well, I know you’re feeling threatened.  Let’s look at your management plan.  It says here the first thing is you’re going to ventilate, you’re going to talk to a psychologist.  We’re going to get the psychologist down and you can talk with him or her.  The next thing is we’re going to place you out in the exercise yard, and you can have some time by yourself.  You’re going to go over the strategies … about managing your emotions and just talk some of this through and then, you know, go back to your cell or something like that … let’s try to avoid going down to the detention unit because in the community, there is no detention unit.”

56. [56]
    During his cross-examination, Dr Beech:

    1. (a)
       agreed that the respondent’s behaviour would be likely to deteriorate before he reached a state where he was offending against females, but said that the deterioration may not be obvious and the ability to pick up that there has been a deterioration is “a high level clinical skill”;^[27]
    2. (b)
       said that, because of the opportunistic nature of the respondent’s previous offending, a condition of a supervision order restricting the respondent’s ability to go to places where minors were likely to be present (schools, parks, or shopping centres) would not properly address the risk of re-offending and might give a false sense of comfort;^[28]
    3. (c)
       when asked whether release to the Wacol precinct under a supervision order could provide the type of transition to less secure environments and the associated benefit of a greater sense of agency for the respondent, which Dr Madsen referred to in his second report (see [34] above), gave the following response:

“It would give him too much agency too quickly, I think.  … You walk out of the prison and you’re immediately a supervisee.  He doesn’t get a graduated transition to that release.  It would be better if he were released into the mainstream unit of prison and able to show that he hasn’t needed to go to the detention unit in prison, and then go to the precinct, I believe. There’s no … detention unit in the precinct.  From my general anecdotal experience talking to people at the precinct, it’s just as annoying and irritating as being in a mainstream unit, sometimes more because there’s no control of movements around the unit.  The people are just the same, perhaps even more frustrated, and they’re more likely to bring in contraband than they are in prison.”

4. (d)
   when asked about what sort of treatment outcome he would wish to see before saying that the respondent was ready for release into the community, said:^[29]

“It’d be a behavioural outcome, and [the] behavioural outcome would be that he hasn’t needed to go into the detention unit for a sustained period of time, and that he has developed a de-escalation plan about how to manage anxiety, stress, anger, paranoia, and we put this into place several times and it seems to be working in prison.  We feel confident that it can be transposed over to the precinct, and our case manager at the precinct has looked at it and he or she is very confident … that they can use it.  And it’s going to be Dr Madsen doing the same work, so we’ve got seamless delivery.”

5. (e)
   ultimately, maintained his opinion that the conditions of a supervision order would reduce the risk of the respondent committing a further serious sexual offence to a moderate level, but said:^[30]

“… It falls over if Samantha tells him to cut off his [electronic monitoring] bracelet and run off into the bush, but I think … that’s the moderate risk is that he acts impulsively, and people just didn’t pick up.”

Consideration of relevant matters

57. [57]
    I turn then to consider the required matters under s 30(1) of the DPSO Act.
58. [58]
    The first relevant matter is the reports prepared by the psychiatrists under s 11.^[31]  I have already set out the relevant parts of those reports.  The respondent cooperated in the examinations by the psychiatrists.
59. [59]
    The next relevant matter is other medical, psychiatric, psychological or other assessment relating to the respondent.^[32] 
60. [60]
    There is now a significant volume of other assessments, including reports prepared for earlier reviews of the continuing detention order as well as assessments undertaken by the Prison Mental Health Service.  As noted by Dr Beech (see the extract at [43] above), this material contains a divergence of opinion as to whether the respondent meets diagnostic criteria for schizophrenia.  I accept the Attorney-General’s submission that there is broad conformity that the respondent meets the diagnostic criteria for psychopathy, anti-social personality disorder and paedophilia (heterosexual, non-exclusive).
61. [61]
    There are also the reports of Dr Madsen, which I have addressed above, and which I consider to be of critical importance in assessing the effect of the respondent’s treatment to date and his future treatment needs.
62. [62]
    As to whether there is a propensity on the part of the respondent to commit serious sexual offences in the future,^[33] and the risk that he will commit another serious sexual offence if he is released into the community,^[34] the assessments undertaken by the psychiatrists suggest such a risk exists.  Dr McVie considered the risk of the respondent committing such an offence if he was released without a Division 3 order to be high.  Dr Beech considered that risk to be above average.
63. [63]
    I have taken account of the question whether there is a pattern of offending behaviour on the part of the respondent,^[35] as well as his antecedents and criminal history,^[36] by reference to the description of his earlier offending set out in the judgment of Brown J when the continuing detention order was made.
64. [64]
    The Attorney-General accepted that the respondent had completed relevant rehabilitation courses while in custody.^[37]  As to whether his participation in those programs has had a positive effect,^[38] it is relevant to note Dr Madsen’s evidence (see [31] above) that because of the need for his treatment interventions to focus on reducing the respondent’s dysregulated behaviour patterns, it had not been possible to deliver any “sexual offending-specific treatment”.
65. [65]
    The final relevant consideration is the need to protect members of the community from the risk that the respondent would, if released into the community, commit another serious sexual offence.
66. [66]
    The evidence before me, including that given by the psychiatrists on the question of the risk of sexual reoffending, is acceptable and cogent.  On the basis of that evidence, and having regard to the matters set out in s 13(4), I am satisfied to a high degree of probability that the respondent is a serious danger to the community in the absence of a Division 3 order.  As I have already noted (see [7] above), Ms Freeman, who appeared as counsel for the respondent, conceded that the evidence supports such a finding.  That concession was appropriately made.
67. [67]
    On that basis, the decision made by Brown J on 6 February 2017 should be affirmed.

What order should be made?

68. [68]
    The respondent’s submission that the risk of him committing a further serious sexual offence can be appropriately managed by a supervision order is based on the following:

    1. (a)
       the evidence shows there has been an improvement in his behaviour in custody since the previous annual review;
    2. (b)
       the respondent has demonstrated a willingness to engage in individual therapy with Dr Madsen, appears more accepting of his circumstances including the need to continue to engage in future psychological treatment and to cooperate with future psychiatric evaluations, which are factors which act to reduce the risk of him sexually re-offending;
    3. (c)
       the evidence concerning the respondent’s requests to be placed in the detention unit also shows that he appears to be capable of seeking out help when he is feeling unstable or unsafe which is a further protective factor.
69. [69]
    Those matters, which I accept, mean that the risk of the respondent committing a further serious sexual offence if he were to be released under a supervision order in the terms referred to by Dr Beech is now somewhat less than was apparent on the evidence tendered on previous annual reviews.
70. [70]
    I also accept that the evidence before me shows that the respondent’s continuing detention is negatively affecting the impact of his treatment with Dr Madsen due to the limited opportunities the respondent has in the high secure environment of the prison to learn the self-regulation skills which he requires to sustain settled periods of behaviour and to gain the most from the therapeutical interventions.
71. [71]
    Despite these matters, I have concluded that the Attorney-General has satisfied the onus of demonstrating that, as matters presently stand, the adequate protection of the community cannot be reasonably and practically managed by a supervision order.
72. [72]
    The improvement in the respondent’s behaviour in custody seems to be attributable in large part to his removal from sources of stress or frustration in the prison environment through his placement in the detention unit.  A number of the medical witnesses referred to this as a coping strategy or safety valve which has been effective in reducing the impact of the respondent’s emotionally dysregulated behaviour.  Even in that context, evidence of recent incidents (see [27] above) confirms that the respondent’s behaviour remains susceptible to deterioration at times of stress or anger.
73. [73]
    This raises the difficulty of the respondent living in the Wacol precinct, having regard to his severe personality disorder, in circumstances where he would not have access to the safety valve of being removed to something equivalent to the detention unit and he has yet to learn the self-regulation skills required to deal with the stresses and frustrations of such an environment without resorting to threats of violence or self-harm.  Both Dr Madsen (see [32] above) and Dr Beech (see [48], [49] and [56](e) above) referred to the potential for a reasonably rapid deterioration in the respondent’s mental health in those circumstances and a resultant escalation in his risk of violence, self-harm and other destructive and threatening behaviours.  Dr McVie’s recommendation that the respondent continue with individual therapy in custody, and demonstrate a longer period of behavioural stability in custody, prior to any release is also consistent with this assessment.
74. [74]
    Dr Beech’s evidence that the deterioration in the respondent’s behaviour, before he reached a state where he was offending against females, may not be obvious and that the ability to detect such deterioration is “a high level clinical skill” is, it seems to me, critical to the question whether adequate protection of the community can be reasonably and practicably managed by a supervision order.  Although Dr Beech maintained his opinion that the likelihood of the respondent sexually re-offending would be reduced to moderate by a supervision order, the consequences if that risk eventuated could be a severe sexual assault.^[39]
75. [75]
    It is certainly true that a curfew condition made under a supervision order would act to restrict the respondent’s movements, particularly in the early stages of his release.  Electronic monitoring would also permit QCS to know where the respondent travelled in the community, but not who he was with or what he was doing.  Nevertheless, the risk that a deterioration in the respondent’s mental health in times of stress or anger might lead him to disregard the requirements of his supervision (as to which see Dr Beech’s evidence at [53] above), and the absence on release under a supervision order of the external controls such as the detention unit which have been used in the custodial environment to address the respondent’s emotionally dysregulated behaviour, satisfy me that the adequate protection of the community cannot be reasonably and practically managed by a supervision order.  In those circumstances I must order that the respondent continue to be the subject to the continuing detention order.
76. [76]
    It is important to note the need for the respondent’s future treatment in custody to develop so that, to the greatest extent possible, the respondent is afforded the opportunity to learn the self-regulation skills he requires to maintain behavioural stability in times of stress or anger.  Both Dr Madsen (see [34], [36](a), [37](b) and [37](c) above) and Dr Beech ( see [52], [54], [55], [56](c) and [56](d) above) described what this future treatment might look like, with the objective of the respondent transitioning to a more open area of the prison.  Mr Tannock indicated QCS’ willingness to engage in that future treatment program, subject to the security and logistical requirements of the prison.^[40]  As Mr Tannock observed, whether the respondent’s future treatment follows that path will depend in large part on the respondent’s willingness to engage and persist with that future treatment pathway in circumstances which are likely to be challenging for him in light of the personality factors identified in the evidence of Dr Madsen and the psychiatrists.
77. [77]
    One final observation concerns the outstanding need for a comprehensive management plan prior to the respondent’s release on a supervision order.  Mr Tannock confirmed in his evidence that, as at the date of the hearing, no such plan had been formulated.^[41]  As the respondent submitted, his continued detention means he is unable to progress that matter. 
78. [78]
    Dr Beech gave evidence as to the types of matters which that plan might address and the desirability of the plan being put in place during the respondent’s period in custody to confirm its effectiveness in avoiding or de-escalating the respondent’s emotionally dysregulated behaviour.^[42]  Whether it is practicable for such a plan to be developed and implemented while the respondent remains in custody, and for that plan to be altered as necessary to account for changes upon the respondent’s eventual release under supervision, is ultimately a matter for QCS.  It seems to me, however, that if the respondent is to progress towards release under supervision – which must be a goal of his continuing detention for the purposes of control, care or treatment – it is important for any steps that may be practicable to be taken as soon as possible to progress the development and implementation of such a plan.

Conclusion

79. [79]
    The orders I make are:

1. pursuant to s 30(1) of the DPSO Act, the decision made by Brown J on 6 February 2017 that the respondent is a serious danger to the community in the absence of an order pursuant to Part 2, Division 3 of the DPSO Act, be affirmed.
2. pursuant to s 30(3)(a) of the DPSO Act, the respondent continue to be subject to the continuing detention order made by Brown J on 6 February 2017.