Attorney-General v Porter[2023] QSC 179

SUPREME COURT OF QUEENSLAND

Overview

1. [1]
   In accordance with the Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSOA”), the applicant applied for the first annual review of the respondent’s continuing detention order which was made on 25 February 2022. The law in this area is well settled and well known and I will not rehearse it in these reasons.

2. [2]
   The respondent is an Indigenous man, now in his late fifties. He has a history of substance abuse from the age of 17. He has spent most of his adult life in prison – his adult criminal history commencing in 1983.

3. [3]
   In 2008, the respondent was convicted of extremely serious sexual and related offences and sentenced to 15 years imprisonment.^[1] He did not engage in any sexual offender treatment programs whilst serving that sentence or during his continuing detention: he says he is innocent. Indeed, he says that even though he has been in custody beyond his full-time release date, he does not wish to be released into the community until he has proven his innocence by way of a successful, out-of-time appeal to the High Court. He says he would rather spend the rest of his life in custody than be released into the community with convictions for sexual offences including rape “on [his] back”. He told me that he understood that his unwillingness to engage in treatment programs prevented a thorough assessment of the risk he posed of committing a serious sexual offence in the future.

4. [4]
   The review is governed by section 30 of the DPSOA, which requires me to give paramount consideration to the need to ensure adequate protection of the community from the relevant risk posed by the respondent.

5. [5]
   The respondent’s continuing detention order (“CDO”) was made by Davis J. On 25 February 2022, his Honour –

   1. found that the respondent was “a serious danger to the community in the absence of an order made under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003”; and
   2. ordered that the respondent be detained, indefinitely, under the DPSOA, for his care, control, and treatment.

6. [6]
   In other words, his Honour made a CDO for the respondent because his Honour considered him to pose an unacceptable risk of committing a sexual offence involving violence if he were to be released upon his full-time release date. On the information available, the risk posed by the respondent is that he will commit a sexual assault or rape upon an adult woman.

7. [7]
   The respondent appeared for himself at this review (as he did before Davis J). I confirmed with him that it was his preference not to be represented.

8. [8]
   Both Davis J and I faced the same issue, namely, the respondent’s refusal not only to participate in sexual offender treatment programs but also his failure to engage with the psychiatrists commissioned to assess him for the purposes of the DPSOA.

9. [9]
   In my case, the psychiatrists, Dr Arthur and Dr Lenardon, were left to conduct a risk assessment of the respondent without interviewing the respondent himself and without the benefit of any relevant information which might have been obtained had he participated in sexual offender treatment of any kind – including since the making of the CDO.

10. [10]
    On the materials available to them, the psychiatrists assessed the respondent’s risk of committing a sexual offence involving violence, upon his release into the community, as “substantial” or falling into the “above average” category. He was an untreated sex offender. It could not be said that any risk he posed had been lessened by his time in custody. Nor could it be said that the prospect of a return to custody, if he were to offend again, would operate as a deterrent, given his attitude to release – which was that he would prefer to remain in jail than to be in the community as a convicted sex offender.

11. [11]
    An above average or substantial risk that the respondent would commit a sexual offence involving violence were he to be released from custody is an unacceptable risk. An unacceptable risk does not ensure adequate protection of the community.

12. [12]
    However, because of the respondent’s failure to engage with the psychiatrists, and because he has not participated in relevant treatment programs, there is a lack of information about critical matters such as the respondent’s sexual offending triggers and risk factors. It follows that one cannot sensibly or reliably consider whether, or to what extent, the imposition of certain conditions upon the respondent’s release might ameliorate his otherwise unacceptable risk. In the circumstances, I could not possibly be satisfied that the adequate protection of the community could be reasonably and practicably managed by a supervision order (see section 30(4)).

13. [13]
    Accordingly, at the hearing of the review on 14 August 2023, I affirmed the decision made by Davis J on 25 February 2022, that the respondent is a serious danger to the community in the absence of a division 3 order; and ordered that the respondent continue to be subject to the CDO made by his Honour. My reasons for so affirming and ordering follow. But before I get to them, it is important for the respondent to understand that, realistically, if the respondent does not engage in sexual offender treatment (as part of a group or individually) or does not submit to an assessment by court appointed psychiatrists for the purposes of the DPSOA, and nothing else changes, then his custodial status is unlikely to change.

Reasons for decision to affirm and order

The index offending

14. [14]
    On 18 January 2008, the respondent was convicted, after a trial, of several serious sexual offences committed upon a 19-year-old woman, who was not known to him, in her home. The attack upon her was “prolonged, degrading, painful and terrifying”.^[2] The offences included burglary with violence, deprivation of liberty, robbery with violence, sexual assaults, and digital, oral, and vaginal rape. The respondent was Hepatitis C positive at the time.

15. [15]
    The offences involved the respondent blindfolding the complainant and using violence towards her, including tying the complainant’s hands behind her back using an electrical cord and strangling her as she tried to escape. After raping her, the respondent led the complainant to her bathroom and washed her, in an attempt to avoid detection. The respondent’s semen was found on swabs of the complainant’s genitals; on her upper thigh; and on her underwear.

16. [16]
    The respondent’s adult criminal history commenced in February 1982. Since then, until his conviction in January 2008, he appeared before courts on 70 occasions. The index offences are his first convictions for sexual offences.

17. [17]
    The trial judge, Rafter KC DCJ, sentenced the respondent to an effective period of 15 years’ imprisonment, which required a mandatory declaration that the respondent had been convicted of serious violent offences and was required to spend 80 per cent of the 15 years in custody before his eligibility for parole arose. During his sentencing remarks, his Honour stated that: the respondent had shown no remorse; he had no insight; and his prospects of rehabilitation were extremely low.

18. [18]
    The respondent appealed unsuccessfully against his conviction and sentence.

19. [19]
    The respondent maintains that he has been wrongfully convicted, and that the case presented against him was false. However, as I explained to the respondent at the hearing, I proceeded on the basis that he was safely and properly convicted, and I accepted the accuracy of the facts found against him.

The making of the CDO by Davis J

20. [20]
    On application by the applicant, on 25 February 2022, Davis J declared the respondent to be a “serious danger to the community” in the absence of a division 3 order, and ordered that he remain in custody, for an indefinite term, under a continuing detention order for his care, control, and treatment. In his reasons, his Honour said –

72. [72]
    The respondent is an untreated sex offender. He has failed to engage with the psychiatrists [for DPSOA purposes]. All three psychiatrists are concerned as to the lack of information that they have to assess risk in the circumstances where they have been unable to interview the respondent. The evidence of Drs Arthur and Sundin is quite clearly that there is simply insufficient evidence to make a prediction as to the respondent’s manageability under supervision. Dr McVie recommended release on supervision. However, for the reasons I have explained, that was a pragmatic approach in the hope that the respondent would engage in, and respond to, treatment in the community.

73. [73]
    I cannot be satisfied that the respondent can be managed on a supervision order in the community or that a supervision order will reduce his risk of the commission of a serious sexual offence to an acceptable level.
74. [74]
    In the circumstances, I make a continuing detention order.

21. [21]
    Little has changed.

Expert evidence at the review hearing

22. [22]
    For the purposes of this review, Crown Law commissioned Dr Arthur and Dr Lenardon to examine the respondent and to provide a psychiatric risk assessment for use in these proceedings. The respondent would not co-operate with them, so their risk assessments were based on other sources.

Dr Ken Arthur (report dated 28 June 2023)

23. [23]
    I note that Dr Arthur was one of the doctors who provided reports in relation to the respondent’s division 3 hearing before Davis J. The respondent actually engaged with Dr Arthur during the hearing before Davis J and appeared to show some willingness to engage with a psychologist then to deal with his childhood trauma and substance use – but he is yet to do so.^[3]
24. [24]
    For the purpose of this review, Dr Arthur attempted to examine the respondent at the Wolston Correctional Centre on 26 May 2023. The respondent refused to attend the interview.

25. [25]
    Doing what he could with the other information known about the respondent, Dr Arthur provided a comprehensive risk statement, noting that static risk factors placed the respondent into the above average risk category:

26. [26]
    Dr Arthur explained that the respondent was an untreated sex offender, about whom little of relevance was known – impeding any risk assessment. Additionally, based on what was known about the respondent, it was unlikely that he would co-operate with supervision by corrective services officers in the community. Dr Arthur explained that a supervision order, in theory, could reduce the respondent’s risk by constraining his movements and associations, but the respondent could not safely be progressed beyond stage 1 of such an order (its most restrictive stage).

27. [27]
    Dr Arthur said:

58. [58]
    Ultimately, prisoner Porter remains an untreated sex offender who has failed to take any responsibility for his offending behaviour or engage in treatment to mitigate his risk of recidivism. There is no new information regarding the presence of sexual deviancy or his level of sexual activity/sexual preoccupation. We do not know anything of his attitudes towards women or functioning in relationships. He has not shared his plans for the future nor identified any support networks.

59. [59]
    Prisoner Porter has a long record of non-compliance with community supervision and his lack of cooperation in the risk assessment process suggests that little has changed in regard to his attitude or behaviours. As such, I think it is unlikely that he will cooperate with supervisory staff or engage in treatment if released to supervision.
60. [60]
    I remain of the opinion that whilst a supervision order would initially act to reduce the risk of sexual recidivism by the application of strict supervision and restriction of access to the community, his stance of non-cooperation will limit his ability to progress beyond a stage 1 curfew or move from contingency accommodation.
61. [61]
    It remains difficult to recommend his release under supervision without a thorough risk assessment and the successful completion of a group sexual offender treatment program. This would provide useful information regarding his attitudes, capacity for self-reflection, motivation to change and allow the development of a relapse prevention plan.

28. [28]
    I note Dr Arthur’s reference to his inability to recommend the respondent’s release. That statement must be viewed in the context of the DPSOA. I appreciate, as I am confident the very experienced Dr Arthur appreciates, that the question of release on supervision or not is one for the court.

29. [29]
    In oral evidence before me, Dr Arthur explained that he applied the actuarial instruments as well as he could on the limited information he had. He elaborated as follows upon the respondent’s static and dynamic risk factors:

The static risk factors mostly relate to the nature of the offending … and they relate to Prisoner Porter’s criminal history … and they relate to the nature of the victims, and they relate to his age…

The dynamic risk factors are - are more around the nature of his offences, again, but also his apparent minimisation and denial. I understand that he’s pleading innocence, but based on the official record, I would interpret that as - as evidence of minimisation and denial. There have been problems with substance use, which - we’re not sure of what will happen if he’s released into the community, whether they’ll continue to be a problem. He’s had problems with employment, non-sexual criminality, planning, treatment and supervision. So there are a number of things that potentially are problems, but obviously without the benefit of a clinical interview, I can only mention possibilities.

30. [30]
    Dr Arthur explained that, although not much was known about the respondent, diagnoses of antisocial personality disorder and substance misuse disorder had been made. A diagnosis of psychopathy was left open because it could not be confirmed. Dr Arthur thought it likely that the respondent had psychopathic traits and he was concerned about the possibility of the respondent having narcissistic personality traits, or at least some narcissistic defence mechanisms which could be subsumed under psychopathy. However, without a clinical interview of the respondent, he could only guess.

31. [31]
    Dr Arthur explained that the respondent’s active involvement in treatment to mitigate any relevant risk was “vital” to the determination of a risk management strategy. Dr Arthur said, “Even going through an assessment gives Community Corrections (sic) useful information that they can use to formulate an appropriate risk management tool. But essentially, risk management comes from the individual … and - and the goal of treatment is to assist the individual to develop their own risk management strategy and have better understanding of - of the - the factors that led to the offending in the first place. So without engagement in that process, it’s very difficult to formulate any type of risk management strategy outside of the most onerous and most restrictive practices available”.

32. [32]
    Additionally, given the respondent’s statements about wishing to remain in custody, Dr Arthur was concerned about his motivation to engage with supervision in the community if he were released.

Dr Lenardon (report dated 15 May 2023)

33. [33]
    Dr Lenardon attempted to examine the respondent by video-link at the Wolston Correctional Centre on 12 May 2023, but he refused to attend the interview. Nevertheless, whilst noting the limitations of the assessment, Dr Lenardon assessed the respondent using risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the results outlined below.

34. [34]
    Dr Lenardon was unable to score the respondent on the Psychopathy Checklist (PCL- R) without directly assessing him. However, she noted the respondent’s elevated psychopathy score:

… based on the documentation available, it appears that Mr Porter presents with the following features of psychopathy: lack of remorse or guilt, parasitic lifestyle, poor behavioural control, lack of realistic, long-term goals, failure to accept responsibility for own actions, juvenile delinquency, revocation of conditional release and criminal versatility. This gives a score of 18, with all factors being under Factor 1, which reflects the affective and interpersonal features of psychopathy. Even though the score falls below the threshold of psychopathy, it is an elevated score.

35. [35]
    Dr Lenardon applied the Risk for Sexual Violence Protocol (RSVP), a dynamic risk instrument, on the basis of the information available (which was, of course, limited because the respondent refused to collaborate in the assessment). The application of this protocol raised concerns about the possibility of the respondent’s sexual deviance and psychopathic personality disorder, among other concerns. Dr Lenardon said:

In relation to Mr Porter's sexual violence history, there is no chronicity, diversity, or escalation of sexual violence as Mr Porter's serious sexual violent offence was his first offence of this nature. These are common risk factors for recidivism of sex offending.

There is evidence of physical coercion used during the offending. In fact, the assault was prolonged, included mechanical restraint of the victim, and an attempt by Mr Porter to strangle the victim and as a result of the sexual violence used by Mr Porter, the victim reported several injuries.

In relation to psychological adjustment, Mr Porter continues to deny the offending. Given the nature of the offending, it is likely that Mr Porter holds attitudes that condone sexual violence. Mr Porter clearly presents with a severe lack of self-awareness into his offending. Based on the scattered background information available, it is likely that Mr Porter experiences problems with stress or coping and has suffered child abuse.

In relation to mental disorder, there is no evidence to suggest that Mr Porter has ever experienced major mental illness, such as schizophrenia or a mood disorder. Given the lack of information, it is difficult to fully exclude the presence of sexual deviance. Given the nature of the offence, and specifically the use of physical restraint, the attempted strangulation, and the fact that Mr Porter maintained sexual arousal throughout the offending despite the distress of the victim, may suggest that Mr Porter does have a degree of sexual deviance, namely he is sexually aroused by the use of violence during sexual interactions. Having said that, given the lack of known history of sexual deviance and given the Mr Porter has not provided an account of his offending, this crucial point (as sexual deviance is highly connected to recidivism) cannot fully be ascertained at this stage.

Similarly, the presence of psychopathic personality disorder cannot fully be excluded given the lack of information …

Mr Porter presents with a history of severe substance use up to the time of the current offending. Previous attempt to address Mr Porter's drug problems through rehabilitation and opiate treatment have failed. This is likely related to Mr Porter's lack of insight into his drug problem and his lack of motivation to address the underlying psychological problems likely linked to the drug use and the drug use itself. Ongoing drug use is clearly a critical factor in Mr Porter's offending, as it is known how the use of illicit drugs is a strong risk factors for both generic offending and sexual offending.

In relation to social adjustment, there is evidence of unstable intimate and non-intimate relationships, in that Mr Porter has been described as a loner and when in community he appears to have had limited social support. Similarly, Mr Porter presents with a clear history of employment instability and non-sexual criminality, to the extent of Mr Porter having spent most of his adult life in custody. Albeit these factors are not strictly related to sexual violence recidivisms, in the presence of other more specific risk factors such as the use of physical coercion and the extreme minimisation of responsibility, these risk factors further contribute to Mr Porter's future risk of recidivism.

In relation to Mr Porter's manageability, given his history of poor compliance both in community and custody, upon release, his lack of commitment to engage in treatment and his lack of motivation to progress as demonstrated by his repeated statements about 'not minding remaining in prison', it is highly likely that upon release Mr Porter will fail to engage with supervision and restrictions and would likely re-engage in drug use and criminality.”

36. [36]
    She reached the conclusion that the respondent’s risk of behaving in a sexually violent way in the future had not been mitigated in any way. She considered him to present a substantial future risk of sexual violence, as she explained:

In formulating Mr Porter's risk of sexual violence, in my opinion the only option is to use what is known in this case, namely the serious nature of the offence (sustained use of violence and physical coercion against an unknown victim) and Mr Porter's attitude towards it (denial, failure to take responsibility, lack of engagement in recommended treatment). This indicates that Mr Porter's future risk of sexual violence has not being mitigated in any ways. The two factors besides engaging with treatment that often play a role in mitigating the future risk of re-offending are the time passed since the offence without further offending and the time in prison which may act as a deterrent to re-offend. In Mr Porter's case, in relation to the time passed since the offending, this occurred in 2008, and although since then Mr Porter has not engaged in further sexual offending, he has been incarcerated during this time, meaning he has been in a protected environment, which is likely the main factor to have prevented further offending. In fact, Mr Porter's institutional conduct has been sub-optimal, as he has incurred several breaches and has not engaged consistently in other aspects of rehabilitation, such as employment.

[…]

Having considered the available information about previous offences and progress and having acknowledged the limitation of this psychiatric assessment given the lack of Mr Porter's engagement, in my opinion Mr Porter continues to present with a substantial future risk of sexual violence, which so far has not been mitigated.

Consideration of evidence

37. [37]
    On a review of a CDO, I am to consider whether I am satisfied by acceptable, cogent evidence; and to a high degree of probability, that the evidence is of sufficient weight to affirm the decision that the prisoner is a serious danger to the community in the absence of a division 3 order. If I so affirm that decision, then the discretion granted by section 30(3) of the DPSOA is enlivened.

38. [38]
    I accept the submission for the applicant that there is sufficient cogent evidence before me, to satisfy me to the high degree of probability necessary, that if released without a division 3 order the respondent presents an unacceptable risk of committing a “serious sexual offence”, as defined by the Act.^[4]
39. [39]
    The evidence of Dr Arthur and Dr Lenardon is compelling. The doctors have done what they can with the material they had. Their opinions are based on the results of validated assessment instruments and tools, as well as their valuable clinical judgment – albeit limited by the absence of any interview with the respondent.

40. [40]
    I found on the evidence that the respondent’s unmodified risk of serious sexual offending is above average or substantial. Thus, the evidence before me supports the affirmation of the decision made on 25 February 2022 that the respondent is a serious danger to the community in the absence of a division 3 order.

41. [41]
    Further, not enough is known about the respondent to allow the court to consider whether or how his unmodified risk might be reduced to an acceptable level by a supervision order which could impose conditions upon his release. I therefore ordered the respondent be subject to the continuing detention order made on 25 February 2022.

Other matters

42. [42]
    In asserting his innocence, I infer that the respondent is challenging the assessment of his risk as above average or substantial. However, his assertion is not enough to overcome the evidence. Nor is a hearing under the DPSOA the time or place for the respondent to make an argument about his guilt.

43. [43]
    The respondent told me that, as a child in an institution, he was the victim of sexual abuse. My understanding is that he is awaiting the payment of compensation under the National Redress Scheme. His plan is to use his compensation to fund lawyers in an attempt to have his convictions quashed in the High Court. It is not for me to comment upon the respondent’s plans. My concern is with his status under the DPSOA.

44. [44]
    Dr Arthur explained in evidence that, to progress things, the respondent would need to do the following:

… cooperate with the risk assessment, and that would - that is the first stage. It can’t progress without that.

Should he cooperate with a risk assessment, depending on the outcome of that risk assessment, the next stage would be some form of treatment.

Now, the point of treatment and group treatment programs is all around challenging avoidance, challenging denial, and there’s a problem in that people who maintain their innocence can be excluded from those programs.

The alternative would be individual therapy. Now, that’s a longer- term process.

… [D]epending on his risk as assessed by a clinical interview and a clinical, formal risk management process, it’s hard to say how long that - that individual therapy would need to be. But that would be the next stage.

And I personally would like to see Mr Porter engaged with a treatment program, be that group or individual, and to have shown some signs of improvement or at least commitment to that program before I think it would be reasonable to recommend his reasonable to recommend his release under supervision.

45. [45]
    Dr Lenardon gave similar evidence about the things the respondent would need to do to enable the court to be in a position to consider his release on supervision:

Mr Porter as a minimum needs to start engaging with the clinician … in custody … on a regular basis and start engaging in some form of discussion around his risk, his offending and his future plans. That’s really the bare minimum.