Attorney-General v Bewert
[2023] QSC 181
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- Unreported Judgment
- Attorney-General v Bewert[2023] QSC 181
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Attorney-General v Bewert[2023] QSC 181
Attorney-General v Bewert[2023] QSC 181
SUPREME COURT OF QUEENSLAND
CITATION: | Attorney-General for the State of Queensland v Bewert [2023] QSC 181 |
PARTIES: | ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v HENRY BEWERT (respondent) |
FILE NO/S: | BS No 13210 of 2010 |
DIVISION: | Trial Division |
PROCEEDING: | Annual Review Hearing |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 18 August 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 July 2023 |
JUDGE: | Kelly J |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where, on 10 May 2011, the respondent was found by the Court to be a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) – where this finding has been affirmed on numerous occasions, most recently on 18 July 2022 – where the respondent has been variously subject to either a continuing detention order, a supervision order or a custodial sentence since 10 May 2011 – where the respondent has been subject to a continuing detention order pursuant to s 13(5)(a) of the Act since 22 June 2020 – where the current proceedings were the third annual review of the continuing detention order made on 22 June 2020 – whether the decision made on 10 May 2011 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act be affirmed – whether the respondent should continue to be subject to the continuing detention order made on 22 June 2020, pursuant to s 30(3)(a) of the Act – whether the adequate protection of the community can be ensured by the release of the respondent on a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 30 Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 Attorney-General (Qld) v Guy [2018] QSC 179 |
COUNSEL: | J Rolls for the applicant K Bryson for the respondent |
SOLICITORS: | Crown Solicitor for the applicant Legal Aid Queensland for the respondent |
- [1]This is an application by the Attorney-General pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for the review of the continuing detention of the respondent.
- Historical matters
- [2]The respondent is 59 years of age. On 23 February 1988, when he was 24 years of age, he was sentenced to two years’ probation for the aggravated assault of a female committed on 8 January 1988. He had then attended a laundromat and, whilst there, sat beside the complainant and touched her upper leg. When she resisted, he grabbed her upper body.
- [3]On 25 June 1996, the respondent was sentenced to three years’ probation for an indecent assault and an assault occasioning bodily harm committed on 2 May 1995. The complainant in that matter was a doctor employed at a psychiatric hospital. The respondent voluntarily admitted himself to the hospital and, whilst he was being examined in a locked room, slapped the complainant on the face, ripped her clothing and groped her breast and crotch. He forced the complainant onto an examination table and tried to remove her pants.
- [4]On 3 April 1997, the respondent was sentenced to three years’ imprisonment for indecent assaults committed on 14 August 1996. The complainants were nurses at a hospital. He assaulted the first nurse by grabbing her and at the same time trying to pull down the zipper of her pants. He grabbed the second nurse in a tight bear hug while fumbling with his trousers.
- [5]On 19 September 2003, the respondent was sentenced to five years imprisonment for a sexual assault committed on 29 March 2003. The complainant in that matter was a female who was unknown to the respondent and waiting in an emergency department at a hospital. The respondent grabbed her and kissed her on the neck. When she screamed for help, he dragged her by the waist to the floor whilst rubbing her breasts. The respondent had gone to the hospital with the intention of sexually assaulting a female. He had wanted to be caught so that he might be sent to prison.
- [6]On 14 November 2006, the respondent was released on parole. He was on parole when he committed four further sexual assaults in early 2007. On 24 January 2007, he rubbed his hand over the breast and stomach of a woman who was walking across a bridge. On 8 March 2007, he attended a supermarket and masturbated and ejaculated on a 17-year-old female. He approached two other female shoppers, touched each on their bottoms, and masturbated with his penis exposed.
- [7]On 10 May 2011, this Court found that the respondent was a serious danger to the community in the absence of a Division 3 order under the Act and ordered that the respondent be detained in custody pursuant to s 13(5)(a) of the Act. On 8 April 2013, the finding that the respondent was a serious danger to the community in the absence of a Division 3 order was affirmed and there was a finding that the adequate protection of the community could then be ensured by the respondent’s release on supervision. On that occasion the continuing detention order made on 10 May 2011 was rescinded and there was an order made that the respondent be released from custody subject to a supervision order. The supervision order was subject to a number of requirements which included that the respondent “not commit an offence of a sexual nature during the period of the order” and “notify a corrective services officer when attending hospital/emergency department”.
- [8]On 23 August 2017, the respondent was sentenced for a sexual assault while armed and a contravention of a relevant order contrary to s 43AA of the Act. He was sentenced to four years’ imprisonment for the sexual assault and was convicted, but not further punished, in relation to the offence under the Act. The respondent committed the sexual assault on 24 July 2016 at a hospital. The complainant had been working in her office. The respondent had a knife. When the respondent entered her office, the complainant tried to grab the knife to protect herself. The respondent held onto the knife whilst the complainant held the blade. The respondent put his hand down the complainant’s top and touched her on the breast. A co-worker entered the room. The respondent was restrained. The complainant received minor cuts to her little finger and thumb.
- [9]On 22 June 2020, the respondent’s supervision order made on 8 April 2013 was rescinded and it was ordered that the respondent be detained in custody subject to a continuing detention order. On 24 September 2021, the finding that the respondent was a serious danger to the community in the absence of a Division 3 order was affirmed and an order was made that the respondent continue to be subject to the continuing detention order made on 22 June 2020. On 18 July 2022, there was a further finding that the respondent was a serious danger to the community in the absence of a Division 3 order and it was ordered that the respondent continue to be subject to the continuing detention order made on 22 June 2020.
- [10]This is the third review of the continuing detention order made on 22 June 2020.
- Statutory scheme
- [11]The application for review is governed by s 30 of the Act which is in the following terms:
- “30Review hearing
- (1)This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.
- (2)On the hearing of the review, the court may affirm the decision 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.
- (3)If the court affirms the decision, the court may order that the prisoner—
- (a)continue to be subject to the continuing detention order; or
- (b)be released from custody subject to a supervision order.
- (4)In deciding whether to make an order under subsection (3)(a) or (b)—
- (a)the paramount consideration is to be the need to ensure adequate protection of the community; and
- (b)the court must consider whether—
- (i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and
- (ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.
- (5)If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order.
- (6)In this section—
- required matters means all of the following—
- (a)the matters mentioned in section 13(4);
- (b)any report produced under section 28A.”
- [12]Section 30 contemplates a two-stage decision making process. First, the court must be satisfied, by acceptable cogent evidence, that the decision which has previously been made, that the prisoner is a serious danger to the community in the absence of a Division 3 order, should be affirmed. If the decision is affirmed, a discretion arises under s 30(3) of the Act to determine whether the respondent ought to continue to be subject to the continuing detention order or be released from custody subject to a supervision order. The paramount consideration is the need to ensure the adequate protection of the community.
- [13]
- “Section 30 operates in this way:
- 1.Firstly, the Court must consider whether the respondent is ‘a serious danger to the community in the absence of a Division 3 order’;
- 2.If the answer to that question is in the affirmative, then consideration must be given to whether ‘adequate protection of the community’ can be ensured by release of the respondent on a supervision order;
- 3.If the answer to that question is in the negative, then generally (subject to any discretion to make no order) a continuing detention order should be made.”[2]
- [14]For the court to affirm that the respondent is a serious danger to the community, it must be satisfied that the prisoner is, as at the date of the review hearing, “a serious danger to the community” in the absence of a Division 3 order. Any finding of affirmation is to be made on the evidence presented at the review hearing.
- [15]In the present case the respondent accepted that the psychiatric evidence supported a finding that the respondent is a serious danger to the community in the absence of a Division 3 order.
- [16]The real issue before me concerned the manner in which the discretion conferred by s 30(3) of the Act ought to be exercised.
- [17]For a continuing detention order to be made, the applicant must demonstrate that the community will not be adequately protected by a supervision order.
- [18]
- “The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. … a supervision order need not be risk free, for otherwise such orders would never be made. What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression “unacceptable risk” within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.”[4]
- Consideration
- [19]The relevant evidence comprised written reports of a treating clinical psychologist, Dr Lars Madsen, and of a treating psychiatrist, Dr Ken Arthur. There were also written reports prepared pursuant to s 29 of the Act by the psychiatrists, Dr Harden and Dr Brown. All of these witnesses gave oral evidence.
- [20]Dr Madsen had been treating the respondent for just over 12 months. In the context of that clinical relationship, he had been working with the respondent to “break down and make sense of [the respondent’s] decision making with regards to … offending in the past”.[5] Dr Madsen considered that the respondent had “struggled to articulate a coherent understanding of … why … he ends up in these situations time and time again”.[6] He described the respondent’s offending history as “quite chaotic and disorganised” and noted that “he seems to make very impulsive decisions”.[7] Dr Madsen observed that the respondent had started working on the impulsivity aspect of his offending and how he could best deal with that in the future. He said that in his dealings with the respondent they had been “laying the groundwork for being able to specifically focus on those things”.[8] His treatment was only just starting to analyse “the impulsivity aspect of [the respondent’s] offending”.[9] Dr Madsen confirmed that the respondent’s future treatment would continue either in a custodial or community setting.[10]
- [21]Dr Arthur noted that the respondent had been on anti-libidinal Zoladex since 2022. The material indicates that the Corrective Services will continue to facilitate the provision of Zoladex to the respondent and continue to engage with Dr Arthur in relation to its administration. Testing has demonstrated that the respondent’s testosterone levels have been significantly supressed by Zoladex. In cross- examination, Dr Arthur was asked what he would need to see in the future to be satisfied that the risks associated with the respondent’s release into the community were mitigated to a sufficient and acceptable level.[11] Dr Arthur responded to that question as follows:
- “Well, you’re asking me about a risk assessment, when I’m actually a treating psychiatrist. But I’m on the stand and you’ve asked me that question. What I think – the difficulty that I have with [the respondent] is that when I was treating him in the community, before he committed the last offences, he didn’t give me a great deal of indication that things were going astray for him. He did indicate that he was not happy and there were some social stressors. But the information that I was given after the event was unknown to me. And I think that’s a major concern, that [the respondent] wasn’t upfront with the people who were supervising him and treating him with the problems he was having. I’m concerned that, when I’ve assessed him, he still tends to – I think he minimises his past offences. He minimises the potential for violence and harm. And he’s not very good – I think Dr Madsen saidhe has difficulty elucidating, he has difficulty expressing the motivations. And that means either he doesn’t understand the motivations for his offending, or that he has difficulty, expressing those and putting those into words. So in a nutshell, I’m not confident that [the respondent] will reliably report problems. And because I don’t see him very often … it’s very difficult for me to comment on whether or not he’s developed those skills, that insight and that capacity to be able to identify problems and then report them in a timely fashion so they can be dealt with. So I think I would rely on someone like Dr Madsen to be able to tell me that there has been a material change in his capacity and his willingness to share that information. And I think that, when I speak to him, my impression is that he may have developed some insight – and he’s certainly agreeable to treatment. He’s accepted the treatment. But whether he’s developed enough insight to understand the motivators for his offending, and to understand the risk factors, and to be able to identify those independently, I’m not confident he’s there yet.”[12]
- [22]Each of Drs Brown and Harden assessed the respondent’s risk of sexual offending as high.[13] The respondent has been assessed as having a personality disorder with borderline antisocial and dependent traits. Dr Brown described the risk as being of a contact offence against an adult female with potentially significant psychological harm and potentially some physical harm. Having regard to the psychiatric evidence, I am satisfied, and affirm the finding, that the respondent remains a serious danger to the community in the absence of a Division 3 order.
- [23]The respondent’s risk profile is multifaceted. Only one of the drivers of the risk in the present case was sexually driven. That driver was a suspected paraphilia being an exhibitionist disorder and frotteuristic disorder (as opined by Dr Brown) or a “paraphilic/sexual preference/fantasy of some kind associated with touching nonconsenting women and female health professionals” (as opined by Dr Harden). To the extent that this driver existed, it may be accepted that the administration of the anti-libidinal medication was likely to significantly reduce the associated risk. In that regard, the administration of the anti-libidinal medication had apparently reduced the respondent’s testosterone levels to “castration levels”.
- [24]Each of Drs Harden and Brown observed that there were other drivers of the respondent’s risks which were not addressed by the medication. Dr Harden considered the reduction in risk affected by a supervision order was difficult to quantify. He relevantly opined “I would … say it’s hard to quantify but that with the very low testosterone, ... the risk reduction might be such that, on a supervision order, his risk might go as low as moderate.[14] Dr Brown was unable to say that, if released on a supervision order, the respondent’s risk of reoffending would be reduced “in any meaningful way”. In that regard, the respondent is afflicted by a severe personality disorder which was not directly affected by any reduction in testosterone. Dr Harden was unable to opine to what extent the respondent’s severe personality disorder remains relevant. Dr Brown considered that the diagnosis of a personality disordercarried the most risk and that the absence of a sexual drive did not eliminate the risk of sexual offending where there were drivers associated with hostility towards women and control of women. The respondent’s severe personality disorder, coupled with his borderline intellectual function, suggested that he was not able to readily absorb the lessons that may have otherwise been learned through participation in sexual offender treatment programs and/or in individual counselling.
- [25]There are some further matters to note:
- (a)The respondent presented as someone who did not have any identifiable pathway of offending. Dr Harden said that he was unable to identify any warning signs connected with the offending in 2016.[15] The inability to identify a pathway means that there is a difficulty in formulating an appropriate supervision order that would identify and guard against escalations in risk.
- (b)
- (c)Dr Brown considered that the respondent’s sexual offending may have been driven by his desire to seek institutional care. She considered that his most recent offending may have been a manifestation of a pathological preference for institutional high level care.[18]
- [26]Ultimately, I accept the applicant’s submission that the apparent drivers of the respondent’s sexual offending are his antisocial personality disorder, borderline intellectual function and deviant psychosexual arousal. Whilst supervision and the administration of anti-libidinal substances reduces the respondent’s testosterone and may be expected to have some effect in addressing the risk, the psychiatrists’ evidence remained broadly consistent, namely that the extent of any reduction in risk was unclear.
- [27]I was particularly impressed by the evidence of Dr Brown. She considered that whilst the anti-libidinal medication has contributed to a reduction in risk, she was unable to quantify that reduction. She ultimately expressed the opinion that it would not be a “particularly significant” reduction.[19] She had read Dr Madsen’s reports and observed his oral evidence. She noted that the respondent’s treatment with Dr Madsen was “really at the beginning” and Dr Madsen did not presently have “a good working understanding of the offending pathway”.[20] Dr Brown considered, that in the future, for her to be confident that the risk was modified down to an acceptable level, she would need to see a report from Dr Madsen that detailed a better understanding of the offending pathway and the future offending risk factors. She would also want to see demonstration that the respondent was able to interview and discuss offending behaviours and risk factors. Ultimately, Dr Brown expressed the clear view, which Iaccept, that she did not consider that a supervision order at this stage would manage the risk.[21]
- [28]Having regard to the weight of the evidence, I am not satisfied that a supervision order would provide adequate protection to the community. I accept the applicant’s submissions that there is no cogent evidence to support a finding that any additional reduction in risk brought about by a supervision order would provide adequate protection to the community. Presently there are too many unknowns in the respondent’s motivations and too little understanding of his offending pathways to countenance the making of a supervision order.
- [29]For the reasons I have provided, I find that adequate protection of the community cannot be ensured by the release of the respondent on a supervision order. I find that the respondent should continue to be subject to the continuing detention order made on 22 June 2020.
- [30]The orders I make are as follows:
- 1.Pursuant to s 30(1) of the Act, the decision made on 10 May 2011 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act be affirmed.
- 2.Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 22 June 2020.
Footnotes
[1][2018] QSC 179.
[2]Attorney-General (Qld) v Guy [2018] QSC 179 at [10].
[3][2006] QSC 268.
[4]Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [29].
[5]T1-7.35-.40.
[6]T1-7.43-.45.
[7]T1-8.35-.38.
[8]T1-9.44.
[9]T1-10.14.
[10]T1-10.18-25.
[11]T1-12.31-35.
[12]T1-12.35-T1-13.14.
[13]Dr Harden considered the risk was of a hands-on reoffending against an adult female, most likely a stranger.
[14]T1-22.20-30.
[15]T1-19.30-35.
[16]T1-12.41.
[17]See affidavit of K Brown at Exhibit KB-3 page 7 (Report page 4).
[18]See affidavit of K Brown at Exhibit KB-3 page 51 (Report page 48).
[19]T1-32.18.
[20]T1-32.24-30.
[21]T1-31.17.