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CITE

Unreported Judgment
Appeal Determined - Special Leave Refused (HCA)

Attorney-General v Van De Wetering[2023] QSC 216Muir J
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Attorney-General v Van De Wetering[2023] QSC 216

SUPREME COURT OF QUEENSLAND

CITATION:	Attorney-General for the State of Queensland v Van De Wetering [2023] QSC 216
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v PETER JOHN VAN DE WETERING (respondent)
FILE NO/S:	7009 of 2023
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	29 September 2023
DELIVERED AT:	Brisbane
HEARING DATE:	11, 15 and 20 September 2023
JUDGE:	Muir J
ORDER:	The court, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of a Division 3 Order, orders that pursuant to s 13(5)(a) of the *Dangerous Prisoners (Sexual Offenders) Act* 2003, the respondent be detained in custody for an indefinite term for control, care or treatment.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is in custody serving a sentence for sexual offences and due for full-time release on 6 October 2023 – where the applicant applies for an order under Part 2 of Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) either for the respondent’s continuing detention or for his release subject to a supervision order on certain conditions – whether the respondent is a serious danger to the community in the absence of a Division 3 order – whether the adequate protection of the community can be ensured by the respondent’s release on supervision – where the Attorney-General discharged the relevant burden of proving that only a continuing detention order would provide adequate protection to the community – where the respondent denied his offending was sexually motivated and did not undertake necessary treatment programs to address his sexual offending while in prison Corrective Services Act 2006 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 13, 11 Human Rights Act 2019 (Qld) s 29 Attorney-General for the State of Queensland v Beattie [2007] QCA 96 Attorney-General for the State of Queensland v DBJ [2017] QSC 302 Attorney-General for the State of Queensland v Fardon [2011] QCA 155 Attorney-General for the State of Queensland v Fisher [2018] QSC 74 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 Attorney-General for the State of Queensland v Grant (No 2) [2020] QSC 252 Attorney-General for the State of Queensland v Holroyd [2020] QSC 187 Attorney-General v KAH [2019] 3 Qd R 329 Attorney-General for the State of Queensland v Lawrence [2009] QCA 136 Attorney-General for the State of Queensland v LKR [2018] QSC 280 Attorney-General for the State of Queensland v S [2015] QSC 157 Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 Attorney-General for the State of Queensland v Travers [2018] QSC 73 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519 New South Wales v Cruse (No 2) [2014] NSWSC 24 Nigro v Secretary to the Dept of Justice [2013] 41 VR 359 Yeo v Attorney-General for the State of Queensland [2012] 1 Qd R 276
COUNSEL:	J B Rolls for the applicant C Tessman for the respondent
SOLICITORS:	GR Cooper, Crown Solicitor for the applicant Bell Criminal Lawyers for the respondent

Overview

[1]
The respondent, Peter John Van de Wetering, is near the end of serving all of a nine year custodial sentence for serious violent sexual offending imposed upon him in the District Court at Brisbane on 26 May 2016. He is due to be released back into the community on 6 October 2023. But the applicant, the Attorney-General for the State of Queensland, has applied for a continuing detention order under Part 2, Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”), to detain the respondent in custody for an indefinite term for care, treatment or control;^[1] or alternatively that the respondent be released from custody subject to a supervision order.^[2]
[2]
The statutory foundation for the making of either order is that the applicant must first establish on acceptable, cogent evidence that the respondent is a serious danger to the community in the absence of an order under the Act.^[3] In the present case, that means satisfying the court that there is an unacceptable risk that the respondent will commit an offence of a sexual nature involving violence if released into the community. The respondent conceded through his counsel that he is a serious danger to the community in the absence of a supervision order but submitted that the adequate protection of the community can be ensured by his release subject to such an order, for a period of seven to eight years.^[4]
[3]
The central issue that emerged for this Court’s determination (assisted by the admissible medical evidence)^[5] is whether the applicant has established that the community will not be adequately protected by the respondent’s release on a supervision order.^[6] For the reasons that follow, I am satisfied that the community will not be so protected.
[4]
It is necessary at the outset to understand the statutory regime which governs this decision.

Statutory Regime

[5]
The starting point is section 3 which outlines the objects of the Act as follows:
1. to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and
2. to provide continuing control, care, or treatment of a particular class of prisoner to facilitate their rehabilitation.
[6]
Section 5 empowers the Attorney-General to apply for orders against specific prisoners most relevantly those who are “serving a period of imprisonment for a serious sexual offence….” The term “serious sexual offence” is defined (relevantly to the present facts) to include an offence of a sexual nature, whether committed in Queensland or outside Queensland involving violence.^[7]
[7]
The primary orders which may be granted under the Act are called Division 3 orders. These orders are provided for in s 13 of the Act as follows:

“13 Division 3 orders

This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a "serious danger to the community").

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

if the prisoner is released from custody; or

if the prisoner is released from custody without a supervision order being made.

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

by acceptable, cogent evidence; and

to a high degree of probability;

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

In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—

(aa) any report produced under section 8A;

the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

any other medical, psychiatric, psychological or other assessment relating to the prisoner;

information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

whether or not there is any pattern of offending behaviour on the part of the prisoner;

efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;

whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;

the prisoner’s antecedents and criminal history;

the risk that the prisoner will commit another serious sexual offence if released into the community;

the need to protect members of the community from that risk;

any other relevant matter.

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

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

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

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

the paramount consideration is to be the need to ensure adequate protection of the community; and

the court must consider whether—

adequate protection of the community can be reasonably and practicably managed by a supervision order; and

requirements under section 16 can be reasonably and practicably managed by corrective services officers.

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

[8]
It follows that for the court to make a division 3 order, it must be satisfied that the respondent is a serious danger to the community in the absence of such an order. Section 13(2) of the Act defines what is a "serious danger to the community” to be that there must be an unacceptable risk that the respondent will commit a serious sexual offence if released at all, or if released, without a supervision order.
[9]
On this final hearing therefore, the threshold question is whether the applicant has persuaded the court, on acceptable, cogent evidence and to a high degree of probability, that there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody in the absence of an order under Part 2, Division 3 of the Act.

Relevant facts

In deciding this issue, the court must have regard to the matters set out in s 13(4) of the Act which form part of the relevant facts below.

Antecedents^[8]

[10]
The respondent is a 56 year old divorced man with no children. He was born in Sydney as the second youngest and only son of five children to a Dutch father and an Irish Australian mother. The family grew up in Woy Woy one hour north of Sydney. The respondent’s father worked as a paymaster with a large construction company while his mother stayed at home when the children were young and later worked as a picker and packer for a book company. While finances were limited, the respondent grew up in a relatively happy and safe environment and did not suffer from any physical, sexual or emotional abuse during his childhood. His mother had a history of depression but no psychiatric admission but otherwise there is no evidence of any family history of mental illness, or substance abuse.

[11]
The respondent enjoyed a close relationship with his parents until their respective deaths about ten years ago. He remains in weekly telephone contact with his supportive older sister, but since being in jail he has not had any contact with his three younger sisters but hopes to do so on his release.

[12]
The respondent was an average student with a small group of friends. He enjoyed playing sports and fishing. The respondent had no behavioural issues at primary school but started getting in trouble for fighting and truanting in high school. He left school at the end of Grade 10 but continued to live with his parents and work sporadically in various manual jobs, including as a warehouse and pool table removalist, parks and garden maintenance assistant and as a farm labourer.

[13]
The respondent left home at 20 and lived a fairly nomadic lifestyle along the east coast from Cairns to Shepparton finding manual work where he could. There were also periods of homelessness. In his thirties, the respondent commenced seasonal work on farms doing fruit picking or packing, returning at times to his parent’s home in Sydney in the off season.

Drugs and alcohol use^[9]

[14]
There are conflicting reports from the respondent about his drug and alcohol use over the years. This is discussed in more detail during the analysis of the medical evidence. For example:

On the one hand, in an Immediate Risk Needs Assessment completed on 26 July 2006, the respondent reported smoking eight grams of cannabis a day having last used the drug on 21 July 2006 – and experiencing withdrawal symptoms. However, in a substance use questionnaire completed on 30 January 2007, the respondent stated that he ceased using cannabis in 2004 and alcohol in 1996 but made no reference to any other illicit substance use. Unsurprisingly the author observed that the respondent’s illicit substance use was more problematic than he would admit.

On the other hand, the respondent told Dr Karen Brown, a Consultant Forensic Psychiatrist engaged by applicant’s solicitor in 2022, (and who spoke to the respondent in January 2023) that he started using cannabis at 19 (smoking one to two joints a day by 25) before experimenting with cocaine, heroin, and methamphetamine; and that his preferred drug was methamphetamine, particularly when working as a farm labourer. He also told Dr Brown that he would spend $1000 a day on drugs and committed crimes to fund his use. This of course is consistent with his criminal history as set out below. He also described excess alcohol consumption in his mid-thirties – for six years drinking a bottle of vodka a day.

[15]
There is no doubt that on any account, the respondent struggled with excessive alcohol consumption and the demon effect of illicit drug use over the years. Although, as discussed below under the heading “Relevant offending” these matters were not raised in mitigation at the respondent’s sentence for the offences the subject of the current application but subsequently he has blamed his substance abuse as contributing to this offending.

Respondent’s sexual relationship history^[10]

[16]
The respondent reported being heterosexual with a normal sexual function. As an adult he described having a moderate sexual drive. He has, on occasions, used sex workers, has no interest in violence or bondage and viewed consensual heterosexual pornography a few times a year.

[17]
He first sexual relationship was at the age of 17 years with a similar aged girl he met travelling to school. Nothing turns on it, but this can’t be right given he says he left school at 15. Regardless, this relationship lasted 6 months and he did not have any other sexual partners until he was 25. After that he had a few more relatively short term (six month) relationships. It was not until his early 40’s that the respondent formed his first serious relationship when he met his now estranged former wife (eight years his junior and British) at a backpacker’s hostel. They initially got along well and travelled and worked together on regional farms, although they were daily heavy drug users (mainly methamphetamine). Right from the outset of their relationship, the respondent told his former wife that he was on the run for committing bank robberies about 10 years earlier, but this did not perturb her. Rather, after about three months together, she proposed and the couple were married six months later. Apparently, (as the respondent told Dr Michael Beech, one of the court appointed psychiatrists) his former wife needed a visa and so “found a mug like me.”

[18]
Shortly after he was married, the respondent’s past caught up with him and he was arrested for two bank robberies (discussed under his criminal history below). When the respondent went to prison for these offences his former wife continued to visit him, but he suspected she was seeing someone else. On his release, the respondent lived with his former wife for a while, but they broke up a few months later.

Allegations by the former wife

[19]
At one point after they separated, the respondent and his former wife had casual sex after taking drugs together (with his former wife apparently taking sleeping tablets, too). The respondent’s former wife is said to have “freaked out” and alleged the respondent had drugged and raped her. Allegations made this night were the subject of a number of charges (including rape) and a trial in the District Court. The respondent was acquitted of some of the charges but the jury could not reach a verdict on others.

[20]
It follows that the serious allegations made by the respondent’s former wife are unproven. Therefore, (as discussed briefly under the heading below dealing with the inadmissibility of parts of the expert and lay evidence), they are not relevant to this court’s determination. Nor is any evidence that is underpinned by the acceptance of these facts as true.

Prior criminal history^[11]

[21]
On 21 July 2006, the respondent was convicted and sentenced in the District Court of Queensland to two counts of robbery with actual violence. That offending occurred in October and November 1996 and involved the respondent walking into banks on the Gold Coast and Brisbane producing threatening notes to a teller in each case. No actual violence was inflicted and the respondent was unarmed. The respondent was living on the street at the time and he told police his offending was to support a cannabis habit.

[22]
Prior to this, the respondent’s previous convictions were in New South Wales for what the respondent referred to as “petty larceny.”^[12] But otherwise, the respondent had not previously been to jail.

The relevant offending^[13]

[23]
On 19 February 2016, the respondent was arraigned and pleaded guilty to a nine count indictment in the District Court of Queensland for the offences of: rape; attempted rape; stupefying to commit an indictable offence x 2; kidnapping; deprivation of liberty; sexual assault; common assault and stealing. He was sentenced for these offences on 25 May 2016 and relevantly received a head sentence of 9 years imprisonment (with a declaration that it was a serious violent offence) on the rape count.^[14] He received lessor concurrent terms of imprisonment on all of the other offences, with a declaration that the 596 days he had spent in pre-sentence custody was declared as time served under this sentence.^[15]

[24]
The offending occurred on 13 August 2013 when the respondent was 47 years old, unemployed and living in Brisbane. The female victim was a 19-year-old German backpacker who had arrived in Australia around two weeks earlier on 31 July 2013.

[25]
On 9 August 2013, the victim applied for a nanny and farmhand job after responding to an advertisement for female backpackers to work as a nanny and farm hand placed by the respondent on a website for backpackers. It was uncontroversial that the respondent had also advertised for such a position on “Gumtree” and with another job placement company where he stated he wanted “young, tall, slim girls”. There was considerable telephone and email communication between the respondent (who used the alias “David Johnson”) and the victim afterwards during which the respondent posed as a doctor who had a property on the Granite Belt where his wife had a chocolate farm. As part of this exchange the victim was required to submit a photo with her resume. Eventually the victim was told she was successful in obtaining the nanny position and arrangements were made for her to travel from Brisbane to Cottonvale, where she would be met by the respondent.

[26]
On 12 August 2013, the respondent drove from Brisbane to Warwick in a car he had hired in Brisbane. He checked into a motel 47 kilometres from Cottonvale.

[27]
On 13 August 2013, the respondent telephoned the victim to make the final arrangements for her to attend the property. He told her it was his daughter’s birthday and asked her to wear a dress. The victim travelled, as planned, arriving at about 7.00 pm at Cottonvale. The respondent arrived at 7:15 pm wearing a cowboy hat with a full dark beard covering his face and extending beyond his chin. The respondent had purchased a wig, false beard and moustache from an online United States website some four months earlier.

[28]
They then travelled in the direction of Stanthorpe. The respondent gave the victim some chocolate supposedly from the birthday party, but she did not eat it because it had a bitter taste. Without the respondent seeing, the victim placed the uneaten chocolate in her bag.

[29]
Before arriving at the offence location, the respondent pulled over twice. The first was to make a phone call and the second time he pulled a knife and instructed the victim that if she wanted “to be safe, put your hands behind your back and turn to the window”. He tied her hands with cable ties and pressed the knife to her face and threatened, “…just do it or I will kill you. It's just because of money.” The victim complied out of fear. The respondent also told the victim that if she went to the police, he would kill her friends and that it was all her fault as she should ask more questions next time she looks for a job on the internet.

[30]
During the rest of the drive, the respondent locked the car doors, blindfolded the victim and concealed her head below the dash when other cars passed by. Just prior to arriving at the offence location, the respondent started to touch the victim’s leg. On each occasion, she moved away but the respondent tried to put his hand higher.

[31]
The offence location was a farm where the respondent had previously worked. Five days prior to his offending, the applicant contacted the owner to determine that a shearing shed away from the farmhouse was still vacant. The victim was escorted blindfolded to one of the rooms of this shed and told to sit on the bed and take off her clothes. The victim pleaded and begged not to have to do this and volunteered that her family would pay him the money. The respondent stated, ‘No. We have to do this’. He took off her shoes, pants, and underpants; opened her jacket and lifted her shirt and bra. The respondent pulled the victims legs apart and tied each foot to the bottom of the bed with cable ties. To stop the victim from yelling out the respondent said “[d]o you need a gun in your mouth to make you stop talking.”^[16]

[32]
The sexual offending was particularised as: touching the victim’s breasts and vaginal area; digital penetration by placing a finger inside the victim’s vagina two or three times; and the respondent taking his clothes off and attempting penile rape before the victim kicked his hip/stomach and rolled to the side. This resulted in the respondent becoming angry and choking her around the neck to push her back onto the bed. The respondent also threatened to kill the victim if she did not calm down and comply.

[33]
When the respondent discovered that the victim had not eaten the chocolate he had given her earlier (that was laced with Zolpidem – an active ingredient in Stilnox), he forced her to swallow another piece. He then wiped her pubic area to remove any trace of his DNA. From this point, the victim has no further recollection of events.

[34]
The victim woke up abandoned on the roadside around 1.30 am on 14 August. The respondent was sentenced on the basis that the victim was unconscious when he re-dressed her without underpants and stole her wallet with cards, money, and a spare SIM card, before dropping her at an unknown location on the roadside. He also removed the uneaten chocolate from her handbag.

[35]
When the victim woke up, she sent a text to her sister from her German mobile phone stating, “This is not a joke. I was kidnapped and was able to run away”. She spoke briefly to her sister before trying to find someone to help. She was unable to raise anyone and sat on the side of the road as it was dark. In the meantime, her sister raised the alarm with their family friends who contacted the Toowoomba police. At sunrise, the victim walked to the nearest farmhouse (about 26 km from the offence location) and asked for help to call a taxi to go to the nearest city. Red marks were observed around her wrists. She was upset, scared and in shock. The victim was medically examined on 14 August 2013. She sustained abrasions to her anterior neck and below her right ear, chest wall below the armpit, over the pelvic bone area, and to both wrists. She sustained bruising to her elbows, knees, right shin, both ankles, and calf areas. Blood tests taken that day confirmed the presence of Zolpidem.
[36]
Police were later able to confirm that “David Johnson” was the respondent and he was arrested on 10 September 2013, but not taken into custody until October 2014.
[37]
No psychological or psychiatric evidence about the respondent was placed before the Court at the time of his sentence. No explanation for the offending was proffered. Nor was there any suggestion that the applicant had any cannabis or other drug addiction either previously or at the time of the offending.
[38]
The Sentencing Judge, Martin DCJ well described the offending as involving extensive planning and preparation “to kidnap a young female backpacker for the purpose of sexual abuse of her.”^[17] He took into account the respondent’s guilty plea had saved the State the time and expense of a trial and that the victim had been spared the ordeal of trial but otherwise Martin SC DCJ did not accept “for one moment” that there was any genuine remorse in this case.^[18] He also relevantly observed as follows:^[19]

“The offending before me was not spontaneous, nor opportunistic. This was offending carefully planned and prepared over a lengthy period. The offending involves an entirely ruthless pursuit of a young and innocent woman for your sexual gratification. You subjected her to a terrifying and degrading ordeal in an isolated location, and you have caused her very significant ongoing psychological damage.”

Respondent’s motivation for offending^[20]

[39]
Since his sentence, the respondent has given various explanations for his offending as follows:
1. He told the Parole Board in 2022 that his intent was to kidnap the victim for ransom but found there was no money which angered him, so he digitally raped the victim. This version is contrary to the complainant’s version that she told him her family would pay money; and it is also contrary to the basis upon which he told all of the psychiatrists he spoke to about the offending;
2. He told Dr Karen Brown, in early 2023 that:^[21]
  1. (i)
    at the time he was unable to find employment and had begun to feel increasingly frustrated that famers preferred to employ backpackers rather than Australian workers. So, he had enough and wanted “pay back”, but he figured an assault was not enough to scare backpackers away; and whilst he thought that rape was pretty bad, he pushed himself to do it; he advertised for a nanny – specifying tall thin girls as this was the stereotypical backpacker – so he could scare a whole lot of them;
  1. (ii)
    around the time of his offending his drug habit had worsened and he was using whatever he could get his hands on – methamphetamine, heroin (if he could get it) and alcohol;
  1. (iii)
    he was not thinking clearly and that it was the drugs that caused his offending. He stated that prior to the offence he had smoked two points of methamphetamine and taken some unknown pills given to him by his drug dealer;
  1. (iv)
    he drugged the victim as he did not want it to be too bad – and that he thought if he drugged her then she would not know;
  1. (v)
    he did not steal the victims underwear or wallet (contrary to the basis of the sentence);
  1. (vi)
    the offence was not sexually motivated – and whilst the advertisement was for tall slim girls, he had a sexual preference for larger girls;
  1. (vii)
    he is not interested in sex anymore and that his risk of sexual offending was zero and this offence was “a one off thing to prove a point.”
3. He told Jane Dr Phillips in July 2023 that:^[22]
  1. (i)
    he did not try to vaginally rape the victim with his penis or that he had ever intended to do so; he only plead guilty to that act on the advice of his lawyer;
  1. (ii)
    that he had no sexual gratification as a result of preparing for or during the actual offence or afterwards;
  1. (iii)
    that he did not keep the victim’s underwear as any type of trophy;
  1. (iv)
    that he had dropped the victim near a farmhouse with the light on and that the victim had not had to walk 26 km to seek assistance;
  1. (v)
    that he asked the victim if her parents had money but she said no, and he denied that the victim had offered him money;
  1. (vi)
    that he was pretty “smashed” on the day and he was smoking a lot of crack and taking every pill under the sun leading up to the offending; and
  1. (vii)
    his rationale for the offences was because backpackers were flooding into the country and taking work and he wanted to stop that, so he came up with a “harebrained” scheme – but he thought it was brilliant at the time.

[40]
The respondent told Dr Michael Beech that the offending was not driven by sexual urges and maintained that he planned and executed the offending in order to deter overseas backpackers.^[23]

Medical and psychiatric history^[24]

[41]
When he was first detained on remand in 2014, the respondent (subsequently) told Dr Brown that he “heard voices” that told him he was at risk from other inmates and to retaliate. This resolved with medication.
[42]
In March 2022, the respondent reported concerns around his deteriorating mental health and a feeling that “his voices will return shortly” and command him to hurt others. He asked for a medication review and suggested that he also needed medication for potential post-traumatic stress disorder due to being incarcerated for an extended period. The correctional records indicate that the respondent takes prescription medication for depression and anxiety.

Events in prison^[25]

[43]
The respondent has been incarcerated at [redacted] since 2016 and holds a high security classification. A Risk Needs Assessment on 8 June 2016 (not long after his sentence) made several recommendations, including participation in sexual offender programs, employment, seeking stable accommodation and increasing his external support network.
[44]
I accept that the respondent has been a model or exemplary prisoner in terms of his general behaviour during his time in custody. His custodial record is incident-free with no breaches, and he has worked virtually the entire time as a cleaner and as a librarian. The respondent was described as compliant and respectful toward staff and other prisoners. Dr U Oertel, a private psychologist engaged by the respondent, provided a report dated 26 April 2021 to the Parole Board and observed the respondent as pleasant and cooperative in her interactions with him over eight treatment sessions.^[26] She credited him with actively participating in one-on-one therapy sessions with her, although she relevantly observed that the respondent minimised aspects of his sexual offending.
[45]
Unfortunately, the same cannot be said of the respondent’s willingness to engage in aspects of therapy identified as necessary for the doctors to understand and therefore assist in meaningfully assessing and addressing the respondent’s risk of committing a further violent offence of a sexual nature. The respondent’s response or behaviour to this crucial aspect of his rehabilitation, particularly in the context of a pre-meditated and protracted violent sexual offending, has been far more selective. In this sense, the respondent’s behaviour has been far from exemplary – rather it is very troubling.
[46]
On 4 March 2019, a Static-99R assessment was undertaken and the respondent received a score of three which placed him in the moderate-low risk category for sexual recidivism. To address his outstanding criminogenic needs, it was recommended that he participate in the Getting Started Preparatory Program (“GS:PP”), followed by the Medium Intensity Sexual Offender Program (“MISOP”).
[47]
On 12 July 2019, the respondent refused to be placed on the waitlist for sexual offender treatment programs. The respondent was interviewed on 12 August 2021 and 3 June 2022 regarding his willingness to participate in the GS:PP but declined both times stating that he did not wish to be waitlisted for a group sexual offender program.

[48]
The respondent again refused to participate in the GS:PP on 14 April 2023.
[49]
The respondent has not engaged in any drug and alcohol rehabilitation whilst in custody. Although he was placed on a waitlist for such a program in 2021, he has not yet been offered a place. Following his release, the respondent stated he plans to engage with Alcoholics Anonymous and Narcotics Anonymous.

Parole^[27]

[50]
The respondent was eligible to apply for parole on 19 December 2021 after serving 80 per cent of his sentence. His application for parole was considered by the Parole Board on 3 February 2022. In this application, the respondent noted that mental health issues and heavy cannabis were a contributory factor to the offending. Neither of these matters were submissions in mitigation at the sentence. Prison Mental Health Services (“PMHS”) confirmed that the respondent had not been an open patient in the previous six months.
[51]
The Board refused the respondent’s application for parole and determined that there was an unacceptably high risk to the community which could not be mitigated by the conditions of a parole order, due to the respondent’s lack of suitable accommodation, outstanding treatment needs and his severely limited insight into his offending.

Plans upon release^[28]

[52]
The respondent prefers to be alone and has struggled to maintain long-term friendships. Apart from the support of one sister, he has no social network. He does not plan to seek out friendships or reconnect with people on his release. He sees no post-release prospects of employment and intends to live in public housing. He intends to spend his time reading, exercising and practicing tai chi.
[53]
Before turning to the evidence from the psychiatrists in this case, it is necessary to address the issues raised by the respondent about the admissibility of aspects of their reports.

Issues about the admissibility of parts of the evidence^[29]

[54]
Several of the lay witnesses and, as a result, a number of the psychiatrist briefs, referred to the allegations made by the respondent’s former wife as set out under that heading earlier in these Reasons. The objections by the respondent to that evidence are well made.^[30] It has been agreed by the parties that it is unnecessary for this Court to make any formal rulings excluding that evidence for three reasons:^[31]
1. First: The applicant has conceded that they do not rely on the evidence for its “truth value”;
2. Secondly: each of the psychiatrists who referred to these allegations in their written reports gave further oral evidence-in-chief (and were cross-examined by counsel for the respondent) about their opinions in the absence of, or on the basis of, ignoring the unconvicted charges and other statements by the respondent’s former wife – for example about the respondent’s apparent need for sex. It is that evidence that the applicant now relies upon. Although I accept, as the respondent submitted, the weight to be given to each opinion is a matter for the court.^[32]

[55]
I have ignored as inadmissible the untested allegations by the respondent’s former wife, including her more general statements littered in the evidence about the respondent’s sexual appetite and general behaviour.

[56]
As the hearing transpired, the relevance of the fact of the allegations and charges by the respondent’s former wife remain relevant only in the following limited three ways:
1. First: as part of the narrative, as it explains the final estrangement of the respondent and his former wife;
2. Secondly: it gives context to the respondent’s later comments that the allegations left him “very cold with relationships.”
3. Thirdly: the Static-99R risk assessment tool used by some of the psychiatrists (as discussed with that reference below) uses the existence of charges for sexual offences which do not result in convictions as part of the measurement. I have a general concern about the reliability and use of such a risk assessment tool if it is underpinned by unproven allegations. However, nothing turns on it in this case as the evidence was that whether or not the existence of these allegations and charges are included in the assessment for the respondent his score remains a constant “4.”

Psychological and psychiatric reports^[33]

Report of Ursula Oertel dated 26 April 2021

[57]
Dr Oertel, a clinical psychologist, was engaged privately by the respondent for treatment to address his offending in anticipation of parole. He actively participated in eight sessions with her between 28 August 2019 and 19 December 2019.
[58]
This treatment focused on the respondent understanding and meeting life goals, the link between antecedents and offending, and coping and mood management. Dr Oertel relevantly observed that whilst the respondent admitted to the offending, he sought to “minimise aspects of his sexual offending behaviour.”^[34]
[59]
Dr Oertel assessed the respondent using the Risk for Sexual Violence Protocol (RSVP) and somewhat tentatively assessed the respondent’s post-release risk of sexual offending as low when taking into account the respondent’s static and dynamic risk factors identified by the RSVP. Little weight should be given to this assessment for two reasons:
1. First: in light of Dr Oertel’s subsequent qualification that it is possible that this rating underestimates the respondent’s real risk level of recidivism “to some [unknown] degree”.
2. Secondly: Dr Oertel also identified the following risk factors as having “a clear or substantial relevance” to the development of future risk management strategies for the respondent:

Extreme minimisation or denial of sexual violence;
Problems with self-awareness;
Problems with stress and coping;

Major mental illness;
Problems with substance abuse;
Problems with intimate relationships;
Problems with non-intimate relationships;
Problems with employment; and
Problems with non-sexual criminality.

[60]
As can be seen, Dr Oerel’s report raises more concerns than solutions and supports a finding that the respondent is a serious danger to the community in the absence of a Division 3 order. Although the report offers little assistance in the Court’s consideration under s 13(6)(b)(i) of the Act as to whether adequate protection of the community can be reasonably and practically managed by a supervision order.

Report of Dr Karen Brown, Consultant Psychiatrist, dated 15 March 2023

[61]
Dr Brown is a consultant forensic psychiatrist who has worked continuously in the area of forensic mental health since 2009. Dr Brown was not appointed by the Court pursuant to s 8 of the Act, rather she was engaged by Crown Law to undertake a risk assessment and prepare a report for the purpose of a potential application under the Act.^[35]
[62]
In her written report, Dr Brown made the following relevant observations of the respondent:
1. the respondent has a history of criminal and irresponsible behaviours, he is deceitful, he externalises blame and the indexed offence was callous and without empathy;
2. the respondent had good custodial behaviour over a lengthy period in custody, although she could not explain the reason for the change towards more pro-social behaviours in custody, suggesting that attenuation with age was possible;
3. the respondent attracted a diagnosis of substance use disorder which is in remission as he is presently in custody;
4. the sexual preferences and drives of the respondent were “poorly understood”;
5. there was a “strong possibility” that the respondent has a paraphilia given the nature of the index offences;
6. that the respondent had a diagnosed anti-social personality disorder which contributed to his substance use and offending behaviours. It did not appear that the respondent had a mental illness;
7. the respondent has engaged with limited individual sex offender treatment and has refused to participate in the group sexual offender program in custody;
1. the respondent has outstanding treatment needs; and further treatment would allow for a better understanding and more reliable account of the respondent’s offending pathway which, in turn, will aid any future relapse prevention planning and risk reduction;
2. the respondent reports in relation to the current offences that he was heavily and chronically affected by methamphetamine and other drugs at the time of offending. He suggested he may have been psychotic and that his offending was not sexually motivated, but rather was done to scare backpackers from finding work;
3. the respondent has not completed any custodial program in relation to substance use and he should do so.
[63]
Dr Brown also administered several risk assessment instruments, said to have some validity in the assessment of respondent’s risk of sexual recidivism which revealed the following results:
1. on the Static-99-R, the respondent received a score of 3 which indicated that his risk of sexual reoffending is in the average or moderate range;
2. on the Psychopathy Checklist (“PCL-R”) which is used to diagnose psychopathy, the respondent received a score of 19/40, which was below the score required for a diagnosis of psychopathy to be made; and
3. on the RSVP it was demonstrated that the current offences were associated with physical and psychological coercion. Further, the respondent’s explanation of the offences was “illogical and inconsistent”. This led Dr Brown to consider that a paraphilia was motivating the offending.
[64]
Overall, Dr Brown concluded that there was a “strong possibility’ that a paraphilia motivated the respondent’s offending and that he will need individual treatment to repress his likely paraphilia; and that other risk factors contributed to the potential of reoffending being substance abuse disorder, antisocial personality disorder and poor self-awareness. Against this background, Dr Brown considered then that the unmodified risk of sexual reoffending and associated victim harm was high.
[65]
The respondent submitted that Dr Brown’s report and this finding ought to be given less weight because of Dr Brown’s reference to the “potential” risk level as opposed to the actual risk level, and because she referred to the risk of committing any type of sexual offence as opposed to the risk of committing a serious sexual offence. I reject these submissions for three reasons:
1. First: it is implicit from a reading of her report in its entirety (which is premised on the index offending) that the risk that Dr Brown was considering was that of committing an offence similar to that index offending – not just any sexual offending;^[36]
2. Secondly: the qualification of Dr Brown’s assessment as a potential or a possibility gives her opinion credibility, given it is based on a lack of understanding of the respondent’s motive in offending – that lack of understanding is due to the respondent’s unwillingness to engage in relevant therapy; and
3. Thirdly: given the respondent’s concession that without an order he is an unacceptable risk of committing a serious sexual offence if released into custody in the absence of a Division 3 order, nothing turns on this criticism of Dr Brown.
[66]
Dr Brown also concluded in her report that the respondent could not be managed in the community because he has outstanding treatment needs and that he ought to complete a sexual offender treatment program and substance use program prior to release.
[67]
As Dr Brown’s initial report made references and findings based on the former wife’s allegations (which are irrelevant) she was called by the applicant at the final hearing to give oral evidence (and be cross-examined) about her conclusions in the absence of these matters. She did not shift in her views. For example, under cross-examination Dr Brown maintained and highlighted the uncertainty associated with the respondent’s presentation as follows:^[37]

“….He has poor self-awareness. He has not given a logical account of why the offences occurred, in my opinion. And also, he is untreated So we have no understanding from an objective treatment program as to his offence pathway or his treatment needs. And for all of those reasons, my recommendations around risk and treatment don't change.

When you say ‘offence pathway’ what do you mean by that?---Well, when assessing an offender and why they have offended in the way that they did, a psychiatrist will make a formulation. And that is based on all sorts of factors, but essentially a narrative around why the offence occurred, or, if you like, an offence pathway. What were the antecedents to the offending? What were the triggers? How can we stop the offending occurring again? And without that understanding that proper formulation, it's incredibly difficult to (a) make firm recommendations around risk, although we have what we have, in particular to lower risk, and (b) formulate a treatment plan. Because we don't have a good understanding of why this occurred.”

[68]
When asked about her assessment of a higher modified risk of sexual re-offending, Dr Brown also relevantly responded as follows :^[38]

“Okay. Can we go then to the second paragraph, the last sentence, the potential - this is the second paragraph under the section G heading. Your conclusion as to risk - the potential unmodified risk of sexual reoffending and associated victim harm was high. And I believe you expressed it in the same way when you gave evidence-in-chief, which is that you're putting it as a potential risk. Is that correct?--- Yes. I mean, I think if we had, you know, a much more firm narrative, and we had a much clearer understanding of the risk factors, then I could be more confident. But in the absence of that, working with what I have, I could conclude it was potentially low, potentially moderate or potentially high, and I conclude its potentially high. And the potential, the word potential, is a nod to the absence of information which is more of a concern than less of a concern. My view is that the risk is high…”

[69]
Later, under cross-examination, Dr Brown was challenged about her view of the applicant having a high risk of reoffending if placed on a supervision order as follows:^[39]

“Is it that you feel you can’t accurately describe the level of risk if he was placed on a supervision order?--- I can accurately describe the level of risk with the information that I have and my view is that it is high. He hasn’t had any treatment. We don’t know how to reduce that risk because we don't have an understanding of his offence pathway. We can confine - you know, supervision order can confine him. It can confine him to the precinct. It can track him. It can stop him. You know, all of that will reduce risk to some extent. But the - but the problem is that to make that any more nuanced, tailored and also, for the longer term, relevant, it - it's very hard. So, in fact, you know, doing a treatment program would hopefully give the supervisors, in due course, confidence to move him forward. But releasing him on a supervision order at this stage without treatment - which he may or may not respond to, is the first thing - but even if he did, you know, you're going to have a - I think, quite reserved QCS management because the risk isn't properly understood.”

[70]
I accept this evidence from Dr Brown. It is persuasive given her expertise but also convincing as a matter of judgment given it makes common sense and is logical.
[71]
Dr Brown could not say why the index offence occurred but rejected the respondent’s explanation of intending to scare away backpackers and found it difficult to accept that it was not sexually motivated. As do I.
[72]
It follows that I accept Dr Brown’s description of the respondent as “an untreated sex offender”. That fact is obvious and consistent with the views of the other psychiatrists as set out below.

Report of Dr Jane Phillips, Court-Appointed Psychiatrist, dated 28 July 2023^[40]

[73]
Dr Phillips is a consultant forensic psychiatrist with extensive experience in private practice since 2011 and over 6 years experience in providing reports under the Act.
[74]
In her report, Dr Phillips made the following relevant observations about the respondent:
1. the respondent met the diagnostic criteria for a diagnosis of anti-social personality disorder;
2. on the respondent’s self-report, he met the diagnostic criteria for a diagnosis of alcohol, cannabis and stimulant use disorders. These disorders are presently in remission due to the respondent’s incarceration;
3. in his favour the respondent has good institutional behaviour with no incidents or breaches. He has not used substances. He has completed a Queensland Corrective Services Resilience program. He has been employed. He has also undergone eight sessions of individual psychological intervention;
4. that following the respondent’s remand in custody for the offences he suffered an adjustment disorder with depressed and anxious mood. The “voice” the respondent reported hearing was considered by Dr Phillips to be pseudo-hallucinations as part of a vulnerable personality structure rather than evidence of a psychotic illness;
5. it would be “highly unlikely” for the respondent to disclose such a paraphilia if present;
6. the respondent minimised the seriousness of the sexual offending; and
7. a greater understanding of the drivers of the index sexual offending are necessary in order to have confidence that an adequate risk management plan is in place.
[75]
Dr Phillips used a number of actuarial and structured professional judgment risk-assessment tools to assess the respondent as follows:
1. on the Static 99-R, the respondent had a score of 4 which placed him in the category which is defined as “above average risk” for being charged or convicted of another sexual offence;
2. on the risk for Sexual Violence Protocol (Version 2), the respondent’s results were that the likelihood of sexual violence was high, the imminence of sexual violence was low, the severity of sexual violence was high and other risks were indicated as high;
3. on the Stable 2007, the respondent scored 11, which indicated he has a moderate need in terms of addressing his sexual offending risk;^[41]
4. on the Psychopathy Checklist Revised, the respondent achieved a score of 19, which was not consistent with a diagnosis of psychopathy;
5. on the historical clinical risk, the respondent scored 20 meaning that the risk of future physical violence was moderate to high; the imminence of sexual violence was low, and the severity of sexual violence was high.
[76]
Dr Phillips considered that the respondent’s risk of future sexual offending is in the high range, if released without a supervision order. This finding was criticized by the respondent as not precisely answering the question required by s 11(2) (a)(i) of the Act. I reject this submission for the reasons set out in paragraph 65(a) and (c) above.
[77]
Ultimately, Dr Phillips recommended that the respondent complete a group sexual offending treatment program prior to release from custody. Dr Phillips also recommended that the respondent would benefit from further individual psychological intervention and that he should also engage with a substance use intervention program.
[78]
I also accept Dr Phillips views based on her experience and qualifications, and also because her recommendations are obvious as a matter of common sense, logic and judgment.
[79]
In Dr Phillips opinion, a supervision order would “assist” in reducing the risk of sexual reoffending by monitoring the interventions to target dynamic risk factors for sexual and physical violence.^[42] But she also noted that, “given the current limited understanding of the drivers of Mr Van De Wetering’s prior sexual offending, it may be difficult for those who supervise him to devise a nuanced individualised risk management plan.”
[80]
Ultimately, Dr Phillip’s evidence – which I accept – is that robust supervision in the community may reduce the risk of sexual reoffending to at least the moderate range.

Report of Dr Michael Beech, Court Appointed Psychiatrist, dated 31 July 2023^[43]

[81]
Dr Beech has significant experience in risk assessment and preparing reports for application under the Act, and has been described as an eminent psychiatrist.
[82]
Dr Beech made the following relevant observations about the respondent:
1. he could not diagnose a sexual paraphilia but he could make a diagnosis of anti-social personality disorder; and a substance use disorder based on the respondent’s account;
2. the respondent had exemplary prison behaviour but Dr Beech was unable to say with the passage of time that there has been a maturation leading to a reduction in the risk of sexual offending;
3. he had “a limited understanding” of the psychological emotional factors that underpinned a well-planned kidnapping and sexual assault of a vulnerable female by the respondent when he was 47 years old.
[83]
Dr Beech also applied risk assessment instruments as follows:
1. on the Static-99R, the respondent achieved a score of 7.
2. Dr Beech did not consider that the respondent was psychopathic, but he noted two “significant issues”, being a lack of clarity concerning the dynamic risk factors and the fact that the respondent was 47 years old when he offended. Dr Beech considered that the reduced risk in later age is “significantly undermined by the relative recency of the offending.”
3. Dr Beech considered the possibility of the enactment of a sexual fantasy given the planning and preparation that was undertaken.
[84]
In his report, Dr Beech initially assessed the respondent’s risk of offending as in the moderate-high range. He considered that the risk, should it manifest, would involve a planned and prepared offence. The victim would be an adult female. It would involve sexual assault. The respondent submitted that this finding did not, by its express language, precisely answer the question required by s 11(2)(a)(i) of the Act, which requires identification of the risk of committing a 'serious sexual offence’, as opposed to any sexual offence. But I reject this submission for the reasons stated at paragraph 65(a) and (c) above.
[85]
This estimate was also made based on a Static-99R score of 7 (much above average), but Dr Beech subsequently corrected this score to 4 (being an above average risk – but not much above average risk).
[86]
Dr Beech’s opinion, which I accept as reliable and credible, given his considerable experience and expertise and also as a matter of logic and common sense (and it is consistent with the evidence of Dr Phillips), is that:
1. the risk might be reduced to moderate or below by participation in a sexual offender program such as a medium or high intensity sexual offender program;
2. participation in such program would provide information for supervision; it would inform risk assessment; and it would also produce a relapse prevention plan that the respondent could use, and others could supervise; and
3. it is “difficult to know” how much of a risk reduction supervision affects – the lack of exploration of a sexual offender program means that those who would supervise the respondent would have “limited knowledge on how to monitor him and particularly how to restrict him.”
[87]
Overall, I accept Dr Beech considered that risk “could” be reduced to moderate or below if the respondent was released to supervision for a period of 10 years; with the qualification that this assessment was made with limited knowledge and understanding of the respondent’s motivations for offending.

Analysis

[88]
Turning now to the threshold question identified in paragraph 9 above.

Is the respondent an unacceptable risk if released without a division 3 order?

[89]
The relevant risk is the risk of the commission of a serious sexual offence. In the present case, that risk is of the respondent committing an offence of a sexual nature involving violence. It is not a general risk of offending, even if that risk is violent offending.^[44]
[90]
In particular, I accept that the risk is of the respondent committing an offence on a young adult woman which could involve digital rape, attempted penile rape, the use of intoxicating substances, the kidnapping of a victim, the use of a weapon and death threats.^[45] The risk of serious psychological and physical harm to such a member of the community as a consequence of that risk eventuating is obviously high.
[91]
An unacceptable risk is a risk which does not ensure adequate protection of the community.
[92]
The expression “unacceptable risk” is not defined by the Act and is not necessarily apt to precise definition. Some risk has to be accepted and expected.^[46] The question of whether a risk is unacceptable is “a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”^[47] Its application on this assessment requires the striking of a balance between various considerations including: the likelihood of the person offending; the type of offence the person will commit; the consequences to any victim of the commission of that offence;^[48] and the restrictions imposed by an order under Part 3 on the respondent.^[49]
[93]
The assessment of risk and whether that risk is unacceptable takes its content from not only what can “...be found as a fact about the prisoner, but also from what constitutes real possibilities.”^[50]
[94]
The respondent’s counsel concedes on the respondent’s behalf that the Court would be satisfied that the respondent would pose a serious danger to the community if released without a Division 3 order.
[95]
I accept the respondent’s counsel concession is a reasonable one. I am satisfied to the high degree of probability necessary that there is sufficient cogent evidence, considering the matters required to be taken into account pursuant to s 13(4) of the Act (as that evidence is outlined under the relevant sub-headings above) that if released without a Division 3 order under the Act the respondent presents an unacceptable risk of committing an offence of a sexual offence involving violence.
[96]
This finding is underpinned by the analysis of the evidence as outlined under the heading “Relevant facts” and includes the following matters:
1. the psychiatric evidence that the respondent presents as a high, moderate high range risk in the absence of any order under the Act;
2. the respondent has undertaken some individual psychological therapy, but given his obvious lack of insight into the reasons for his offending he appears not to have gained much from such therapy;
3. the respondent has not engaged in any sexual offender treatment programs and maintains, incredibly, that the original offending was not sexually motivated;
4. the respondent has not engaged in any substance use programs yet blames aspects of the current offending on his drug and alcohol addiction at the time;
5. the respondent is an unreliable historian of his own narrative;
6. the respondent has an initial diagnosis of anti-social personality disorder and based on his self-report, a substance use disorder; and
7. the absence of evidence of the respondent’s participation in a sexual offender treatment program and substance use programs means that the drivers that led to the respondent’s offending in respect of the current offences are unknown.
[97]
I therefore find that the respondent is a serious danger to the community in the absence of a Division 3 order.^[51]

Form of order: Exercise of discretion under s 13(5)

[98]
Once it is found that the respondent is an unacceptable risk, then the next question that arises is what form a Division 3 order should take in this case, namely:^[52]
1. should the respondent be detained in custody for an indefinite term for control, care or treatment under a continuing detention order; or

should the respondent be released from custody subject to the requirements it considers appropriate that are stated in the proposed supervision order.^[53]

[99]
Section (6)(b)(i) of the Act expressly provides that, in deciding whether to make either of these orders, the court must consider whether the adequate protection of the community can be reasonably and practicably managed by a supervision order. But this does not mean the onus shifts to the respondent. The following two important (overlapping) propositions emerge from the authorities when it comes to the issue of onus:
1. First: The starting point for the required consideration under s 13(5) is for a supervision order and for that point to be displaced, the applicant must prove a continuing detention order is an appropriate order;^[54] and
2. Secondly: The onus is upon the applicant as the Attorney-General to establish that a supervision order is inappropriate or put otherwise, that there could be adequate protection of the community only by a continuing detention order;^[55]
[100]
In Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, P McMurdo J explained the onus in the following helpful way:

“[29] The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. As was also observed in Francis, 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.

[30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.”^[56] (Footnotes omitted) [Emphasis added]

[101]
As can be seen, what level of risk is unacceptable or what order is necessary to ensure adequate protection of the community involves this Court making a value judgment about the risk.
[102]
But it does not mean that the risk of offending must be eliminated.^[57]
[103]
The applicant submitted that the decision as to what form of order should be made is motivated by the paramount consideration of the need to ensure adequate protection of the community, because ultimately the purpose of the legislation is protective. I accept that submission. It is plainly reflective of s 13(6) of the Act. But it cannot be overlooked that there can be other factors at play including that:
1. the discretion to make a continuing detention order instead of a supervision order may involve the application of the right to liberty under s 29(1) of the Human Rights Act 2019 (Qld);^[58]
2. the intrusions of the Act upon a person’s right to liberty must be “constrained to no greater extent than is warranted by the statute which authorised such constraint..”;^[59]
3. there exists a “large body of authority” that establishes there ought to be a preference for a supervision order over a detention order;^[60] and
4. rehabilitation remains relevant in the sense that the court must take into account treatment therapy or other rehabilitative measures that the offender might engage in when considering whether the adequate protection of the community can be managed by a supervision order.^[61]
[104]
The evidence that I accept in the present case is that a supervision order would reduce the risk to around the moderate range (maybe slightly lower). But balanced against this risk reduction is the consequences of its manifestation in determining whether release to supervision provides adequate protection to the community.
[105]
There are several concerning features in this case as identified by Dr Phillips. Many of these concerns are shared by Dr Beech and Dr Brown. All of their identified concerns are shared by this Court, and relevantly include the following:
1. the respondent minimises the seriousness of his offending;
2. the respondent denies a number of the facts of the offending upon which he pleaded guilty;
3. Dr Phillips entertains “doubt” about the respondent’s self-report. Her major concern is the absence of a current formulation to explain the nature and severity of the current offences;
4. a greater understanding of the drivers that led to the current offences is necessary to have confidence in formulating an adequate risk management plan;^[62]
5. the respondent’s obvious dishonesty and lack of insight make it difficult to truly assess the risk and make it difficult for those who are supervising him in the community to know exactly what supervisory condition would be helpful;^[63]
6. the respondent has not engaged in a medium intensity sexual treatment program as recommended. There is no mental health contraindication to him completing that treatment program.
7. the respondent has not completed any substance use programs;
8. the sessions with Dr Oertel have not been sufficient to produce any reduction in risk (noting the respondent’s limited recollection of the matters discussed in treatment);
9. the respondent has limited adaptive coping skills to manage psychological stressors and so is at risk of relapsing to substance use when confronted with psychosocial stressors;
10. the victim of any future offending would likely be an adult female who may be a stranger or casual acquaintance – offending may occur after a protracted period of planning;^[64]
11. that offending could occur similar to that of previous offending, which could involve digital rape, attempted penile rape, use of intoxicating substances, restraint of the victim, kidnapping the victim, use of a weapon, threats of death and physical violence. This offending has the potential to cause significant physical and psychological harm to any victims.
[106]
It is to be emphasized (again) that the applicant bears the onus of demonstrating that a supervision order will afford adequate protection to the community.^[65] Before a supervision order, rather than a continuing detention order is made, the court needs to be satisfied that its likely effect will be to reduce the risk of a serious sexual offence to an “acceptably low level.”^[66] This determination includes whether there is sufficient evidence to show that the respondent will be likely to comply with any supervision order made.^[67]

[107]
The respondent points to his exemplary performance whilst in custody as supporting a finding that it is likely he will comply with any supervision order made. I reject that the evidence establishes such likely compliance, particularly with the relevant sexual offending courses for two reasons:
1. First: the respondent, by his own admission, does not see any need for supervision. According to him, the offending was apparently drug-induced and motivated to cause fear. A view not held by Dr Beech. The respondent’s consistent line (since the sentence at least) is that there was no sexual context to that offending and that he is not an untreated sex offender. This is a view all of the psychiatrists reject;
2. Secondly: the respondent has shown no self-awareness as to the risk that he presents to the community. His view is that supervision and treatment are unnecessary. Unless this attitude alters, the respondent will not perceive any need to alter his behaviour or thinking. This will present his supervisors, ignorant of his offending drivers, with a difficult to almost impossible challenge. And a real risk that the respondent will not be likely to seek assistance to de-escalate the risk; and
3. Thirdly: there is a significant risk based on the respondent’s own reflection as reported to the psychiatrist this year that he will not engage with those supervising him, particularly in relation to undertaking identified sexual offending courses, because he does not think he needs to.

[108]
Part of the difficulty associated with the framing of a supervision order is that the respondent has not participated in a sexual offender treatment program. The respondent has been offered such an opportunity on a number of occasions. He has failed to even participate in the introductory GS:PP designed to assess his treatment needs.
[109]
All of the psychiatrists recommended that the respondent undertakes the GS:PP and then participate in a sexual offender treatment program, be it the medium or high intensity program prior to release. This may not only provide the respondent with a relapse prevention plan but would provide information to those that supervise the respondent as to those matters which ought to require their attention.
[110]
It was submitted on behalf of the respondent that there is no robust evidence that MISOP and the High Intensity Sexual Offender Program (HISOP) as they are administered by Corrective Services in Queensland are actually effective in reducing recidivism rates of sexual offenders.^[68] This submission was underpinned by: (a) Dr Beech’s observation that there was little evidence about the effectiveness of these courses, other than a meta-analysis of similar programs found a relative reduction if they were run by registered psychologists under clinical supervision; and (b) the evidence of Ms Claire Kelly, the manager of the Offender Intervention Unit at Queensland Corrective Services that in Queensland these programs are run by persons with a tertiary qualification in a variety of fields and not just a psychologist. I reject the respondent’s submission for the following four reasons:
1. First: both Dr Philipps and Dr Brown recommended that the respondent be assessed under the GS:PP to determine what level of treatment he needs (i.e. MISOP or HISOP).
2. Secondly: Dr Beech was not given the opportunity to respond to Ms Kelly’s evidence; but regardless, his concern was around the lack of information which usually emerged from an offender undertaking relevant sex offender programs; the absence of such information made it difficult to identify the risk to be contained; which meant those supervising the respondent would have limited knowledge on how to monitor him and particularly how to restrict him;
3. Thirdly: Dr Beech’s evidence was not that he did not recommend these courses, just that there was little evidence about the effectiveness of the courses if they were not run by a qualified registered psychologist. That evidence points more towards the necessity for such a study than a lack of actual effectiveness. It is reasonable to infer as I do that eminent and leading psychiatrists would not recommend these courses if they thought they were ineffective or not useful;
4. Fourthly: (and regardless), the respondent’s submission overlooks the following three matters:
  1. (i)
    First: the matters set out in paragraph 86 (b) and (c) above (on which Dr Beech, Dr Phillips and Dr Brown agree);
  1. (ii)
    Secondly: Dr Beech’s assessment or reduction in the risk being reduced if the respondent is released under a supervision order is underpinned in part by the respondent undertaking at the very least the GS:PP and then most likely the MISOP;
  1. (iii)
    Thirdly: making an informed and valued judgment based on all of the evidence, this Court cannot be satisfied that the community will be adequately protected by the respondent’s release on a supervision order without a better understanding of his offending and in light of the myriad of concerns identified in paragraph 105 above.
[111]
In the present case, there are “important gaps” or “uncertainties” around the material facts known about the respondent’s motivations and desires such that more needs to be known before it can be said that it is likely that the respondent’s risk is one that can be managed under a supervision order.^[69] The consequence to the community if the risk manifests itself are severe.
[112]
In these circumstances, I am satisfied that the adequate protection of the community cannot be managed by a supervision order. The applicant has therefore established that there could be adequate protection of the community only by a continuing detention order.
[113]
I therefore order pursuant to s 13(5)(a) of the Act that the respondent be detained in custody for an indefinite term for control, care or treatment.

Footnotes

[1] Section 13(1) – (3) of the Act. The applicant’s primary submission is that a supervision order will not provide for the adequate protection of the community.

[2] Section 13(5) – (6) of the Act.

[3] Section 13(1) – (3) of the Act; Attorney-General v LKR [2018] QSC 280 at [12].

[4] Despite this concession, the court must still be satisfied that a finding that the applicant is a serious danger to the community in the absence of a supervision order is warranted.

[5] The objections to aspects of the medical evidence in this case is dealt with under that heading later in these Reasons.

[6] Section 9AA of the Act provides for any “eligible person” to be notified of the fact that an application has been made under the Act and to invite the person to express views on the application. An eligible person under the Act is one who is registered as an eligible person under the provisions of the Corrective Services Act 2006 (Qld). Here no eligible person has provided such a written submission.

[7] Section 2 and Schedule 1 of the Act.

[8] Section 13(4)(g) of the Act.

[9] Section 13(4)(g) and (j) of the Act.

[10] Section 13(4)(g) and (j) of the Act.

[11] Section 13(4)(g) of the Act.

[12] Offences of stealing, larceny, fraud, enter with intent, possession of stolen goods and possession of prohibited weapon for which the respondent was either fined or sentenced to good behaviour bonds.

[13] Sections 13(4) (c), (d) and (g) of the Act.

[14] On 15 June 2016, the respondent filed a Notice of Appeal on the ground that the declaration that he was a serious violent offender, was manifestly excessive but this Appeal was abandoned on 28 October 2016.

[15] Attempted rape – 5 years; on each of the counts of stupefying to commit an indictable offence – 4 years; on each of the counts of deprivation of liberty, sexual assault and common assault 2 years; and the stealing charge – 1 year.

[16]Sentencing Remarks of Martin SC DCJ at page 4 line 5.

[17] Sentencing Remarks at page 2, lines 23 to 26.

[18] Sentencing Remarks at page 4, lines 44 to 48.

[19] Sentencing Remarks at page 5, lines 26 to 31.

[20] Section 13(4)(c), (h) and (j) of the Act.

[21] Dr Brown’s Risk Assessment Report is exhibited to the affidavit Karen Brown filed 12 June 2023. But this report must be read in light of my findings and observations under the heading “Admissibility of parts of the evidence” later in these reasons.

[22] Dr Phillips is one of the court appointed psychiatrists. Her report dated 28 July 2023 is discussed in more detail under the relevant heading later in these reasons. This report too must be read in light of my findings and observations under the heading “Admissibility of parts of the evidence.”

[23] Dr Beech is one of the court-appointed psychiatrists. His report dated 31 July 2023 is discussed in more detail under the relevant heading later in these reasons. This report too must be read in light of my findings and observations under the heading “Admissibility of parts of the evidence.”

[24] Section 13(4)(b) of the Act.

[25] Sections 13(4)(d) and (g) of the Act.

[26] Dr Oertel’s report is discussed under that heading later in these Reasons.

[27] Ibid.

[28] Section 13(4)(i) of the Act.

[29] Section 13(4)(j) of the Act. As can be seen from my discussion under this heading, I have not taken the formers wife’s allegation into account as any other relevant matter under s 13(4)(j) of the Act or in any other way as part of the valued judgment assessment I am required to make.

[30] Respondent’s list of objections to evidence filed 30 August 2023; Applicant’s submission on objections to evidence filed 6 September 2023.

[31] Respondent’s amended outline of submission on the application for a division 3 order at p. 2 para 8.

[32] Respondent’s amended outline of submission on the application for a division 3 order at p. 2 para 8.

[33] Section 13(4)(a) and (b) of the Act. The respondent's file held by the Parole Board of Queensland in evidence contained a report by Dr Dodemaide dated 17 March 2023. Dr Dodemaide also diagnosed a substance use disorder, adjustment disorder with depressive and anxiety symptoms, and ASPD. Neither party relied upon this report and I accept it is of limited relevance to this application.

[34] Page 1 of Dr Oertel’s Report.

[35] The report was based on interviews with the respondent via video-link to [reacted] on 10 and 24 February 2023. Extracts from the prosecution and custodial files, the respondent’s criminal history and transcripts of relevant court proceedings were also provided.

[36] This finding is consistent with Dr Brown’s oral evidence-in-chief, which made it clear that the risk was of the respondent committing an offence such as the index offence – not just any sexual offence. See T1-62 lines 19-46.

[37] T1-62 lines 19-46.

[38] T1-73 line 14.

[39] T1-73 line 35.

[40] Dr Phillips interviewed the respondent on 24 July 2023. This Report was prepared pursuant to s 11 of the Act pursuant to a Court Order dated 30 June 2023.

[41] Her report stated this score as 12 with high needs but under cross-examination Dr Phillips accepted that the reference to problems with cooperation with supervision ought to be removed reducing this figure from high to moderate. T1-48 lines 3-31.

[42] For example: Dr Phillips recommended that after his release into the community that the respondent be linked with drug and alcohol support; he should not be allowed to consume alcohol or illicit substances; there should be frequent random breath alcohol testing and urine drug screens; and there should be GPS monitoring and monitoring of the respondent’s associations.

[43] Beech interviewed the respondent for the purpose of this report on 14 July 2023. This Report was prepared pursuant to s 11 of the Act pursuant to a Court Order dated 30 June 2023.

[44] See Attorney-General for the State of Queensland v Travers [2018] QSC 73 at [30] per Davis J and Attorney-General for the State of Queensland v Fisher [2018] QSC 74 per Bowskill J (as her Honour then was) at [18]-[19].

[45] Applicant’s submissions made on the hearing of an application pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 at para 126.

[46] Attorney-General for the State of Queensland v DBJ [2017] QSC 302 at [12] to [15].

[47] DJB at [12].

[48] See Attorney-General for the State of Queensland v Beattie [2007] QCA 96 at [19].

[49] See Fardon v Attorney-General (Qtd) (2004) 78 ALJR 1519 at [22], [60] and [225]; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 at [63]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187 at [27]; New South Wales v Cruse (No 2) [2014] NSWSC 24 at [6]-[9] per Davies J and Nigro v Secretary to the Dept of Justice [2013] 41 VR 359 at [9].

[50] See Attorney-General for the State of Queensland v S [2015] QSC 157 at [40] per PD McMurdo J.

[51] Section 13(1) of the Act.

[52] Section 13(5) of the Act.

[53] The respondent maintained that adequate protection of the community could be provided by a supervision order – a copy of which was provided to the court (attached to counsel’s final submissions). Neither parties submitted otherwise, and I accept that there are no factors in this case that would cause the Court to exercise its discretion not to make any order at all. See Attorney-General for the State of Queensland v Lawrence [2009] QCA 136.

[54] Attorney-General for the State of Queensland v LKR [2018] QSC 280 at [17] per Applegarth J; Attorney-General for the State of Queensland v Holroyd [2019] QSC 39 at [19] per Davis J.

[55] Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505; [2009] QCA 136 at [38]-[39]; see also Yeo v Attorney-General for the State of Queensland [2012] 1 Qd R 276; [2011] QCA 170 at [73].

[56] Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [29].

[57] Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [39]; [2006] QCA 324.

[58] With reference to Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252 at [57] to [114] per Applegarth J. The facts of Grant are easily distinguishable from the present. Further, the present case does not involve the Court facing the “stark choice” [para 60 of Grant (No 2)] to make a continuing detention order, despite adequate protection of the community being ensured by making a supervision order, because anticipated conditions for the individual in the precinct are unsuitable, unsafe or even inhumane.

[59] Attorney-General (Queensland) v Francis [2007] 1 Qd R 396 at [39]; [2006] QCA 324 at [39].

[60]Grant (No 2) at [116].

[61] See Nigro v Secretary to the Dept of Justice [2013] VSCA 213 at [9] per Redlich, Osborn and Priest JJA.

[62] T1-57 lines 13–24.

[63] T1-55 line 5.

[64] In Dr Phillips evidence in-chief, she said that if no regard was had to the former wife’s allegations, she would make two amendments which did not alter, in a material way, her overall risk assessment. They were that she would not include the line ‘a future victim may also be an intimate partner’; and she would reduce further the possibility the respondent may have a paraphilia.

[65] Section 13(7) of the Act; Lawrence at [28].

[66] Attorney-General for the State of Queensland v LKR [2018] QSC 280 at [19] per Applegarth J, with reference to the Court of Appeal’s observation in Attorney-General for the State of Queensland v Beattie [2007] QCA 96 at [19].

[67]Attorney-General for the State of Queensland v Fardon [2011] QCA 155 at [29].

[68] The evidence is HISOP is currently only available in prison – not in the community.

[69] See Turnbull v Attorney-General for the State of Queensland [2015] QCA 54 at [40] per Morrison JA; Attorney -General for the State of Queensland v S [2015] QSC 157 at [36], [39] and [40] per P McMurdo J (as he then was).

Editorial Notes

Published Case Name:
Attorney-General for the State of Queensland v Van De Wetering
Shortened Case Name:
Attorney-General v Van De Wetering
MNC:
[2023] QSC 216
Court:
QSC
Judge(s):
Muir J
Date:
29 Sep 2023

Litigation History

Event	Citation or File	Date	Notes
Primary Judgment	[2023] QSC 216	29 Sep 2023	Continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld): Muir J.
Appeal Determined (QCA)	[2024] QCA 222	13 Nov 2024	Appeal allowed; order below set aside; matter remitted for rehearing; interim supervision order made: Mullins P, Henry and Williams JJ.
Application for Special Leave (HCA)	File Number: B72/2024	11 Dec 2024	Application for special leave to appeal filed.
Special Leave Refused (HCA)	[2025] HCADisp 64	03 Apr 2025	Special leave refused: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Attorney-General v Beattie	[2007] QCA 96	3 citations Jump To Cite 1 - [2007] QCA 96 Cite 2 - [2007] QCA 96 Cite 3 - [2007] QCA 96
Attorney-General v DBJ	[2017] QSC 302	2 citations Jump To Cite 1 - [2017] QSC 302 Cite 2 - [2017] QSC 302
Attorney-General v Fardon	[2011] QCA 155	2 citations Jump To Cite 1 - [2011] QCA 155 Cite 2 - [2011] QCA 155
Attorney-General v Fisher	[2018] QSC 74	2 citations Jump To Cite 1 - [2018] QSC 74 Cite 2 - [2018] QSC 74
Attorney-General v Francis	[2007] 1 Qd R 396; [2006] QCA 324	5 citations Jump To Cite 1 - [2006] QCA 324 Cite 2 - [2006] QCA 324 Cite 3 - [2007] 1 Qd R 396 Cite 4 - [2007] 1 Qd R 396 Cite 5 - [2007] 1 Qd R 396
Attorney-General v Grant [No 2]	(2022) 12 QR 357; [2022] QSC 252	1 citation Jump To Cite 1 - [2022] QSC 252
Attorney-General v Holroyd	[2019] QSC 39	1 citation Jump To Cite 1 - [2019] QSC 39
Attorney-General v Holroyd	(2020) 5 QR 80; [2020] QSC 187	1 citation Jump To Cite 1 - [2020] QSC 187
Attorney-General v KAH	[2019] 3 Qd R 329; [2019] QSC 36	1 citation Jump To Cite 1 - [2019] 3 Qd R 329
Attorney-General v Lawrence	[2010] 1 Qd R 505; [2009] QCA 136	4 citations Jump To Cite 1 - [2009] QCA 136 Cite 2 - [2009] QCA 136 Cite 3 - [2009] QCA 136 Cite 4 - [2010] 1 Qd R 505
Attorney-General v LKR	[2018] QSC 280	4 citations Jump To Cite 1 - [2018] QSC 280 Cite 2 - [2018] QSC 280 Cite 3 - [2018] QSC 280 Cite 4 - [2018] QSC 280
Attorney-General v S	[2015] QSC 157	3 citations Jump To Cite 1 - [2015] QSC 157 Cite 2 - [2015] QSC 157 Cite 3 - [2015] QSC 157
Attorney-General v Sutherland	[2006] QSC 268	3 citations Jump To Cite 1 - [2006] QSC 268 Cite 2 - [2006] QSC 268 Cite 3 - [2006] QSC 268
Attorney-General v Travers	[2018] QSC 73	2 citations Jump To Cite 1 - [2018] QSC 73 Cite 2 - [2018] QSC 73
Director of Public Prosecutions (WA) v GTR	View on:JADE[2008] WASCA 187	2 citations Jump To Cite 1 - [2008] WASCA 187 Cite 2 - [2008] WASCA 187
Director of Public Prosecutions (WA) v Williams	View on:JADE[2007] WASCA 206	2 citations Jump To Cite 1 - [2007] WASCA 206 Cite 2 - [2007] WASCA 206
Fardon v Attorney-General (Qld)	(2004) 78 ALJR 1519	2 citations Jump To Cite 1 - (2004) 78 ALJR 1519 Cite 2 - (2004) 78 ALJR 1519
New South Wales v Cruse (No 2)	View on:JADE[2014] NSWSC 24	2 citations Jump To Cite 1 - [2014] NSWSC 24 Cite 2 - [2014] NSWSC 24
Nigro v Secretary to the Department of Justice	View on:VR(2013) 41 VR 359	2 citations Jump To Cite 1 - (2013) 41 VR 359 Cite 2 - (2013) 41 VR 359
Nigro v Secretary to the Department of Justice	View on:JADE[2013] VSCA 213	1 citation Jump To Cite 1 - [2013] VSCA 213
STJ v Chief Executive, Department of Child Safety, Youth and Women	[2020] QSC 252	1 citation Jump To Cite 1 - [2020] QSC 252
Turnbull v Attorney-General	[2015] QCA 54	1 citation Jump To Cite 1 - [2015] QCA 54
Yeo v Attorney-General	[2012] 1 Qd R 276; [2011] QCA 170	3 citations Jump To Cite 1 - [2011] QCA 170 Cite 2 - [2012] 1 Qd R 276 Cite 3 - [2012] 1 Qd R 276

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Van De Wetering v Attorney-General	[2024] QCA 222	2 citations

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Attorney-General v Van De Wetering[2023] QSC 216