Attorney-General v S[2023] QSC 300

SUPREME COURT OF QUEENSLAND

History

1. [1]
   In 2001, the respondent to this application was sentenced to several terms of imprisonment for a number of offences of including maintaining a sexual relationship with a child (with circumstances of aggravation) assault occasioning bodily harm and the indecent treatment of a child under 12 years. He appealed his conviction and applies for leave to appeal against sentence. Both appeals were dismissed. The late Honourable Mr Justice McPherson said, of the respondent’s offending:

“In the 20 years in which I have been on this Court, I have not seen a case in which the conduct of the accused was worse than this.^[1]

2. [2]
   Before he was released from prison, the Attorney-General for the State of Queensland made application for the respondent to be brought into the regime created by the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). On 9 June 2015, McMurdo J (as his Honour then was) was satisfied that the respondent was a serious danger to the community and that the adequate protection of the community could only be established by a continuing detention order. ^[2]
3. [3]
   That continuing detention order has since been the subject of reviews by Brown J (as her Honour then was) in 2017, Lyons SJA in 2018, Wilson J in 2019, Williams J in both 2020 and 2021, and Freeburn J in 2022.

Application

4. [4]
   In this application, the Attorney-General again submits that the decision made by McMurdo J ought to be affirmed. The Attorney-General seeks that the respondent continue to be subject to the continuing detention order, pursuant to s 30(3)(a) of the Act.

Background

5. [5]
   The respondent was born on 8 October 1973. He is presently 49 years of age.
6. [6]
   His personal circumstances and criminal history are summarised in both The Queen v S [2002] QCA 38 and by McMurdo J in Attorney-General (Qld) v S [2015] QSC 157 from [2] to [6].

An application under Division 3 of the Act

7. [7]
   The functional part of his Honour’s reasons appears at [35]–[42]. In particular, in that foundational judgment by McMurdo J on 9 June 2015, his Honour noted:

“I am satisfied that the respondent is a serious danger to the community in the absence of a division 3 order. It is clear, in my  view, that  there  is  an  unacceptable  risk  that  he would commit a serious sexual offence if released from custody without any such order. The respondent’s offending behaviour, his antisocial personality, the possibility that there is in his case an element of sadism or paedophilia, his denial of his sexual offending and the  fact  that  he  has  not  engaged  in  necessary  treatment  programs  together  combine  to present that unacceptable risk…”^[3]

8. [8]
   As to the potential effectiveness of a supervision order, His Honour noted of the psychiatrists’ evidence, that:

Their concern, in each case, was that the  respondent  would  not  comply  with  the  order  and  that  a serious  offence  might  be committed before his non-compliance was detected and he was returned to custody. In my view, that is a substantial risk.  It is a risk which exists especially from the likelihood, as  the  psychiatrists  explained  it,  that  the  respondent  would  not  engage  with  those supervising him and from the difficulties in supervising this prisoner without his having undergone what they regard as necessary treatment programs.^[4]

The first review

9. [9]
   As noted previously, Brown J reviewed the continuing detention order. Her Honour made relevant findings and observations at [62] to [89].^[5] In particular, Her Honour noted:

The lack of engagement by the respondent in key rehabilitation programs identified by Dr Grant and Dr Beech is a matter which both Dr Grant and Dr Beech regarded as critical in being able to identify the deciding factors for the respondent’s offending behaviour and how they can be treated and addressed for the purpose of reducing the risk of re-offending should the respondent be released on a supervision order. Even though the respondent engaged in the Getting Started Sexual Offenders Program, both psychiatrists considered that has proved to be of little benefit in this regard because of the respondent’s categorical denial that he engaged in sexual offending…^[6]

The difficulty for the respondent is that until he meaningfully engages in these programs such that his offending behaviour can be discussed and his motivation and the triggers for that behaviour ventilated, the respondent cannot progress forward and appropriate treatment, and management to avoid his risk of sexual reoffending cannot be implemented…^[7]

…it is largely the respondent’s own conduct and positional stance that has resulted in him not participating effectively or at all in any of the programs that were recommended as necessary…^[8]

That risk is further heightened by the fact that he is not engaged in necessary treatment programs previously recommended, save for the Getting Started Program. While he did participate in that program, his denial of sexual offending has meant the respondent has not responded positively as it has provided no insight into the nature of his behaviour or motivations and the relevant triggers for his sexual offending such that it could be treated.^[9]

… no supervision order can be formulated to properly address the risks posed by the respondent to ensure adequate protection of the community, given the failure of the respondent to engage in programs that would enable that to occur.^[10]

The second review

10. [10]
    As noted above, Lyons SJA reviewed the continuing detention order in 2018. Her Honour made relevant findings and observations at [40]-[46].^[11] Her Honour endorsed at [44] the submissions of the applicant, and in particular, those that flowed from the respondent’s lack of engagement.

The third review

11. [11]
    Wilson J then reviewed the continuing detention order in 2019. Her Honour made relevant observations at [97]–[113], including the propositions that:

The respondent continues to maintain his innocence in relation to the charges of which he was convicted at trial.^[12]

Dr Sundin has previously recommended that the respondent needs to complete a High Intensity Sexual Reoffending Program prior to any consideration of release into the community, under the auspices of a supervision order. In the light of his intransigence and his high level of psychopathy, it seems highly unlikely that he would be suitable for such a program.^[13]

The fourth and fifth reviews

12. [12]
    Williams J reviewed the continuing detention in both 2020 and 2021. In 2020, her Honour made relevant observations at [45]–[50]:

The position of the respondent has largely remained unchanged since the original application in 2015 and the reviews that took place in 2017, 2018 and 2019. The respondent remains an untreated sex offender...^[14]

The respondent continues to deny his sexual offending and maintains his innocence in relation to the index offence. Further, the respondent continues to refuse to participate in programs offered by Corrective Services and also refuses involvement on an individual basis for assessment and/or treatment by psychiatrists or psychologists…^[15]

13. [13]
    In 2021, her Honour observed the following, at [42]:

The respondent continues to deny his sexual offending in relation to the index offence. Further, the respondent continues to refuse to participate in programs offered by Corrective Services and also refuses involvement on an individual basis for assessment and/or treatment by psychiatrists or psychologists.^[16]

The sixth review

14. [14]
    Most recently, Freeburn J reviewed the continuing detention order. His Honour observed:

On the psychiatric evidence, Mr [S] needs to meaningfully participate in a high intensity sexual offender treatment program or an individual treatment prior to his release into the community. If he did meaningfully participate in such a program or treatment, it would provide his supervisors and the psychiatrists with more information about the offending pathways which Mr [S] is likely to traverse prior to the commission of any offence. It would enable supervision to be an effective tool in providing adequate social protection to the community.

In the absence of such participation, it is impossible for the Court to be satisfied that the adequate protection of the community could reasonably and practically be ensured by a supervision order.^[17]

Further evidence

15. [15]
    All of that which was written in those judgments forms part of the background to these reasons, and I shall turn to the psychiatric evidence in a moment. There is, however, some additional material of relevance in this application.
16. [16]
    In his affidavit affirmed on 18 July 2023, Mr Bruce Tannock, Acting Manager of the High-Risk Offender Management Unit (“HROMU”), deposed that the respondent continues to demonstrate verbally abusive and belligerent behaviour towards custodial staff.
17. [17]
    Mr Tannock also provides evidence that Dr Lars Madsen, whose work in this space is widely recognised, was engaged by HROMU to attend on the respondent at Wolston Correctional Centre for the purpose of motivational interviewing and gauging the respondent’s willingness to engage in individual treatment. On 27 July 2023, HROMU received a session summary from Dr Madsen. That summary revealed that the respondent declined to meet with Dr Madsen, at all.

Further psychiatric reports

Dr Arthur

18. [18]
    Dr Arthur was engaged to interview the respondent for the preparation of a risk assessment report under the Act. On 3 February 2023, Dr Arthur conducted a risk assessment interview with the respondent at Wolsten Correctional Centre. The very fact that the respondent spoke to Dr Arthur is a positive development. However, Dr  Arthur also made the following observations in his report:

At interview he presented as guarded and avoidant.  He became pedantically fixated on terminology (such as arguing what constituted a safety plan), used continual racist epithets and portrayed himself as a victim of a racist and unjust system. He maintained his innocence in regard to the index sexual offences, claiming that the adult female victim (his ex-partner) was a promiscuous, drug-using paedophile who sexually abused teenagers of both sexes as well as sexually/physically abusing her own son.  Prisoner [S] claimed that she had stalked him and alleged that one of her children was his (which he disputed).  Furthermore, he cited her influence as the reason he abused substances and engaged in unlawful activities.

Whilst he casually admitted to assaulting the victim, he justified this on the basis that she was a paedophile and he was punishing her for harming her son.  He described himself as a protector of children and other vulnerable people, which he now regrets as (according to him) it left him vulnerable to false allegations.

He gave a sanitised version of his family and developmental history, idealising his father and portraying himself as a precocious, independent and disciplined child who was essentially self-sufficient by the age of 9 or 10.  He indicated that it was his choice to live on the streets and that it was culturally normal to have no fixed place of abode…

He minimised his history of substance use and claimed that he only experimented with drugs such as methamphetamine and heroin, accusing  previous examiners of exaggerating his intake.  Likewise, he was avoidant of discussing his forensic history and minimised/dismissed behavioural issues in jail.  He scoffed at the recent incident in December 2022 and portrayed himself as a victim, dismissing any suggestion that he was aggressive or violent…

The clinical interview confirmed my previous diagnosis of a severe Mixed Personality Disorder with prominent antisocial, narcissistic and paranoid traits in association with a high degree of Psychopathy.

19. [19]
    Dr Arthur employed a number of risk assessment tools, including the static 99R,^[18] the Hare Psychopathy Checklist,^[19] and the RSVP.^[20]
20. [20]
    Based on the available information, it was Dr Arthur’s impression that the respondent’s unmodified risk of committing further sexually violent offences on release remained high.
21. [21]
    He also noted:

Whilst prisoner [S] has now cooperated (to some extent) with a risk assessment, it remains difficult to recommend his release from custody on a supervision order.  He steadfastly maintains his innocence in relation to the index offences and is not willing to consider any forms of treatment, group or individual, which explore or address his offending.  He does not consider himself a risk of recidivism and is now engaging in extreme minimisation of his past substance use, history of violence and recent sexual functioning.  Clinically he displays extreme personality pathology with strong antisocial, narcissistic and paranoid traits.  He continues to subscribe to hypermasculine ideals and has a negative attitude towards women and relationships in general. 

He continues to display challenging behaviours in a custodial environment including verbal insubordination, passive-aggression, the almost habitual use of racial epithets and verbal/physical aggression directed at prison staff.  He displays no remorse and uses his victim status to justify his actions. 

Given his apparent resignation to remaining in custody, lack of community support and absence of any meaningful or achievable goals, there is little to motivate him to remain compliant with community supervision.  

He is unlikely to tolerate the restrictions of a supervision order due to his high levels of psychopathy and narcissism.  He is a man used to doing what he wants when he wants, prioritises his own moral code over the law and does not like women telling him what to do.  He is not above verbal and physical intimidation or aggressive acting out, particularly when frustrated.  It is likely that his sense of victimisation and racial prejudice will carry over to the community, which he may use to justify non-compliance and aggressive outbursts.  Given his lack of meaningful goals/supports and the likelihood of institutionalisation, I do not believe the threat of a return to custody will be significantly aversive to stop him from sexually reoffending should he choose to do so.

I remain of the opinion that his risk cannot be adequately appreciated nor managed until he engages meaningfully in some form of offence-specific treatment.  He has shown himself capable of engaging in individual therapy should he choose to do so.  Such therapy should begin in custody and ideally be provided by a senior male forensic psychologist.  Whilst I think it would be useful for prisoner [S] to develop a therapeutic relationship with a female clinician, there is more chance of him engaging (at least in the initial phase) with a male. 

It is important to recognise that even were he to start individual therapy, this is unlikely to provide any short term benefit and should be seen as part of a longer term strategy.  I believe he would need to show sustained engagement in treatment with some evidence of positive change in his attitudes towards women and a meaningful reduction in aggressive behaviour before a release to supervision could be considered.  It will also be important for him to develop a risk management plan addressing substance use and spending time formulating some achievable, pro-social goals.

Dr Brown

22. [22]
    Dr Brown also, was engaged by the applicant to undertake a psychiatric risk assessment of the respondent. On 9 February 2023, Dr Brown attended at the Wolston Correctional Centre for the purposes of conducting a risk assessment interview with the respondent.
23. [23]
    Dr Brown also used the static 99R, Hare Psychopathy Checklist, and RSVP risk assessment tools. She allowed that these risk assessment tools have not been robustly validated for use with prisoners that identify as Indigenous and therefore, that the results should be interpreted with caution and only in context of a wider clinical assessment.
24. [24]
    Dr Brown observed that:

Mr [S] essentially denies his offending (and he refuses to discuss it). His behaviour towards women in the prison and possession of pornography is suggestive of ongoing attitudes that support or condone sexual violence. He engages in profound denial and projection such that he lacks self awareness. He does not cope well with stress, evidenced by his periodic deterioration in behaviour in prison. He may have been physically or emotionally abused in childhood (including racially motivated bullying) which may have contributed to his personality disturbance…

In my opinion the risk of violent and sexually violent reoffending cannot be managed on a supervision order. Mr [S] denies his sexual offending, his offending pathway and sexual preferences and drives are very poorly understood and his rejection of assessment and treatment means that it is not possible to properly create a relapse prevention and supervision plan. Mr [S] is rejecting of DPSOA case management and it is very unlikely that he will engage with corrections officers in the community. His cannot manage in residential accommodation and his various breaches of discipline, suggest that he would not maintain appropriate behaviour in either contingency accommodation or other community placement. He is likely to disregard the conditions of a supervision order.

I agree with psychiatrist colleagues that the only possible option for rehabilitation is individual therapy if and when Mr [S] is ready to engage. I anticipate that any attempt to engage or treat him (if he agreed to participate) would be prolonged. I do not think Mr [S] would be suitable for a group program, as due to his severe personality disorder and psychopathic traits, he would mistrust the facilitators and other participants and he may become controlling and disruptive.

Given the burden of his mental disorders and his prolonged incarceration, Mr [S]’s mental health should be monitored (in so far as is possible). He is at risk of deterioration in his presentation (and increase in risk of violence in custody) at the time of Court hearings.

This application

25. [25]
    The respondent was initially represented at the hearing held today, 12 September 2023, but at the outset of proceedings his barrister told me that the respondent had dispensed with the services of his legal representatives. The respondent confirmed this and indicated that he wished to represent himself.
26. [26]
    Doctor Arthur proceeded to give evidence in the presence of the respondent. Dr Arthur recounted his attempts to engage with the respondent in 2020, 2021 and 2022, none of which succeeded.
27. [27]
    As noted, however, there was that consultation on 3 February 2023 when he spoke with the respondent for a period of four hours. Dr Arthur also allowed that there was nothing threatening or intimidating about the respondent’s behaviour during that session. He added that whilst there had been a recent (December 2022) incident of aggression whilst in custody, it may be the case that the frequency of such incidents is decreasing and there might have been a general lessening of hostile behaviour. All of this was positive.
28. [28]
    However, although he did endure the four-hour session, the respondent was unable to engage in any meaningful dialogue. He did not answer questions, and expressed concern that he was being victimised. Whilst the mere fact of his engagement offered some hope for the respondent’s rehabilitation, the doctor concluded that without any meaningful dialogue on any level, it was impossible to know the issues that would have to be addressed in order for such risks to be minimised. That is, in the absence of the psychiatrists knowing what they were dealing with, there would be no way to modify risk other than the use of external controls. It follows that the doctor's assessment of risk remained effectively unchanged.
29. [29]
    The respondent was invited to cross-examine Dr Arthur and that process began sensibly enough. He queried whether the doctor had experience with indigenous patients and, by implication, queried the validity of opinions influenced by tools that may not have taken indigenous issues into account.
30. [30]
    However, things soon spiralled. The transcript will speak for itself, but after persistent refusals to answer questions rather than make speeches, the respondent announced his intention to leave the court. Initially he resisted instructions given by Queensland Corrective Services staff. The situation was sufficiently concerning for court security to be summoned, but eventually the respondent left the court without the need for physical coercion or restraint.
31. [31]
    The hearing continued with evidence from Dr Brown, who has worked continuously in the area of forensic mental health since 2009, and has vast experience with prison populations. Dr Brown opined that out of the (at least) hundreds of patients examined in that time, the respondent had one of the most severe personality disorders she had ever seen. Doctor Brown also allowed that the fact of the respondent sitting down and speaking with her was a positive development, but simply put, she could not envisage the relevant risk being modified by a supervision order.
32. [32]
    At the conclusion of the evidence a message was sent to the cells and the respondent was asked if he wanted to return to court for the purposes of making any submission. He declined to do so.

Conclusion

33. [33]
    The written and oral testimony of Dr Artur and Dr Brown is acceptable and cogent evidence which satisfies me, to the high degree of probability required, that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the Act.
34. [34]
    The respondent has, on the evidence and by his behaviour, indicated that he has no insight into his condition and the steps he needs to take to address his risk.  He must be aware of the importance of meaningful participation in programs or treatment offered by Corrective Services.  This was an issue in all review hearings to date. For so long as he continues to deny the circumstances which gave rise to his incarceration, it would seem unlikely that this will occur. He has not demonstrated any commitment to participation in any programs or individual treatment which would serve to minimise the risk. He continues to refuse to participate in any treatment - such as that which might have flowed from engagement with Dr Madsen - that might assist him in the course of reviews such as this.
35. [35]
    Absent such participation, it will be impossible for him to adduce evidence which can satisfy a court that adequate protection of the community could be reasonably and practicably ensured by a supervision order.
36. [36]
    Taking into account all the evidence, it is not open to exercise the option presented by a supervision order.
37. [37]
    Accordingly, a continuing detention order pursuant to s 30(3)(a) of the Act, ought to be made.

Future

38. [38]
    Previous applications have been marked by the constant failure by the respondent to engage with those who might ultimately be of assistance to him. That feature is present here, in a barely modified form. It is difficult to conceive that an application of this nature could have a different result for so long as the respondent maintains his stance.
39. [39]
    The necessary consequence will be indefinite detention, unless something changes.
40. [40]
    That could happen, and there is a way forward, endorsed by the experts. The respondent should, of course, continue to be offered the monthly case management service that is part of the Dangerous Prisoners regime. It is noted that the respondent has not always attended to this process, but that would be a start.
41. [41]
    He could also accept offers of supportive therapy such as that which might have occurred with Dr Madsen. This could, in turn, lead to the motivational therapy which might actually assist him. But any positive vision of his future includes some sort of therapeutic relationship to be established with someone. And if he is to have any hope of negotiating his way through the dangerous prisoners regime, he must accept the importance of retaining the legal representation that Legal Aid Queensland offers him at no cost.
42. [42]
    For the reasons I have explained, I will make an order in terms of the draft provided. That is, to order that the decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order is to be affirmed, and to order that the respondent be subject to the continuing detention order made on 9 June 2015.