Attorney-General v Brennan[2024] QSC 248

SUPREME COURT OF QUEENSLAND

1. [1]
   On 18 January 2022, Ryan J ordered that the respondent be released from custody subject to a supervision order for a period of 10 years pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”).^[1] 
2. [2]
   The respondent was returned to custody in February 2024 after it was alleged that he contravened the conditions of the supervision order.  This is the second occasion the respondent has been returned to custody for that reason.
3. [3]
   The applicant now seeks a further order under s 22 of the Act.  That section applies if the court is satisfied, on the balance of probabilities, that a prisoner released on a supervision order is likely to contravene, is contravening, or has contravened a requirement of that order.  Where the section is engaged, s 22(2) provides that the respondent must satisfy the court, on the balance of probabilities, that the adequate protection of the community can, despite the contraventions of the existing supervision order, be ensured by that existing order.  If the respondent fails to do that, the court must rescind the supervision order and make a continuing detention order pursuant to s 22(2)(a).

History

4. [4]
   The respondent is presently 45 years of age.  He was in his early thirties when he committed the index offences which engaged the operation of s 13 of the Act. 
5. [5]
   The details of those index offences were described by Ryan J.^[2]  It is not necessary to set them out again.  The offences were committed upon girls and women aged between 12 and 22.  The victims were vulnerable because of their age or for other reasons.  Those offences included one count of rape, eleven counts of indecent treatment of children under 16, three counts of sexual assault and one count of common assault.

The initial application under the Act before Ryan J

6. [6]
   When the matter was before Ryan J, the respondent had not undertaken sexual offender treatment programs in custody, because he denied his offending.  Ryan J considered that this denial revealed a profound lack of self-awareness and that any treatment-based reduction in his risk would require intensive one-on-one therapy over a long period of time.^[3]
7. [7]
   Three psychiatrists provided written reports and gave oral evidence at the hearing before Ryan J: Dr Beech, Dr Brown and Dr McVie. 
8. [8]
   Dr Beech’s opinion was that the risk posed by the respondent could be reduced to below average by a supervision order. 
9. [9]
   Dr Brown’s initial opinion was that the risks posed by the respondent could not be managed in the community.  However, in her oral evidence before Ryan J, Dr Brown said that she was no longer of that view.  After reflecting on the reports of the other psychiatrists, Dr Brown expressed the view at that hearing that the risk the respondent presented would reduce with the passage of time and that a supervision order for a period of 10 years represented a balanced prediction as to when the respondent’s risk would have reduced to the level where supervision was no longer required. 
10. [10]
    Ryan J summarised Dr Brown’s evidence on the likely effectiveness of a supervision order in reducing the relevant risk as follows:^[4]

“[53] Dr Brown explained that the recognisable pattern to the Respondent’s offending included that he befriended vulnerable young women by associating with them and their friends.  A number of his victims were in the care system and a number of them frequented parks or other areas where groups of young people gathered.  Those gatherings were not easily detectable by the general public.  Therefore, monitoring his associations and seeing who he was spending time with would assist in management of his risks.  Similarly, curfews and monitoring conditions would also reduce his options for meeting young, vulnerable women.  Because of the predictability of his offending, the Respondent was a little easier to contain than someone who offended within and/or outside a relationship, or with people of any age.  If, while he was being monitored, the Respondent made any attempts to attend at places where young people might congregate, or he sought out associations with parents of people in the age group of his victims, then that would be a warning sign for those supervising him.  Another warning sign would be whether he was attempting to purchase alcohol.

[54] In Dr Brown’s view, external management strategies (such as geographical restrictions, abstinence and curfews) would work to reduce risk in the short term.  However, as to concurrent therapy, there was presently no indication that the Respondent would benefit from it although the hope was that he would.  Nevertheless, Dr Brown had concerns that he would not get to the point where the restrictions imposed upon him by the supervision order could be relaxed.

[55] She summarised her position in this way:

‘This is a man who we have, you know, significant concerns that he’s never going to get to the stage where he can, essentially, self-apply a set of basic rules in a – that he has assimilated and internalised to manage his own behaviour.  So you could make an argument that he should not be released because, essentially, he’s never going to benefit from treatment.  I think that’s probably too far the other way, having had regards to the other reports, and reflected on it, but I do think that there’s a reasonable chance that he may not be able to be moved on from the precinct.’”

11. [11]
    Dr McVie’s initial opinion was that further attempts should be made at psychological treatment of the respondent while he remained in custody.  Like Dr Brown, Dr McVie modified her opinion in the course of her oral evidence before Ryan J.  Her Honour summarised Dr McVie’s oral evidence as follows:^[5]

“[61] In oral evidence, Dr McVie said that her view as expressed in her written report had been influenced by the Respondent’s unsophisticated attempts to justify his denial of offending.  She was not particularly concerned about his level of intellectual functioning as a risk factor.  Having reflected on things, she said that, whilst ideally the Respondent would have already engaged in treatment in custody, if he were to stay in jail, on a CDO, he would be ‘stuck there’ for another 12 months and may not get treatment for some time.  If he were released on an SO, he would be engaged in treatment more quickly; given an opportunity to demonstrate his understanding of relevant concepts; and work with someone to produce a better plan for his future.

[62] Dr McVie was satisfied that the Respondent would understand what it would mean to abide by the constraints of an SO such as not drinking or abiding by curfew.  But she was not entirely sure whether he would comply or not because he had not been tested.  I asked her what might drive the Respondent’s non-compliance.  She said she did not know because she did not have a good feeling for his background.

[63] With respect to the duration of any SO, Dr McVie predicted that effective psychological treatment would take a long time.  In addition to issues with his intellectual functioning, the Respondent needed ‘a lot of work’ to identify why he offended and how to prevent it from happening again.  He needed a lot of ‘work’ on his relationships and a lot of work on how to live a socially productive lifestyle.  She suggested that a 10-year order was warranted.”

12. [12]
    Ryan J expressed the basis for her conclusion that the respondent would be a serious danger to the community if he were to be released without a Division 3 order in the following terms:^[6]

“[80] The evidence before me (which includes the reports referred to above and other material relied upon by the Applicant) established that the Respondent’s unmodified risk of committing a serious sexual offence upon his release from custody (without a Division 3 order) is moderate to high.  He is an untreated sex offender, in denial, with cognitive limitations, a profound lack of self-awareness, and no relapse prevention plan, who would likely return to his ‘old ways’ if he were released from custody without constraints upon his liberty.  His ‘old ways’ include groping and sexually touching vulnerable female children and young adults.  There is less of a risk that his re-offending would include rape.  The evidence before me is sufficiently cogent to allow me to be satisfied, to the high degree necessary, that the Respondent would be a serious danger to the community were he to be released without a Division 3 order.”

13. [13]
    As to the question whether the community would be adequately protected by the terms of the proposed supervision order, her Honour stated:^[7]

106. "[106]
     Overall, the evidence of the psychiatrists, and the other evidence before me, supported a conclusion that the community would be adequately protected from the risk posed by the Respondent by an SO in the terms of the draft provided to me.  Compliance with its conditions will ensure that the Respondent does not find himself in circumstances in which he might come into contact with potential victims – unless those supervising him consider it appropriate to permit him to, for example, go to a public park: a point which is unlikely to be reached for years.

107. [107]
     I consider it necessary for the Respondent to be subject to the SO for a period of ten years.  The Respondent’s intellectual limitations and his profound lack of self-awareness mean that it is likely to take some time, and intense therapy, for him to develop an ‘internal’ risk-reduction strategy.  The Respondent might develop such a strategy within five years, as Dr Beech optimistically suggested.  But until he develops such an internal risk reduction strategy, the community’s adequate protection will depend on his compliance with the restrictive conditions of the SO.

107. [108]
     Although the Respondent may never reach the point at which he is able to apply an internal risk reduction strategy, he cannot stop the march of time and the age-related reduction in risk which goes with it.  The Respondent is still a relatively young man.  I consider it necessary to have a supervision order in place until he reaches an age by which it is probable that his risk will have naturally reduced.  As Dr Brown explained, that will be in about ten years.  If, whilst subject to supervision, the Respondent becomes able and willing to also apply internal risk reduction strategies, then the community would be further protected from the risk he poses.”

The first contravention application before Davis J

14. [14]
    The first contravention application was heard by Davis J on 3 November 2022.^[8]  His Honour made an order that day that the respondent be released from custody and continue to be subject to the supervision order.
15. [15]
    On that occasion, Davis J found that the respondent had contravened the supervision order by possessing internet capable devices and accessing a Facebook account to contact his family.
16. [16]
    His Honour referred to a further report prepared by Dr Brown and noted:^[9]

    1. she thought it significant that there was no evidence that the respondent utilised the electronic devices to engage in sexual related material; and
    2. her opinion was that if the respondent was to be released back on the supervision order, that order would adequately reduce the risk of sexual offending to a below moderate and manageable level.
17. [17]
    Davis J also referred to a further report of Dr McVie in which she observed that although the respondent had some difficulties in complying with the supervision order, she thought his risk of reoffending had been contained by the conditions of the order and that the breaches had been quickly detected and acted upon.^[10]
18. [18]
    Finally, Davis J referred to a report prepared by Dr Hatzipetrou, the psychologist who treated the respondent on his release.^[11]  Dr Hatzipetrou addressed the issue of risk as follows:

“Coupled with his role as a victim, Mr Brennan remains at moderate risk of reoffending whilst under the conditions of [the Act].  The recent transgression reflects Mr Brennan’s level of cunningness and propensity to pursue his own desired goals, despite knowledge these actions were wrong.  When released, Mr Brennan will require high levels of disability support and engagement in a structured program that involves skill development, activity and continued involvement in addressing the offence pathway.”

19. [19]
    Based on that evidence, Davis J concluded that although the respondent’s compliance with the supervision order may be hampered by his intellectual limitations, the contravention did not indicate an increase in the relevant risk.  His Honour was satisfied that the adequate protection of the community against the commission of a serious sexual offence by the respondent could be ensured by his release on the supervision order in its existing terms.

The present contraventions of the supervision order

20. [20]
    On this application, the first instance of contravening conduct concerns the respondent’s possession of a gaming console which had not been approved by Queensland Corrective Services (QCS).  The console was connected to the internet through a hotspot on a mobile phone.  The respondent accessed three unapproved accounts though the console.  This is said to have contravened condition 6 of the supervision order which required that the respondent comply with any reasonable direction given to him by QCS.
21. [21]
    On 16 February 2024, the respondent pleaded guilty to one offence under s 43AA of the Act alleging contraventions of the supervision order relating to his possession and use of the gaming console.
22. [22]
    The second instance of contravening conduct concerns the respondent’s actions when he attended the Costco store at Bundamba.  On 7 February 2024, the respondent informed QCS that his Costco membership had been cancelled.  That caused QCS, and subsequently the police, to make inquiries about the respondent’s behaviour towards female employees at Costco.  Those inquiries revealed that three female employees, aged between 22 and 27, complained to Costco management about the respondent’s behaviour. 
23. [23]
    The first employee reported that the respondent had touched her around the back clip of her bra, commented on the size of her buttocks and asked for her phone number.  This employee reported feeling harassed by the respondent.  She had told the respondent on multiple occasions that she was not his friend and that he should stop touching her and her co-workers.
24. [24]
    The second employee reported that the respondent had come into the Costco store each Wednesday when she was working and harassed her by constantly asking for her phone number, hanging around her, hugging her and rubbing her shoulders.  She reported feeling anxious and not wanting to work on Wednesdays.
25. [25]
    The third employee reported that the respondent had come into the Costco store each Wednesday looking for her and asking for her by name.  The respondent would stand close behind her.  She would ask the respondent to leave her alone.  He would leave briefly but then return.  The respondent’s conduct made her feel unsafe.
26. [26]
    During their inquiries with Costco staff, police also received information that the respondent was meeting a couple and their young child at the store.  Police then obtained CCTV footage from Costco showing the respondent shopping and interacting with a couple and their young children on several occasions.  The respondent had not reported his contact with the couple and their children to QCS.
27. [27]
    By this conduct, the respondent is said to have contravened the following conditions of the supervision order:

    1. condition 7, which requires that he answer and tell the truth if QCS asks him about his whereabouts, what he had been doing or what he was planning to do, and who he was spending time with;
    2. condition 36, which requires that he tell QCS the names of people he meets, spends time with, makes friends with, sees or speaks to;
    3. condition 37, which requires him to tell new contacts about the supervision order and his offending history;
    4. condition 38, which prohibits him from having any contact with children under the age of 16, unless he first obtains written permission for such contact from QCS;
    5. condition 39, which provides that if he has repeated contacted with a parent, guardian or carer of a child under the age of 16, he must tell that person about the supervision order and provide that person’s details to QCS.
28. [28]
    On 15 April 2024, the respondent pleaded guilty to one offence under s 43AA of the Act alleging contraventions of the supervision order relating to his behaviour at Costco.
29. [29]
    In the circumstances described above, I am satisfied that the respondent has contravened requirements of the supervision order made on 18 January 2022.  Accordingly, s 22 of the Act is engaged.  I turn then to the question whether the respondent has discharged the onus upon him of demonstrating that, despite the contraventions, the existing supervision order will continue to ensure the adequate protection to the community.

Statutory scheme

30. [30]
    Section 13 of the Act is directed towards the making of orders to ensure the adequate protection of the community against the risk that a prisoner will commit a serious sexual offence.  The term “serious sexual offence” is defined in Schedule 1 of the Act to include an offence of a sexual nature involving violence.
31. [31]
    The jurisdiction to make orders is enlivened once “… the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order”: see s 13(1).  A prisoner will be characterised as a serious danger to the community “if there is an unacceptable risk that the prisoner will commit a serious sexual offence: (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made”: see s 13(2).  Where, as here, such a finding was made, the question then is whether a continuing detention order, or a supervision order should be made: see s 13(5).  Where a supervision order will ensure the adequate protection of the community from the commission by a respondent of a “serious sexual offence”, then the making of a supervision order ought to be preferred to the making of a continuing detention order.^[12]
32. [32]
    Section 22 of the Act concerns contraventions of a supervision order.  As already noted, where the contravention has been proved (as here), the section casts an onus upon the respondent to prove that “… the adequate protection of the community can … be ensured by a supervision order”.  The term “the adequate protection of the community” as it appears in s 22 bears the same meaning as it bears in s 13 of the Act.^[13] 
33. [33]
    The relevant “protection” is not protection from any offending, or indeed from any sexual offending.  The relevant “protection” is from the commission of a “serious sexual offence”.  In Turnbull v Attorney-General (Qld),^[14] Morrison JA (with whom Philippides JA and Douglas J agreed) said:^[15]

“[36] The consideration required under s 13(6)(b)(i) is whether adequate protection of the community can be reasonably and practicably managed by a supervision order.  The risk which leads to the need to protect the community is because, under s 13(1) and (2), there is an unacceptable risk that Mr Turnbull will commit a serious sexual offence if released without such an order.  The means of providing the protection, and avoiding that risk, is a supervision order.  When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk.  Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection.”

34. [34]
    Consequently, the question under s 22 is whether the respondent has satisfied the court on the balance of probabilities that his release back into the community on a supervision order provides “adequate protection of the community” by reducing the risk that he will commit a serious sexual offence to an acceptable level.
35. [35]
    In Attorney-General (Qld) v Nemo,^[16] Davis J stated that, in circumstances where s 22 requires consideration of whether the supervision order reduces the risk of the commission of a serious sexual offence to an acceptable level, the fact that there might be a likelihood of a breach of the supervision order is but one fact to consider in that determination.^[17]  Any risk of future breach of the supervision order must be considered in the light of its relevance to the protection of the community from the commission by the respondent of a serious sexual offence.^[18]

Dr Brown’s evidence on the present application

36. [36]
    Dr Brown’s diagnoses of the respondent are set out in the following passage from her report dated 9 September 2024:

“Mr Brennan has committed sexual offences against pubescent teenage girls.  Some of the victims were in the care of the Department of Child Safety or similar and therefore vulnerable.  Mr Brennan struggled to find a girlfriend his own age due to his cognitive limitations and he engaged the child victims using his adult status, purchases of alcohol and lifts in his car.  More recently he has made online contact with the parents of female children, obtained photos of children and he has approached and sexually harassed women much younger than himself in a supermarket.  Mr Brennan probably does not have a primary paedophilic drive (as his victims were pubescent or older), although his refusal to acknowledge the offending or to discuss his sexual drives and preferences on even a basic level means that a paraphilia cannot be robustly excluded.

Mr Brennan has a full scale IQ of 71 (in the borderline range), further complicated by his limited schooling, his problems with verbal comprehension and working memory and his autistic spectrum disorder traits.  He demonstrates poor adaptive functioning in the areas of interpersonal functioning, problem solving and adjustment to new environments and routine.  He has a tendency to exaggerate his difficulties, particularly with literacy, but it may be that he prefers not to try at all, rather than reveal his deficits to others; or it may be that he seeks to limit his responsibility for his behaviour by underreporting his ability.  Similarly he has a tendency to claim he is physically unwell and/or disabled as a method of avoidance.  He presents with a degree of vulnerability secondary to very poor social judgement, particularly related to the disclosure of his criminal history to others.

Mr Brennan also presents with antisocial personality disorder, again this diagnosis is complicated by his autistic spectrum disorder.  He does not adhere to prosocial norms, he demonstrates capacity for deceit, failure to take responsibility, externalisation of blame upon others and a marked lack of empathy.  He is very resistant to treatment.

Mr Brennan has used alcohol in the past (and supplied it to minors).  However there is not enough evidence that he regularly consumed alcohol to excess and therefore he does not meet criteria for a diagnoses of substance misuse disorder.  Further exploration of his alcohol use is required as it is likely that he has minimised his past use.

Mr Brennan reports longstanding dysphoric mood and mild anxiety around others, however there is no objective evidence of a major mental illness at the current time.  He may have had a depressive episode in person at the time of sentencing.”

37. [37]
    Dr Brown used three risk assessment tools to assess his risk of sexual reoffending with the following results:

    1. Static-99R: the respondent scored 6, indicating a well above average risk of sexual reoffending;
    2. Psychopathy Check List-Revised (PCL-R): the total score for the respondent was 22 out of 40, which is elevated but below the score required for a diagnosis of psychopathy (normally considered to be 30 and above);
    3. Risk for Sexual Violence Protocol Version 2 (RSVP-V2): 15 of the 23 risk factors are present, with partial evidence for two additional risk factors.  Dr Brown reported those factors as follows:

“Nature of Sexual Violence:

• Chronicity of sexual violence
• Escalation of sexual violence
• Physical coercion
• Psychological coercion

Sexual violence history risk factors include a pattern of chronic offending over the course of almost 3 years.  The offences escalated from genital touching to the rape of an unconscious child.  Some of the acts were psychologically coercive in that he groomed vulnerable teenage girls with alcohol and rides in his car.  He physically assaulted one of his victims prior to raping her.

Perpetrator Characteristics – Psychological Adjustment:

• Problems with minimisation or denial of sexual violence
• Problems with self awareness
• Problems with stress or coping

Mr Brennan does not admit that he committed the offences for which he is convicted.  His various claims in relation to his innocence involve multiple cognitive distortions (denial, minimisation, rationalisation) and include that he does not know some of the victims, that he was set up by his ex-partner to prevent his contact with their son and that his sexual drive is absent.  He also has a pattern of accusing his victims of the same offences as he has perpetrated.  His narrative is implausible, inconsistent and illogical.  Mr Brennan lacks self awareness into his cognitive and interpersonal difficulties, his poor judgement and his sexual preferences and drives.  He copes with stress using protest type behaviours (eg refusing to go grocery shopping, excessive sleeping).

Perpetrator Characteristics – Mental Health

• (Sexual deviance)
• Problems with sexual health
• (Problems with substance use)

There is no clear sexual deviance, but Mr Brennan’s behaviour suggests a preference for much younger women or adolescents (despite his self report that he prefers older women).  Mr Brennan almost certainly underreports his sexual drive, which appears to be a rejection and protest against sex due to his circumstances, rather than a genuine absence of sexual drive.  Due to his unreliable self report, a paraphilia cannot be ruled out, however it is more likely that his offending is secondary to his personality and cognitive deficits rather than a paraphilia.  There is a possible past history of problematic alcohol use.

Perpetrator Characteristics – Social Adjustment

• Problems with intimate relationships
• Problems with non-intimate relationships
• Problems with employment
• Problems with antisocial attitudes

There are major problems in this domain.  Due to his cognitive limitations Mr Brennan does not have many friends although he tends to consider casual acquaintances as such and he does not recognise when he is being exploited (usually financially).  He has never had a stable relationship with an adult peer.  He has not held long term employment or reliable routine and he tends to rely on the family home and income for support.  He has significant antisocial attitudes.

Perpetrator Characteristics - Manageability

• Problems with living situation
• Problems with treatment
• Problems with supervision

There are also major problems in this domain.  Mr Brennan has not progressed out of the precinct and he has remained on stage 1 curfew on each occasion of release.  He may struggle to live on his own due to his various cognitive and developmental difficulties.  He cannot live in the family home due to the nature of his offending and the negative influence of some of his family members.

Mr Brennan completed the Getting Started preparatory sex offender treatment program, however he maintained denial and was noted to engage in victim blaming and collusion with others that denied their offending.  He has not responded to individual sexual offender treatment whilst in the community.

Mr Brennan is not compliant with supervision and he has now been returned to custody on two occasions, most recently for the sexual harassment of young adult women in a supermarket.  He has previously made online contact with several women, viewed pornography and obtained pictures of children, against the condition of his order.”

38. [38]
    In Dr Brown’s opinion, the respondent’s unmodified risk of sexual reoffending is high.  Her view was that it was difficult to see how the supervision order could reduce the respondent’s risk at the present time.  She stated:

“In my opinion Mr Brennan’s unmodified risk of sexual reoffending is high.  Risk factors include the chronicity of his offending, his antisocial personality structure, his cognitive deficits and likely autistic spectrum disorder, his extremely poor self awareness, his inconsistent and unreliable self report and his resistance to supervision and treatment.

Sexual offending risk would be significantly increased if Mr Brennan had access to underage or vulnerable (young) females and further increased if he (and/or the victim were intoxicated).  Offending may be impulsive or planned and would most likely involve relatively new acquaintances either met online or in person.  Offending may include sexual acts with those that are unable to consent, (either due to their age or other vulnerability), or those that do not give consent but are more easily physically or psychologically coerced.  Mr Brennan may seek out vulnerable teenage children and groom them with lifts in his car or the supply of alcohol (and possibly other substances).  He is also at risk of sexually harassing or sexually offending against those he can regularly access in the community such as shop floor workers, volunteer workers etc.  The risks would escalate in context of social isolation, sexual frustration or rejection.  Mr Brennan’s autistic spectrum traits, particularly his difficulties recognising non-verbal cues and his poor social awareness and judgement, coupled with antisocial traits and entitlement, may result in the persistence of sexual behaviours, despite overt requests and other indicators to desist.

Mr Brennan was re-released in November 2022.  At that time it became apparent on examination of his devices that the contraventions in early 2022 were much more concerning than previously understood.  The timing and nature of the internet use and checks of his accounts suggested that Mr Brennan had these devices for a considerable time and that he may have had a second phone.  Mr Brennan had contacted at least 7 women using Facebook and at least one of these women had a daughter.  Mr Brennan engaged in sexualised discussions with this woman, made reference to ‘playing games with her daughter’ and obtained a picture of her daughter.  He had other pictures of children and it seems that one of these may have been a previous victim.  He accessed pornography.

In February 2024, Mr Brennan was returned to custody for again accessing the internet using a gaming device and what amounts to the sexual harassment of at least three shop floor workers at Costco over the course of several weeks whilst simultaneously reporting an absence of sexual interest or drive to supervising professionals.  He did not report his associations with either the adults or the two children that he routinely met up with in Costco to any member of the supervisory team.  He was dismissive of his support workers and told them to stay away from him (so his activities were hard to monitor).  He was almost certainly deleting data from his phone in relation to the phone numbers of his associates and he accessed the internet via his playstation despite knowing that this was not permitted (as he has been returned to custody for same).  The contravening behaviours occurred despite the very strict oversight and monitoring to which Mr Brennan was subject, inclusive of stage 1 curfew, an escorting support worker, psychological treatment and regular case management and cultural liaison meetings (when the conditions of his order were routinely discussed and re-enforced).

Mr Brennan’s presentation is complex.  He has some autistic traits and mild cognitive deficits with an IQ in the borderline range and he has very poor social skills, including a tendency to misread and misjudge social situations (for example he considers distant acquaintances to be close friends and he readily discloses his offending history to others).  Additionally he has significant antisocial personality traits.  He has an enjoyment of deceit and he engages in pathological lying at times, giving him a sense of control and superiority, particularly in relation to to [sic] QCS staff.  He has a tendency to exaggerate his difficulties (eg literacy and health problems) so as to avoid responsibility for his behaviours and to achieve passive resistance to his situation.  He lacks empathy and he routinely externalises blame for his situation on to others.

Unfortunately Mr Brennan has not made significant treatment gains in individual therapy with Dr Hatzipetrou.  He demonstrates pervasive and entrenched cognitive distortions regarding his offending, his sexual preferences and drives and his contravening behaviours, thus creating an implausible and illogical self narrative, that is superficially psychologically protective but which serves as a major barrier to his treatment progression and risk management.

It is therefore difficult to envisage how a supervision order, even in it’s [sic] strictest form, could reduce Mr Brennan’s risk at this time.  He has not acknowledged his sexual offending or any of his contraventions, his self report is unreliable, he has not responded to treatment, he does not have a relapse prevention plan and he does not have any internalised risk reduction strategies.  Mr Brennan has no regard for the supervision order conditions and the external monitoring associated with the supervision order was not enough to prevent the contravention behaviours which included the sexual harassment of young adult females and regular contact with two children, one of them female, as well as befriending their parents.  It is also clear that the presence of the support workers were [sic] also ineffective in properly managing the risks (whilst noting that risk management is not the primary role of a support worker).

Additional individual treatment may assist, although I anticipate that any progress made will be slow.  I also recommend that a formal assessment for autistic spectrum disorder is completed as well as an occupational therapy assessment so as to better inform Mr Brennan’s future treatment and support needs.”

39. [39]
    In oral evidence, Dr Brown said this about the respondent’s index offending:^[19]

“… But in my view it’s – it would be, I think, premature to diagnose him with a paraphilia at this stage.  Mr Brennan has offended against mainly minors, but I think that was more to do with their general vulnerability and his access to them.  Most of them were pubescent rather than prepubescent, which would mean that he wouldn’t meet the criteria for paedophilia anyway.  So really, I think this is a man who is offending broadly against vulnerable women and girls rather than children, per se.”

40. [40]
    Dr Brown stated that the respondent is reluctant to discuss any of his thoughts, feelings and drives relating to sex.  He is also not prepared to discuss the contraventions.  She considered that the contraventions showed that the supervision order is not containing the respondent properly in terms of his “inappropriate sexualised behaviours”.^[20]  She then said this:^[21]

“… But also, what we see is only a glimpse of his internal world and psychological functioning in relation to his risk, right.  So what we see is we see a man who tells us he has no sexual function at all, no sexual interest, he didn’t commit any of the offences that he is – for which he is convicted, and he’s not responsible for the contravening behaviours, yet.  So we have no understanding, therefore, from him as to his formulation of offending.  And yet we see here evidence, a lot of evidence, that he’s sexually preoccupied and he’s behaving in a way that is associated with an increase in risk.  So, for example, making contact with women and not telling QCS, viewing pornography, having pictures of children, and also behaving in a sexualised manner, an inappropriate manner in shopping centres.  The problem is, in addition to that being in itself a concern, is that we have nowhere to place it in terms of understanding that in a formulatory way.  So, for example, we can see that it’s a risk, but how much of a risk, we don’t know because he won’t talk to us about it.  So he’s not giving us any explanation as to why he behaved that way in the shopping centre and giving us a narrative that we can then understand and then formulate as to whether that’s very risky, moderately risky, or of lower risk, and then act accordingly.  He’s not giving us any information at all.  He’s telling us it didn’t happen.  So we’re left then with a gap.  And not understanding risk is a problem because we therefore have to assume, at least to a certain extent, that there may be, based on his behaviour, a reason to be very concerned.  And I think that that is a major issue in managing this man.  So we have essentially a problem where he’s not responding to treatment, he’s not contained by the order, and he’s telling us nothing.”

Dr McVie’s evidence on the present application

41. [41]
    In the summary of her report dated 30 August 2024, Dr McVie said:

“Bradley Brennan is a 45 year old single man, father of one son, who served a seven year sentence for convictions on 16 offences, 15 of them sexual, and 13 of them with six different child victims aged 12 to 15 years.  The seventh victim was a young adult female.  He plead [sic] guilty though subsequently has completely denied his offending and attributes being charged to a previous female partner attempting to get revenge.  He has variously claimed lack of knowledge of the victims or that the victims were all associates of his previous partner, and the charges contrived.  He did previously claim he himself was unconscious at the time of the most serious offence, the digital rape of a 14 year old unconscious female in a public park.

His self-report of his actions in relation to the offences is inconsistent, unreliable, and implausible.  At the time of his arrest, he told police he was homosexual though police noted he also continued to harass and threaten victims.

Initially in custody he was well presented and engaged appropriately in work.  As his court case came closer and he, most likely, realised he would be convicted of some offences, his presentation deteriorated with loss of attention to personal hygiene and problems in interactions with others.  He may have developed anxiety and depressive symptoms at the time and reports suggest he was prescribed some medication for a short period.  Subsequently, he has been observed to deteriorate in self-care and personal hygiene at times of stress.

While he has participated in the GS:PP program twice and had ‘motivational’ sessions with a psychologist, and participated in fortnightly sessions with his treating psychologist in the community for some 20 months in total, he fails to engage meaningfully in treatment, continues to deny his offending, proclaims his innocence, and states he has legal supports to pursue his wrongful convictions.  He blames others, now including QCS, for his behaviours and inability to comply with conditions of his supervision order.

His treating psychologist has identified his considerable deficits in cognitive and adaptive functioning, impairments in comprehension and working memory, impaired social and communication skills, and impaired ability to understand the impact of his behaviours on others.  Therapy has been modified to meet Mr Brennan’s needs.

Mr Brennan has continued to attempt to present himself as the victim and seems oblivious to the wealth of police information and independent witness reports around his offences, and his subsequent and more recent behaviours in the community.

He completely denies any ongoing interest in sexual activity and, as he has not participated appropriately in any program, it remains difficult to give an accurate assessment of his sexual functioning and interests.  He claims he has had sex twice, does not masturbate and no longer gets erections.

While he has given a consistent history of epilepsy, secondary brain damage and then a suicide attempt at age ten, there is no supporting collateral.  He does appear to have a history of problems at school possibly a learning disability, and likely borderline intellectual functioning.  He also reported being expelled in both primary school and high school.

Though he did undergo neuropsychological assessment in October 2021, he failed two of five tests of effort.  His lack of cooperation with testing, also evident on clinical assessment, does make interpretation of his results somewhat unreliable.  Clinically he does appear to have some mild impairment in his intellectual functioning, and he did have two siblings who attended Special School.

He completely denied ever having provided minors with alcohol though there is considerable evidence to the contrary across accounts of multiple of his offences.  He also ‘volunteered’ as security at a nightclub/hotel having reported he was paid in alcohol.  Though he does not give a history suggestive of an alcohol use disorder, his future use of alcohol would need to be monitored as it was associated with his offending.  Some of his statements appear grandiose, including having one million dollars earned through being a loan shark.

His formal diagnoses could be considered to be borderline intellectual functioning and antisocial personality traits.  His sexual offending against mainly vulnerable peri-pubescent females suggests a paraphilia, possible paedophilia or hebephilia.

His clinical presentation appears to be that of a combination of mild cognitive disability with impaired functioning, as well as his using pathological lying, almost as much as a defence mechanism to attempt to avoid accepting responsibility for his actions, or dealing with the consequences, including conditions of his supervision order, though this could be clarified with further assessment and independent collateral.  He has now presented at sequential interviews in a state suggestive of a presentation of simple schizophrenia, being dishevelled with poor self-care, blunting of affect and features of autism.  While he was previously considered to deteriorate at times of stress, he now appears to have maintained these features through his time on the supervision order and in treatment with his psychologist, Dr Hatzipetrou.”

42. [42]
    On the question of risk, Dr McVie said:

“Mr Bradley Brennan remains an untreated sex offender.

Assessment, actuarial and structured clinical, continues to indicate Mr Brennan presents with at least a moderate to high risk of re-offending sexually if released from custody without a supervision order.  If he were to fully resume his previous lifestyle, living with his supportive and possibly enabling family, and with access to disadvantaged young females, this risk would be high.

He has presented difficulties in complying with conditions of his supervision order due to his poor intellectual and adaptive functioning as well as his entrenched denial of his sexual offending.  His risk of re-offending does appear to have been contained by the conditions of the order and his contraventions detected early.

I would recommend he be returned to his supervision order with NDIS supports and resumption of his intensive therapy with his treating psychologist.

He may do better with a different NDIS provider.

He requires more structured community activities and some restrictions and supports in place to limit his providing services to others at the precinct.

Dr Hatzipetrou did consider Mr Brennan had some ability and could benefit from ongoing psychological treatment, though he would require long term individualized therapy to address his attitudes towards his offending and towards QCS, and to actively engage in treatment and develop an effective relapse prevention plan.”

43. [43]
    When asked during her oral evidence whether she regarded the respondent’s most recent contraventions as him progressing towards serious sexual reoffending, Dr McVie said:^[22]

“Well, there’s certainly significant sexual behaviour in terms of his behaviour with the female employees at Costco.  And that’s documented quite well in their statements and in the information provided, even though he denies it.  And we don’t have anything to balance that with.  We don’t have him talking to his treating psychologist explaining what his thoughts and feelings are, so we don’t know why he did those things.  And for somebody who’s got a background of sexual offending to start doing those sort of behaviours in public is of concern.”

44. [44]
    Dr McVie was then asked about the difference between her opinion that the respondent should be returned to the community on his supervision order and the evidence of Dr Brown.  As to that, Dr McVie said:^[23]

“Well, I will say, having read Dr Brown’s report and listened to her evidence, I would be shifting towards he would be better off in custody.  I think the primary thing Mr Brennan needs is to engage with his treating psychologist, and he needs to remain in contact with his treating psychologist.  I – to my mind, this is a man who shouldn’t be cut off from his treating psychologist, he should be able to continue access to his treating psychologist, even if he’s returned to custody, and that doesn’t normally happen.  The concerns are, even if he goes into custody, that he will continue to refuse to engage with his treating psychologist, and then what do we do?  It’s not a good sign.”

45. [45]
    And later:^[24]

“… [I]t is of concern that he failed to progress on his order and he’s now breached his order on two separate occasions.

… And returned to custody twice. And he continues to deny committing the offences and he continues to avoid any sort of meaningful engagement in therapy.”

46. [46]
    When asked in cross-examination about the basis for her initial recommendation that the respondent be returned to the supervision order, Dr McVie said:^[25]

“Well, my initial assessment was that he’d been out there before and he hadn’t reoffended sexually, and Dr Hatzipetrou thought there was still hope.

… That is still the case. And – but I do have concerns that he’s not progressing.

… And I – it may well be that had, even if he went back into custody and resumed therapy with Dr Hatzipetrou, he still wouldn’t progress.”

47. [47]
    Dr McVie accepted that there was no evidence that the respondent that had been able to develop any relationships with vulnerable young females when he was in the community subject to the conditions of the supervision order.  She expressed doubt that he was functional enough to develop those sorts of relationships in a timely way.  Although the respondent had engaged in sexualised conduct with older female shop assistants at Costco, Dr McVie said that she could not envisage a situation where the respondent would be able to do that with younger or more vulnerable females.^[26]
48. [48]
    Finally, when asked in re-examination about a return to the supervision order, Dr McVie said:^[27]

“… My recollection is my original opinion, the first time I did the report, was that he should do some treatment in custody before he was released.  But once he’s been released, it’s difficult for me to see the advantages to going back to custody unless there’s something serious that’s happened.  I think he was leading up to something serious, perhaps, with these behaviours, but he didn’t get charged with another sexual offence.  It’s possible if he goes back to custody that he still won’t engage and nothing further will happen.  It’s – my view has always been that psychotherapy, particularly where you’re looking at improvement of social skills, is better done in the community where people can actually practise what they’re learning.  Prison’s not an environment to practise what you’re learning.  So I mean I find it very difficult, once somebody’s been out, to justify sending them back, because it’s – he hasn’t reoffended sexually and the order does seem to have contained that risk.”

The further report of Dr Hatzipetrou

49. [49]
    Both Dr Brown and Dr McVie referred to the progress of the respondent’s treatment by Dr Hatzipetrou.  A report by Dr Hatzipetrou was also in evidence.  The summary of that report stated as follows:

“The general impression of Mr Brennan is that of a forty-five-year-old man who has recently identified as a First Nations person, yet has a longstanding history of problematic sexual behaviours, resulting in previous incarcerations.  Since Mr Brennan was released from custody in 2022, he had attended treatment sessions at the Clinic initially weekly and then progressing to a fortnightly basis.

Over the course of these interventions, Mr Brennan’s level of engagement has waivered [sic], often in response to the reported interactions with his case manager and unmet goals.  Specifically, Mr Brennan would seek alternative accommodation without permission or involvement of his case manager.  Mr Brennan would undertake a regimented routine of activities and was reluctant to pursue alternative structured programs that would improve his social skills and understanding of relationships and, more so, self-regulation.

As noted, Mr Brennan did present with barriers in engaging in effective treatments, such as a longstanding history of learning difficulties related to ADHD and, more so, evidence of antisocial personality traits.  Moreover, Mr Brennan’s blanket denials regarding his offending and subsequent contraventions present as obstacles in achieving and addressing his outstanding rehabilitative needs.  Over time, there has been some improvement in the level of engagement in treatment sessions.  However, when presented with strategies to manage negative emotions and/or undertake effective problem solving, Mr Brennan would revert to avoidance and/or oppositional strategies.

In addition, Mr Brennan’s level of engagement was affected by the lack of disclosures in sessions.  To this end, he was often guarded when accounting for his behaviour in the community and interactions with others.  Likewise, he claimed to retreat to his bedroom for extensive hours not undertaking any activities.

In those circumstances, Mr Brennan claimed he was ‘well behaved’ as he did not transgress.  Mr Brennan’s perceptions of his behaviour within the Precinct and community appeared to be somewhat fanciful and reflected a degree of naivety.  However, Mr Brennan’s conduct appears to be underpinned by his antisocial traits and oppositional attitudes.  Mr Brennan provides superficial accounts of his experiences week to week which are not considered to [sic] accurate representations of his behaviours.

As noted, Mr Brennan has previously engaged in problematic online behaviours while his conduct in the community resulted in his return to custody.  Mr Brennan’s behaviours in the community are not supported by his accounts provided to case managers or the psychologist.

When pressed about these matters, Mr Brennan resorts to blanket denials and attributes blame to QCS.  Mr Brennan is not without ability and can benefit from ongoing psychological treatment.  However, he requires long-term individual psychological therapy that addresses his attitudes towards his offending and QCS and, more so, a willingness to actively engage in treatment and develop an effective relapse prevention plan.”

The ability of Queensland Corrective Services to supervise the respondent

50. [50]
    Emma Wildermoth, the acting manager of the High Risk Offender Management Unit at QCS, gave evidence about the limits on that unit’s ability to effectively manage persons who are released subject to a supervision order.  The effect of that evidence was that the supervision order will not operate effectively if the respondent does not engage meaningfully in the case management process, including by making disclosures to his senior case manager, QCS surveillance staff and his treating psychologist.  Although electronic monitoring provides QCS information about the respondent’s movements in the community, it does not provide information about who he interacts with.  Ms Wildermoth expressed concern that the stringent conditions of the supervision order were not sufficient to deter the respondent from engaging in the conduct which comprises the present contraventions.

The parties’ positions

51. [51]
    In this case, the applicant has applied in the alternative for:

    1. the recission of the existing supervision order and an order that the respondent be detained in custody for an indefinite term for care, control or treatment; or
    2. an order that the respondent be released subject to such amended requirements of the existing supervision order pursuant to s 22(7) of the Act as the court considers appropriate (although no amendments were identified by the applicant or the respondent).
52. [52]
    At the hearing, the applicant submitted that the respondent’s lack of engagement in, or response to, psychological treatment meant that he was unlikely to experience any internal change which would improve his capacity for self-regulation.  In those circumstances, the supervision order could only reduce the relevant risk through the application of procedural controls.  It was further submitted that the respondent’s contravention of the conditions designed to apply those procedural control means that it was open to find that the supervision order cannot operate effectively to ensure the adequate protection of the community. 
53. [53]
    The respondent relied on authorities which establish that the word “ensure” in s 22 of the Act does not contemplate that such orders should be “watertight”, otherwise such orders would never be made.^[28]  The relevant question is whether, on the evidence as a whole, the respondent is able to persuade me that the adequate protection of the community can be ensured by his release back to the community subject to the supervision order. 
54. [54]
    The respondent submitted that the opinion of Dr McVie is supportive of his release.  He also relied on the following matters:

    1. the supervision order had placed sufficient constraints upon him that his contravening conduct was brought to the attention of the authorities;
    2. the contraventions did not involve any further serious sexual offending, or any evidence of plans or steps towards such offending;
    3. a significant period of time has elapsed since he last committed a serious sexual offence;
    4. the respondent’s attitude towards his supervision order should be understood in the context of his mild intellectual impairment;
    5. there was unchallenged evidence that one of the couple he would regularly meet at Costco (see [26] above) was childhood friend.
55. [55]
    Based on those matters, the respondent submitted that his contravening conduct does not establish that the risk of him committing a serious sexual offence has risen to a level where the supervision order would not ensure the adequate protection of the community.

What order should be made?

56. [56]
    As discussed at [32]-[33] above, the term “the adequate protection of the community” as it appears in s 22 bears the same meaning as in s 13 of the Act.  This means the assessment to be made under s 22 requires the same consideration whether adequate protection of the community can be reasonably and practicably managed by a supervision order as was described in Turnbull v Attorney-General (Qld).^[29]  That is, in order to be satisfied to the required standard that, despite the respondent’s contraventions, the adequate protection of the community can be ensured by the amended supervision order, I must reach a positive conclusion that the supervision order will provide the adequate protection from the commission of a serious sexual offence.
57. [57]
    As has been said on a number of occasions, “adequate protection” is a relative concept which recognises that some risk can be acceptable.  The assessment of what level of risk is unacceptable or, in the present context, what order is necessary to ensure the adequate protection of the community is not a matter for psychiatric opinion.  It is a matter for judicial determination, requiring a value judgment to be made as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.^[30]
58. [58]
    In forming that judgment, regard must be had to the specific nature of the risk which the respondent poses to the community.^[31]  As Ryan J found on the initial application, the primary risk in this case is that the respondent would sexually touch vulnerable female children and young adults, although there is also a lesser risk that his re-offending would include rape.^[32]  I acknowledge and share the concerns expressed by both Dr Brown and Dr McVie about the sexualised nature of the respondent’s interactions with the Costco shop assistants (for example, see [40] and [43] above).  However, notwithstanding the existence of those concerns, it is important to recognise that the present contraventions are not of a type which permitted the respondent to have extended contact with potential victims in the form of vulnerable female children and young adults.^[33]  In this context, I consider the evidence of Dr McVie at [47] above to be important. 
59. [59]
    Dr Brown’s observation that the supervision order is not containing the respondent properly in terms of his inappropriate sexualised behaviours, while plainly correct, does not address the relevant risk against which the adequate protection of the community must be ensured; namely the risk that the respondent would commit another serious sexual offence.  I accept the submission for the respondent that, despite the present contraventions, the supervision order has operated effectively to date to ensure the adequate protection of the community against that risk.  Despite contravening the supervision order in the ways described above, the respondent did not commit a serious sexual offence when he was in the community and subject to the conditions of the supervision order.  To that extent, the purpose of the supervision order being to protect the community against the commission of serious sexual offences, has been fulfilled to date.  That conclusion is supported by the evidence of Dr McVie set out at [42], [46] and [48] above supports that conclusion.
60. [60]
    I also acknowledge the concerns expressed by both Dr Brown and Dr McVie that the respondent had not made any significant gains from his psychological therapy and did not progress off a stage 1 curfew when he was released under the supervision order.  However, Ryan J recognised this was a possibility when the supervision order was made that (see the passages extracted at [10] and [13] above).
61. [61]
    The present contraventions of the supervision order indicate that the risk the respondent will commit a serious sexual offence is somewhat higher than appeared at the initial application before Ryan J (when the risk was assessed on the basis that the respondent would comply with the terms of the supervision order) and at the first contravention hearing (when it was thought that the respondent had not utilised the electronic devices to engage in sexual related material).  Nevertheless, for the reasons set out above, I do not consider that this risk has reached an unacceptable level such that the respondent should be made subject to a continuing detention order.  To the contrary, I am satisfied that despite the contraventions the adequate protection of the community against the risk that the respondent will commit a serious sexual offence can be ensured by the conditions of the existing supervision order.

Conclusion

62. [62]
    I order that the respondent be released from custody and continue to be subject to the supervision order made on 18 January 2022.