Attorney-General for the State of Queensland v TAR
[2024] QSC 266
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Attorney-General for the State of Queensland v TAR[2024] QSC 266
Attorney-General for the State of Queensland v TAR[2024] QSC 266
SUPREME COURT OF QUEENSLAND
CITATION: | Attorney-General for the State of Queensland v TAR [2024] QSC 266 |
PARTIES: | ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v TAR (respondent) |
FILE NO/S: | BS 8365/24 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 6 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 October 2024 |
JUDGE: | Treston J |
ORDER: | The Court, being satisfied to the requisite standard that the respondent, TAR, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), orders that the respondent, TAR, 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 Attorney-General applies for an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) to detain the respondent on a continuing detention order or a supervision order – where the court must be satisfied that the prisoner is a serious danger to the community in the absence of a Division 3 order – where the respondent does not resist a finding that he is a serious danger to the community in the absence of an order pursuant to Division 3 – where the respondent has a relevant criminal history dating back to 2002 – where psychiatric evidence establishes that the respondent is in the “above average” category of risk of reoffending – where the respondent shows a general reluctance to undertake treatment, as well as a lack of insight into his offending – where three psychiatrists agree that the preferable course is for the respondent to remain in custody – whether the respondent is a serious danger to the community in the absence of a Division 3 order – whether the respondent ought to be held in custody on a continuing detention order Child Protection Offender Reporting Act 2004 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13 Attorney-General for the State of Queensland v DBJ [2017] QSC 302 R v Francis [2007] 1 Qd R 396 |
COUNSEL: | J Tate for the applicant P White for the respondent |
SOLICITORS: | Crown Law for the applicant Legal Aid Queensland for the respondent |
- [1]This is an application for an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”). The Attorney-General for the State of Queensland seeks an order under Part 2, Division 3 (s 13) of the Act in relation to the respondent to either detain the respondent in custody for an indefinite term for control, care or treatment (a continuing detention order) or for the respondent to be released from custody subject to the requirements that the court considers appropriate that are stated in a supervision order.
- [2]Pursuant to s 13(3) of the Act, on the hearing of the application, the court must be satisfied that the prisoner is a serious danger to the community in the absence of a Division 3 order. The court will be so satisfied 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 the hearing of the application, the court may decide that it is satisfied that a prisoner is a serious danger to the community 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.
- [3]Here, the respondent does not resist a finding that he is a serious danger to the community in the absence of an order pursuant to Division 3. The evidence, to which I refer in some greater detail below, supports this finding, as do the index offences, the clinical opinions of the reporting psychiatrists, and the longitudinal evidence.
- [4]The Attorney-General submits, as the primary position, that the respondent is a serious danger to the community in the absence of a Division 3 order, and that the adequate protection of the community can only be ensured at this time by the making of a continuing detention order[1] pursuant to s 13(5) of the Act.
- [5]In the alternative, the Attorney-General submits that if the respondent is released to the community under a Division 3 supervision order, then the term should be a for a period of at least 10 years because the nature of the respondent’s identified, unmodified risk of future serious sexual recidivism is high, and his diagnosis of paedophilia and personality structure, support the proposition that the protection of the community is better served by long term supervision in the community.
Antecedents and criminal history
- [6]The respondent was born on X August 1982 and is currently 42 years of age.
- [7]The respondent has a relevant criminal history dating back to 2002 when he was first charged with indecent treatment of a child under 12 and attempted carnal knowledge of a girl under 12. He was convicted and sentenced to two terms of 12 months’ imprisonment to be served by way of an Intensive Correction Order, with his sentences to be served concurrently.
- [8]He was sentenced for further offending in March 2004, for offending which included two counts of indecent treatment of a child under 12. He was convicted and sentenced to four years’ imprisonment to be considered eligible for release after serving 18 months.
- [9]In 2009 and again in 2011, he was convicted for failing to comply with reporting conditions (CPOR).[2]
- [10]In 2019 he was convicted in the District Court at Toowoomba on two counts of rape – domestic violence offence, and one count of indecent treatment of a child under 12 – domestic violence offence. He was sentenced to five years’ imprisonment and two years’ imprisonment to be served concurrently. He appealed against conviction in November 2019, but his appeal was dismissed. He is therefore a “prisoner” currently serving a period of imprisonment for serious sexual offences involving violence, and against a child. He is serving a term of imprisonment for a “serious sexual offence” which, by the Schedule, includes an offence of a sexual nature involving violence, or an offence against a child.
- [11]There is therefore a pattern of offending behaviour on the part of the prisoner which is demonstrated by his criminal history which includes a number of charges of indecent treatment of a child under 12 in 2002 and 2004, and the index offences for which he was sentenced in 2019.
- [12]At the time of the offences in 2002, and again in 2004, the respondent was a young man, aged 18 and 20 respectively. The sentencing remarks in respect of both occasions demonstrate that the offences occurred in circumstances where (on the first occasion) the victim was either the younger sibling of a friend of the respondent and (on the second occasion) a child to whom the respondent was in close proximity when he was living with the child’s family. On both occasions, the court observed the real betrayal of trust of the person who had let the respondent into their home and unwittingly provided him with an opportunity to abuse young girls.
- [13]The index offences, whilst occurring some 15 years later, involved a similar abuse of trust. On the index occasion, the victim was the respondent’s biological niece, a girl aged just eight years of age. The offending occurred when the respondent was either visiting his sibling in the family home, or travelling in a car with family members.
- [14]Each offence for which the respondent has been convicted appears to not have occurred after a period of grooming, but in opportunistic circumstances, suggesting that he would, and has, taken opportunities whilst in close proximity to a child, to behave as a serious sexual offender. There is therefore a pattern of offending behaviour which has not been modified by any sentence passed upon him.
Psychiatric evidence
- [15]The court had the benefit of reports from three psychiatrists, each of whom also gave oral evidence at the hearing before me on 28 October 2024.
- [16]The psychiatric evidence bears setting out in some detail.
- [17]The first psychiatrist to assess the respondent was Dr Eve Timmins whose report is dated 23 April 2024. Dr Timmins examined the respondent whilst he was at the Woodford Correctional Centre. Dr Timmins also had access to the respondent’s criminal history and extracts of various documents from files from the office of the Director of Public Prosecutions and Queensland Corrective Services as well as transcripts of relevant proceedings.
- [18]Dr Timmins assessed the respondent on a number of risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the following results:
- Static 99-R: the respondent scored 5, placing him at the ‘above average risk’ category (although there was a typographical error in the report scoring him as 6 which was an error);
- Psychopathy Checklist (PCL-R): scored 13/40, which is not elevated;
- Risk of Sexual Violence Protocol (RSVP): on this dynamic risk assessment instrument, Dr Timmins reported:
“On Sexual Violence History – He scores positive for Chronicity of Sexual Violence, Escalation of Sexual Violence, Physical Coercion in Sexual Violence and Psychological Coercion in Sexual Violence.
On Psychological Adjustment – He scores positive for Extreme Minimisation or Denial of Sexual Violence, Problems with Self-Awareness, Problems with Stressor Coping. He scores partial for Attitudes that Support or Condone Sexual Violence and Problems resulting from Child Abuse.
On the Mental Disorder items – He scores positive on Sexual Deviance and partial on Problems resulting from Child Abuse.
On Social Adjustment – He scores on Problems with Intimate Relationships, Problems with Non-Intimate Relationships and Problems with Employment.
On the Manageability items – He scores on Problems with Planning, Problems with Treatment and Problems with Supervision
The salient risk factors with this man are his long history of sexual offending against under-age girls, his sexual deviance, his lack of insight and his lack of treatment for his sexual offending behaviour and his lack of real protective factors such as supportive prosocial relationships.”
(footnotes omitted)
- [19]As to the respondent’s background, Dr Timmins said:
“Mr TAR is a 42-year-old single man who has never had an intimate partner. He remains a virgin. He is currently incarcerated for three sexual offences against his eight-year-old niece in July 2015. His full-time date is in November 2024.
He has had two previous periods of sexual offending; one in 2001 against a 10-11-year-old girl who was the daughter of the family he was living with at the time. He was 19 years old.
The second period was when he was 21 years old in 2003. The victim was a 10-year-old girl he was living with at the time. These two periods have been noted in the documentation to be remarkably similar with his developing a relationship with the girl and going onto contact offending.
He had been placed under an Intensive Correction Order for the first set of offences and there were attempts to engage him in a Cognitive skills program and individual psychological sessions however he internalised very little and went on to re-offend.He was released in January 2007 and there were no detected offences until his 2015 offences against his eight-year-old niece which were again contact offences. Apparently he gained employment and lived alone in a caravan park for some of this time.
He has a difficult upbringing with placements into foster care at a relatively early age. There is evidence of stealing and other antisocial acts. There were concerns of sexualised behaviours in his early teenage years with the foster carer asking him to leave to protect another child and observations of sexual behaviour with family pets.
He has little other criminal history but has breached his reporting requirements, on one occasion failing to report he was in the company of several children under the age of 13 years old.
He had a primary paraphilic sexual interest towards under-age female children and meets the criteria for Paedophilia.
He has a Mixed Personality Disorder with narcissistic, antisocial and possibly schizoid traits. He is not psychopathic.
There is documentation to suggest he had problems with alcohol many years ago with a hospitalisation in his early 20’s for alcohol poisoning. He denied any ongoing alcohol use or any illicit substance use.
He has declined all interventions in this custodial period aimed at treating his sexual offending behaviour. He tended to minimise his offending, often being vague with answers or outright denying his behaviour.”
(footnotes omitted)
- [20]Dr Timmins gave oral evidence and expressed that the diagnosis of paedophilia was an exclusive disorder in the sense that the offender did not have any interest in adult females. Dr Timmins reiterated that the respondent had no insight into his sexual deviance, his risk factors, high-risk situations or any understanding of how to mitigate his own risk in the community. In looking across all of the factors, Dr Timmins described that the respondent’s risk was actually quite high if he did not have a supervision order in place. Additionally, Dr Timmins noted that because he was in complete denial it was not possible to access his thoughts which made assessing him properly at any particular point in time difficult, and therefore assessing his risk a difficult process.
- [21]As to the question of risk, Dr Timmins said:
“With regards to future sexual offending, Mr TAR is likely to target under-age females in his vicinity who are known to him. He will groom them and engage them in a relationship. He will use presents, enticements and casual touching, moving to hugging and then kissing before he attempts penetrative offending. He is unlikely to be intoxicated with substances. The potential physical and psychological harm to the victim is high.
[…]
“He has limited insight into himself and his offending pathway, and no thoughts about a relapse prevention plan. It is important for Mr TAR to understand at the very least his offending pathway and ensure he has supports and a relapse prevention plan such that he lessens the risk of committing another sexual offence in the community in the future.
In summary, I am of the opinion that Mr TAR will be at a HIGH risk of re-offending in a sexual manner if released into the community at this time without a supervision order.
Given that he is a recidivist sexual offender against under-age females, has not engaged in any sex offender treatment, has limited insight into his sexual behaviour, has no understanding of his offending pathway and no relapse prevention plan in addition to limited community supports, I believe he requires a period of treatment such as a group sex offender program before he is released into the community on a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003.
Once treated and he has more insight and a clear relapse prevention plan in place to contribute to reducing his risk of sexual re-offending, then a Community Supervision Order would decrease his risk to moderate if he complies with that order.”
(footnotes omitted) (emphasis omitted)
- [22]Chronologically, the next psychiatrist to examine the respondent was Dr Jane Phillips, who provided a report dated 19 August 2024.
- [23]Dr Phillips also considered that the respondent scored 5 on the Static-99R which placed him in the “above average” category of risk for being charged or convicted of another sexual offence. Specifically, Dr Phillips observed:
“Risk for Sexual Violence Protocol Version 2 (RSVP-V2)
The RSVP-V2 is a structured professional judgement risk assessment tool for assessing the risk of sexual violence.
Mr TAR was scored on two domains, and 4 sub-domains, of the RSVP-2, using past ratings:
- Sexual Violence History – Mr TAR had definite evidence of 2 of the 5 factors, including chronicity of sexual violence and psychological coercion in sexual violence. In addition, there was partial evidence of a further 2 factors, diversity of sexual violence and escalation of sexual violence.
- Perpetrator Characteristics
° Psychological Adjustment – Mr TAR had definite evidence of 4 of the 5 factors, including problems with minimization/denial of sexual violence; attitudes that support or condone sexual violence; problems with self-awareness; and problems with stress or coping. In addition, there was partial evidence of the further factor of problems resulting from child abuse.
° Mental Health – Mr TAR had definite evidence 1 of the 6 factors, sexual deviance. In addition, there was partial evidence of a further risk factor of problems with substance abuse.
° Social Adjustment – Mr TAR had definite evidence of 3 of the 4 factors, including problems with intimate relationships; problems with non-intimate relationships; and problems with antisocial attitudes. In addition, there was partial evidence of the further factor of problems with employment.
° Manageability – Mr TAR had definite evidence of all 3 factors, including problems with living situation; problems with treatment; and problems with supervision.
Using the past rating for items on the RSVP-V2, Mr TAR’s sexual violence risk is:
- Likelihood of sexual violence – high.
- Imminence of sexual violence – low.
- Severity of sexual violence – high.”
- [24]Dr Phillips was less certain as to whether the paedophilic disorder, being sexually attracted to pre-pubescent females, was exclusive or non-exclusive; however, Dr Phillips also observed that the respondent had not had any relationships with adults. Dr Phillips stressed the risk of extensive, lifelong psychological harm to victims of child sexual abuse identifying effects including mental health conditions, depressive and post-traumatic stress disorders, increased substance use disorders and disorders impacting on the development of intimate relationships over the course of their lifetime.
- [25]Dr Phillips described the respondent as a person who had a high unmodified risk of sexual violence because of his refusal to undertake any treatment. Dr Phillips considered that it was likely that any future sexual offences against pre-pubescent girls would be preceded by a period of grooming although Dr Phillips could not rule out the possibility of opportunistic and impulsive sexual offending without such grooming behaviour. As a consequence of his refusal to engage in treatment programs, Dr Phillips expressed the view that the respondent had a lot less knowledge about his sexual offending than might often be the case at a hearing of this type.
- [26]Dr Phillips expressed a similar view on the question of risk as did Dr Timmins, identifying that:
“Taking into account the results of the above risk assessment tools, it is my opinion that Mr TAR's risk of future serious sexual re-offending falls in the high range, if released from custody without a supervision order. At the time of the assessment Mr TAR did not present as an imminent risk of sexual violence.
The future risk of sexual re-offending would increase in the setting of victim access, increased sexual preoccupation, an increase in sexually deviant thoughts regarding children or rejection of supervision. Whilst Mr TAR was not intoxicated at the time of the previous sexual offences, should he be intoxicated with alcohol or illicit substances, this is likely to be disinhibiting, impair his judgement and make it more likely that he would act on underlying sexually deviant thoughts. The risk of future sexual offending may increase in the setting of future psychosocial stressors, for example, being lonely, bored or perceived rejections.The victim of future offending would likely be a pre-pubertal female child. The victim is more likely to be known to Mr TAR, for example, an acquaintance, the child of a future friend or partner, or a family member. It is less likely that a future victim is a stranger. It is more likely that future sexual offending would occur after a period of grooming, for example, offering the victim gifts, money or other incentives. However, there is a potential that Mr TAR would act on sexually deviant thoughts impulsively with minimal grooming or planning. Future sexual offending is likely to involve similar behaviours to previous offending, such as touching the victim's breast and genitals, oral sex or digital-vaginal rape. There is the potential for there to be an escalation of the seriousness of future sexual offending to involve penile penetration. Future sexual offending is likely to cause significant psychological harm to victims.
From a clinical risk management perspective, it would be preferable if Mr TAR were to complete the High Intensity Sexual Offending Program (HISOP) prior to his release from custody. However, based on his categorical denial of the index offence, and his refusal to engage in a group sexual offending program to address his earlier sexual offending, it appears unlikely that Mr TAR would be accepted to engage in the HISOP. It is my opinion that if Mr TAR were to be placed on a continuing detention order, it is unlikely that this would be successful in encouraging him to complete the HISOP in custody. There would be a clinical risk management benefit to Mr TAR engaging in individual psychological intervention to address his sexual offending prior to his release from custody, including allowing for there to be development of a relapse prevention plan prior to his release.
That being said, it is my opinion that a supervision order would assist in reducing the risk of re-offending by offering assertive monitoring and interventions to target dynamic risk factors for sexual violence. It is my opinion that if Mr TAR were to be released from custody with a supervision order, in the context of individual psychological intervention, abstinence from alcohol and illicit substances and robust supervision in the community, that his risk of sexually re-offending would be in the moderate range. It is noted that if released on a supervision order at the next hearing, Mr TAR would be being released as an untreated sex offender. It is likely to take a protracted period prior to individual psychological intervention having an appreciable impact on reducing his risk of sexual offending. Therefore, there will need to be a heavy reliance on environment measures and monitoring. It is likely that Mr TAR would require a protracted period of Stage 1 curfews to allow time for him to make meaningful clinical progress with psychological interventions.”
(footnotes omitted)
- [27]Chronologically, the last psychiatrist to review and assess the respondent was Dr Arthur who assessed the respondent and prepared a report dated 9 October 2024. Dr Arthur also considered that the respondent had scored 5, placing him in the “above average” risk category on the Static-99R. Utilising the risk for sexual violence protocol (RSVP) Dr Arthur concluded:
“[215] Utilising this instrument, I have identified the following factors relevant to the future risk of sexual recidivism –
Sexual Violence:
- Chronicity – duration/frequency
- Escalation
- Psychological coercion
Psychological Adjustment:
- Extreme minimisation or denial
- Problems with self-awareness
Mental Disorder:
- Sexual deviance
Social Adjustment:
- Problems with intimate relationships
- Problems with non-intimate relationships
- Problems with employment
Manageability:
- Problems with planning
- Problems with treatment
I have identified further possible risk factors of relevance –
- Physical coercion
- Attitudes supporting sexual violence
- Problems with stress/coping
- Problems with employment
- Problems with supervision.”
- [28]Dr Arthur noted that there was a grooming aspect to the respondent’s behaviour, particularly in 2002 and 2004 where he developed a relationship with the victim and then engaged in non-violent sexual activity. As to risk Dr Arthur observed:
“[218] Prisoner TAR now has an established pattern of offending which has occurred over a period of many years. There has been an escalation in the nature of his offending over time. Whilst initially he engaged in grooming (developing a relationship) and fondling/simulated sex, the index offences were more opportunistic and brazen, involving digital penetration of the victim’s vagina. They were also repetitive in nature and occurred over a number of different time periods.
Whilst there was no evidence of overt physical coercion, the index offences involved picking up and moving the victim to facilitate offending. Psychological coercion was prominent in the first tranche of offences.
[…]
[225] Future victims are likely to be prepubescent girls known to him, either through family or friends. He may employ grooming behaviours such as spending time with the child and using enticements such as money or toys to develop a relationship that becomes sexualised over time. Alternatively, he may engage in opportunistic contact offences involving fondling of the child’s genitalia. Physical coercion is unlikely; with sufficient grooming and acquiescence the offending may escalate to penetrative digital or penile sex. The risk of physical harm is low, although future offending carries a high risk of psychological injury to the victim and their family.
[226] The main driver for future sexual offending is prisoner TAR’s deviant sexual interest in children.”
(footnotes omitted)
- [29]Dr Arthur considered that in light of the respondent’s refusal to undergo any treatment he considered that the respondent had not developed a great degree of insight or self-awareness into his behaviours that led to his risk of re-offending. Furthermore because of his avoidance in talking about the index offence. The respondent stressed to Dr Arthur that he did not wish to talk about doing a program, he would rather just do his time in prison. He did not see treatment as relevant and was completely avoidant of discussing it. From a risk perspective, therefore, Dr Arthur described the respondent as a person who would like to see himself as having no risk, when clearly Dr Arthur assessed his risk as above average compared to other sexual offenders.
- [30]All of the psychiatrists expressed the opinion that the preferable course, in terms of reducing the respondent’s risk of re-offending in the community, would be served by him undertaking sexual offender courses and psychological treatment whilst he remained in custody. The respondent repeated to each of the doctors who had seen him that he refused to participate with ongoing treatment whilst still in custody. For example, the respondent told Dr Phillips that he had never engaged in a group sexual offending program and refused to do so during his incarceration because he was innocent of the index sexual offending. He further told Dr Phillips that he had “no interest” in doing a group sexual offending course in relation to his earlier sexual offending noting that it had occurred 20 years ago and it was “done and dusted” and that he had moved on from that period of his life. He did not have a relapse prevention plan, and did not believe that he required any intervention or support to reduce his risk of re-offending.
- [31]Dr Arthur recommended that the respondent’s risk could be lowered from high to moderately low should the respondent complete a group sexual offender treatment program prior to release from custody. Such treatment would assist in challenging his avoidant/denial coping mechanisms as well as collecting useful data regarding his offending pathways and his psychosexual functioning. Treatment would also provide a personalised risk management plan for him to apply on release. Dr Arthur noted however that he had refused such treatment whilst in prison again referring to his innocence as the explanation for his lack of engagement in those programs.
- [32]Dr Timmins noted that there had been previous occasions where the respondent had declined offers to attend sexual offender programs even whilst in custody. In June 2004, he declined participation in a sex offender program and initially declined a cognitive skills program, but wished to remain on a waitlist. He did complete that cognitive skills program in 2005 and his exit report suggested that he had reasonably cooperated during the conduct of it. He was again offered engagement in the sex offender program in October 2005 and refused. In 2006 and again in 2020, he declined a place in the Getting Started Preparatory Program. Dr Timmins also shared the view that because he had not engaged in any sex offender treatment and had limited insight into his behaviour, and no understanding of his offending pathway, as well as no relapse prevention plan, Dr Timmins considered he required a period of treatment in a group sex offender program before he was released into the community.
Continuing detention order or supervision order?
- [33]The question as to whether there is an unacceptable risk that the prisoner will commit a serious sexual offence if the prisoner is released from custody, or released from custody without a supervision order being made, also informs the consideration as to the type of order to be made. That is because the paramount consideration is ensuring the adequate protection of the community.
- [34]The phrase “unacceptable risk” is not defined by the Act. It can be accepted that the phrase is incapable of precise definition, but it is an expression which requires striking a balance that takes into account considerations including the likelihood of the person offending, the type of offence the person will commit, and the consequences to any victim of the commission of that offence.
- [35]Whilst the court may take into account treatment, therapy or other rehabilitative measures that the offender might engage in when considering that risk, the primary focus of the Act is not on rehabilitation, rather it is on ensuring the protection of the community from those at risk of committing a serious sexual offence.
- [36]Bowskill J, as her Honour then was, in Attorney-General for the State of Queensland v DBJ,[3] has described an “unacceptable risk” in the following terms:
[12] As to what constitutes an “unacceptable risk”, that 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”. The test is not satisfied by evidence of any risk that the released prisoner may commit a further serious sexual offence. What must be established by the Attorney-General, to the requisite standard, is an unacceptable risk the determination of which involves a balancing of competing considerations. The notion of an unacceptable risk recognises that some risk can be acceptable consistently with the adequate protection of the community.
[13] In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates. In this regard, in a case in which the focus was upon the degree of likelihood, Keane JA said in Attorney-General (Qld) v Beattie [2007] QCA 96 at [19]:
“For the appellant, it was argued that the expert description of the risk of the appellant’s re-offending as ‘moderate’ meant that the risk fell short of ‘unacceptable’. But this argument overlooks the point that whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising. In this regard, the appellant’s likely targets are children, and especially street children: vulnerable members of the community who are likely to be peculiarly susceptible to his seduction techniques. The focus of consideration must, therefore, be upon the likely effect of a supervision order in terms of reducing the opportunities for the appellant to engage in acts of seduction of children to an acceptably low level.”
[14] As observed in Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [6]:
“Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.”
[15] For present purposes, what is required is an assessment of the risk of the released prisoner committing a serious sexual offence in the absence of a further supervision order. Relevantly, the object of the DPSOA is to ensure adequate protection of the community (s 3(a)). That does not mean the purpose of the legislation is to guarantee the safety and protection of the community. If that were the case, every risk would be unacceptable. This is the corollary of the point made by the Court of Appeal in Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39] that the Act “does not contemplate that arrangements to prevent [a particular risk] must be ‘watertight’, otherwise orders under s 13(5)(b) would never be made” (as opposed to a continuing detention order). In this regard, as McMurdo J noted in Attorney-General (Qld) v Sutherland [2006] QSC 268 at [30]:
“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 statue recognises that some risk can be acceptable consistently with the adequate protection of the community.”
(footnotes omitted)
- [37]Ultimately, the question for the court is whether the respondent ought to be detained in custody for an indefinite term for control, care or treatment, that is subject to a continuing detention order, or whether the prisoner ought to be released from custody subject to a supervision order.
- [38]Whilst the respondent accepts that he is a serious danger to the community in the absence of a Division 3 order, he submits he would comply with the requirements of a supervision order, and that there ought to be a preference for a supervision order over a continuing detention order. Underpinning that submission were the following contentions:
- firstly, if the court is satisfied that a supervision order can be framed in a way which adequately ensures community protection, having regard to the risk to the community posed by the prisoner, then the court should make a supervision order rather than a detention order because the intrusion of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint;[4]
- second, the requirements of the supervision order should only be as onerous as is necessary to protect the community from serious sexual offences being committed by the respondent;
- third, in the circumstances of this case, the respondent remained an untreated sexual offender because he had not completed any sexual offender courses or received any psychological treatment for his offending whilst in custody;
- fourth, primarily that refusal of treatment was because the respondent maintained his innocence in relation to the charges, and therefore refused a placement in the courses which were offered to him; and
- fifth, it was submitted that even though he had not completed any treatment to date, that was not an impediment to his release from custody on a strict supervision order if the risk to the community posed by him could otherwise be adequately ensured.
- [39]I do not accept there must be a preference for a supervision order over a continuing detention order in every circumstance. In this case, it is difficult to conclude, to the necessary standard of satisfaction, that community protection can be ensured when there is little more than a mere declaration by the respondent that he will engage in the necessary treatment regime if he is released on a supervision order. The respondent has previously refused placement in group sex offender courses due to the maintenance of his position that he is innocent of the charges. Releasing him from prison will not, it seems to me, change his view that he is innocent of the charges. Therefore, there can be little to satisfy the court that he will properly engage with treatment outside of a custody regime. Rather, it seems more likely that he will continue to fail to participate, properly or at all, in treatment therapy or other rehabilitative measures because that would be consistent with his past conduct, and consistent with his personal view of his innocence, despite his conviction.
- [40]I am unable to conclude that adequate protection of the community can be reasonably and practicably managed by a supervision order. I am not satisfied that the respondent will engage in any meaningful way with a treatment regime if he is released into the community. He poses a high unmodified risk of sexual violence because of his refusal to undertake any treatment. He therefore presents as an unacceptable risk when the degree of likelihood of offending remains high, and the seriousness of the consequences if the risk eventuates is so damaging to child victims.
- [41]In the circumstances, I do not consider that the respondent ought to be released from custody subject to a supervision order. I order that the respondent be detained in custody on a continuing detention order.