Attorney-General v Bewert[2024] QSC 282

SUPREME COURT OF QUEENSLAND

1. [1]
   Henry Bewert (the respondent) is the subject of a continuing detention order made pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).
2. [2]
   This is an application brought by the Attorney-General pursuant to s 27 of the DPSOA to review the continuing detention order to which the respondent is subject.

Background

3. [3]
   The respondent was born on 10 June 1964.  He is presently 60 years of age.
4. [4]
   On 10 May 2011, in proceedings brought under the DPSOA, the respondent was found to be a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSOA^[1] and was ordered to be detained^[2] on a continuing detention order.^[3] 
5. [5]
   By the time the continuing detention order was made against him, the respondent had been sentenced to various terms of imprisonment for sexual offending.  The details of that offending are examined in Attorney-General for the State of Queensland v Bewert.^[4] 
6. [6]
   Of some significance is the fact that three of the respondent’s episodes of offending occurred in a hospital.  On 2 May 1995, the respondent admitted himself to the Barrett Centre Psychiatric Hospital.  He sexually attacked a female doctor who was examining him.  He was convicted and placed on probation for offences of indecent assault and assault occasioning bodily harm which arose from that incident.  On 14 August 1996, while on probation for the offences which he committed on 2 May 1995, the respondent attended the Ipswich Hospital and sexually assaulted two nurses.  On 3 April 1997, he was sentenced to three years’ imprisonment for offences of indecent assault.  On 29 March 2003, the respondent attended the Ipswich Hospital and sexually assaulted a female patient who was waiting in the emergency department.  He was sentenced to five years’ imprisonment on 19 September 2003 for the offence of sexual assault.
7. [7]
   After being released on parole on 14 November 2006, the respondent committed a series of sexual assaults in early 2007.  He was again imprisoned and later became the subject of an application brought by the Attorney-General under the DPSOA.
8. [8]
   As already observed, a continuing detention order was made on 10 May 2011.^[5]  That continuing detention order was annually reviewed^[6] and on 8 April 2013, the order was rescinded and the respondent was released on a supervision order.^[7]
9. [9]
   On 24 July 2016, while subject to the supervision order, the respondent committed another sexual offence at the Ipswich General Hospital.  The respondent went to the hospital in the early evening and found his way to the eighth floor of the main building.  A woman was working in her office on that floor and the respondent entered the office, produced a knife and sexually assaulted her.
10. [10]
    The pattern of offending involves sexual attacks upon women who are in hospitals. The psychiatrists who have examined the respondent opine that although the offending is sexual in nature it may be driven, a least in part, by a desire to remain incarcerated.
11. [11]
    Contravention proceedings were commenced pursuant to the DPSOA^[8] and on 26 July 2016, it was ordered that the respondent be detained until a final decision was made on the contravention proceedings.^[9]
12. [12]
    Criminal proceedings were commenced against the respondent and he was convicted in the District Court at Ipswich on his own plea of guilty on 23 August 2017 of sexual assault while armed.^[10]  He was also convicted of the offence of contravening the supervision order.^[11]  He served an effective head sentence of four years which, when taking into account presentence custody, expired on 24 July 2020.
13. [13]
    On 22 June 2020, the contravention proceedings which had been commenced in 2016 were determined.  The supervision order was rescinded and a continuing detention order was made.^[12]  Since then annual reviews have been heard pursuant to Part 3 of the DPSOA and on each occasion the finding made on 10 May 2011 that the respondent is a serious danger to the community in the absence of Division 3 order has been affirmed, as has the continuing detention order.^[13]
14. [14]
    The application for the current review was filed on 22 May 2024.  Since the last review the respondent has been under the treatment of Dr Kenneth Arthur, psychiatrist.  That treatment commenced on 19 August 2021 and part of the treatment regime involves the administration of antilibidinal medication.  A report of Dr Arthur was before me,^[14] but Dr Arthur was not called and cross-examined. 
15. [15]
    Dr Tie, a psychiatrist with the Prison Mental Health Service, has been supervising the administration of various medication to the respondent.  Dr Tie was not called as a witness before me.
16. [16]
    Dr Lars Madsen, a psychologist with specialist training and experience in forensic psychology, began treating the respondent on 15 July 2022.  He provided a report and was cross-examined before me.
17. [17]
    The two psychiatrists who were appointed to examine the respondent and provide reports for the review^[15] are Dr Michael Beech and Dr Karen Brown.  They both provided various reports and were cross-examined extensively before me.

The statutory structure

18. [18]
    Section 13 is pivotal to the scheme of the DPSOA.  It provides for the making of either a supervision order or a continuing detention order if “the Court is satisfied the prisoner is a serious danger to the community in the absence of [such an] order”.^[16]

19. [19]
    By s 13(2):

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

1.  if the prisoner is released from custody; or

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

20. [20]
    The term “serious sexual offence” is defined as:

“Serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—

1.  involving violence; or

2.  against a child; or

3.  against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”

21. [21]
    It is well established that the object of the DPSOA includes ensuring adequate protection of the community^[17] not against all offending but only against the commission of “serious sexual offences”.^[18] 
22. [22]
    The question of “unacceptable risk” requires an exercise of judgment.^[19]  An acceptable risk does not equate to “some absolute guarantee of protection”.^[20]  If a supervision order will ensure the adequate protection of the community, then a supervision order ought to be preferred over the making of a continuing detention order.^[21]
23. [23]
    If a continuing detention order is made, as is the case here, it must be reviewed pursuant to Part 3 of the Act.  Section 30 provides:

“30   Review hearing

1.  This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.

2.  On the hearing of the review, the court may affirm the decision only if it is satisfied—

1.  by acceptable, cogent evidence; and

2.  to a high degree of probability;

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

3.  If the court affirms the decision, the court may order that the prisoner—

1.  continue to be subject to the continuing detention order; or

2.  be released from custody subject to a supervision order.

4.  In deciding whether to make an order under subsection (3)(a) or (b)—

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

2.  the court must consider whether—

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

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

5.  If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order.

6.  In this section—

required matters means all of the following—

1.  the matters mentioned in section 13(4);

2.  any report produced under section 28A.”

24. [24]
    It is well established that s 30 effectively mirrors s 13 both in form and in policy.  The notion of “serious danger to the community” in s 30(1) is the same as that referred to in s 13(1) and defined in s 13(2).^[22] 
25. [25]
    As I observed in Attorney-General for the State of Queensland v Guy:^[23]

“[10] Section 30 operates in this way:

1.  Firstly, the Court must consider whether the respondent is “a serious danger to the community in the absence of a Division 3 order”;

2.  If the answer to that question is in the affirmative, then consideration must be given to whether “adequate protection of the community” can be ensured by release of the respondent on a supervision order;

3.  If the answer to that question is in the negative, then generally (subject to any discretion to make no order) a continuing detention order should be made.” (footnotes omitted)

The medical evidence

26. [26]
    Dr Arthur diagnosed the respondent as follows:

“Prisoner Bewert appears to have been stable over the last 12 months and reports compliance with Zoladex injections. He continues to receive treatment from Prison Mental Health and seems to be on appropriate medication for his condition.” 

27. [27]
    As to risk, Dr Arthur said this:

“…prisoner Bewert has not undergone recommended monitoring for someone on antilibidinals. As a bare minimum he should have been tested for testosterone levels at least every 6 months along with other sex hormones. His thyriod needs to be monitored as does his calcium levels. He should have undergone bone densitometry.

…

In the meantime, it is reasonable for him to continue on his Zoladex injections monthly… I would be willing to continue managing his antilibidinal medication if he is released to the community under a supervision order.”

28. [28]
    Dr Tie’s diagnosis was:

“I would be disinclined against a diagnosis of schizophrenia. His self-reported and documented psychopathology appear to be better conceptualised as manifestations of a variety of underpinnings, which are not necessarily mutually exclusive in any given scenario:

• brief psychotic disorders triggered by intense negative emotional states from stressors superimposed upon limited and maladaptive coping mechanisms;
• pseudo-psychotic symptoms to elicit assistance and care from health services;
• externalisation of his own paraphilic thoughts and impulses as “voices”;
• potential malingered psychotic symptoms as conjectured by Professor Lawrence.”

29. [29]
    As to risk, Dr Tie opined that upon his last review on 12 June 2024, the respondent presented no acute risks within the structural custodial environment. The respondent “presented as affable, with underlying euthymic mood. His thoughts were relevant, organised and goal directed”. 
30. [30]
    Dr Tie did not explicitly oppose the respondent being released into the community, however, opined the following:

“If Mr Bewert was to progress into the community setting subject to a supervision order, he would be referred to the local mental health service for continued psychiatric monitoring, support and treatment.  The referral process would involve liaison with intake personnel and the district Forensic Liaison Officer of the local mental health service, ideally a week prior to the respondents anticipated release date.

31. [31]
    Dr Brown, in her report dated 24 July 2024, diagnosed the respondent with:

    1. borderline intellectual functioning;
    2. alcohol use disorder (currently in enforced remission);
    3. severe mixed personality disorder with antisocial, narcissistic, emotionally unstable and dependent features; and
    4. a tentative diagnosis of two paraphilic disorders (exhibitionistic disorder and frotteuristic disorder).
32. [32]
    Dr Brown’s opinion as to risk was formulated through three separate risk-assessment tools that each produced a number which was measured on a spectrum.
33. [33]
    The first was a ‘Static-99R’ tool, widely used to predict the likelihood of sexual re-offending in adult males that have previously been charged or convicted of a sexual offence against a child or non-consenting adult. Dr Brown scored the respondent five, a score indicative of moderate-to-high risk of re-offending. Dr Brown also said this score would likely be increased to six if she was able to confirm guilt of an episode of indecent exposure in the early 1980’s. This alleged offending is not the subject of a criminal conviction.
34. [34]
    The second tool was the ‘Psychopathy Check List – Revised (PCL-R)’, which is used to diagnose psychopathy through assessment of personality traits associated with increased risk of violence and sexual violence. A score is generated through equal weighting of two factors:

    1. affective/interpersonal traits; and
    2. antisocial behaviour. 
35. [35]
    The respondent scored 27 out of 40. In general, a score above 30 confirms a diagnosis of psychopathy.
36. [36]
    The third tool was ‘Risk for Sexual Violence Protocol – Version 2 (RSVP-V2)’, which contains 23 static and dynamic items grouped into five categories that outline the patient’s risk and help formulate the risk reduction management plan. These categories are:

    1. nature of sexual violence;
    2. psychological adjustment;
    3. mental health;
    4. social adjustment; and
    5. manageability.
37. [37]
    According to Dr Brown, the respondent presents 17 of 23 categories (with 1 additional factor partially present). 
38. [38]
    In consideration of the respondent’s results in each respective risk-assessment tool and clinical assessment, Dr Brown opines that the respondent should not be released on a supervision order for a number of reasons:

    1. the respondent’s sexual offending was also induced by hostility and anger towards women, both issues which have not been nullified by antilibidinal medication;
    2. the respondent’s previously held frustration with the absence of his sexual drive and may cause him to cease his medication;
    3. the respondent’s sporadic alcohol abuse remains a significant contributing factor to risk of recidivism and is difficult to monitor in the community;
    4. the respondent’s institutionalised personality and history of re-offending to receive incarceration presents risk of further re-offending, regardless of his supressed sexual drive;
    5. the respondent is adamant he requires a higher level of care than that of his last arrangement in the community, which indicates his lack of accountability and externalisation of blame regarding his behaviour;
    6. the respondent’s lack of personal support and tendency to isolate may lead to loneliness and motivate him to re-offend to return to prison;
    7. the respondent’s homicidal intent to professionals both at the time of his arrest in 2016 and subsequent suggests he may have planned sexual homicide for some time and may wish to achieve infamy and notoriety; and
    8. if the 2016 offending was attributed to rejection of a sex worker (as was suspected), the respondent has not had any treatment to address the risk factors as outlined in Dr Madsen’s report.  
39. [39]
    Dr Brown was cross-examined and the following was significant:

“And that the antilibidinal medication removes that one factor? --- It removes the sexual part of – of that behaviour. Yes.

Okay. And so I understand your opinion is that it’s multifactorial, but if you remove one factor, do you accept that the risk of reoffending must be reduced to some degree? --- No, not necessarily, because sexual offending does not turn 100 per cent on testosterone levels. There are other reasons why people sexually offending to do with wish for power and control over another person, or women, in this case. And hostility and anger towards women, etcetera, etcetera. So whilst I agree that the sexual component of the behaviour is now significantly reduced, my view is that it doesn’t knock out the behaviour entirely, if that – if that makes sense.

…

So you accept there is a reduction in the risk? – Yes.

All right. By the antilibidinal medication, I should say. But you say that he remains in the high category. So he was in the high category before the antilibidinal medication, and he remains in the high category? --- I think so. Yeah.”^[24]

40. [40]
    When questioned about the draft supervision order by Ms Hedge, Dr Brown said this:

“The supervision order, do you accept that there’s some parts of that that would act to reduce the risk. Can I suggest these are those parts – well, obviously all parts, but particularly for him: that there been continuing treatment from a psychologist. Do you accept that would reduce his risk of reoffending in the community? --- Well, it didn’t – it didn’t in the past. He was having regular treatment with a psychologist and it didn’t stop him reoffending.”

41. [41]
    Dr Beech diagnosed the respondent as having borderline intellectual functioning (FSIQ 74)^[25]. Dr Beech also further diagnosed the respondent having “a severe mixed personality disorder with dependent, antisocial, and borderline traits”.
42. [42]
    As to risk, Dr Beech assessed the respondent’s risk with both actuarial and dynamic risk assessments.
43. [43]
    For his actuarial risk assessment, like Dr Brown, Dr Beech used the Static 99-R scale, whereby the respondent scored six, one higher than Dr Brown’s assessment.^[26] This score places the respondent in a group of offenders who are at “much above average risk of re-offending.”
44. [44]
    In his dynamic risk assessment, Dr Beech considered the following factors:

    1. recurrent sexual offending;
    2. an escalation in sexual violence;
    3. mental disorder;
    4. substance use disorder;
    5. poor social engagement; and
    6. elevated psychopathy traits.
45. [45]
    Considering the above factors, Dr Beech opined:

“In truth, his history of sexual offending alone places him at high risk of committing another sexual offence. Added to this, Mr Bewert is now one of the very small group of offenders who have committed a serious sexual offence while subject to a supervision order that included GPS monitoring.”

46. [46]
    Dr Beech did note the mitigatory impact antilibidinal medication has on reducing the risk of sexual re-offending. However, Dr Beech is of the belief the respondent’s sexual offending is motivated by two factors:

    1. his need for sexual gratification; and
    2. his personality disorders.
47. [47]
    Regardless of the antilibidinal medication, Dr Beech considers the respondent presents a moderate risk of re-offending, as the respondent’s personality disorders create difficulty for reintegration into the community. This would present a risk of sexual re-offending, even whilst prescribed antilibidinal medication, as the respondent may re-offend in order to return to institutional care.
48. [48]
    Dr Beech was also extensively cross-examined and significantly said:

“So what I’m asking is, you know, moving on from what you said a few minutes ago, that this psychological improvement does reduce the risk to some degree, therefore, the risk , as you perceive it today, is less than when you wrote this report, because you didn’t know about that improvement at that time; is that fair --- No. I don’t know if it’s – I – if I could take it that far, because when I wrote this report, I had my experiences with Mr Bewert and seeing the psychological insight that he could display to me in some of the plans or on management or relapse prevention he could display with me.

…

So it sounds like you did accept, then, at the end, that there might – there’s some reduction in risk from your report to your current view? --- Yes. But I’d also – still had my experience with Mr Bewert.

Yes? --- And I’d read the report of Dr Brown, and I think she didn’t get much from Mr Bewert, either, in terms of relapse prevention.

I understand. And so at the time you wrote this report, you described it as a moderate risk. And so do you think that this reduction would push him towards the low end of moderate or top end of low risk? --- It – no, it doesn’t get down to low. It’s moderate, and moderate is- as in, average risk, but that’s, I think, as far as you can go.”^[27]   

49. [49]
    Of significance to both Dr Brown and Dr Beech was the evidence of Dr Madsen. Dr Madsen explained the treatment provided to the respondent and his progress thereunder. Dr Madsen considers that the respondent has engaged well in treatment over the year Dr Madsen has seen him.
50. [50]
    Dr Madsen considers the respondent has gained an understanding into the reasons for his offending, namely, his isolative tendencies whilst in the community, which cause him to seek emotional connection and intimacy through sex workers, and how any feeling of rejection or abandonment during these experiences would be a trigger for him to commit a serious sexual offence.
51. [51]
    Dr Marsden also made comment as to ongoing treatment and how the respondent “has made strides in developing more effective strategies”, namely:

    1. developing emotional awareness;
    2. seeking support;
    3. substance abuse management;
    4. structured environment; and
    5. cognitive-behavioural techniques. 
52. [52]
    During cross examination, Dr Madsen explained how he and the respondent had developed a “strong therapeutic relationship”.^[28] Dr Madsen was also asked about the interviews the respondent had with Dr Beech and Dr Brown:

“ All right. And is that what you’re referring to when you said just a moment ago to Mr Rolls that he doesn’t perform well in one-off interviews? ---Yes.

All right. And are there – how do you think those things would have affected him when he was having the one-off interviews with Dr Beech and Dr Brown? … I haven’t taken time to, sort of, properly analyse Henry’s experience in those interviews. Generally speaking, I would expect that those high pressure, short, high stakes interactions would be stressful for him and he would probably struggle but I don’t know whether he specifically struggles in those – in those interviews with – with them.

…

The question was that the key feature that you consider might mean that he does not engage or articulate his understanding of things very well would be the shortness of time of the interview, that is, you know, one to two hours when you’re talking to him one hour every fortnight over years and the lack of good relationship between them, and I only mean in the sense of you only see them once a year? --- Yeah, yeah. Look, I think I would expect that it would be a more stressful process and that would impact on his capacity to be able to, perhaps, answer questions a fluently as he would if he was feeling comfortable an is familiar with, like, for example, with me or with someone that he’s been seeing for some time.”^[29] 

53. [53]
    Dr Beech considered the evidence of Dr Madsen. Dr Beech under cross examination said:

“Yes. And the real – well, the psychological treatment, of course, is internal. That is, he has to have some improvement to get to a point where, then, the supervision added to it will result in an acceptable risk. Is that a fair summary? --- I think so. I think he has to have a plan in his head.

Yes --- And have demonstrated he knows and can use the plan in – to manage those emotional states that would otherwise lead him to commit a sexual offence.

Yes? --- Yes”

Conclusions

54. [54]
    Ms Hedge, who appeared for the respondent, accepted that the finding made in May 2011 that the respondent is a serious danger to the community in the absence of a Division 3 order must be affirmed.  Her submission though, was that the adequate protection of the community could be ensured by the release of the respondent on a supervision order.  Mr Rolls for the Attorney-General submitted that the continuing detention order ought be affirmed as a supervision order could not ensure the adequate protection of the community.
55. [55]
    Dr Brown’s views were strongly adverse to the respondent.  Her opinion, in summary, was that there had been no improvement in the respondent’s risk profile and that there was unlikely to be any.
56. [56]
    Dr Beech’s view was more optimistic.  Dr Beech thought that Dr Madsen was making some progress with the respondent.
57. [57]
    However, Dr Beech’s evidence identified outstanding issues relevant to risk, which needed to be explored further by Dr Madsen and then addressed.
58. [58]
    The respondent has a significant criminal history involving the commission of sexual offences.  Serious diagnoses have been made in relation to his mental health.  When released on a supervision order, he contravened that order by committing a further sexual offence which showed an escalation of violence from prior offending to the extent that the breaching offending involved the threatened use of a knife.
59. [59]
    Dr Beech remains unsure as to the motivation for the offending.  While it clearly had a sexual aspect, there is an underlying suggestion that it may have been motivated more by a desire to return to prison and the security that brings.  That raises questions as to the effectiveness of antilibidinal treatment.  Both doctors expressed concerns about the risk of the respondent re-offending.  While Dr Beech’s views are more favourable to the respondent than those of Dr Brown, there is no sound basis for a conclusion that the risk of serious sexual re-offending could, at this stage, be managed in the community pursuant to a supervision order.
60. [60]
    In my view, the finding made on 10 May 2011 ought to be affirmed and the continuing detention order be continued.
61. [61]
    I make the following orders:

The court being satisfied to the requisite standard that the respondent, Henry Bewert, 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 (the Act), orders that:

1. The decision made on 10 May 2011 that the respondent, Henry Bewert, is a serious danger to the community in the absence of an order pursuant to Division 3 is affirmed.
2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 22 June 2020.