Attorney-General v Musso[2024] QSC 325

SUPREME COURT OF QUEENSLAND

1. [1]
   The Attorney-General brought proceedings^[1] against Filippo James Musso, alleging a breach of conditions of a supervision order made under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA).  The breaches of the order are admitted and so the question is whether the supervision order ought to be rescinded and a continuing detention order made, or alternatively, the respondent released back on the supervision order, amended if necessary.^[2]

Background

2. [2]
   The respondent was born on 16 October 1992.  He is presently 32 years of age.
3. [3]
   The respondent’s criminal history is described in Attorney-General (Qld) v Musso,^[3] which is the judgment whereby a continuing detention order^[4] was made against the respondent.  The offence which led to that order being made was the subject of convictions on 22 July 2014.  Offending occurred over a three-week period between 21 July 2013 and 12 August 2013.
4. [4]
   That offending occurred against three complainants, a young lady, her father and the Commonwealth Bank of Australia.  The fraud charge against the Commonwealth Bank of Australia is of no real relevance.  The statement of facts upon which the applicant was sentenced was:

“The charges before the Court span a period of approximately three weeks from 21.07.13 to 12.08.13.  Those charges involve a total of three complainants, T Ma (Counts 1 & 4), her father D Ma (Counts 2 & 3), and the Commonwealth bank of Australia (Count 5).

Ms T Ma was friends with a girl named A Mc.  They were living together.  A Mc began dating the accused.  Some weeks after this, and when the accused had effectively moved in with them full time, the accused became violent towards Ms Ma.  Several acts of violence, damage to her property, and ongoing demands for money constitute count one on the indictment, Torture.

The violent behaviour commenced on 21.07.13.  The accused deliberately damaged T Ma’s belongings including her laptop computer, and her car while she was away from the house and with her father.  The accused smashed the car’s windscreen and lights with a hammer, he also slashed the tyres.  These actions were witnessed by A Mc who was home at the time (Torture - Particular 1).

While the accused was damaging T Ma’s car, he injured his hand and had to go to hospital.

At that time while T Ma was out with her father D Ma she received a call from A Mc asking that she go to hospital to meet them.  T Ma went to the hospital with her father meeting A Mc and the accused there.

Soon after their arrival the accused became aggressive.  He told T Ma’s father to leave and that he wasn’t welcome.  D Ma stayed and the accused then grabbed D Ma by the throat and punched him twice to the face (Count 2).  This caused bleeding in D Ma’s mouth and swelling to his cheek.  The accused in an interview with police admitted to punching D Ma and conceded that D Ma never hit him.  A hospital security guard remembers receiving a call and attending to D Ma soon after the incident.

After the commission of Count 2, T Ma returned to her house to discover her property damaged.  The accused then demanded that T Ma’s father come to the house to fight him.  T Ma called her father and her father refused to return.  The accused then attacked T Ma grabbing her by the throat and strangled her for what she estimates was 20-30 seconds (Torture - Particular 2).

D Ma then received a call from the accused.  The accused demanded $350 or stated he would kill his daughter T Ma.  D Ma then went to the residence where he saw T Ma upset and the accused has then made threats to kill the both unless he paid $350.  D Ma gave him $5 and the accused demanded the rest by 6am (Count 3 - Extortion).

D Ma then went to his friend R K to get the $350, which he gave to him.  R K remembers D Ma having an injury to his face at the time of the visit.

Several days later on 29.07.13 the accused and T Ma were at home together.  T Ma recalls that the accused became angry and smashed her phone with a hammer and demanded money from her (Torture - Particular 3).  T Ma recalls that this was for no particular reason.

That night A Mc went into hospital.  T Ma recalls that when she and the accused were home alone together, the accused said that he liked her and wanted to sleep with her.  She said no because he was with A Mc.

Several days after that incident, on 05.08.13, T Ma recalls fighting with A Mc during the day.  That evening when T Ma was in her room the accused came in and said ‘I’m going to rape you’.  T Ma recalls the accused pinning her down and that he tried to take her clothes off.  She resisted and screamed for him to stop.  The accused was threatening to kill her.  A Mc then came in and stopped the accused (Count 4 - Sexual assault).

The accused then left the room and soon after returned with a knife.  T Ma recalls the accused again pinned her down and that he held the knife to her face which cut her under the nose.  The accused in his interview with police admits going into T Ma’s bedroom with a knife.  T Ma was fighting the accused off and in doing so her hand was cut by the knife.  The accused during this attack also punched her to the face hitting both her eyes (Torture - Particular 4).

T Ma states that the accused then dragged her by the hair to the lounge room and told her to get out of the house.  The accused then stomped on her face above her left eye which caused her to see stars.  The accused then threatened that he would urinate on her if he could.  T Ma remembers the accused bragging to A Mc that he could see his footprint on her forehead.  After this attack the accused demanded $800 off T Ma for ‘protection’ (Torture - Particular 5).

There is medical evidence that T Ma received a fractured right eye socket.  It is the Crown case that the injury stemmed from this attack.  A maxillofacial surgeon, Dr Dawson, states that if left untreated this would have likely resulted in permanent double vision (Diplopia) to the complainant.  On 28.08.13 Dr Dawson operated on T Ma reconstructing the right orbit including the insertion of an artificial floor.  The Crown say that this injury if left untreated would have constituted a permanent injury to health.

On 07.08.13 the accused took $300 out of T Ma’s account and sold her car for $200.  Days later on or about 10.08.13 T Ma recalls that the accused demanded another $50 off her.

T Ma recalls that on the next day which was on or about 11.08.13 the accused wrote on furniture that T Ma ‘was a slut’ and got her to read it out aloud.  He entered her bedroom with a broom stick and started hitting her on the legs causing bruising.

He left the room and returned soon afterwards with broomstick handle broken and was jabbing her with the broken handle to the chest causing bruising.  T Ma was telling him to stop (Torture - Particular 6).  T Ma recalls that evening the accused and A Mc told her they were angry at her because she had nearly broken them up.

T Ma recalls on the next day (12.08.13) the accused demanded more money.  When she couldn’t pay he told her to go to her room.  The accused went and got some pliers and squeezed her right pinkie finger with the pliers causing her finger to bleed (Torture - Particular 7).  The accused then left the room and returned and struck her to the face which caused her to scream.  The accused then demanded $300 or he would beat her up (Torture - Particular 8).

That same day the accused and A Mc went to the bank to try and get money out of T Ma’s account with a card that belonged to T Ma.  The teller, L L, refused the transaction as neither the signatures signed by the accused or A Mc matched the signature on file.  Their requests were refused and bank staff recall that the accused then became aggressive and began making threats before leaving (Count 5 - attempted Fraud).

Half an hour later at around 1:30pm L L saw the accused and A Mc outside and a dark haired female with two black eyes being served at the counter.   She saw the dark haired female hand over money to the accused outside and recorded this.  All three then left.

The matter was reported to police and police arrived at around 3pm.  The accused and A Mc then got T Ma to go back into the bank to get them money again, after police had arrived.  T Ma was pointed out to police by bank staff who then spoke to her.  Officer McGuinness recalls T Ma crying saying to her that ‘the accused would kill her if he sees her talking to police, and that she just wants to live’. 

Officer McGuinness noted several injuries to T Ma and the ambulance were called and T Ma was taken to hospital.

The accused was later arrested and participated in a record of interview where he made a mixture of admissions and denials.”^[5]

5. [5]
   Count 4, sexual assault, was the “serious sexual offence”^[6] upon which orders have been made against the respondent under the DPSOA.
6. [6]
   Although the respondent was sentenced to 18 months imprisonment in relation to count 4, the total effective head sentence was four-and-a-half years and the proceedings which brought the applicant within the DPSOA regime, commenced on 8 March 2018.
7. [7]
   The three psychiatrists who examined the respondent in 2018 all found a severe personality disorder with anti-social, narcissistic and borderline features.^[7]
8. [8]
   A continuing detention order was made on 24 August 2018.^[8]  The continuing detention order was reviewed^[9] by Brown J (as her Honour then was) in Attorney-General for the State of Queensland v Musso.^[10]  Her Honour affirmed the decision that the respondent was a serious danger to the community in the absence of an order under Division 3 of the DPSOA,^[11] and affirmed the continuing detention order.^[12] 
9. [9]
   On 20 August 2021 Wilson J determined the second annual review of the continuing detention order.  Her Honour rescinded the continuing detention order and made a supervision order for a 10-year period.^[13]
10. [10]
    In January 2022, the respondent breached the supervision order and proceedings were taken against him^[14] (the first contravention proceedings).  The circumstances of the breach were described in Attorney-General for the State of Queensland v Musso^[15] as follows:

“(a) throughout the period of his supervision, the respondent made regular calls to the Queensland Ambulance Service (“QAS”) for a range of concerns, including hearing voices telling him to stab himself, having suicidal thoughts and swallowing batteries or razor blades;

2. the respondent also discharged himself from hospital against medical advice, due to apparent frustration caused by not being offered mental health treatment, with the Community Mental Health Services also declining to accept the respondent for mental health services case management in the community;

3. on 21 January 2022, the respondent contacted the HROMU^[16] office and made threats to a QCS staff member, to the effect of “Do you wanna have some fun?  Why don’t you come down here ya dog cunt and I’ll show you … I have a knife right now …”, including further random insults and expletives to the QCS staff member, as well as a threat to cut his own throat;

4. on the same day, the respondent also contacted the Queensland Police Service (“QPS”) stating he was going to commit suicide with a knife and reported swallowing batteries and razor blades.  A significant response by the QPS resulted from the respondent’s call and the QAS subsequently took the respondent to the hospital with QPS assistance.  The respondent subsequently discharged himself from the hospital;

5. on 24 January 2022, the respondent presented as extremely elevated on the phone with his Senior Case Manager at QCS.  The respondent subsequently left his residence without approval from QCS.  The respondent proceeded by foot to the Wacol train station where he threatened to throw himself in front of a train.  QCS called the QAS, however the QCS staff on-site were able to talk to the respondent, who accepted their escort to the Ipswich Hospital for assessment.  During this incident the QCS staff were regularly told to “fuck off” and were abused by the respondent.  The respondent was threatening staff and was non-compliant with directions given by QCS staff with regards to his curfew.  The QCS staff were monitoring the situation as best as possible, however they are not trained first responders.  These events placed the QCS staff at significant risk of harm;

6. subsequent checks made by QCS staff with hospital staff indicated that during his hospital visit, the respondent made threats of rape and presented with homicidal ideations of suicide.  The respondent also stated that he will continue to “breach parole” until he “gets what he wants”, which QCS staff understood to mean returning to custody.  Further, the respondent stated that he was giving his medication to others at the Wacol precinct and will continue to abscond from the precinct as he knows such action will result in a return to custody;

7. in addition to the above matters, the respondent has been the subject of a number of contraventions of the supervision order since his release to the community relating to intravenous Buprenorphine use and deleting of data from his device;

8. as a consequence of the incidents in January 2022, QCS received information that indicated the respondent had purchased a second mobile phone, which was subsequently obtained by QCS.  Initial reviews of the notifications on the mobile phone indicated that the respondent had resumed contact with associations without approval from QCS;

1. the respondent was charged with a number of counts of contravening the supervision order pursuant to s 43AA of the Act in relation to:

1. being found in possession of a number of technological devices, including a second phone;

2. failing to report associations;

3. utilising social media;

4. accessing the internet without approval.

10. the respondent obtained the technological devices whilst he was with his National Disability Insurance Scheme support workers in the community.”^[17]

11. [11]
    Cooper J heard the first contravention proceedings on 8 September 2022.  His Honour found the breaches proved and released the respondent back on to the supervision order with some amendments.^[18] 
12. [12]
    From late November 2022, those supervising the respondent noticed increasing non-compliance with the supervision order and hostility towards staff.  He was not complying with curfew, failing to be contactable, avoiding or refusing urine analysis, using unapproved smartphones and failing to report new associates.  Contravention proceedings were then commenced against him.  Ten breaches were alleged.  It is unnecessary to go into detail, but the breaches concerned possessing various telephones and a tablet, communicating with women without permission, and holding various social media accounts without disclosure. 
13. [13]
    On 25 March 2024, Crowley J found the breaches proved and released the respondent back on to the supervision order.^[19]  The present proceedings concern breaches, the first of which occurred in May 2024, a couple of months after being released pursuant to the order of Crowley J.
14. [14]
    Since release upon the order of Wilson J on 20 August 2021, the respondent has only spent about 13 months in the community and that has been spent at The Precinct:

Released upon orders of Wilson J 20.08.2021

Returned to custody (5½ months at The Precinct) 31.01.2022

Released upon orders of Cooper J 08.09.2022

Returned to custody (5½ months at The Precinct) 27.02.2023

Released upon orders of Crowley J 25.03.2024

Returned to custody (2½ months at The Precinct) 21.06.2024

15. [15]
    In submissions, the current contravention was described as “relating to threatening and intimidating behaviour, use and possess internet-capable telephones, accessing social media, unapproved contact”.  This occurred against a context of ongoing and significant self-harm.
16. [16]
    The particulars of the contravention are described in the application as follows:

“  SCHEDULE

PARTICULARS

SUPERVISION ORDER REQUIREMENTS ALLEGED TO HAVE BEEN CONTRAVENED

Relevant statutory provisions

17. [17]
    Division 5 Part 2 of the DPSOA concerns contraventions of supervision orders.  Relevantly here, s 22 provides, relevantly:

“22Court may make further order

18. [18]
    Here the contraventions are admitted so I am satisfied that the respondent contravened the supervision order.  It then falls upon the respondent to demonstrate that the adequate protection of the community can, despite the contraventions, be ensured by the supervision order either in its current form or amended.^[21]  If he does not discharge that onus, then the supervision order must be rescinded and a continuing detention order made.

The psychiatric evidence 

19. [19]
    The concept of “adequate protection of the community” is linked to concepts deriving from s 13 of the DPSOA of a prisoner being a “serious danger to the community” where there is an “unacceptable risk that the prisoner will commit a serious sexual offence”.^[22]  As observed in Attorney-General for the State of Queensland v Brown:

“Two principles are well established.  Firstly, “the adequate protection of the community” refers to protection of the community from the commission, by the prisoner, of “a serious sexual offence”.  It is not a general protection against all offending by the prisoner. … Secondly, the supervision order is not an end in itself.  A prisoner ought not remain in custody only because there is a risk of breach of the supervision order.  A prisoner remains in custody if he fails to prove that the adequate protection of the community against the commission by him of a “serious sexual offence” can be ensured by his release on supervision.”^[23]  (footnotes omitted)

20. [20]
    Psychiatric evidence came from Dr Karen Brown and Dr Kenneth Arthur.  Both are registered specialist psychiatrists and both have extensive experience with respondents under the DPSOA.  Their expertise was not challenged and is accepted.
21. [21]
    The evidence of both Dr Brown and Dr Arthur was given against a background of the respondent being engaged in treatment by a psychologist, Shay Addison. 
22. [22]
    Ms Addison provided a report dated 30 July 2024.  She had provided an earlier report on 27 November 2023. 
23. [23]
    Ms Addison has had considerable contact with the respondent, having been involved in 44 sessions between 7 September 2023 and 12 June 2024.  She has conducted sessions with the respondent since his latest return to custody.
24. [24]
    In her latest report, she said that the respondent’s conduct towards her remained appropriate and non-threatening.  Her observations were that he continued to display “frequent emotional dysregulation in response to many issues”.  She opined that at times he could understand his reactions but had little capacity to apply alternative strategies to showing aggression when he is triggered.  She was of the view that the respondent showed some awareness as to the reasons for and consequences of his self-harming.  She observed that he had struggled to adapt to community-based living and that had affected the impact of treatment delivery that she was attempting to achieve.  She observed that his “engagement with treatment in custody was broadly on track”.  She thought that in that environment there was progress.  She opined that once released to The Precinct, the respondent was faced with a “myriad [of] triggers and acute risk issues” and they frustrated his treatment efforts.
25. [25]
    Ms Addison considered that part of an ongoing treatment plan ought to be engagement by the respondent with a forensic psychiatrist and also the completion of a functional risk analysis of his tendency to violence.  She is available to continue treating Mr Musso in custody.
26. [26]
    Ms Addison was called as a witness before me on the application.
27. [27]
    Ms Addison explained that she was administering Schema therapy to Mr Musso.  This is a form of cognitive behavioural therapy designed specifically for people who have long‑term problems and typically being people who have personality disorders like Mr Musso.^[24]  Ms Addison explained that Mr Musso seemed focused in his treatment sessions while he was in custody.  When in the community, he was distracted by the challenges which being outside the custodial environment presented.^[25]
28. [28]
    Ms Addison saw him in October about four months after he was taken back into custody in June 2024.  He presented her with 136 pages of handwritten relapse prevention materials and Ms Addison opined that he had an “extremely good understanding of what his risk factors are”.^[26]  She explained in evidence before me the ramifications of Mr Musso’s severe personality disorder, including his lack of trust, his tendency to attempt to dominate relationships and resist limits that are placed upon him.^[27]
29. [29]
    Ms Addison was asked in cross-examination to express her opinion concerning the applicant’s risk of re-offending.  Objection was taken but overruled.  In my view, Ms Addison is properly qualified both by formal learning and experience to give an opinion in relation to risk.
30. [30]
    Ms Addison opined that there was a substantial disparity between the respondent threatening violent and/or sexual offending, and the prospect of him actually perpetrating those crimes.  Ultimately though, she thought that the respondent’s treatment and management would be promoted by the completion of a functional risk analysis where the threats of violence could be evaluated.  She has asked for funding for such an analysis, but there has been no response to that request.
31. [31]
    Ms Addison confirmed in cross-examination that ongoing treatment by a forensic psychiatrist was necessary for the respondent’s ongoing treatment.^[28]
32. [32]
    Before turning to the evidence of Dr Arthur and Dr Brown, it is necessary to mention the evidence of Emma Wildermoth.  She is the Acting Manager of the High Risk Offender Management Unit (HROMU) within Queensland Corrective Services (QCS).  HROMU supervises prisoners such as the respondent who are subject to orders under the DPSOA. 
33. [33]
    Ms Wildermoth swore an affidavit attesting to various things, but importantly she gave evidence about the availability, through QCS, of a privately-funded psychiatrist.  Both psychiatrists and Ms Addison opined that a necessary part of the respondent’s ongoing treatment is the involvement of a forensic psychiatrist. 
34. [34]
    Psychiatrists holding the relevant qualifications and experience are likely only to be found in the private profession and not through the public health system.  Ms Wildermoth gave evidence that QCS does not engage private psychiatrists for the management of patients.  It relies on other agencies to provide medical treatment.^[29]  The respondent, she said, does not have the facilities of the prison’s mental health service available to him, as he does not have a recognised mental illness.  He suffers from a very severe personality disorder, but that is not a mental illness.^[30]  Other services such as Community Mental Health were unable to provide the type of specialised psychiatric treatment that is said to be necessary.^[31]  While she has made inquiries and is continuing to do so, at this point no avenue to provide specialised forensic psychiatric treatment to the respondent has been identified.^[32]
35. [35]
    Dr Arthur has assessed the respondent on numerous occasions since 2018.  He has provided various reports and they have been the subject of analysis in previous judgments. He confirmed his earlier diagnosis of severe personality disorder.
36. [36]
    Dr Arthur observed that the respondent’s behaviour during his most recent assessment was “moderately improved compared to prior presentations”.^[33]  However, Dr Arthur went on to observe that “he continued to display evidence of significant personality pathology”.  He did this by seeking to control the interview and blame others.  He was in denial, angry and refused to compromise.  Dr Arthur saw little evidence of remorse or regret for his behaviour.^[34] 
37. [37]
    As to risk:

    1. Dr Arthur observed that the respondent has only been convicted of one serious sexual offence.  Notwithstanding this, his risk of sexual offending is well above average and “he has many relevant dynamic risk factors for sexual recidivism”;
    2. because there has only been one offence of a sexual nature involving violence, there is no pattern of offending.  Dr Arthur observed that notwithstanding this, he thought re-offending was most likely to occur in an intimate relationship when the respondent became negatively emotionally aroused.  Importantly, Dr Arthur observed “there is a chance that any sexual violence may escalate to serious or life-threatening violence”;
    3. Dr Arthur observed that the respondent has not completed any group sex offender treatment programs, but has engaged in psychological treatment.  This, he opined, has been challenging given the respondent’s severe personality disorder and the fact that he has been in and out of the community and in and out of custody; and
    4. Dr Arthur considers there has been a modest improvement in emotional self‑regulation as a result of treatment, but remains prone to decomposition and regression.^[35] 
38. [38]
    Dr Arthur made a number of recommendations.  These included continual psychological therapy, preferably with Ms Addison, and also specialist psychiatric treatment.  Dr Arthur then opined:

“It would be highly beneficial for there to be a period of pre-planning prior to his release from custody.  This should include the following –

• Regular treatment sessions with Ms Addison to provide evidence of re-engagement in therapy prior to release.
• A clear plan for accessing specialist psychiatric treatment in the community, either via a commitment (in writing) from local Mental Health Services of alternatively securing the involvement of a private psychiatrist.
• The appointment of an administrator who can ensure that his nutritional and medical needs are consistently funded.  I anticipate that prisoner Musso will actively resist this, but based on his prior behaviour I see no other option at this time.  Much of prisoner Musso’s stress in the community comes from his poor financial management and impulsive spending.  Given the complexity of his family relationships, I do not think it is appropriate to rely on his mother to control his finances.
• If not already done, it would be useful to liaise with local emergency services to formulate a consistent response to future episodes of deliberate self-harm or claims of suicidality.  It would be useful to have an operationalised document that prisoner Musso can refer to as required.  This should outline the rights and responsibilities of all parties involved to ensure that a consistent approach is taken.”^[36]

39. [39]
    In cross-examination, Dr Arthur was referred to evidence which he had given before Crowley J.  He accepted, in particular:

“[MR HAMLYN-HARRIS]:  And sorry, there is one final thing.  On the next page, page 127, just at about line 21 you said, “I don’t think it’s necessary for Mr Musso to have a psychiatrist appointed prior to his release,” and I think – am I right in thinking that reflects one of the last answers you gave to Mr Tate?  That if these things that you’ve recommended, and Dr – and Dr Brown has recommended – they can be put in place, then he could progress into the community?---Um, yes.  I – I think – I think that it’d be ideal for him to – to know who that person is and to have some contact with them prior to release, um, because, um, my understanding Mr Musso and his personality is that he – it will take some time for him to get to know that person and there’s certainly going to be, um, ups and downs in that therapeutic relationship as there is in every relationship Mr Musso has.  Um, so I think from continuity perspective, it would be better for him to know that person, to have some interaction, um, but it’s not absolutely necessary.”^[37]

40. [40]
    In further cross-examination: 

“MR HAMLYN-HARRIS:  Dr Arthur, one thing I meant to ask you:  Is the – you’ve said very clearly that in your opinion he needs treatment from a suitably qualified psychiatrist, is that relevant to the management of his risk of sexual reoffending?---Um, considering that the major modifying ri – modifiable risk factor for sexual offending is his personality disorder, and his personality disfunction, then absolutely yes, it is.”^[38] 

41. [41]
    Dr Brown saw the respondent for the first time on 10 October 2024.  In her report she reviewed previous reports prepared by other psychiatrists and also referred to various prison records. She also diagnosed severe personality disorder.
42. [42]
    Dr Brown observed that there were difficulties in the interview, as the respondent was unwilling to discuss various things and became agitated.  Her opinions and recommendations were expressed in her report as follows:

“SECTION F: OPINION AND RECOMMENDATIONS

In my opinion Mr Musso’s unmodified risk of sexual (and violent) reoffending is high.  He has a score of 6 on the Static-99R, and there is evidence for most of the risk factors as listed on the Rick for Sexual Violence Protocol-V2.  The risk is elevated due to Mr Musso’s severe personality pathology with psychopathy, substance use disorder, his tendency for intense and unstable relationships associated with episodes of severe emotional and behavioural dysregulation and his difficulties responding to treatment.  Mr Musso’s sexual preferences are poorly understood.  He is institutionalised and he lacks appropriate personal support and routine.

The risk of sexual reoffending would be elevated with intoxication and most likely in context of an unstable relationship.  Offending may be directed at an intimate partner or another adult female perceived by Mr Musso to represent a threat to this relationship.  Sexual offending would serve as a way of re-establishing power and control and may involve use of threats and physical force/violence.  Victims may sustain physical and/or psychological harm.

Mr Musso has been released to the community on three occasions since 2021.  Each time he has presented in a similar manner, initially reasonably compliant and settled, followed by a period of non-compliance, increasingly reckless and dysregulated behaviours and then usually in crisis with associated demands to return to custody.  Although Mr Musso has not committed a sexual offence (or violent offence) during his periods of release, he has made numerous threats of violence and sexual violence and he has presented as intimidating, even to those familiar with him.  Additionally he has engaged in unstable relationships and become dysregulated and threatening when conflicts inevitably occurred.  It is of particular concern that Mr Musso repeatedly contacted AM (his girlfriend at the time of the index offences) and made threats to harm her partner when she disengaged with him.  This is offence paralleling behaviour.  At interview Mr Musso would not agree that this was the case and he indicated that he would continue to pursue contact with AM on release.  He also indicated that he would obtain unauthorised devices and access social media.

Despite an academic understanding of the psychological treatment provided to him, Mr Musso has been unable to significantly employ sufficient therapeutic strategies so as to maintain his placement in the community.  His recent engagement in treatment sessions with his psychologist was significantly compromised by his frustrated dysregulation regarding the restrictions of the supervision order.  There is no indication that this will change, at least in the short term.  As such any community supervision cannot rely on the internalised risk reduction that comes with treatment, instead the risk must be managed by the external restrictions and monitoring associated with the conditions of the supervision order.  Unfortunately in Mr Musso’s case, despite the various supports and oversights in place, QCS has been unable to prevent Mr Musso from gross non-compliance with the order to date, because he routinely disregards the conditions and he is immune to sanctions and punishments associated with non-compliance.

Should Mr Musso be released to a supervision order, the risk of sexual reoffending will only be reduced to moderate-high (due to the restrictions around substance and victim access).  It is most likely that Mr Musso will repeat the same set of non-compliant behaviours in the community as he has in the past, before he is again returned to custody.  Unfortunately on this occasion of release he only managed to remain in the community for 2.5 months which is less than the previous two episodes of release (5 months).

I note Mr Musso’s difficulties in the custodial environment and level of institutionalisation.  Whilst I agree that long periods in prison may be counterproductive for Mr Musso, I also note that he has responded better to therapy in the custodial environment and he can achieve periods of relative stability.  In my view he requires additional psychological treatment and other supports to be in place prior to release.

I therefore recommend the following:

1. Mr Musso should be offered psychological treatment with Dr Addison in custody so as to address his ongoing treatment needs, particularly in the areas of relationships, emotional and behavioural regulation and offence paralleling behaviours;

2. Mr Musso should be referred to a private forensic psychiatrist for medical management of his mental health disorders;

3. Mr Musso should be encouraged to develop a routine in custody (eg study or work) and to maintain appropriate behaviour;

4. His apparent inability to manage his money, medication and other aspects of daily living should be addressed, with some form of oversight or agreed management plan, (noting this may be difficult to achieve as Mr Musso does not have a cognitive disorder that limits his capacity in this regard).

Should a supervision order be made, in my view this should be for a period of 10 years, given the risks as described.”^[39]  (emphasis added)

43. [43]
    Dr Brown’s opinion that a supervision order would only reduce risk to a moderate‑high level and only reduces risk at all by restricting substance and victim access was not challenged in cross-examination.
44. [44]
    In examination-in-chief, this exchange occurred:

“[MR TATE]:  All right.  You say this in page 64 of your report, the paragraph from the bottom, about halfway through that paragraph, “As such, any community supervision cannot rely on the internalised risk reduction that comes with treatment.  Instead, the risk must be managed by the external restrictions and monitoring associated with the conditions of the supervision order.”  Doctor, I take it what you’re signalling there is that, as at today, there’s been no internal change in relation to Mr Musso that would give this court confidence that he has skills to reduce his risk himself.  Is that a fair way of understanding - - -?---I think - - -

- - - it?--- --- there’s been some change over time compared to when he was first released.  But unfortunately, it’s just not enough.  I think it’s important to acknowledge that he has engaged with psychology.  He has made some gains.  It’s just not enough.  And it’s not in the areas of most concern, in my opinion.  It’s not around that rela – the relationships – the romantic relationships and how that – that – um, that pattern of behaviours is – how – how and why that pattern of behaviours is concerning.”^[40]

45. [45]
    Later:

“[MR TATE]:  All right.  Now, Doctor, as I understand your recommendations, you’re really indicating that there should be a further period of custody, really, to get these things in place so that there is a managed transition again, from custody to the community, to give Mr Musso the best opportunity of surviving for longer than two and a-half months; is that a fair summary?---Broadly, because I – I – I – I mean, I – I – I think – I prefer to talk in terms of risk, but – rather than custody, but, um, I – I can’t see that there’s any other way of addressing the risks that I’ve described.  And unfortunately, in my view, um, a supervision order at this stage is not going to – um, ap – uh, it’s not going to reduce the risk very much, really, at all.  Um, and – and – and – and – and that’s really my, uh – my, um opinion, uh, in relation to tho – to those risks.  And – and – so it’s – it – in – in – in moving forward, it’s difficult to see an alternative.”^[41]

46. [46]
    Under cross-examination, Mr Hamlyn-Harris, for the respondent, questioned Dr Brown about the need for the appointment of a private psychiatrist, and she responded as follows:

“[MR HAMLYN-HARRIS]:  Sorry, I mean - - -?--- - - - this - - -

- - - without a psychiatrist being appointed?---Look, I – I think that – that there’s – the – the mainstay of – of – of treating, um, Mr Musso at this juncture is, really, psychological treatment, actually - - -

Yep?--- - - - um, and I think that’s the role, primarily, of – of – Ms Addison.  The forensic psychiatrist’s input is important, um, in relation to the – the – the medical management, um, and the overview of risk, but, um, I – I – I – I’m not sure that that should be seen as, um, trumping, if you like, what Ms Addison, I think, is primarily needing to do.”^[42]

47. [47]
    The appointment of a treating forensic psychiatrist was exposed during cross-examination of both Dr Brown and Dr Arthur as problematic.  As already observed^[43], questions arose as to who will retain and pay the psychiatrist’s fees.  It is not the practise of QCS to do so, the respondent’s NDIS package may not facilitate it, and as Dr Brown said during examination‑in‑chief:

“[MR TATE]:  Now, you’ll see that it is possible for Mr Musso to go and talk to a GP and get a psychiatric care plan.  Doctor, is there anything stopping Mr Musso from doing that?  And why I’m asking you this is that you do raise an issue about his – whether he’s a person of impaired capacity.  But is there anything stopping him from seeing a - - -?---No, there’s - - -

- - - GP?--- - - - nothing stopping him from going to get a mental hea – health care plan.  But the problem is – is that, in my opinion, that’s not going to provide him with what he needs.  I – I note it says “psychiatrist” there in the – on page 16.  Um, insofar as I’m aware, obtaining a private psychiatrist on a mental health care plan is quite hard to do.  Um, uh, it – it – generally, uh, this is allied health professionals, um, that are accessed through a mental health care plan, um, a psychologist – psychologists, mainly.  So it – it – it – it would be difficult.  And also, as I’ve said previously, in my opinion, Mr Musso needs a forensic psychiatrist to manage him.”^[44]

Other evidence

48. [48]
    Before me were various records of the respondent’s behaviour in prison.  No specific submissions were made in relation to any of that material, although parts were referred to by the doctors in their reports and in their evidence.  The material was relied upon in the formation of the opinions of the doctors.  It is unnecessary for me to analyse that material. 

Consideration

49. [49]
    Both Dr Arthur and Dr Brown were of the view that the respondent should remain in custody until he has received further treatment and made further progress.  Those opinions form part of the evidence upon which the Court must ultimately determine whether the respondent has discharged the onus cast upon him under s 22 of the DPSOA. 
50. [50]
    The submission made on behalf of the applicant was that the application should be adjourned for a period so that the respondent could receive further treatment and reach a point in his rehabilitation where he might discharge the onus.  Mr Hamlyn-Harris resisted that course on two bases.  Firstly, he said that on a proper understanding of the evidence, psychiatric treatment was not necessary before the respondent could be safely released upon the supervision order.  Secondly, Mr Hamlyn-Harris pointed to practical difficulties in the respondent obtaining that psychiatric treatment before release. 
51. [51]
    It is important to have regard to the statutory scheme of the DPSOA.  There is a clear distinction between the grant of judicial power to the Court and the grant of executive power to the Chief Executive of QCS.  As was explained in Crump v New South Wales,^[45] in the context of parole orders, the judicial function was exhausted upon the imposition of sentence.  Control of the prisoner then passed to the executive, who would then exercise powers consistently with the statutory parole scheme.^[46]  In Attorney-General for the State of Queensland v Sambo,^[47] a Judge of this Court, on hearing an application s 22 of the DPSOA, ordered that a supervision order be amended to insert a condition requiring the Chief Executive to provide, amongst other things, specific psychiatric treatment.  The Court of Appeal held that there was no jurisdiction to impose such conditions upon the Chief Executive who had other functions under the Act.^[48] 
52. [52]
    There may well be cases where it is appropriate to adjourn an application brought under Division 5 of Part 2 of the DPSOA to enable a prisoner to take steps which may enable him to discharge the onus cast by s 22.  However, in my view, that will generally be inappropriate.  Such a course effectively involves the Court in the treatment of the prisoner. 
53. [53]
    What is envisaged is an ongoing process where after the Court adjourns the application, the prisoner undergoes further treatment which is then judged upon at some point by the Court. That is not the statutory scheme.  If the prisoner breaches a supervision order and an application is brought pursuant to Division 5, the function of the Court is to firstly determine whether the breach has been proved, and if so, to rescind the supervision order unless the prisoner discharges the onus cast upon him under s 22.  If he does not discharge that onus, then the supervision order ought to be rescinded, and a continuing detention order made, which is then reviewed pursuant to Part 3 of the DPSOA. 
54. [54]
    While a prisoner is in the custody of the Chief Executive, questions of treatment and management of the prisoner are matters for the Chief Executive, not the Court. It is not, in my view, appropriate to adjourn the application for a period of six to nine months as proposed by the applicant.
55. [55]
    The respondent has been unable to comply with the terms of the supervision order.  However, in Attorney-General (Qld) v Fardon,^[49] Jackson J reviewed the authorities and concluded that persistent breaches of a supervision order are only relevant to the extent that they impact upon consideration of the statutorily-defined question, which is whether “adequate protection of the community” can be ensured by release on supervision.^[50]
56. [56]
    The respondent has not committed a serious sexual offence since 2014.  Although he has a severe personality disorder, he has been making some progress under the treatment of his psychologist, Ms Addison.  However, the fact that the respondent has not committed a serious sexual offence for many years must be looked at in light of the fact that he has been in custody almost constantly over that period.  His periods of release on supervision have been very short.
57. [57]
    Mr Hamlyn-Harris submitted that the supervision order, although breached, performed the task of monitoring the respondent and returning him to custody as risk elevated. Therefore, it was submitted that release back on the order was appropriate.
58. [58]
    The psychiatric evidence is to the effect that the respondent does not cope in the community, even under the very restricted conditions of The Precinct.  His personality disorder manifests itself as a refusal to comply with directions.  He has breached important conditions which are designed to minimise risk, and he has threatened to remove his monitoring device and abscond.  His instability is illustrated by his continual acts of self‑harm. He has been receiving treatment but Mr Addison’s opinion is that he is more receptive to treatment when in custody.
59. [59]
    Both psychiatrists consider the respondent’s unmodified risk of re-offending as high and Dr Brown considers the risk only reduced to moderate-high by a supervision order.  Ms Addison opined that further examination of risk was necessary.
60. [60]
    Risk has, relevantly here, two components.  The first is the likelihood of an adverse event occurring, and the second is the consequence of an adverse event occurring.^[51]  While there has been some progress, the evidence here is that if the risk materialised it may be accompanied with life-threatening violence.
61. [61]
    The current breaches of the supervision order, which are admitted are in my view, very serious and demonstrate an escalation of risk: 

    1. he was threatening and hostile to QCS officers and a tradesman with whom he came into contact;
    2. in breach of the supervision conditions, he had been seeking out contact with a woman;
    3. he possessed unapproved internet-capable mobile devices;
    4. he was accessing social media;
    5. his behaviour was manipulative in that he told staff that if they did not do certain things he would refuse to see his psychologist;
    6. he has self-harmed;
    7. he threatened to “remove his device” and “abscond”;
    8. he was generally uncooperative; and
    9. he had been, at least, annoying (perhaps stalking) a woman he had known as a teenager. 
62. [62]
    In addition, both psychiatrists and Ms Addison opined that a necessary part of the respondent’s ongoing treatment of his severe personality disorder requires the skills of a forensic psychiatrist and there is presently little prospect of that treatment being available in the community.
63. [63]
    Where a prisoner who is subject to a supervision order breaks that order, the onus falls on them pursuant to s 22(2) of the DPSOA to demonstrate that adequate protection of the community can be ensured by release upon a supervision order (amended if necessary).  The onus is not discharged by pointing to difficulties in obtaining necessary treatment, such as from a forensic psychologist.
64. [64]
    In my view, the respondent has failed to demonstrate, on the balance of probabilities, that the adequate protection of the community can, despite the contravention of the existing order, be ensured by the existing order whether in its present form or as amended.  In my view, there are no amendments that can be made to ensure the adequate protection of the community from the commission by the respondent of a serious sexual offence.
65. [65]
    Pursuant to s 22(2) of the DPSOA, the supervision order ought to be rescinded and a continuing detention order made.

Orders

66. [66]
    It is ordered:

1. The supervision order made by Wilson J on 20 August 2021, as amended by Cooper J on 8 September 2022 and Crowley J on 25 March 2024, is rescinded.
2. The respondent be detained in custody for an indefinite term for control, care or treatment.