Attorney-General v Guy[2024] QSC 97

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application by the Attorney-General under s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSO Act) for review of a continuing detention order.

Previous orders

2. [2]
   On 27 March 2017, Holmes CJ found that the respondent was a serious danger to the community in the absence of an order under Division 3 of the DPSO Act and ordered that he be detained in custody for an indefinite term for control, care or treatment (the continuing detention order).^[1]
3. [3]
   Section 27 of the DPSO Act provides that if the court makes a continuing detention order, it must review the order at specified intervals.
4. [4]
   The continuing detention order was reviewed:

   1. on 9 August 2018, by Davis J;
   2. on 22 July 2019, by Lyons SJA;
   3. on 18 September 2020, by Williams J;
   4. on 6 September 2021, by Dalton J (as her Honour then was); and
   5. on 22 August 2022 by Applegarth J.
5. [5]
   On each of those reviews, the Court:

   1. affirmed the original decision of Holmes CJ that the respondent was a serious danger to the community in the absence of a Division 3 order under the DPSO Act; and
   2. ordered that the respondent continue to be subject to the continuing detention order.
6. [6]
   The reason the respondent has remained subject to the continuing detention order for such a lengthy period is not that the risk of the respondent committing a further serious sexual offence is so high that appropriate supervision and support in the community could not ensure the adequate protection of the community against that risk.  The evidence is to the contrary.  The issue that the respondent faces is that, due to his age and high care needs, there is no accommodation available where he could receive the care and support he requires in a setting that limits his access to potential victims and in which he could otherwise be reasonably and practically managed under a supervision order.
7. [7]
   This position is described in Applegarth J’s summary of the original hearing and subsequent annual reviews on the last occasion the continuing detention order was reviewed:^[2]

“The original hearing in 2017

[10] In March 2017, the then Chief Justice heard an application under the Act that sought a continuing detention order.  At the time, the respondent was aged 64 and appeared to be of low intelligence.  He had not been able to work for much of his life.  Parkinson’s disease meant that he required the assistance of a carer in custody.

[11] Because of his disabilities and lack of support outside prison, his placement on a supervision order presented considerable difficulty.  Chief Justice Holmes observed that the respondent could not live in any kind of ‘independent accommodation’.  If he ended up living in a place like a caravan, he would pose a risk to vulnerable victims such as children or impaired adults.  Two of the assessing psychiatrists, Drs Arthur and Beech, thought that if the respondent could be placed in supervised accommodation with a high level of support, his risk of offending would be reduced.  The contingency accommodation provided by Corrective Services in Brisbane, Rockhampton and Townsville was found by the Chief Justice to be ‘not suitable for someone who requires the level of support which the respondent does.’  Corrective Services could not locate an available place of supported accommodation in the community.  At that time, it was not thought feasible to expect it to devise supported accommodation designed around the respondent. 

[12] The Chief Justice observed:

‘It seems to me that a time will come when there are enough offenders in the respondent’s category of age and debility falling within the compass of the Dangerous Prisoners (Sexual Offenders) Act to require the setting up of supported accommodation for them.  It is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option.’

[13] In the result, a continuing detention order was made.

Subsequent annual reviews

[14] In 2018, Davis J conducted an annual review pursuant to s 30 of the Act. Little had changed.  One psychiatrist, Dr Grant, described the respondent as ‘clearly institutionalised’.  According to Dr Grant, any release into the community would be problematic given the respondent’s need for care.  He was not able to care for himself and would not be able to live in any precinct accommodation.  He required nursing home style accommodation.  Dr Arthur did not think that the respondent’s risk profile had changed since the continuing detention order was made.  The evidence showed that a nursing home type of facility was needed but a conventional nursing home would provide the respondent easy access to victims.  As Dr Arthur concluded:

‘Ultimately, [the respondent] requires placement in a facility which can meet his medical and emotional dependency needs, whilst also restricting victim access.’

[15] Davis J concluded:

‘There is no facility outside of prison which can provide the medical care which the respondent requires but at the same time providing the security necessary to ensure adequate protection of the community against the commission by the respondent of serious sexual offences.’

[16] In the circumstances, the respondent was ordered to continue to be subject to the continuing detention order made by Holmes CJ on 27 March 2017.

[17] Davis J endorsed the Chief Justice’s comments that I have earlier quoted that it is deeply troubling to think that people who could be managed and rendered relatively risk-free with appropriate support and accommodation, must instead, be imprisoned as the only option.               Davis J had raised those comments with Counsel for the Attorney-General who advised that the Chief Justice’s comments had been brought to the attention of the Attorney-General.  Davis J concluded that the state of affairs was, ‘nonetheless deeply troubling’.

[18] In 2019, another review was conducted.  Lyons SJA reached the conclusion that a Division 3 order should be made.  The two reporting psychiatrists, Drs Beech and Arthur, considered that there could be a possibility that the respondent might be able to be managed in the community ‘should suitable accommodation be found’.  Again, the evidence was that the contingency accommodation at Wacol, Rockhampton and Townsville did not provide a supported accommodation facility and therefore did not provide support and care services of the kind required by the respondent.  The evidence showed that the respondent required nursing care accommodation.  Enquiries did not locate any community facilities in Queensland that could meet the risk management concerns relating to the respondent.  No ACAT assessment had been progressed.

[19] Lyons SJA concluded:

‘Both psychiatrists indicate the respondent needs semi-supported accommodation but with the restrictions which would essentially be the restrictions that pertain to him in custody.  He would need to be excluded from all females and children and could not leave the facility unsupervised.  And no such supported accommodation outside custody has been identified.’

[20] The continuing detention order was continued.

[21] The next s 30 hearing was before Williams J in September 2020.

[22] Little had changed.  The respondent did not wish to reside at the precinct because his needs for care rendered such accommodation unsuitable.  He required a significant degree of interpersonal support on release.  He required care with the provision of meals, management of finances, nursing care, on-site medical attention and mobility aids.

[23] Prior to the hearing, the respondent had indicated a desire to move to suitable nursing home accommodation.  However, the parties were unable to find suitable accommodation with the appropriate level of supervision. In the circumstances, Williams J made an order that the respondent continue to be subject to the continuing detention order made in 2017.

[24] On 6 September 2021, Dalton J affirmed the finding and ordered that the respondent be subject to the continuing detention order made on 27 March 2017.

The present position

[25] Given his age and other circumstances, the respondent’s unmodified risk of sexual recidivism on release has been assessed to be moderate or below moderate.  However, the absence of suitable accommodation that would manage that risk, while providing the respondent with the care and assistance that he needs, creates the same ‘deeply troubling’ situation that confronted Holmes CJ in 2017.”

8. [8]
   The evidence before Applegarth J was that Dr Brown, one of the psychiatrists who assessed the respondent, considered there was a moderate unmodified risk of him sexual reoffending.  That risk would be reduced if the respondent could be released under a supervision order to a “male only nursing home”. 
9. [9]
   Dr Arthur, who had previously reported on the respondent, considered that his unmodified risk of sexual recidivism was moderate or below.  That risk could be further reduced by a supervision order which would ensure that the respondent’s needs are met and which limits his access to victims.  Dr Arthur could not “realistically” envisage any accommodation suitable to the respondent outside of a nursing home. Notwithstanding the respondent’s advancing age and physical frailty, Dr Arthur considered that it would be prudent to ensure that unsupervised access to females under the age of 16 or vulnerable adult women did not occur.
10. [10]
    Although Applegarth J observed that this evidence supported the respondent being released to nursing home-style accommodation, the fact that such accommodation was not available meant that the risk of the respondent sexually reoffending was not able to be reasonably and practically managed in the community under a supervision order.  It was in that “unfortunate state of affairs” that Applegarth J declined to make a supervision order and, instead, ordered that the respondent continue to be subject to the continuing detention order.^[3]

Legislative framework and relevant principles

11. [11]
    On hearing the review, the Court may affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order only if it is satisfied (a) by acceptable, cogent evidence and (b) to a high degree of probability, that the evidence is of sufficient weight to affirm the decision: s 30(2) of the DPSO Act.  In reaching that position, the Court must have regard to “required matters” which relevantly include the matters mentioned in s 13(4) of the DPSO Act: ss 30(1) and 30(6) of the DPSO Act.
12. [12]
    If the Court affirms the decision, it may order that the respondent (a) continue to be subject to the continuing detention order or (b) be released from custody subject to a supervision order: s 30(3) of the DPSO Act. 
13. [13]
    In deciding between those two alternatives, the paramount consideration is the need to ensure adequate protection of the community: s 30(4)(a) of the DPSO Act.  Having regard to the terms of s 13, pursuant to which the continuing detention order was made, that is to be understood as meaning protection of the community from the risk that the respondent will commit a serious sexual offence.  The Court must consider whether the adequate protection of the community can be reasonably and practicably managed by a supervision order, and whether the requirements of a supervision prescribed by s 16 of the DPSO Act can be reasonably and practicably managed by corrective services officers: s 30(4)(b) of the DPSO Act.
14. [14]
    If supervision of the respondent would be sufficient to ensure adequate protection of the community, having regard to the risk to the community posed by the respondent, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the respondent’s liberty should not be constrained to any greater extent than is warranted by the DPSO Act.^[4]

Current risk assessments

Dr Lenardon

15. [15]
    Dr Anna Lenardon interviewed the respondent on 14 June 2023 at the Townsville Correctional Centre.  She noted that the respondent does not present with any mental states abnormalities suggestive of major mental disorder.  He presents with mixed personality disorder traits but seems to have been reasonably adjusted in custody for the preceding 12 months.  Dr Lenardon observed no evidence of psychopathy.  She noted that the respondent appeared to have borderline intelligence.
16. [16]
    Dr Lenardon identified certain matters (lack of psychopathy and major mental disorder, lack of extreme denial or minimisation or blame on others, institutional conduct, advanced aged and physical fragility) as limited protective factors.  She noted the absence of protective factors suggesting an active gain or improvement by the respondent such as development of insight into his offending or the development of a relapse prevention plan.  Although she noted the respondent’s continuing refusal to engaging in treatment for his sexual offending, Dr Lenardon considered it likely, given his poor response to previous treatment programs and his cognitive deficits, that even if the respondent engaged in further psychological treatment, the therapeutic gain would be minimal.
17. [17]
    As to the question of risk, Dr Lenardon stated as follows:

“Mr Guy continues to pose an unacceptable risk of reoffending if released in the community without supervision.  Mitigating strategies to prevent further offending would rely on external measures, such as no access to community unsupervised and no access to vulnerable victims.  Based on Mr Guy’s offending history, potential victims would be underage or vulnerable females.  Offending could be opportunistic and impulsive or could involve a degree of preparation (i.e, grooming of the victim).  The offending could escalate to serious violent sexual offences.

If released in the community, Mr Guy will require placement in a nursing home due to his chronic physical condition.  The nursing home should have only male residents.  Staff members should be able to monitor Mr Guy’s movements within the nursing home to prevent unsupervised access to potential victims.  Mr Guy should not access [the] community unsupervised.  Regular liaison with nursing home staff by the supervising officer should continue in order to support staff and monitor Mr Guy’s risk.”

18. [18]
    During her oral evidence, Dr Lenardon clarified that her reference to an “unacceptable” risk of reoffending in the passage extracted above meant at least a moderate unmodified risk of sexual recidivism by the respondent.  Her reference to “serious violent sexual offences” in the passage extracted above reflected the fact that the respondent’s prior offending involved a level of physical coercion and prolonged conduct in circumstances where the victim clearly expressed distress.  Dr Lenardon also referred to her assessment that the respondent is likely to be highly institutionalised as being relevant to risk assessment where a pathway to the respondent’s earlier offending appeared to be frustration in the context of increased stressors and maladapted coping strategies.

Dr Arthur

19. [19]
    Dr Ken Arthur assessed the respondent at the Townsville Correctional Centre on 23 June 2023.  His diagnosis of the respondent remains that set out in his previous reports: that is one of a personality disorder with predominant antisocial traits in the context of borderline intellectual functioning.  He again referred to the respondent’s slowly progressing Parkinson’s disease.  As in his earlier reports, Dr Arthur observed that while the respondent has a history of offending against children, there is no clear evidence of a paraphilic disorder.
20. [20]
    Dr Arthur concluded that the respondent’s static risk factors remain unchanged from his previous assessments.  Likewise, his dynamic risk factors remain mostly unchanged.  Dr Arthur repeated his observation from his earlier reports that the most significant risk factors for recidivism in persons aged over 70 are the presence of persistent sexual deviance and evidence of severely disturbed personality, such as psychopathy.  Dr Arthur observed that there is no convincing evidence that the respondent has a persistent deviant sexual drive or suffers from a sexual paraphilia.
21. [21]
    Taking these various factors into account, Dr Arthur described the respondent’s unmodified risk of sexual recidivism on release as being low to moderate.  This risk could be further reduced to low by the application of a supervision order which would limit victim access.
22. [22]
    Dr Arthur considered that, given the respondent’s behaviour in the community upon release remains untested, it would be prudent to limit his unsupervised access to female children or vulnerable adult women.
23. [23]
    Dr Arthur acknowledged that, in light of the difficulties which Queensland Corrective Services (QCS) staff have had in sourcing suitable nursing home accommodation, alternate accommodation options should be considered.  He stated that a supported living arrangement in either a hostel-type environment or shared care household may be a viable alternative to a nursing home.  Dr Arthur considered that ideally this should be a male-only facility even though he regards the respondent as presenting a low risk of harm to women who do not have significant physical or cognitive disabilities.  Dr Arthur’s preference remains that the respondent be supervised when he accesses the community, even though he does not have a history of offending in public places against children who are not known to him.
24. [24]
    During his oral evidence, Dr Arthur expressed a concern that, in circumstances where the respondent can be quite impulsive and act without thinking about consequences, the threat of punishment or sanction may not necessarily limit his behaviour upon his release into the community.  Dr Arthur also noted that, although he considered the risk that the respondent’s risk of sexual recidivism to be low, the potential seriousness of the consequences if the risk was to eventuate and the respondent offended against a child remained a concern.

The issue of suitable accommodation

25. [25]
    The only form of accommodation which the executive government provides to persons released to supervision orders under the DPSO Act is contingency accommodation at precincts located in Wacol and Townsville.  That contingency accommodation is not suitable for the respondent as it would not permit him to receive the level of support he would require if he was to be released.  No external domestic, daily living or medical supports are provided within the contingency accommodation due to safety concerns arising from what Mr Robinson, the Acting Manager of the High Risk Offender Management Unit (HROMU) in QCS, described as “the absence of staffing to facilitate or supervise access” by external care and support services.^[5]
26. [26]
    When this application for review of the continuing detention was heard, the position remained as it has been since the continuing detention order was made: neither QCS nor the respondent has been able to identify suitable accommodation for the respondent at a nursing home. 
27. [27]
    As to other potential accommodation options, Mr Robinson gave evidence that QCS has engaged with a “care finder agency” which assisted QCS in another case to identify suitable accommodation and care options other than full-time residential care in a nursing home.  Mr Robinson stated that, within the limits of its available resources, QCS has continued to search for a solution to the respondent’s accommodation needs.  Consequently, the scope of potential accommodation options which QCS is investigating has expanded since the previous review but the result of those investigations remains the same: to date, QCS has yet to identify any form of supported accommodation where it could reasonably and practically manage the supervision of the respondent if he was to be released on a supervision order.

The parties’ positions

28. [28]
    The Attorney-General submitted that on this review the Court would, again, affirm the original decision of Holmes CJ that the respondent is a serious danger to the community in the absence of a Division 3 order under the DPSO Act and order that the respondent continue to be subject to the continuing detention order. 
29. [29]
    The respondent accepted that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order, such that the original decision of Holmes CJ J should be affirmed.  However, he submitted it is clear on the evidence that (if the contingency accommodation could meet the respondent’s requirements for care and support) he could be safely released on a supervision order.  The problem remained in sourcing accommodation that meets both the requirement on the one hand for QCS to reasonably and practically manage the respondent’s supervision, and on the other the respondent’s need for care and support. 
30. [30]
    Concerns have been raised on several occasions about the lack of suitable accommodation and it being the cause of the respondent’s continued detention.^[6]  However, the respondent did not advance an argument that his continued detention due to there being no suitable accommodation where his supervision could be reasonably and practically managed by QCS affected the valid operation of the DPSO Act.^[7]  Counsel for the respondent also frankly conceded that no supervision order could be made until suitable accommodation has been secured.  That is, accommodation which meets the respondent’s need for care and support but in a setting that limits his access to potential victims.

Consideration

31. [31]
    The evidence before me, including that given by the psychiatrists on the question of the risk of sexual reoffending, is acceptable and cogent.  On the basis of that evidence, and having regard to the matters set out in s 13(4), I am satisfied to a high degree of probability that the respondent is a serious danger to the community in the absence of a Division 3 order and that the decision made on 27 March 2017 should be affirmed.
32. [32]
    Turning then to question of what type of order should be made, I find myself in the same position as that of Applegarth J on the previous review.  The absence of suitable accommodation means that the risk the respondent presents is not able to be reasonably and practically managed in the community under a supervision order.  In those circumstances, I have no real choice but to refuse to make an order that the respondent be released subject to a supervision order and, instead, order that the respondent continue to be subject to the continuing detention order. 
33. [33]
    During oral submissions, counsel for the Attorney-General submitted that the respondent’s specific circumstances and the absence of accommodation where QCS could reasonably and practically manage his supervision meant that, unlike some others who come within the operation of the DPSO Act, the default position for the respondent is not that of release under a supervision order but of his continued detention.^[8]  This is both an accurate description of the respondent’s position and a matter of great concern.  It is, as counsel for the Attorney-General submitted, the result of the operation of the DPSO Act.  But it is also the result of the executive government’s continuing failure to find, and refusal to provide or facilitate, suitable accommodation for persons in circumstances such as those of the respondent. 
34. [34]
    The respondent’s position was also aptly described by Applegarth J as that of being in a revolving door.^[9]  More than 18 months after that decision was delivered the door continues to revolve; the position remains essentially the same as it has been since the continuing detention order was made.
35. [35]
    In response to issues which have arisen in relation to housing persons released from custody under a supervision order, QCS has formed a Multi-Agency Protection Panel Committee (MAPPC) comprising representatives from QCS, Queensland Police Service, Department of Justice and Attorney-General, Crown Law, Department of Communities, Housing and Digital Economy and Queensland Health.  It is intended that issues involving complex matters under the DPSO Act will be tabled at MAPPC meetings to determine how the various agencies might work together to seek solutions to issues including the health and housing needs of persons in circumstances such as those of the respondent.
36. [36]
    Whether the creation of the MAPPC succeeds in addressing the lack of suitable accommodation to which the respondent could be released under a supervision order remains to be seen.  The first meeting was held on 13 November 2023 and was focussed upon seeking to agree a framework for future meetings.  It appears that the next MAPPC meeting was then to occur on 27 May 2024.  Regrettably, that level of engagement does not indicate any real urgency in seeking to address the issue which the respondent’s continued detention under the DPSO Act raises, namely that persons who should be released under a supervision order remain in prison years after serving the full term of their sentence because that is the only option under the legislative scheme.

Conclusion

37. [37]
    The orders I make are:

    1. pursuant to s 30(1) of the DPSO Act, the decision made on 27 March 2017 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSO Act, be affirmed.
    2. pursuant to s 30(3)(a) of the DPSO Act, the respondent continue to be subject to the continuing detention order made on 27 March 2017.