Attorney-General v Nelson-Adams
[2025] QSC 136
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Attorney-General v Nelson-Adams[2025] QSC 136
- Add to List
Attorney-General v Nelson-Adams[2025] QSC 136
Attorney-General v Nelson-Adams[2025] QSC 136
SUPREME COURT OF QUEENSLAND
CITATION: | Attorney-General (Qld) v Nelson-Adams [2025] QSC 136 |
PARTIES: | ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v JAMIE CHRISTOPHER NELSON-ADAMS (respondent) |
FILE NO/S: | BS 1558 of 2020 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 6 June 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 31 March 2025 |
JUDGE: | Muir J |
ORDERS: |
|
CATCHWORDS: | CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the respondent is subject to a Supervision Order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) – where the respondent is an Indigenous transgender woman who sexually offended once as a child and once as an adult 16 years later – where the respondent was charged and convicted for contravening conditions of the Supervision Order – where the respondent’s contraventions did not involve the commission of sexual offences – where the applicant seeks to detain the respondent in custody for an indefinite term for care, control or treatment under the Act – where the applicant, in the alternative, seeks for the respondent to be released from custody subject to the Supervision Order – where psychiatric evidence characterised the respondent’s risk of sexual offending as ‘moderate to high’ – where the respondent submits that she should be released from custody subject to the Supervision Order – whether the respondent’s release from custody under the Supervision Order would provide adequate protection to the community against the commission of a serious sexual offence Dangerous Prisoners (Sexual Offenders) Act 2003 s 2, s 13, s 16, s 22, s 24, s 43AA Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, followed Attorney-General (Qld) v Nelson-Adams [2021] QSC 257, considered Attorney-General (Qld) v Possum [2021] QSC 145, followed Attorney-General (Qld) v Thaiday [2021] QSC 227, considered Black v Attorney-General (Qld) [2022] QCA 253, considered Kynuna v Attorney-General (Qld) [2016] QCA 172, followed |
COUNSEL: | J Tate for the applicant A Beard for the respondent |
SOLICITORS: | LC Ling, Crown Law for the applicant Legal Aid Queensland for the respondent |
Introduction
- [1]
- [2]On 8 May 2024, the respondent pleaded guilty in the Southport Magistrates Court to contravening several of the requirements of the Supervision Order and to a myriad of other charges for which she was sentenced to an effective head sentence of 18 months imprisonment with a parole eligibility date of 7 May 2025.[3]
- [3]By this contravention proceeding under s 22 of the Act, the Attorney-General for the State of Queensland applies to rescind the Supervision Order and replace it with a Continuing Detention Order.[4] Alternatively, the Attorney-General seeks the release of the respondent on a further supervision order, with any amendments the Court considers appropriate.
- [4]The respondent concedes that she has contravened the Supervision Order in the ways alleged, but opposes a Continuing Detention Order being made. She instead seeks to be released from custody (if parole is granted) so that she can continue being subject to the requirements of the Supervision Order.
- [5]The real issue for this court’s determination is whether the respondent has satisfied the Court on the balance of probabilities that the existing Supervision Order, despite the contraventions, provides adequate protection to the community from the respondent committing a serious sexual offence.
- [6]For the reasons that follow, I am satisfied that it does.
Relevant factual context
- [7]The respondent was raised in New South Wales and Queensland. Her early life was marred by dysfunction in every sense; including exposure to drugs, alcohol, domestic violence, physical and sexual abuse and suicide, a lack of parental guidance and support, and a dislocated education.
- [8]In her teenage years, the respondent used alcohol, drugs (mainly cannabis and amphetamines) and committed various crimes. She was expelled from school after a violent incident involving the school principal. The respondent’s mother was unable to manage her and her brother’s behaviour, so she sent them to the care of their father. There, the children were exposed to sexualised behaviour and drug use. At one stage, the applicant stabbed her father in the leg. By this point, the respondent was engaging in self-harm behaviours including running into traffic, overdosing and inciting a snake bite. Over her adolescent years, the respondent was placed in various juvenile institutions.
- [9]The respondent’s criminal conduct continued into adulthood. Her offending has been extensive, diverse and serious. It includes convictions for property, burglary and weapons offences, dangerous driving, and breaches of various probation and parole orders. The respondent’s custodial terms have been characterised by frequent breaches including assaults, the use of weapons, diversion of medication and possession of drug utensils. There have also been periods of self-harm, resulting in the respondent spending time in detention units and secure units, and being subject to safety orders.
Proceedings under the Act
- [10]The respondent has come to be subject to orders under the Act by two separate instances of sexual offending against children, including one when she was still a child herself.
- [11]The first occurred on an unknown date between 24 December 1999 and 21 January 2000, when the respondent was aged 13. The complainant was the respondent’s stepsister who was aged 6 or 7. The offending involved the respondent procuring the complainant to lick, touch or suck the respondent’s penis and then holding the complainant down with the respondent’s penis coming into contact with the complainant’s vaginal area. The respondent was found guilty after a trial of two counts of indecent treatment of a child under 16, under 12 and one count of deprivation of liberty. She was sentenced to a lengthy period of probation on 18 May 2006, by which time she was 20 years old.
- [12]The sentencing judge highlighted that at the time of the offending, the respondent had been living with her father, during which she was exposed to drug-taking behaviour, sexual contact between adults, and verbal and physical violence. The respondent subsequently breached the probation order by committing other serious (non-sexual) offences. The probation order was revoked and the respondent was resentenced to a suspended sentence, which she subsequently breached by committing more serious (non-sexual) offences. Unsurprisingly, the suspended sentence was then activated.
- [13]Some 11 years later on 3 July 2016 (and over 16 years after the commission of the first sexual offence), the respondent committed another offence of a sexual nature. This offending concerned a 10-year-old complainant who was the neighbour and friend of the respondent’s niece. The respondent and complainant were watching television together when the respondent placed her arm down the front of the complainant’s clothing and grabbed and squeezed the complainant’s breast area. The respondent was heavily intoxicated at the time. Shortly after this incident, on 5 July 2016, the respondent kidnapped a woman and held her at knife point.
- [14]On 26 July 2017, the respondent was found guilty of one count of indecent treatment of a child under 12. On 24 August 2017, the respondent pleaded guilty to the kidnapping offence and was sentenced to four years imprisonment. On that date, she was also sentenced to a three-month concurrent term of imprisonment for the indecent treatment of a child under 12 offence.
- [15]Subsequently, the Attorney-General brought an application under Part 2, Division 3 of the Act. The contested application was heard on 15 June 2020 by Wilson J.[5] At the time of the hearing, the respondent had completed numerous vocational courses but denied any sexual offending and had declined offers and opportunities to undertake sexual offending specific programs. This is an attitude that the respondent maintains to this day.
- [16]The evidence before Wilson J related to the respondent’s significant prejudicial history, including her being exposed to high levels of violence and having been prematurely sexualised. The respondent was observed to have a poor pattern of interpersonal relationships, relying on sex as a coping strategy and having a demeaning and disrespectful attitude to women in general. The respondent was also described as a person with a considerable history of alcohol and substance abuse who minimised the seriousness of her offending.
- [17]On the medical evidence, there was reference to the respondent having a diagnosis of schizophrenia with reports of auditory hallucinations. The diagnoses as emerged from the evidence of three psychiatrists (Dr Moyle, Dr Beech and Dr Sundin) were as follows:
- Anti-social personality disorder with psychopathy;
- Polysubstance use disorder in remission;
- Possible non-specific psychotic disorder in remission;
- Possible paedophilia; and
- Borderline or mild intellectual disability.
- [18]All three psychiatrists maintained, and Wilson J accepted, that there was a concern that the respondent’s general and violent offending would escalate in the presence of intoxicants and in times of emotional upheaval. It was suggested that, because the respondent had not undertaken any treatment programs for sexual offending, the nature of her sexual offending was unable to be fully explored. It was also, therefore, unknown whether the respondent’s offending represented a sexual deviance such as paedophilia, or a psychopathic tendency to take advantage of vulnerable people when the urge arose. In those circumstances, the risk of sexual offending was classified as ‘high’, particularly in the context of the consumption of intoxicants.
- [19]Ultimately, Wilson J was satisfied that the respondent presented a serious danger of committing a serious sexual offence and made an order that the respondent be detained for an indefinite term for care, control or treatment. The specific risk was said to be “opportunistic touching behaviours going all the way to attempted rape or [sic] of children to whom the respondent is related or known to him”.[6]
- [20]The Continuing Detention Order was reviewed pursuant to Part 3 of the Act on 12 October 2021 by Callaghan J.[7] At that review, his Honour rescinded the Continuing Detention Order and made a Supervision Order for 10 years with 46 requirements.[8] It was not in contest that the evidence was sufficient to support a finding “on strict application of the Act” that the respondent posed a danger to the community of committing a serious sexual offence if released without being subject to a supervision order.[9]
- [21]In making this finding and the Supervision Order, Callaghan J relevantly and, in my respectful view, correctly observed that “[t]his was not the type of case within the contemplation of the legislators who created a regime that provided for indefinite terms of detention.”[10] In making these observations, Callaghan J also noted that the application of the Act in the case of a person “like the respondent” must have profound implications for the limited resources allocated to its administration.[11] This observation, and the opinions expressed by both psychiatrists at that review hearing (Dr Beech and Dr Sundin) regarding the respondent’s minimal engagement with treatment and the low likelihood of her complying with the terms of the Supervision Order, have proved to be prophetic.
Previous contraventions of the Supervision Order
- [22]The present contravention proceeding is not the respondent’s first.
- [23]On 5 February 2024, a contravention proceeding was heard by Kelly J.[12] This contravention related to the respondent removing her electronic monitoring device, discarding it in a bin on a train, and absconding. The respondent also attempted to carjack a vehicle whilst armed, with her stated intention being to drive interstate to see her former partner and her former partner’s child. The contraventions came to light when the respondent disclosed to her treating psychologist that she had been contacting women, who a friend had found for her on a dating site, for sexual purposes. This led to the respondent forming a relationship with a female, and meeting up with her ex-partner and having sex. The respondent identified her ex-partner as having an eight-year-old daughter, with whom the respondent spoke to multiple times a day by phone. It subsequently emerged that the child did not exist, and the respondent had been misled as to her existence.
- [24]The respondent remained in custody for this offending until Kelly J made orders to release her under an amended Supervision Order with an extended expiration date of 22 December 2032.
- [25]The decision to release the respondent under the Supervision Order on this occasion was underpinned by several factors, including the evidence of two psychiatrists (Dr Brown and Dr Phillips). Dr Phillips assessed the respondent’s risk of future serious sexual reoffending as in the moderate to high range if released from custody without a supervision order, with the risk of future physical and general offending being in the high range. Dr Phillips’ opinion was that if the respondent was released on a supervision order in the context of individual psychological intervention, abstinence from alcohol and illicit substances, and robust supervision in the community, then her risk of sexually reoffending would be in the moderate range.
- [26]Dr Brown was initially concerned about the respondent’s fixation on an eight-year-old female. But, by the time of the hearing, Dr Brown’s concerns were allayed by the respondent’s acceptance that she did not have a daughter and her expressed sadness, anger and shame about the situation. Dr Brown otherwise agreed with Dr Phillips’ assessment that the respondent’s risks of committing a serious sexual offence were no different to the risks as described by Callaghan J in October 2021.
- [27]A further and obviously relevant factor observed by Kelly J was that there was no suggestion that any of the contraventions were offences of a sexual nature.
- [28]Before turning to the current contraventions, it is instructive to set out the relevant statutory context by which contravention proceedings under the Act are to be determined.
Statutory context
- [29]Contravention proceedings under s 22 of the Act involve a two-part, cascading process:
- First, the determination of whether there has been a contravention; and
- Second, if there has been a contravention, the exercise of a discretion to rescind or amend the supervision order as appropriate.
- [30]The onus is on the Attorney-General to satisfy the Court on the balance of probabilities that the respondent has contravened the supervision order.[13] Once the Court is satisfied that the order has been contravened, the onus shifts to the respondent to satisfy the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its current form or as amended.[14]
Step one: Contraventions of the supervision order
- [31]It is not in issue that after the respondent was re-released to the Supervision Order in February 2024, she was in the community for about three months before she again contravened the requirements of the Supervision Order.
- [32]The lengthy and detailed circumstances of these contraventions are set out in the material. Essentially, similarly to the first contravention, the respondent absconded from the Wacol precinct, travelled toward the New South Wales Border in a vehicle, and attempted to remove her electronic monitoring device. The respondent subsequently told the psychiatrists (Dr Brown and Dr Phillips) that she had learned her ex-wife had died some years earlier and she wanted to visit her grave, despite not knowing the location (other than somewhere in South Australia).
- [33]The contraventions also included the respondent purchasing a PlayStation without approval; being found in possession of an internet capable device which she then used to contact old associates; and possessing a photo of her ex-wife and stepdaughter on her phone, obtained through an unapproved visitor to the Wacol precinct. There is a suggestion too that the respondent may have used social media and dating websites.
- [34]On 9 August 2024, the respondent pleaded guilty in the Southport Magistrates Court to five contraventions under s 43AA of the Act, including:
- Contravene relevant order by tampering with monitoring device;
- Contravene relevant order, namely condition 14 (curfew);
- Contravene relevant order, namely condition 6 (reasonable directions – answer phone);
- Contravene relevant order, namely condition 19 (provide vehicle details); and
- Contravene relevant order, namely condition 20 (not possess phone without authority).
- [35]The respondent was also charged and convicted for unlawful use of a motor vehicle, unlicenced driving, possessing (two) knives in a public place, and contravening an order about information necessary to access information stored electronically. Convictions were recorded on each of these counts. The respondent was sentenced to 18 months imprisonment for the contravention offending, with lesser concurrent sentences for other offences. A period of 93 days was declared as time served, and a parole eligibility date was set at 7 May 2025.
- [36]The respondent accepts the contraventions. I find the contraventions, as particularised, to be proved.
Step two: Exercise of the discretion to rescind or maintain the Supervision Order
- [37]Where the contravention has been established (as here), s 22(2) of the Act casts an onus upon the respondent to prove on the balance of probabilities that the adequate protection of the community can be ensured by a supervision order. The term “adequate protection of the community” as it appears in s 22 bears the same meaning as it bears in s 13 of the Act.[15]
- [38]Despite the respondent’s repeated contraventions of the Supervision Order, including the contraventions giving rise to the present application, it is relevant to note that the respondent has not committed a sexual offence, which would have constituted a breach of the condition which appears in all supervision orders by force of s 16(1)(f) of the Act. The fact that the respondent has not committed a “serious sexual offence” means that the purpose of the Supervision Order, being to protect the community against the commission of such offences, has been fulfilled to date.
- [39]The issue on this contravention application is whether it will continue to do so. The Attorney-General submits that the adequate protection of the community cannot be sufficiently ensured by the Supervision Order. The respondent (on whom the onus lies) submits that it can.
- [40]The exercise of discretion to rescind or maintain the Supervision Order is assisted by the psychiatric evidence.
The psychiatric evidence
- [41]Dr Phillips and Dr Brown provided reports in the current contravention proceeding and were cross-examined before me. The Attorney-General relies on the evidence of both Dr Phillips and Dr Brown in their respective Risk Assessment Reports and clinical reviews of the respondent to support its submission that the adequate protection of the community cannot be ensured by the respondent’s release into the community under a supervision order. As such, the applicant submits that the Supervision Order should be rescinded, and a continuing detention order made under s 22(2) of the Act.
- [42]It is relevant to note that the respondent conceded that the psychiatric evidence and findings in earlier decisions under the Act establish that the respondent does pose a relevant risk of serious sexual offending. That risk is said to be of the sexual assault, rape or indecent dealing with a female child. At this point, I reiterate the earlier concerns about the wide reach of the Act, in encompassing a person who has sexually offended in the way the respondent has. But, I also accept that the evidence in this case supports a finding that she does pose a relevant risk under the Act. It must not be overlooked, too, that the respondent’s lack of engagement and cooperation with psychiatrists and authorities more generally, and her continued refusal to accept responsibility for her earlier sexual offending, has made the task of assessing the nature and likelihood of the risk she poses very difficult.
The respondent’s diagnoses
- [43]The psychiatric evidence as to the respondent’s various diagnoses remains relatively consistent. Those diagnoses include psychopathy, a severe antisocial personality disorder and a substance use disorder (alcohol, cannabis, and stimulants). Dr Phillips described a feature of the respondent’s personality disorder to include pseudo-hallucinations, or hearing voices saying derogatory comments about the respondent and telling her to harm others. Both Dr Brown and Dr Phillips opined that the respondent may also have some cognitive impairments secondary to several serious head injuries. Dr Phillips further suggested the possibility that the respondent has post-traumatic stress disorder related to her history of childhood sexual abuse.
- [44]The respondent is currently in remission for her substance abuse disorder in a controlled (custodial) environment.
Risk of sexual offending
- [45]Both Dr Brown and Dr Phillips classified the respondent’s current unmodified risk of future serious sexual offending at the ‘moderate to high’ range. They also both agreed that the respondent’s diagnoses of antisocial personality disorder and psychopathy increase her risk of reoffending both generally and sexually. In Dr Brown’s opinion, the fact of the previous sexual offending, in itself, increased the risk of the respondent committing further sexual offences.
- [46]In her report dated 23 January 2025, Dr Phillips made the following relevant observations as to the respondent’s risk of sexual offending:
“It is difficult to offer a sophisticated formulation of the sexual offending, given Ms Nelson-Adam’s categorical denial of the prior sexual offences. In addition, formulation is made difficult by the fact that the initial offences occurred when aged 13 and in the context of a markedly prejudicial upbringing, and the next sexual offence did not occur until the age of 30 and involved sexual offending at the lower end of severity. The later offence appeared to occur opportunistically when intoxicated with alcohol. She has a history of a high libido and sexual preoccupation.
It is most likely that Ms Nelson-Adams is a generalist offender, who takes advantage of vulnerable people in the vicinity as a result of her psychopathic personality whilst disinhibited from intoxication, rather than having a specific sexual deviance towards pre-pubescent females. However, there does remain the possibility that she has paedophilic interests which she has not been prepared to disclose. If this is the case, the risk of sexual re-offending would be higher.
The future risk of sexual re-offending would increase in the setting of relapse to substance use, acute intoxication or psychosocial stressors. Ms Nelson-Adams has limited adaptive coping skills to manage psychosocial stressors and would be at risk of emotional collapse and returning to her long-standing maladaptive patterns of substance use in the context of psychosocial stressors. The risk of sexual re-offending would also increase in the setting of increased sexual pre-occupation or rejection of supervision. There is the potential for the risk of sexual re-offending to quickly escalate, particularly in the context of relapse to substance use. The victim of future offending would likely be a pre-pubescent female, who may be a stranger, acquaintance or a relative.
One potential scenario for future sexual offending is that Ms Nelson-Adams will sexually re-offend in a similar manner to the previous sexual offending. That is, the offending may involve kissing, touching of the breasts, having the victim touch Ms Nelson-Adams’ penis, attempting to procure oral sex or having their penis in the vicinity of the victim’s vagina. A further scenario is that Ms Nelson-Adams will escalate in the severity of sexual offending, which may include attempted or actual penetrative sexual offending. Future sexual offending has the potential to cause significant physical and psychological harm to the victims.”[16]
- [47]Dr Phillips further opined that if the respondent were to again abscond from supervision, her risk of serious sexual offending would increase. Similarly, Dr Brown raised concerns with the respondent’s repeated attempts to remove her electronic monitoring device and leave the state, as:
“if she were to be successful, it may take a lot longer to locate her and in these circumstances her risk of violence and sexual violence (and intoxication) would rapidly increase.”[17]
- [48]Dr Phillips gave oral evidence that intoxication was not necessarily a precondition to the respondent offending sexually, but that it would elevate the existing risk in this regard. Dr Brown made similar comments, and said further that were the respondent not apprehended by police when she absconded most recently, “I have no doubt that at some point, she would have used an intoxicant because that’s been her pattern her whole life”.[18]
Lack of paedophilia diagnosis
- [49]The respondent does not currently have a diagnosis of paedophilia or paraphilia, but neither psychiatrist excluded that possibility. Although, Dr Brown observed that the respondent’s primary sexual interest appeared to be in adult women. In her most recent report and in oral evidence, Dr Phillips described the respondent as “essentially an untreated sexual offender” given her lack of engagement in any sexual offender treatment programs.[19] Similarly, Dr Phillips opined that the respondent was not a suitable candidate for group sexual offending programs because of “her psychopathic personality, and risk of violence to co-participants.”[20] I note that the respondent’s lack of engagement in treatment is also a concern of her treating psychologist in custody, Dr Ward.
- [50]Dr Brown reiterated under cross-examination that the lack of certainty around the respondent’s diagnosis of paedophilia was due to the respondent not having discussed any paedophilic desires with treating psychiatrists, and her refusal to engage in sexual offender treatment. As a result, said Dr Brown, it was not possible to know whether the respondent was, in the words of Dr Phillips, “a generalist offender” as opposed to someone with “a specific sexual deviance towards prepubescent females”.[21]
A “pattern” of offending[22]
- [51]In cross-examination, Dr Brown’s opinion that the respondent had displayed a “chronicity” or “pattern” of sexual offending was challenged in light of the 16 year gap between the two instances of sexual offending and the fact that the first series of offending may have been characterised as “the acting out of an emotionally disturbed teenager”.[23] Dr Brown clarified that the “pattern” she referred to was “a pattern of sexual offending”, as in, there was more than one sex offence.[24] I accept her evidence so confined. Of course, whilst any sexual offending is serious and deplorable, the nature of the respondent’s last sexual offending is, on any view, at the lower end of the spectrum for offending of a sexual nature. That assessment, coupled with the fact that the other offending was committed more than 16 years earlier when the respondent was 13 years old, does not establish any broader pattern and certainly not any progression of sexual offending.[25]
Prior and future contraventions
- [52]Much of the evidence given by Dr Brown and Dr Phillips focused on the respondent’s contravention history and poor compliance with supervision orders under the Act. Dr Brown pointed to the respondent’s poor behaviour while in custody, and a conversation with the respondent in which the respondent said she would not return to precinct accommodation and should she be forced to reside there, she would commit a breach or offence so as to return to prison. In relation to the most recent contravention, Dr Brown considered that “[t]he risk of a return to custody was not a deterrent and quite possibly the preferred outcome.”[26] Dr Phillips similarly considered there to be a “high likelihood” that the respondent would attempt to breach the Supervision Order by again not disclosing associations, procuring another mobile phone, and using substances.[27]
- [53]Dr Phillips considered that the respondent was not suited to supervised release due to her “psychopathic personality; willingness and ability to be deceptive, conning [sic] and manipulative; and her history of not abiding by Court Orders.”[28] In evidence in chief, Dr Phillips clarified the last point insofar as it related to sexual offending. She said that “in order for the Supervision Order to have an effect at reducing [the respondent’s] level of sexual reoffending, it requires her to abide by the conditions of the supervision order.”[29]
- [54]Dr Phillips noted that the respondent was “adamant” that she did not want to be released on supervision unless she had permission to travel to an unknown location to see the father of her stepdaughter, to obtain her stepdaughter’s phone number and contact her to ask where her mother’s grave is, to visit her ex-wife’s grave (likely interstate), to engage face-to-face with the transgender community, and not to reside at the Wacol precinct.[30] Dr Phillips also referred to “thinly veiled threats to commit an act of serious physical violence in custody” if the Court decided to release the respondent on a supervision order without these demands being met, as well as threats to kill other residents at the precinct should they touch her.[31]
Alternatives proposed
- [55]Dr Brown and Dr Phillips each opined that it would be clinically appropriate for the respondent to recommence individual psychological treatment in custody prior to release into the community. Dr Phillips suggested that the purpose of such treatment would be to gain a better understanding of the drivers of the respondent’s previous sexual offending and the dynamic risk factors for future sexual re-offending, as well as improving the respondent’s adaptive coping skills, implementing interventions aimed at her personality dysfunction, and developing a robust Relapse Prevention Plan. Dr Brown also suggested that there be an agreed plan in relation to appropriate transgender supports and management, both in custody and on release.
Consideration
- [56]In making the original supervision order, Callaghan J was alive to the risk that the respondent may breach its terms, but not necessarily by committing a serious sexual offence. His Honour noted: “the relevant test does not require me to ask whether such an order would be breached but demands consideration of what that breach would mean.”[32]
- [57]I accept Dr Phillips’ suggestion that the respondent may be better characterised as a generalist, rather than a specific sexual offender, with intoxication being a key driver of her offending behaviour. That finding is made in the absence of evidence of paedophilic desires or tendencies on the part of the respondent, although I note neither psychiatrist ruled out this possibility. I also accept the evidence that the Supervision Order has been effective in restricting the respondent’s alcohol and drug-seeking behaviour, and that the respondent has now demonstrated periods of abstinence while in supervised environments.
- [58]With respect, there were some aspects of the psychiatrists’ conclusions which I am unable to accept on the basis that they are not supported by the evidence. For example, while I accept Dr Brown’s evidence that previous sexual offending can and does increase the risk of committing further sexual offences, I am not satisfied that this reasoning can be said to apply in this case. The respondent has not demonstrated a pattern of sexual offending. Rather, she has offended sexually twice in her life, once very seriously as a troubled child, and then 16 years later (now some nine years ago) at a lower end of offending as a heavily intoxicated adult.
- [59]Overall, this is a troubling case, complicated by the accepted lack of appropriate accommodation available to the respondent given her transgender status. It is also complicated by the applicant’s unwillingness to engage with psychiatrists and psychologists, and her proven track record of poor compliance with the Supervision Order. The respondent’s lack of engagement in sexual offender treatment programs and her contravention history is concerning.
- [60]There was suggestion in the material before me that the respondent did not wish to be released until her considerable demands for appropriate accommodation were met. That position was clarified through the respondent’s counsel, and the respondent accepts that, as it stands, the only appropriate place for her to reside is as currently apprehended under the Supervision Order; that is, the Wacol precinct.
- [61]The fact that this is the respondent’s second rather brazen contravention of the Supervision Order is of concern. But as Davis J relevantly observed in Attorney-General for the State of Queensland v Possum [2021] QSC 145:
“[p]ersistent 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.” [33]
- [62]This case becomes less troubling when the distinction between the risk of the respondent contravening the Supervision Order, and the risk of the respondent committing a serious sexual offence within the meaning of the Act, is recognised. It is not the purpose of the Act to allow for the continued detention of individuals who pose a risk of criminal offending or contravening a supervision order, even if that risk is said to be high. The object of the Act is to provide for the continued detention or supervised release of a particular class of prisoner, being prisoners who pose an unacceptable risk of committing a serious sexual offence, to ensure adequate protection of the community.[34]
- [63]Relevantly, in Kynuna v Attorney-General for the State of Queensland [2016] QCA 172, the Court of Appeal endorsed the observations of an earlier decision of that Court (Attorney-General v Francis [2007] 1 Qd R 396) as follows:
“[t]his Court made plain that if the supervision of a prisoner is apt to ensure adequate protection of the community under the Act, having regard to the risk to the community posed by the prisoner, then an order for supervised release should be preferred to a continuing detention order. This is because the intrusions of the Act upon the liberty of the subject are exceptional and the liberty of the subject should be constrained to no greater extent than warranted by the Act. It is not contemplated under the Act that supervision orders must be watertight; otherwise they would never be made.”[35]
- [64]With those observations in mind, I am satisfied on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the Supervision Order in its current form, for several reasons.
- [65]First, the Attorney-General conceded in written submissions that the Supervision Order has proved effective in ensuring the safety of the community, with the requirements operating as a set of “trip wires” to manage the respondent’s risk of re-offending.[36] I am satisfied that the Supervision Order can continue to provide adequate community protection because, among other things, the contraventions have always been quickly detected and the respondent promptly detained.
- [66]Second, none of the contraventions committed by the respondent at any stage have involved the commission of an offence of a sexual nature.[37] In this case, the contravention did not involve the consumption of alcohol or illicit substances which are accepted to be risk factors for the respondent’s offending. It is also significant that each time the respondent has absconded, she has disclosed her plan to do so or attempted to seek permission to travel.
- [67]Third, the respondent has now absconded multiple times while subject to supervision, but has never sexually offended in these circumstances. The respondent formed a sexual relationship with an ex-partner previously which, while a breach of the Supervision Order, did not constitute sexual offending. It follows that I do not accept the evidence of Dr Brown that were the respondent to abscond again and potentially attempt to travel interstate, her risk of sexual violence would “rapidly increase”.[38] Such an outcome, in my respectful view, is highly speculative.
- [68]Fourth, the respondent’s previous contraventions of the Supervision Order do not necessarily mean that her risk of sexual offending is heightened. In Black v Attorney-General (Qld) [2022] QCA 253, it was found that:
“[t]he primary judge had become distracted from her main task, which was to assess whether or not there could be the adequate protection of the community from the risk of [the respondent] committing a serious sexual offence if released on a supervision order.”[39]
- [69]That distraction was an undue focus on the likelihood that the supervision order would not be complied with in other ways.[40]
- [70]I therefore find that the respondent has discharged her onus and I order that she be released subject to the existing Supervision Order.
- [71]One final note regarding accommodation. As discussed above, some of the evidence suggests that the respondent does not wish to return to the Wacol precinct. However, it seems there is no real alternative if she is to be released. At the hearing, counsel for both parties informed the Court that there are no female respondents under the Act, and, unsurprisingly in that context, there are no supervised precincts for women available. Under the current Supervision Order, Queensland Corrective Services maintain authority to indicate where risk can be appropriately managed. In this case, counsel for the Attorney-General submitted, and I accept, that the only place for the respondent’s risk to be managed is at the Wacol facility. As such, I do not propose (nor was I asked) to amend that condition of the existing order.
Footnotes
[1] In most of the material before me, the respondent is referred to as “he/him”. Counsel for the respondent confirmed that the correct pronouns for the respondent are “she/her”. Except where giving a direct quote, I have adopted these pronouns in my reasons: see Practice Direction 10 of 2023.
[2] See Attorney-General for the State of Queensland v Nelson-Adams [2021] QSC 257 (Callaghan J). The end date of the Supervision Order was extended from 23 August 2031 to 22 December 2032 in Attorney-General for the State of Queensland v Nelson-Adams, unreported, Kelly J, SC No 1558 of 2020, 5 February 2024.
[3] The full-time date of the sentence is 13 March 2026. The respondent has lodged an application for parole but the outcome of that application is pending, and largely dependent on the outcome of the present application.
[4] See generally Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) pt 2, div 5.
[5] See Attorney-General for the State of Queensland v Jamie Christopher Nelson-Adams, unreported, Wilson J, SC No 1558 of 2020, 15 June 2020.
[6] Ibid p 20, lines 36 to 37.
[7] Attorney-General for the State of Queensland v Nelson-Adams [2021] QSC 257.
[8] The Supervision Order is scheduled to Callaghan J’s reasons: see ibid at p 5, sch A.
[9] Ibid at [14] (Callaghan J).
[10] Ibid at [6] with reference to the observations of Applegarth J in Attorney-General for the State of Queensland v Thaiday [2021] QSC 227 at [17] that “[t]he Act was targeted in 2003 at a small number of recidivist paedophiles. It was expected to apply to the worst of the worst, ‘approximately a dozen or so very, very serious offenders, most of whom have been in prison for a long time,’” quoting Queensland, Parliamentary Debates, Legislative Assembly, 4 June 2003, 2581 (RJ Welford, Attorney-General and Minister for Justice).
[11] Attorney-General for the State of Queensland v Nelson-Adams [2021] QSC 257 at [14].
[12] Attorney-General for the State of Queensland v Nelson-Adams, unreported, Kelly J, SC No 1558 of 2020, 5 February 2024.
[13] See Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 22(1).
[14] See generally ibid s 22(2), (7).
[15] Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60] (McMurdo P, with whom Morrison JA and Applegarth J agreed).
[16] Affidavit of Jane Helen Phillips (CFI 102) JHP-2, pp 42-3 (emphasis added).
[17] Affidavit of Karen Brown (CFI 103) KB-2, pp 34-5.
[18] Transcript of hearing p 1-26, lines 9 to 11.
[19] Affidavit of Jane Helen Phillips (CFI 102) JHP-2, p 44; Transcript of hearing p 1-20, lines 41 to 42.
[20] Affidavit of Jane Helen Phillips (CFI 102) JHP-2, p 44.
[21] Transcript of hearing p 1-28, lines 4 to 11; see also Affidavit of Jane Helen Phillips (CFI 102) JHP-2, p 42.
[22] See generally Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(4)(c), (d), (h).
[23] Transcript of hearing p 1-27, lines 26 to 34 and p 1-33, lines 26 to 29; quoting Attorney-General for the State of Queensland v Nelson-Adams [2021] QSC 257 at [1] (Callaghan J).
[24] Transcript of hearing p 1-27, lines 35 to 46.
[25] Callaghan J also observed this in Attorney-General for the State of Queensland v Nelson-Adams [2021] QSC 257 at [5].
[26] Affidavit of Karen Brown (CFI 103) KB-2, p 34.
[27] Affidavit of Jane Helen Phillips (CFI 102) JHP-2, p 43.
[28] Ibid.
[29] Transcript of hearing p 1-18, lines 35 to 38.
[30] Affidavit of Jane Helen Phillips (CFI 102) JHP-2, p 43.
[31] Ibid.
[32] Attorney-General for the State of Queensland v Nelson-Adams [2021] QSC 257 at [15] (Callaghan J).
[33] At [20], citing Attorney-General (Qld) v Fardon [2018] QSC 193; on appeal on another point Attorney-General v Fardon [2019] 2 Qd R 487 and Attorney-General for the State of Queensland v Tiers [2021] QSC 115 at [25]-[28].
[34] See Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 2(a), 13(2).
[35] At [64] (Margaret McMurdo P, with whom Morrison JA and Applegarth J agreed) citing Attorney-General v Francis [2007] 1 Qd R 396 at [39] (emphasis added).
[36] Applicant’s Outline of Submissions (CFI 104), p 18 [23]. I note, however, Dr Brown’s concerns that prior to the absconding incident there were no obvious warning signs “other than chronic disengagement and non-compliance”: Affidavit of Karen Brown (CFI 103) KB-2, p 34.
[37] Cf Kynuna v Attorney-General for the State of Queensland [2016] QCA 172, where the contraventions were sexual in nature, but not a “serious sexual offence” as contemplated by the Act. This meant that the court had to re-exercise its discretion to consider whether the respondent could be released on a supervision order under s 22: at [63] (McMurdo P, with whom Morrison JA and Applegarth J agreed).
[38] Cf Affidavit of Karen Brown (CFI 103) KB-2, pp 34-5.
[39] At [38] (Dalton JA, with whom Mullins P and Flanagan JA agreed).
[40] Black v Attorney-General (Qld) [2022] QCA 253 at [37]-[38]. See also Dalton JA’s discussion of the many and varied reasons why supervision orders under the Act may be contravened, sometimes multiple times over: at [41].