Attorney-General v Guy[2025] QSC 196

SUPREME COURT OF QUEENSLAND

1. [1]
   This is the review of a continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSO Act) on 27 March 2017 by the then Chief Justice.
2. [2]
   On that day, the Chief Justice was satisfied that the prisoner was a serious danger to the community in the absence of a Division 3 order.
3. [3]
   At the first annual review of the continuing detention order on 9 August 2018, Davis J affirmed to the decision made on 27 March 2017, that the prisoner was a serious danger to the community in the absence of a Division 3 order, and ordered that the respondent continue to be subject to the continuing detention order.
4. [4]
   Further annual reviews were conducted by Lyons SJA on 22 July 2019, Williams J on 18 September 2020, Dalton J (as her Honour then was) on 6 September 2021, Applegarth J on 22 August 2022 and Cooper J on 22 May 2024.  On each occasion the court affirmed that the respondent was a serious danger to the community in the absence of a Division 3 order and ordered that the respondent continue to be subject to continuing detention order.
5. [5]
   As has previously been described by members of this court, the reason the respondent has remained subject to the continuing detention order for such a lengthy period of time 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 is that the respondent, due to his age and high care needs, has been unable to find accommodation available where he could receive the 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
6. [6]
   The position was summarised by Applegarth J at the annual review which occurred in 2022 as follows:

“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.”

(footnotes omitted)

7. [7]
   The sentiments expressed at [25] above by Applegarth J have been repeated at other annual reviews, including by Cooper J:^[1]

“[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] 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] 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.   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] The respondent’s position was also aptly described by Applegarth J as that of being in a revolving door.   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] 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] 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.”

8. [8]
   This is therefore the seventh annual review of the original order as required by s 27 of the DPSO Act, and little has changed.

Review test

9. [9]
   On hearing the review, pursuant to s 30(1) DPSO Act the question I must consider is whether, having regard to the required matters, I should affirm the decision that the prisoner is a ‘serious danger to the community’ in the absence of a Division 3 order.
10. [10]
    Pursuant to s 13(2) DPSO Act a person is such a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence:

    1. if the prisoner is released from custody; or
    2. if the prisoner is released from custody without a supervision order being made.
11. [11]
    The ‘required matters’ I must have regard to are those set out in s 13(4) DPSO Act being the matters that must be considered when deciding whether a prisoner is a serious danger to the community when an application is first made for a Division 3 order in respect of a prisoner.
12. [12]
    Pursuant to subs 30(2) DPSO Act, the court may affirm the decision 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.
13. [13]
    Pursuant to subs 30(3), DPSO Act if I am so satisfied,  the court may order that the prisoner (a) continue to be subject to the continuing detention order, or (b) be released from custody subject to a supervision order.
14. [14]
    In deciding whether to make either such order, subs 30(4) DPSO Act provides:

“(a)the paramount consideration is to be the need to ensure adequate protection of the community; and

2. the court must consider whether─

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

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

Respondent’s background, antecedents and criminal history

15. [15]
    With respect to the required matters that I must have regard to in this case I make reference to the following matters with regard to the respondent’s background, antecedents and criminal history.
16. [16]
    The respondent was born on 5 November 1952.  He is presently 72 years of age.
17. [17]
    In 1998, he was sentenced to 10 years imprisonment for 34 sexual offences against children.  Those offences included 16 counts of rape.  One complainant was a young female with whom he maintained an unlawful sexual relationship over a six year period beginning when the child was nine years of age. He served most of that sentence before being released on parole.  Towards the end of that parole period, he committed another serious sexual offence with a young woman of extremely low intelligence and was sentenced to nine years’ imprisonment.
18. [18]
    I do not propose to repeat the history of all the risk assessments which have been carried out in relation to this respondent.  Most recently they were set out by Justice Cooper as follows:

“Dr Lenardon

[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] 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] 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] 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] 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] 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] 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] 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] 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] 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.”

Events since last review

19. [19]
    A number of issues have arisen however since the last review.
20. [20]
    The respondent was referred for psychological treatment in November 2024.  He attended upon Dr Steven Morgan for eight sessions of treatment commencing on 7 November 2024 which treatment was carried out at the Townsville Correctional Centre
21. [21]
    Dr Morgan then provided a report dated 11 May 2025.
22. [22]
    Dr Morgan provided the following summary of his treatment and engagement with the respondent.  Doctor noted that the respondent frequently requires to be woken by custodial staff in order to attend sessions after which he returns to his cell to rest.  The respondent mobilizes slowly and exclusively with the aid of a four wheeled walker.  Dr Morgan described his movements as generally slow and that it was evident he became fatigued across sessions which appeared to be of some influence upon his responsivity.
23. [23]
    Dr Morgan described the respondent as amiable and polite although at times he had a “prickly disposition” which had subsided with age.  The respondent had consistently advised that he understood there was no suitable location for him to be released to and expressed some reconciliation to the notion of dying in custody.  Dr Morgan recorded that the respondent denied any specific concerns for or frustration in respect of this aspect because he had positive relationships with and support from custodial staff, as well as a recognition that he is now “quite institutionalised”.
24. [24]
    The respondent advised Dr Morgan that he did not think he was at any risk in the community in respect of sexual reoffending due to what he described as his absent libido and his infirmity.  Despite the respondent’s view however, Dr Morgan considered, based upon his contact with the respondent and the expert reports, as well as his history of offending, the respondent would require a high level and intensity of expert supervision and oversight in the event of any release from custody. 
25. [25]
    Dr. Morgan observed that the respondent told him that he had been diagnosed with lung cancer, but Dr Morgan did not then have access to the relevant medical records to confirm that diagnosis.  Nevertheless, Dr Morgan concluded “given his evident restrictions of mobility, potential for further cognitive and physical decline, advised fatigue/loss of motive and libidinal energy and also noting his anticipation of a foreshortened future … I am obliged to the view of Mr Guy being at dynamically low risk of reoffending …”.
26. [26]
    Dr Morgan concluded that if the respondent were released to some form of residential accommodation he would need to be supervised on a 24 hour basis and precluded from contact with vulnerable female clients and children. 
27. [27]
    Records which have been obtained from Queensland Health now confirm the diagnosis of metastatic lung cancer and end stage emphysema.  In May 2025 the respondent had a 17 mm rounded solid nodule peripheral spiculation within the right lung straddling the meeting point of the horizontal and oblique fissures extending into all lobes.  There was clustered opacity within the upper left lobe. 
28. [28]
    In July 2025 a referral was made for palliative care with a diagnosis of metastatic lung cancer.  At that time the respondent was exhibiting dyspnoea and shortness of breath with associated anxiety.
29. [29]
    Dr Arthur has prepared two further reports since the last annual review.
30. [30]
    The first is a report of 4 April 2025.  In that report Dr Arthur noted that the response presentation remained stable and that the respondent was “essentially unchanged” from when Dr Arthur had last assessed him in 2023.
31. [31]
    Dr. Arthur observed that there had been no significant progression in the respondent’s Parkinson’s disease but observed, in April 2025, that the respondent had some respiratory problems and that recent investigations had raised the possibility of lung cancer.
32. [32]
    Dr. Arthur observed that in the absence of a strong deviant sexual drive, the combination of the respondent’s age and his physical impairment was likely to have reduced his future risk of sexual recidivism although there remained the possibility of opportunistic sexual offending against female children or vulnerable adult women.
33. [33]
    Dr. Arthur expressed the opinion that the most appropriate form of accommodation for the respondent was a nursing home which ought to be able to provide a safe physical environment, oversight of medication and access to appropriate physical and domestic supports.  However, Dr. Arthur also observed that there were difficulties in locating such accommodation.  Dr Arthur expressed the opinion that the respondent should only be housed in a male only facility.
34. [34]
    As to Dr Arthur’s observation about the difficulties of locating suitable nursing home accommodation for the respondent, there was evidence before the court from a deponent at the High Risk Offender Management Unit (HROMU) within Queensland Corrective Services that that unit had been asked to investigate accommodation, treatment and management options for the respondent in the event that he was released from custody subject to a supervision order under the DPSO Act.
35. [35]
    The evidence demonstrates, as it did when the matter was reviewed before Justice Cooper, that the only form of accommodation which the executive government provides to persons released to supervision orders under the DPSO Act is contingency accommodation at the precinct 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 were to be released.  No external domestic, daily living or medical supports are provided within the contingency accommodation due to safety risks.
36. [36]
    The position therefore remains that there is no suitable accommodation for the respondent at a nursing home.
37. [37]
    Dr Arthur was then asked to provide a further report which he did dated 4 August 2025.  He did so after reviewing the respondent’s Queensland Health records.  Although there was an absence of tissue diagnosis, Dr Arthur concluded that it appeared that the respondent had metastatic lung cancer, with associated physical symptoms of shortness of breath and a persistent cough.
38. [38]
    Dr Arthur’s review of the medical record demonstrated that the respondent had expressed he was not interested in active treatment, and in Dr Arthur’s view, it was likely that the lung cancer was a terminal condition and the respondent’s health was expected to deteriorate over time.
39. [39]
    Dr Arthur was uncertain however what that meant for the respondent’s risk of sexual recidivism.  He expressed the opinion that it was likely the respondent would become progressively unwell with a reduction in his desire or capacity for sexual activity or his ability to force sexual activity on others.  Against that, Dr Arthur also observed that there might be a risk that the diagnosis may act as a destabilising stressor, increasing the likelihood of maladaptive coping strategies and impulsive, reckless behaviour.  Dr Arthur went on to say in respect of his previous assessment that the respondent’s unmodified risk of sexual recidivism on release was low to moderate:

“19. However, it is reasonable to assume that the presence of lung cancer (particularly if left untreated) and the resultant deterioration in his physical health and functioning will only lead to a further reduction in sexual recidivism.

20. It remains my opinion that the most appropriate accommodation for prisoner Guy is a nursing home which can provide him with a safe physical environment, oversight of medication and access to medical and domestic supports.  I no longer believe that a hostel type environment or shared household is appropriate.
21. Whilst it would be prudent to limit his unsupervised access to female children or vulnerable adult women, this will be less of an issue over time and is likely to become unnecessary as his disease progresses.”

40. [40]
    Dr Lenardon also has provided two supplementary reports since the last annual review. In the first report dated 15 April 2025, Dr Lenardon expressed the opinion that the respondent continued to pose a moderate risk of sexual offending if released to the community without a supervision order even having regard to the fact that his age and health reduced his risk of re-offending.  Dr Lenardon considered that without supervision the respondent would still attempt to gain access to a vulnerable victim namely, a female child or a vulnerable female adult to engage in sexual activities.  Dr Lenardon observed that beside the respondent’s age and health status, there were no other tangible internal changes which would reduce the respondent’s risk.  Dr Lenardon did consider however that thought could be given to the administration of anti-libidinal medication.
41. [41]
    Dr Lenardon then provided a further report dated 1 August 2025 as a consequence of reviewing the respondent’s medical records which included the diagnosis of metastatic lung cancer. Dr. Lenardon concluded:

“It is clear that the diagnosis of metastatic lung cancer may change Mr Guy’s risk profile due to the possible physical deterioration the illness may cause.  As Mr Guy has not engaged in further medical follow-up, the medical records available do not contain information in relation to the cancer staging (i.e. what type of cancer, how aggressive this is and how advanced the metastasis are) and prognosis (life expectancy). As such I am not able to comment if at this stage Mr Guy’s risk profile is altered by the diagnosis of metastatic lung cancer.”

The parties’ positions

42. [42]
    Consistently with the position it has previously adopted, the Attorney-General submits that on this review the court ought, 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 a continuing detention order. 
43. [43]
    The respondent accepts that the evidence supports are finding that he is a serious danger to the community in the absence of a Division 3 order, such that the original decision should be affirmed.  In the respondent’s original outline of submissions however the respondent submitted that the expert evidence supported the conclusion that adequate protection of the community could be ensured by the making of a supervision order provided that appropriate accommodation could be secured for the respondent.  Further, written submissions for the respondent contended that cross-examination would be required of the assessing psychiatrists and the relevant officers from Queensland Corrective Services in order to explore the issue of whether appropriate steps have been taken to secure appropriate accommodation for the respondent.  Prior to the hearing however the respondent advised the application was not now opposed, that the respondent wished to remain in custody and had advised that the doctors were not required for cross-examination.
44. [44]
    Whilst the respondent’s wish to remain in custody is noted, and his position remains that the application is not opposed, that does not answer the question of whether the court should order continuing detention or whether the respondent should be released from custody subject to a supervision order.

Consideration

45. [45]
    On the basis of the evidence that is before me, which evidence I find to be acceptable and cogent, having regard to the matter 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.
46. [46]
    I therefore turn to the question of what type of order should be made. 
47. [47]
    The absence of suitable accommodation remains the hallmark of this matter.  For some time, it has been the case that the respondent cannot live in the Wacol precinct because his need for care and assistance would render that accommodation unsuitable.  Previously his care needs were from his Parkinson’s disease, now it is the combination of that disease with his lung cancer. He needs nursing home style accommodation as he cannot reside alone, and 24 hour supervision.  I accept that the evidence demonstrates that Queensland Corrective Services is not in a position to provide the type of accommodation that the respondent requires.
48. [48]
    The recent diagnosis of metastatic lung cancer is one which creates considerable uncertainty in terms of the respondent’s future risk.  It may well be with the development of his condition that his risk may change as his disease progresses, but at this point in time the medical evidence demonstrates that his risk remains as moderate or moderate to low risk of sexual recidivism.  As the respondent’s risk must be assessed at the date of hearing^[2] then his risk remains the same as it has been previously.  In circumstances where his accommodation needs are not currently able to be managed in the community, the court has no alternative but to order that he remain subject to the continuing detention order made on 27 March 2017.  It may well be that if the respondent’s physical condition deteriorates he will be able to be appropriately managed, perhaps in palliative care, but currently that is not the position.
49. [49]
    In the circumstances, the orders that I make are firstly, 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 a Division 3 order be affirmed.  Secondly, pursuant to s 30(3) DPSO Act, the respondent continue to be subject to the continuing detention order made on 27 March 2017.