Attorney-General (Qld) v ZBA[2025] QSC 241

SUPREME COURT OF QUEENSLAND

1. [1]
   This is the second annual review of a continuing detention order made against the respondent. The application for the review was filed on 24 November 2022, around 2 months short of 3 years ago. In that large gap in time there have been several hearings as to the respondent’s capacity. There was one hearing before Cooper J in June 2023 and three hearings in QCAT.^[1]
2. [2]
   Section 27 of the Dangerous Prisoners (Sexual Offences) Act 2003 (‘the Act’) requires, after the first review, that subsequent annual reviews should start within 12 months after the hearing for the last annual review.
3. [3]
   It is necessary to explain the background.

Background to the Review

4. [4]
   Until 23 January 2020 the respondent was serving a term of imprisonment for a serious sexual offence committed against a four-year-old girl. The offence was committed on 24 July 2015. The respondent was 53 years of age at the time of offending. He is now 63 years of age. The respondent has now fully served the term of imprisonment. Since 23 January 2020, the respondent has been held in custody under an interim detention order and then pursuant to continuing detention orders under the Act.
5. [5]
   On 31 January 2020, Davis J made a declaration that the respondent was a serious danger to the community and a continuing detention order was made.
6. [6]
   On 22 November 2021, Brown J heard the first annual review of that continuing detention order. Before her Honour there was no contest that the evidence supported a finding that the respondent was a serious danger to the community in the absence of a division 3 order under the Act.^[2] The real issue before her Honour was whether the adequate protection of the community could be reasonably and practicably managed by a supervision order.
7. [7]
   The result is that the respondent has now been held in custody for five years and eight months beyond the term of his sentence.
8. [8]
   For the court to make a division 3 order under the Act, the court must be satisfied by acceptable, cogent evidence and to a high degree of probability, that the respondent is a serious danger to the community in the absence of such an order. The question is whether there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or if released without a supervision order.
9. [9]
   Here, as was the situation before Brown J, it is not controversial that the expert psychiatric evidence supports a finding that the respondent is a serious danger to the community in the absence of a division 3 order. The submissions for the respondent concede this. The real issue, again, is whether the respondent should be subject to a continuing detention order (which is what the Attorney-General contends for) or a supervision order (which is the respondent’s contention).
10. [10]
    The paramount consideration is to ensure the adequate protection of the community. The court is also required to consider whether adequate protection of the community can be reasonably and practically managed by a supervision order, including whether the mandatory requirements under section 16 of the Act (such as reporting, notification and compliance with conditions) can be reasonably and practicably managed by Corrective Services officers.
11. [11]
    The onus is on the Attorney-General to establish that the adequate protection of the community can only be ensured by a continuing detention order and not by a supervision order.^[3]

The Issue

12. [12]
    As counsel for the respondent points out, the Act does not require the arrangements to prevent risks to the community to be “watertight”.^[4] However, the submissions of counsel for the Attorney-General are not directed to the risks to the community. Instead, counsel for the Attorney-General submits that this is, unfortunately, one of those small group of “accommodation cases” where there are no appropriate facilities for the respondent and so the respondent should continue to be subject to a continuing detention order.
13. [13]
    I do not accept that submission. And I do not accept that in cases like this the legislation entitles the Attorney-General or the Executive to simply label the case as an ‘accommodation case’ and to, in effect, justify the continued incarceration of the respondent solely because there are presently no appropriate facilities. Nothing in the Act justifies incarceration by default.
14. [14]
    The focus of the legislation is:

    1. the need to ensure adequate protection of the community – that is the paramount consideration; and
    2. whether the adequate protection of the community can be reasonably and practicably managed by a supervision order; and
    3. whether the requirements under section 16 (as to reporting, supervision, curfews etcetera) can be reasonably and practicably managed by corrective services officers.^[5] 

The Practical Problem of Accommodation 

15. [15]
    If the court were to make a supervision order, in theory at least, there would be two broad types of accommodation available to the respondent:

    1. accommodation at the Townsville Precinct, which is effectively a Queensland Corrective Services (‘QCS’) staffed facility with a locked gate and shared accommodation for about six persons in each building; and
    2. supported accommodation at housing in the community.
16. [16]
    The evidence is that the latter type of accommodation would be appropriate for the respondent because the NDIS^[6] funded workers could visit and spend time with him there. The evidence is that a supervision order that has the effect of releasing the respondent into supported accommodation in the community would effectively manage the risks to the community. That management of the risks would be supported by NDIS services, cultural supports and ongoing psychological maintenance sessions.^[7] The risk to the community could be managed to a moderate level and would effectively manage the risks, mostly by preventing the respondent from having access to any potential victims.
17. [17]
    However, no such supported accommodation in the community is available. No such accommodation is likely to become available.
18. [18]
    That means that the only practicable alternatives are for the respondent to be accommodated at the Precinct, or for him to remain in prison on a continuing detention order.

Risks to the Community

19. [19]
    Counsel for the respondent pointed out what she described as the “considerable progress” the respondent had made since November 2022. She points out that Dr Arthur had described the respondent as indifferent to his continued detention in September 2022. She submits that since then the respondent has:

    1. engaged in regular individual therapy with psychologist Tracey Richards since a referral in July 2024 – this treatment is directed at addressing his risk of sexual re-offending and substance use disorder;
    2. become compliant with health treatment for conditions including a bladder tumour and diabetes;
    3. indicated a willingness to engage with cultural supports;
    4. demonstrated an improved attitude and behaviour in custody;
    5. appears motivated to be released from custody and has indicated a willingness to comply with conditions of a supervised release order.
20. [20]
    All three specialist psychiatrists, Dr Arthur, Dr Harden and Dr Phillips have diagnosed the respondent with four conditions:

    1. paedophilia;
    2. anti-social personality disorder;
    3. mild intellectual impairment or disorder with an assessed IQ stated to be 63;^[8]
    4. alcohol or substance use disorder.
21. [21]
    The first of those conditions is crucial is the assessment of the risks. The third of those conditions, intellectual impairment or disorder, presents a particular difficulty. The difficulty is best explained by reference to Dr Phillips’ opinion. She says:

“It is my opinion that a supervision order would assist in reducing the risk of re - offending by offering assertive monitoring and interventions to target dynamic risk factors for sexual and physical violence. It is my opinion that if [the respondent] were to be released from custody with a supervision order, in the context of appropriate accommodation and NDIS supports, individual forensic psychological intervention, abstinence from alcohol and illicit substances and robust supervision in the community, that his risk of serious sexually re-offending would be in the moderate range.

…

It is my opinion that it will be necessary for [the respondent] to remain in custody on a continuing detention order until appropriate accommodation and NDIS supports can be put in place. Hopefully these will be able to be put in place by the time of his upcoming Court appearance.

It remains my opinion that [the respondent’s] care and rehabilitation needs could be met either in Supported Independent Living (SIL), or in accommodation with NDIS supports provided for a number of hours per day. It remains my opinion that [the respondent’s] care needs cannot be met at the Precinct.” [emphasis added]

22. [22]
    The expression “robust supervision” and the context of that expression deserves some attention. The “robust supervision” discussed by Dr Phillips was clarified in evidence. What is required is a relatively high level of supervision. The idea is that the risks can be reduced if there is:

    1. appropriate accommodation;
    2. NDIS supports;
    3. individual forensic psychological intervention;
    4. abstinence from alcohol and illicit substances; and
    5. ‘robust supervision’ – that is, a high level of supervision.
23. [23]
    Dr Phillip’s evidence is that, if those things happen then the risk level will be reduced to moderate.
24. [24]
    Supervision at the Precinct would provide each of the five requirements. The Precinct would provide appropriate accommodation,^[9] and would be likely to enforce abstinence from alcohol and illicit substances. QCS’ strategies for the administration of supervision of offenders under the Act are directed to ensuring, as far as practicable, that offenders avoid circumstances that would place them at high risk of committing a serious sexual offence.^[10] The respondent is already receiving individual forensic psychological intervention from the psychologist, Ms Richards, in prison. There is no reason why arrangements cannot be made to accommodate the respondent’s sessions with Ms Richards.^[11] And, significant NDIS scheme support has been approved for the respondent of up to 12 hours a day in funded support. It is considerable support worth approximately $415,000 for the year from May 2025 to May 2026. In practical terms that means the respondent has one-on-one access to care workers for up to 12-hours a day.
25. [25]
    The problem is that the evidence of the specialist psychiatrists suggests that the respondent’s care needs cannot be met at the Precinct. Dr Arthur, for example, expressed this view:

"It appears that the Townsville Precinct is not appropriate for [the respondent’s] care needs, as he requires a high level of support to manage his medical, financial and domestic needs. The alternative to The Precinct is either private accommodation funded by a supported independent living package (SIL) or alternatively placement in level 3 supported accommodation where he is provided with medication supervision, meals and social support.” [emphasis added]

26. [26]
    However, at the time Dr Arthur expressed that view, the NDIS package for the respondent had not been approved. In any event, as will be discussed below, the concern that Dr Arthur expressed is based on the view that the respondent’s care needs are unable to be met at the Townsville Precinct.

The Townsville Precinct 

27. [27]
    The evidence is that the QCS currently provides ‘contingency accommodation’ at Wacol, Rockhampton and Townsville Precincts for persons released to supervision orders under the Act. Accommodation at each of those Precincts is available only to those offenders who have no suitable alternative accommodation at the time of release and is subject to availability at the time of release. This accommodation is provided for an initial three-month period and is subject to review.^[12] Thus, accommodation in each Precinct is regarded as accommodation on a temporary basis.
28. [28]
    However, because of the lack of any other approved accommodation^[13] the Townsville Precinct’s “contingency accommodation”^[14] has become the only alternative for the respondent. Over the past few months various forms of accommodation in the community have been considered but rejected because they were deemed unsuitable.^[15]
29. [29]
    The submissions to the court were that the Precinct is a locked, secure facility and that any person visiting the facility was prevented from having access to the facility. Thus, the argument proceeded on the basis that NDIS care workers would be restricted to meeting with the respondent at the gate to the facility. It was said that NDIS care workers would not be able to visit the respondent or directly assist him with his daily living.
30. [30]
    The oral evidence of Ms Wildermoth, the QCS’s Acting Manager of the High Risk Offender Management Unit was to similar effect:

“Now, he does have some NDIS funding? ---That’s correct.

Are support workers from NDIS allowed onto the precinct?---No, they’re not.

Why is that?---Ah – we don’t – it’s not a staffed environment, so we – we can’t s – ma – ah – guarantee the safety of s – support workers. We have a large number of  men living there who are – p – convicted of vari – various offences, so it’s not sort of practical or safe to have support workers in that environment. Um – so he could leave the precinct and meet up with his support workers, and be supported in the community, but then return home within his curfew.”^[16] [emphasis added]

31. [31]
    However, Ms Wildermoth’s evidence is also that the Precincts are not secure facilities. Offenders are able to access the community within the terms of their order conditions and any curfew restrictions. It is the responsibility of the offender to manage their compliance with these restrictions.^[17]
32. [32]
    That is an odd situation. ‘Offenders’ accommodated at the three Precincts are permitted to access the community,^[18] but service providers are prohibited from accessing the facility. That was not explained or explored in the evidence.

The Practical Difficulties

33. [33]
    Ms Wildermoth explains the practical difficulties for the respondent in her affidavit in these terms:

3. "49.
   QCS does not provide daily living support. Residents at the Precincts are expected to live independently and are responsible for managing their own reintegration activities in accordance with their supervision order. This includes cooking, shopping, cleaning, managing appointments and managing their own medication or other medical needs.
4. 50.
   QCS is unable to manage, supervise or monitor the respondent’s medication. QCS, in conjunction with the respondent’s General Practitioner, can support the respondent in obtaining a Webster Pack to manage his medication, however, QCS unable to ensure the respondent is taking the medication as prescribed.
5. 51.
   QCS does not support or facilitate external in reach support or services accessing the Precinct’s due to safety concerns associated with the cohort of high-risk offenders residing in such accommodation. QCS does not have the resources available to facilitate or supervise access for such services. The only exception is emergency services.
6. 52.
   Should the respondent reside at the Precinct, no external domestic, daily living or medical supports can be conducted on the premises. Therefore, the respondent would be unable to access the in-home, daily living supports funded by the NDIS. The respondent would the able to access the community with NDIS support, however, the respondent would be required to meet Support Workers outside the entry of the premises within the terms of his curfew requirements.
7. 53.
   Given the respondent's identified high support and care needs, QCS holds concerns regarding the respondent’s suitability for contingency accommodation.” [emphasis added]

34. [34]
    The language used by Ms Wildermoth is important.^[19] As can be seen, in paragraph 49 for example, Ms Wildermoth says “QCS does not provide daily living support” [emphasis added]. Similarly, in paragraph 51, Ms Wildermoth says “QCS does not support or facilitate external in reach support or services accessing the Precinct’s due to safety concerns” [emphasis added]. And so, in paragraph 52, when Ms Wildermoth says that, if the respondent resides at the Precinct, then “no external domestic, daily living or medical supports can be conducted on the premises” what is really being said is that external domestic, daily living and medical supports are not permitted by the QCS.
35. [35]
    Conspicuous by its absence from Ms Wildermoth’s evidence is any assertion that QCS is unable to support or facilitate access by service providers. Safety concerns must arise when offenders leave the facility. And they must arise when, for example, a plumbing issue arises on the premises or there is a medical emergency. Safety concerns like these arise every day in secure locations and even in prisons.
36. [36]
    It is difficult to avoid the conclusion that QCS has made a decision, or implements a policy, not to permit service providers to have access to the Precincts and, by means of that policy chooses not to permit that access. Because of the policy QCS therefore has no need to cater for safety concerns by, for example, by having service providers escorted whilst on site.    
37. [37]
    Ms Wildermoth’s concerns about the respondent’s care needs are supported by Dr Kiaran Broome, an occupational therapist, who offers this view:

“If [the respondent] is not accommodated in Support Independent Living, supports should be provided at least daily in the home. Standardised assessment suggests that at least 6-8 hours of direct supports (including monitoring) is required per day. Substitution of supports, such as prepared meals (e. g. Meals on Wheels), electronic monitoring and prompting systems, and intensive capacity building to establish new skills and routines, may reduce long-term requirements of direct assistance. However, the reduction of supports to less than 4 hours a day is likely to cause a high risk of not meeting basic needs such as proactive attention to health needs, loss of basic leisure routines, and inability to attend to home management activities such as regular cleaning.”

38. [38]
    Again, the language is important. Dr Broome’s evidence is that “standardised assessments” suggest at least six-eight hours of direct support are needed. And Dr Broome offers the view that the reduction in support to less than four hours puts the respondent’s basic needs at high risk. However, Dr Broome’s opinion is directed to both the risks to the community and daily living support. The problem is that no witness directly considers whether a practical solution is possible given that:

    1. accommodation at the Precinct and the efforts of the QCS officers are likely to respond to the respondent’s risks; and
    2. the respondent has been approved for up to 12 hours of NDIS assistance – which can be flexibly used.^[20]
39. [39]
    In other words, the problem is approached in silos. Because of the policy of the QCS, the respondent is regarded as having an opportunity to stay at the Precinct but with no care or support, or to stay at non-existent accommodation in the community with care and support from NDIS. No witness has explored the prospect that, for example, the respondent may be accommodated at the Precinct but have available to him a care worker who might spend an hour with him checking on his meals, laundry, medication and basic needs and then escort him into the community for shopping, the laundromat, the pharmacy, etcetera.
40. [40]
    For the Attorney-General, it is submitted that accommodating the respondent in the Precinct would present many practical problems. There are, for example, no present systems in place which could ensure that the respondent takes his regular medication. The NDIS care workers would not be permitted within the facility and so the respondent would need to meet them at the gate and, from there, ensure that the respondent had taken his prescribed medication.
41. [41]
    However, it is hard to see this an insurmountable problem. Cooperation between QCS officers and the care workers is likely to overcome these types of practical issues. For medications the care worker and the pharmacist are likely to be able to set up a Webster-pak system.^[21] Similarly, the problems of the respondent having his meals and doing his laundry are likely to be practical problems that can be overcome. That is clear from the cross-examination of Ms Wildermoth which established that:

    1. the respondent could meet his support worker at the gate to the Precinct or QCS officers could transport him to the QCS office in Townsville CBD;
    2. under the NDIS funding the support workers could take the respondent grocery shopping and to medical appointments;
    3. under the NDIS scheme, the support worker could take the respondent to a pharmacy to get his medication dispensed and put in a Webster-pak to bring back to the Precinct;
    4. QCS officers would transport the respondent into Townsville CBD for, initially at least, twice weekly meetings with his senior case manager.^[22] 
42. [42]
    Importantly, the problems raised as problems here are problems related to the respondent’s care. They are not problems that are shown to have a substantive effect on the risks to the community.^[23]

The Analogous Cases

43. [43]
    In Attorney-General for the State of Queensland v Guy, Holmes CJ said:

“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.”^[24]

44. [44]
    That passage was quoted by Applegarth J in Attorney-General for the State of Queensland v Grant (No 2).^[25] In that case his Honour described the problems with the QCS policy, at least in so far as the policy was articulated and implemented in the evidence before his Honour:

3. "[20]
   The problem is not that QCS has a policy of not allowing entrants, including health providers and carers, to access the precinct unless approved. That policy has an understandable justification for the security of entrants to precincts that are not staffed by QCS and where there is no security staff to monitor the safety of visitors who may enter the precincts. As I previously observed, the concern for the safety of potential entrants into houses at the precinct is understandable.
4. [21]
   The problem is the application of that policy without regard to the circumstances of someone like the first respondent who has mobility and health problems. There is no evidence that QCS would grant approval, if requested, for a grocery or food service to drop bags of groceries close to a precinct house at Wacol instead of at a distant gate from which the first respondent would struggle to transport himself and the deliveries. There is no evidence that QCS would grant leave for a taxi or a support person to pick up the first respondent from close to his house rather than from what may seem to him to be a distant gate.
5. [22]
   Under its seemingly inflexible policy, QCS would rather the first respondent with his poor mobility and walking frame collect food and groceries from a faraway gate than have a grocery or food service drop the food to the first respondent close to his house and then immediately depart. QCS expects someone like the first respondent to be able to cook for himself at the precinct but will not make an exception in his case to allow the food and groceries to be delivered to the outside of his house.
6. [23]
   The government will feed the first respondent at public expense if he is detained under a continuing detention order in prison but it will not relax a policy to help him feed himself, at his own expense, in a precinct.”^[26]

45. [45]
    That concern arises here. QCS appear to be applying an inflexible policy in circumstances where no evidence is offered that establishes that the respondent’s needs cannot be met by some specific and appropriate practical systems. It can hardly be beyond the capacity of the QCS and NDIS to together establish a suitable regime for the respondent and those that may fall into the same category.
46. [46]
    Importantly, Applegarth J considered the point raised by this case in Grant (No 2). Here, as in Grant (No 2), despite the attitude of QCS to his circumstances, including practical issues in relation to food deliveries and access to health services, the first respondent’s counsel makes submissions which make it clear that he still prefers to be accommodated in the Precinct rather than to be in a prison.^[27] On that issue his Honour expressed the view, with which I agree, that the discretion under s 13(5) of the Act, or s 30(3) of the Act,^[28] should not be exercised in favour of making a continuing detention order based simply on the view that the first respondent would be better off in jail.^[29] That view may be correct, yet not respect his autonomy and his rights that are protected by law.^[30]
47. [47]
    Those principles were recently applied by Smith J in Attorney-General for the State of Queensland v HGD.^[31] There Smith J said:

3. "[52]
   Applegarth J [in Grant (No 2)] held that it remains the case that the Court’s discretion under s 13(5) of the DPSOA should not lean in favour of a continuing detention order simply because the respondent may be better off in prison rather than in a Wacol precinct house. The DPSOA is clear in its objects that the primary considerations are the adequate protection of the community and the facilitation of the prisoner’s rehabilitation. To achieve rehabilitative aims, it is necessary that the prisoner spend a length of time under supervision in the community.
4. [53]
   In my opinion, it is unreasonable to suggest that a person whose risk can be mitigated and managed in the community ought to be detained indefinitely, particularly where there is medical evidence supporting supervised release.”

Some Conclusions

48. [48]
    As explained, the Attorney-General argues that this is one of those small group of unfortunate “accommodation cases” where there are no appropriate facilities for the prisoner and so he should continue to be subject to a continuing detention order. Whilst one can accept that there may well be those types of cases, it is necessary to be very cautious in adding to those cases and doing so simply on the basis that, as appropriate accommodation cannot be found for the respondent, he should remain in detention.
49. [49]
    Dr Phillips expressed the opinion that it will be necessary for the respondent to remain in custody on a continuing detention order until appropriate accommodation and NDIS supports can be put in place. However, I reject that approach. It means that offenders subject to the Act are, by default, required to remain subject to a detention order until both the adequate protection of the community can be reasonably and practicably managed by a supervision order and accommodation that is deemed suitable can be found for the respondent.
50. [50]
    The Act does require the court to consider:

    1. the paramount consideration, namely the need to ensure adequate protection of the community;
    2. whether the adequate protection of the community can be reasonably and practicably managed by a supervision order; and
    3. whether the requirements under section 16 of the Act (such as reporting, notification and compliance with conditions) can be reasonably and practicably managed by corrective services officers.
51. [51]
    However, the Act does not require that the respondent should remain subject to a continuing detention order merely because his care needs cannot be conveniently met at the Precinct, or because the respondent may be better off in prison. The paramount consideration is the need to ensure adequate protection of the community, not to ensure that the respondent’s accommodation conforms to, and fits within, QCS policies.
52. [52]
    The risks in the respondent being supervised within the Precinct are risks to his own health and well-being, rather than risks to the community. For example, it may be difficult to ensure that the respondent takes the medications necessary for his cardiac and diabetes conditions. It may be difficult to ensure that he attends to his laundry and personal care needs. But those are the respondent’s care needs. They are separate to the paramount consideration of the need to ensure adequate protection of the community.
53. [53]
    That does not mean that the practical considerations and catering for the respondent’s care needs are unimportant. But it does mean that those considerations take something of a backseat compared with the risks to the community.
54. [54]
    Dr Harden described the connection between the respondent’s care needs and the adequate protection of the community as “tenuous”. In fact, accommodating the respondent in the Precinct would mean that there is in place what Dr Harden described as an entirely ‘external’ risk management strategy. In the Precinct, the respondent would not be able to come into contact with potential victims. There he would not be able to take alcohol or illicit substances, or at least he would be monitored and tested for those substances. He would also have accommodation and supervision there. In that way, the risk factors are met.
55. [55]
    One of the issues is that, because of the respondent’s intellectual impairment, the conditions of his supervision would need to be explained to him in very simple terms. The message would need to be reinforced. Again, though, within his accommodation at the Precinct and the allocated NDIS support, the conditions could be enforced and there is the prospect of the respondent receiving proper support if he spends time with NDIS care workers.
56. [56]
    NDIS care workers are not Corrective Services officers, and vice versa. But it can hardly be beyond the resources and the expertise of QCS and NDIS, especially with more than $400,000 in annual funding already in place, to put into place to some basic needs assistance for the respondent. As explained, the onus is on the Attorney-General to establish that the adequate protection of the community can only be ensured by a continuing detention order and not by a supervision order. As Chesterman JA explained in Attorney-General v Lawrence:

“The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.”^[32]

57. [57]
    The Attorney-General has not discharged that onus.
58. [58]
    Importantly, as counsel for the respondent submitted, the paramount consideration is the adequate protection of the community. The protection of the community can be reasonably and practicably managed by a supervision order. Certainly, there may be some practical issues ensuring that the respondent’s care needs are met in that environment. The Attorney-General is right to be concerned about that. But, as explained, the paramount concern of the legislation is the adequate protection of the community. The risks to the community can be adequately protected by a supervision order. And, given the likely support and cooperation of QCS officers and care workers funded by the NDIS, adequate care of the respondent is also able to be achieved and likely to be achieved.
59. [59]
    For those reasons I will make a supervision order.
60. [60]
    The parties and the experts are largely agreed that if there is a supervision order that a 10-year order is appropriate.
61. [61]
    The supervision order will be in terms of the draft handed to me in the course of argument.^[33]