Attorney-General for the State of Queensland v YZY [2025] QSC 41

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v YZY [2025] QSC 41 PARTIES: Attorney-General for the State of Queensland (applicant) v YZY (respondent) FILE NO/S: BS No 187 of 2014 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 12 March 2025 DELIVERED AT: Brisbane HEARING DATE: 3 March 2025 JUDGE: Kelly J ORDER: The Court being satisfied that the respondent is a serious danger to the community in the absence of a further supervision order pursuant to Division 4A of the Act, a further supervision order will be made. I will hear the parties as to the final form of the order. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant applied for a further supervision order pursuant to Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether the respondent is a serious danger to the community in the absence of a further supervision order – whether there is an unacceptable risk that the respondent will commit another serious sexual offence if a further supervision order is not made. -- 1 of 14 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 13, 19B, 19D Attorney-General for the State of Queensland v DBJ [2017] QSC 302, cited Attorney-General for the State of Queensland v Kennedy [2016] QSC 287, cited Attorney-General for the State of Queensland v Travers [2018] QSC 73, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, cited COUNSEL: For the applicant: Mr B Mumford For the respondent: Mr C Reid SOLICITORS: For the applicant: Crown Law For the respondent: Legal Aid Queensland [1] Pursuant to s 19B(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”), the Attorney-General has applied for a further supervision order. The respondent opposed the application. In the alternative, the respondent submitted that any further supervision order should allow him to live at a place other than the Townsville precinct and be for “the shortest possible time”. The respondent and the index offending [2] The respondent is a 45 years old indigenous man whose family resides in AZ, a community in Far North Queensland. The respondent committed two violent rapes when he was 19 years old. The rapes occurred in AZ, within one month of each other. His victims were young girls known to him. The victim of the first rape was a 15 years old girl, with whom he had been in a relationship. On 16 July 1999, upon his being sentenced for that rape, the judge noted a disturbing aspect of the offending had involved the obsessive, possessive attitude which the respondent displayed towards the victim. The judge remarked that the respondent had looked upon the victim as his “property”. The second victim was a 14 years old girl. The respondent claimed to have been affected by marijuana and to have had difficulty controlling his anger. The judge who sentenced the respondent on the second rape remarked “you now have many convictions for violence as well as two convictions for rape… let it be understood that had you not pleaded guilty to this offence and saved this girl from the trauma of a trial … serious consideration would have been given to sentencing you to life imprisonment”. The judge described the second rape as cruel, callous and committed in demeaning, revolting circumstances. The respondent served 15 years imprisonment for the two rapes, amongst other associated charges. Whilst in custody, he undertook a Sexual Offender Program for Indigenous Males. -- 2 of 14 -- 3 The respondent’s history under supervision [3] On 30 June 2014, Philippides J made a supervision order under the Act. The order was originally due to expire on 5 July 2024. At various times during the currency of the order, the respondent was found to have contravened requirements of the order. That history may be set out as follows. [4] In or about August 2014, the respondent provided a urine drug screen that was positive to cannabis and he admitted to having had his female partner attend the Townsville precinct on at least three occasions for periods of approximately one hour. The psychiatric evidence was that he had become “quite preoccupied with his partner” which had negatively impacted his focus on integration back into the community. On 13 April 2015, he was released from custody on the supervision order. [5] In July 2015, the respondent was returned to custody in circumstances where corrective services officers suspected that he was likely to contravene a requirement of the supervision order by committing an indictable offence. He had been overheard speaking aggressively to his partner and had been hostile towards corrective services staff. The treating psychologist considered that there was a risk the respondent would harm his partner. The assessing psychiatrist noted that the respondent “expressed his insecurity and jealousy with controlling behaviour, threats and possible violence”. A risk factor for further sexual violence was identified as intoxication. On 22 August 2016, the respondent was released from custody back to the supervision order. He was directed not to have any contact with his partner without approval. [6] On Christmas day 2016, the respondent went to his partner’s house without approval. He was arrested, convicted and fined. Later in December 2016, he provided an unsuitable urine sample and admitted that he had smoked cannabis. He was detained in custody. On 8 May 2017, the respondent was released from custody back to the supervision order. On 14 December 2017, the respondent had an argument with his partner and was observed to have been aggressive towards her. A corrective services officer directed him not to contact his partner, but he telephoned her and spoke to her aggressively. On 3 April 2018, the respondent was released from custody back to the supervision order. [7] On 30 May 2019, there was an incident at a shopping centre which was captured on CCTV. The respondent was observed assaulting his partner and taking a backpack from her. He was returned to custody. On 13 September 2019, he was released on supervision. On 29 March 2022, the respondent disclosed contact with his ex-partner in a shopping centre. He was directed not to have any contact with her without approval. On 6 April 2022, a search of his room located an undisclosed mobile phone that had been registered to him in January 2021. A search of that phone revealed that the respondent had active social media accounts under false names. He had used the phone to access pornography. He was returned to custody. On 31 October 2022, the respondent was released from custody back to the supervision order. [8] As a result of the various contraventions, the respondent was returned to custody on six different occasions for a total period of 250 days. On 13 June 2024, Cooper J declared that the additional days in custody extended the duration of the supervision order, which now expires on 12 March 2025. -- 3 of 14 -- 4 [9] Some other matters are noteworthy about the respondent’s time spent on the supervision order. Throughout the period of the order, the respondent has lived at the Townsville precinct. He has been subject to a curfew condition. Curfews are designed to provide a gradual approach to reintegration by providing a safe, structured and supported transition back into the community. There are five stages of curfew which gradually permit offenders greater access to the community in accordance with their supervision order. When an offender is initially released from custody, the offender is subject to what is referred to as a stage one curfew for an initial period, with the intention that the offender progresses through the various curfew stages. Throughout his time on supervision, the respondent has made slight progress on the curfew stages, only to regress. He is currently at stage one, which stage imposes a curfew that requires the offender to stay in the accommodation for 24 hours per day. Leave passes are granted on a case by case basis to engage in essential daily and other meaningful activities. [10] During his time on the supervision order, the respondent undertook the Sexual Offending Maintenance Program between 26 February 2016 and 25 May 2016. In 2019, he undertook the Domestic Violence Preparatory Program. During the course of his supervision, at different times, the respondent has seen five psychologists, namely, Kylie Lavers, Robert Walkley, Donna Lapwood, Steve Morgan and more recently Tracy Richards. The current psychologist’s evidence [11] Ms Richards has been providing psychological treatment to the respondent pursuant to a referral from the High-Risk Offender Management Unit (“the HROMU”) within Community Corrections, Queensland Corrective Services (“the QCS”). Her treatment commenced in December 2022. By the time of this application, Ms Richards had engaged in 50 sessions with the respondent. In her written report dated 27 August 2024, Ms Richards expressed the view that the respondent had “demonstrated excellent engagement throughout the treatment processes. He consistently attends sessions punctually, maintains a respectful demeanour and shows openness to feedback.” [12] The psychologist’s sessions have been divided into intervention and schema therapy sessions. The intervention sessions centred on exploring sexual offending behaviours, enhancing problem solving skills, improving emotional regulation and developing pro-social attitudes and behaviours. The schema therapy has involved the respondent, inter alia, recognising the role of maladaptive schemas and modes in sexual offending and relationship difficulties. [13] In her report, Ms Richards expressed the opinion that the respondent had shown significant progress including increased engagement of his healthy adult mode, improved problem solving, enhanced emotional regulation through mindfulness and personal reflection and demonstrated motivation to engage in pro-social behaviours. [14] Ms Richard’s report concludes with this passage: “Risk Reduction: Treatment has addressed needs in several key areas, including deviant sexual interests, using sex as coping, hostility towards women, sexual -- 4 of 14 -- 5 preoccupation, impulsivity, poor emotional regulation, and substance misuse. Current Focus: Our ongoing work is centred on preparing [the respondent] for community living post-DPSOA order, including: • Reconnecting with prosocial family members • Securing stable accommodation Assessment and Recommendation: Based on [the respondent’s] progress and positive attitude towards treatment, I assess his risk of sexual recidivism to have decreased. There is no current evidence of deviant sexual interests, and he demonstrates the growing capacity to engage in prosocial behaviours. I recommend continuing with the current treatment plan, with a focus on community transition preparation.” [15] Since her report, Ms Richards had conducted seven further sessions with the respondent. She considered that he had maintained a positive attitude. Ms Richards stated that the respondent had an interest in living at AZ. Under cross examination, she said that her focus has been on helping the respondent focus on reconnecting with “pro-social” family members living in AZ. Ms Richards said that she had seen over time a growing capacity in the respondent to “engage in pro-social behaviours”. With reference to the respondent, Ms Richards said that “we’ve talked about … his accommodation at his mother’s house, and his mother being quite a pro-social … support for him”. The respondent had told Ms Richards that he was “very interested” in returning to his community to care for his mother. The respondent had advised Ms Richards that he felt that it was his duty as a son to support his mother in her later years. [16] Ms Richards made it clear that she had no information about the AZ community other than what the respondent had reported. She had been told by the respondent that the community was happy for him to return. She was prepared to continue seeing and treating the respondent if he returned to AZ as part of his supervision conditions or in circumstances where his supervision order had come to an end. In the latter circumstance, a referral would be required from a general practitioner which could lead to approximately 16 to 20 sessions. She indicated that her treatment of the respondent in AZ may involve telehealth sessions but she had no concerns about the appropriateness and effectiveness of that medium. [17] It may be observed that, approaching the end of his supervision order, during discussions with his senior case manager on 18 June 2024, 14 August 2024 and 11 September 2024, the respondent disclosed that he did not plan to return to AZ due to his family members regularly consuming alcohol and cannabis. Evidence from Queensland Corrective Services [18] Ms Emma Wildermoth, the acting manager of the HROMU, gave written and oral evidence. Were the respondent to continue to remain under supervision, Ms -- 5 of 14 -- 6 Wildermoth described the goal for that supervision as being to achieve a period of stable compliance with the supervision order which would mean that the respondent would progress through the curfew stages and be better supported in finding accommodation outside of the Townsville precinct. Under continued supervision, Ms Wildermoth contemplated that the respondent would continue to be treated by Ms Richards and might eventually have visits to AZ to strengthen his ties with his family and reconnect with the community. [19] As to AZ, on 20 February 2025, QCS received a request from the respondent’s legal representatives to conduct a suitability assessment on a proposed address in AZ where the respondent intended to reside. At that time, QCS was advised that the respondent proposed to reside with his older brother in AZ. At the time of the hearing before this Court, the suitability assessment on the proposed address had not been completed. The QCS had unsuccessfully attempted to contact the AZ police and the AZ Justice Group. It was unclear whether the victims of the two rapes still lived in AZ. By the time of the hearing, some matters were clear. The QCS did not employ HROMU staff in Cairns or Innisfail to supervise offenders under the Act. If the respondent were to reside in AZ, the QCS could not provide the level of specialised case management, support, surveillance and localised response required to supervise an offender subject to a supervision order made under the Act. The respondent’s mother was now in care and the respondent could not stay with his mother in AZ. [20] At the conclusion of the hearing, a direction was made for a further affidavit of Ms Wildermoth to be filed and served. The further evidence was to the following effect: (a) AZ police advise that in the last 12 months there have been occurrences which attracted a police response at the proposed address; (b) AZ police hold victim access concerns should the respondent return to the community; (c) The proposed residence has the physical capacity to house the respondent; (d) The proposed residence is frequently visited by the respondent’s extended family; (e) The respondent’s older brother consumes alcohol on a daily basis and intermittently uses cannabis; (f) The respondent’s older brother has indicated that he would not allow the respondent to drink alcohol or consume cannabis; (g) The respondent’s older brother has little to no understanding of the respondent’s offending history or risk factors; (h) AZ has significant areas in which there is no communication coverage, which means that the respondent’s movements could not be monitored; (i) QCS could not conduct random substance tests or home visits in AZ; and (j) The QCS and the Queensland Police Service have a minimal presence in AZ. The psychiatric evidence [21] Dr Scott Harden was requested by Crown Law to conduct a psychiatric risk assessment and provide a report in relation to the respondent. Drs Beech and Arthur -- 6 of 14 -- 7 were appointed by this Court to conduct psychiatric risk assessments and provide reports in relation to the respondent. Dr Harden [22] Dr Harden had previously interviewed the respondent in 2013, 2015, 2016 and 2019. On 5 September 2024, Dr Harden again interviewed the respondent. As at the time of the 5 September 2024 interview, the respondent intended to stay in the Townsville area and live with his sister or niece. During that interview, the respondent acknowledged that at the time of the rapes he had used marijuana “extensively”. He said that the rapes had occurred “from smoking marijuana, drinking grog”. Dr Harden noted that during the interview, the respondent was “insightful enough to understand that ongoing aggressive behaviour directed towards his girlfriend or others would not be tolerated and would likely result in him remaining in or returning to custody”. Notably, Dr Harden went on to observe “He had had this insight throughout all the recent interviews and this had not previously altered his behaviour in the community”. Under cross examination, Dr Harden noted that the respondent had “some insight … he's had difficulty in … implementing that insight at times”. [23] Dr Harden observed that the respondent “had a tendency to form relationships with women that were highly emotionally intense and in which he was prone to emotional instability, jealousy, insecurity and threatening and/or aggressive behaviour”. Dr Harden noted that several contraventions of the supervision order had a pattern of relationship jealousy and controlling or aggressive behaviour. He noted that in “more recent times, [the respondent] appears to have made more therapeutic progress with possible maturation of dynamic personality based factors”. [24] Dr Harden diagnosed the respondent as presenting with an Antisocial Personality Disorder, Alcohol Abuse (in remission) and Marijuana Abuse (in remission). There were no features to suggest that he had a paraphilia such as sexual sadism or paedophilia. He assessed his unmodified risk of sexual recidivism as in the Moderate/Average range. The modified risk on a supervision order was in the Low/Below Average range. In oral evidence, Dr Harden opined that “[the respondent’s] risk issues mainly revolve around … dysfunctional interpersonal relationships with women and are probably exacerbated if he’s intoxicated with substances”. He said that some of the respondent’s contraventions on the supervision order had been “a little concerning because of … his interaction with women … verbal aggression, that kind of thing”. As to the suitability of the respondent returning to AZ, Dr Harden said in cross examination “I think there are community risks in AZ, but if Ms Richards can maintain her therapeutic relationship … that does reduce the risk to some extent … it would be very hard to say to what extent”. Dr Beech [25] Dr Beech interviewed the respondent on 23 January 2025. As to the rapes, the respondent said to Dr Beech that “it wasn’t a nice thing to do” but added that the offending had occurred in the context of his youth, his lack of support, his association with bad people, a general “negativity” in his life and his use of substances. At the time of the interview, the respondent planned to go to AZ and live in his mother’s former house. He wanted to become a role model for youth and help his brother run programs in the community. The respondent stated that he had supportive family in AZ but also noted that he held concerns about “some substance using relatives”. -- 7 of 14 -- 8 When asked about substances, the respondent said that he would “not really” use them but on special occasions he might “consume a six pack”. He said that he would “not often” or “not really” use cannabis. During the interview, Dr Beech detected “lingering misogynistic attitudes” and interpreted some case notes as suggestive of “occurrences of hostile or aggressive behaviours towards female case workers”. [26] Dr Beech observed that the respondent has been “relatively settled” on the supervision order, noting that there has been no continuing substance use and that the respondent had not engaged in anti-social activities but rather had “mostly kept to himself”. Dr Beech considered that the respondent had not engaged in worrying behaviours, the notable exception being some of his contacts with former partners and concerns that he may have been having covert contact with them. [27] Dr Beech described the respondent’s history as presenting “the gradual settling of an anti-social man with the passage of time, institutional containment, maturation and exposure to rehabilitation.” He considered that the respondent’s substance use disorders are in sustained remission and whilst there was a persistent anti-social personality disorder, the traits have “substantially lessened”. He did not consider the respondent to be psychopathic but noted that “the psychopathic traits remain elevated with respect to the general population”. There was no indications of a sexual paraphilia. According to static risk assessment, Dr Beech placed the respondent at above average risk of committing another sexual offence. He considered the static assessment to be an overestimate because it had not considered the respondent’s 10 years of maturation since 2014. On a dynamic assessment, Dr Beech recognised a number of pertinent factors including problems with self awareness, antisocial personality disorder with psychopathic traits, problems with intimate relationships and problems with supervision. There was notably an absence of chronic sexual violence and a lack of sexual deviance. Dr Beech noted that the “problematic substance use is in remission but while under supervision”. [28] Dr Beech ultimately opined: “… the risk that [the respondent] will commit a serious sexual offence is now in the average range. It is not below average because up to 2020 or so he had continued to engage in what appears to have been coercive or controlling relationships and he had used substances. I think he seems ambivalent about the return to substance use”. [29] Dr Beech identified “the most positive scenario” and “the worst scenario” as follows: “The most positive scenario is that he has taken on board the information from his programmes, the counsel of Ms Richards and his experiences under supervision. He will return to the support of his family in AZ. They will keep an eye on him, facilitate accommodation and employment and help him stay away from substances. He will return to cultural ways and help out his mother, the elderly and the elders and find pro-social activities. He will not return to substance use. The worst scenario is that he will return to AZ but the proposed supports will either not arrive or he will dismiss them. Instead, he will start drinking with his mates. He will quickly form an unhelpful relationship with a vulnerable woman. In intoxicated states, his misogynistic -- 8 of 14 -- 9 attitudes will escalate and he will become jealous and controlling. His intellectual understanding of consent will dissolve and in an intoxicated state he will rape his partner. She will likely suffer psychological injury and possibly physical injury … I think that scenario is now less likely given his maturation, the settling of his thoughts and behaviours and his understanding of the risk of substance use. I am unable to confirm the supports he will have in AZ. A supervision order will substantially reduce the risk, simply by restricting his movements, substance use and contacts”. [30] At the outset of his oral evidence, Dr Beech candidly stated that although the respondent had provided much information about supports he had in AZ, “nothing’s come through to confirm that, so I’m undecided”. Dr Beech later explained that he had presumed that what the respondent had said about his supports and accommodation in AZ would be confirmed. Dr Beech noted that whilst he had opined in writing that the risk posed by the respondent committing a serious sexual offence reduced to below average in the context of supervision, he orally acknowledged “I suppose that depends on where that supervision is”. Dr Beech also predicted that the most difficult period for the respondent would be any period of transition from the Townsville precinct or from a supervision order. He described such transitioning as being “the most destabilising thing that would’ve happened to [the respondent] in the last five years or so”. Dr Arthur [31] Dr Arthur interviewed the respondent on 7 January 2025 for approximately 3 and a half hours. Dr Arthur provided a detailed and comprehensive written report. During the interview, Dr Arthur observed the respondent to become irritated when Dr Arthur sought to clarify points about the respondent’s history. In particular, Dr Arthur considered that the respondent continued to blame his ex-partner for various contacts in the community. He noted that during the interview, the respondent became quite defensive and irritable. The respondent expressed derision for his psychologists except for Ms Richards. Dr Arthur observed the respondent to display controlling behaviours in the form of verbal criticisms and aggressive language. The respondent became antagonistic towards Dr Arthur, accusing him of “writing shit down … making [him] out to be a bad person”. Dr Arthur formed the view that the respondent “was trying hard to make a good impression but was unable to contain himself for the duration of the interview.” [32] Dr Arthur provided this summary of the respondent’s behaviour during the interview: “[The respondent’s] behaviour during the assessment mirrored the descriptions of his case manager in that he became increasingly irritable, defensive, hostile and oppositional when questioned about relevant matters relating to his sexual activity/preoccupation and relationships. When challenged, he responded with anger, hostility, demeaning comments and accusations. He engaged in attempts at positive impression management and dominance behaviours”. [33] Dr Arthur diagnosed the respondent as fulfilling the criteria for Mixed Cluster B Personality Disorder with antisocial, narcissistic, and borderline features. The -- 9 of 14 -- 10 respondent’s Alcohol and Cannabis Misuse Disorder was in remission in a controlled environment. On a static risk assessment, Dr Arthur ultimately assessed the respondent at a rating of 5 which placed him above average. Dr Arthur regarded the static assessment as of limited utility when considering a person who has been under supervision for 10 years. He considered the dynamic risk factors to be more useful. He identified the critical risk factors as being the respondent’s personality disorder and a return to substance use. In his report, Dr Arthur expressed this conclusion: “[The respondent] continues to display a significant number of dynamic risk factors for sexual recidivism. His ongoing negative attitudes towards women, non-compliance with supervision, psychopathic personality traits, avoidance of meaningful discussion around his sexual functioning, interpersonal hostility/dominance behaviours, propensity for domestic violence and lack of social integration are all concerning features. Essentially, [the respondent] remains untested in regard to his capacity to manage his risk factors for future sexual violence. His personality disorder is very much in evidence and his lack of capacity to self- regulate whilst under supervision does not bode well for his future functioning. Based on the available information, I would estimate his risk of future sexual recidivism to be at least moderate, escalating to high in the context of intoxication and conflict within intimate relationships … there are core aspects of his functioning that potentially act to maintain an elevated risk of sexual recidivism. This includes his capacity to seek out and maintain appropriate intimate relationships, his ability to control aggressive, dominant drives, his insight into the risk of ongoing substance abuse and his level of insight and control over sexual pre- occupation/functioning”. [34] In his oral evidence, Dr Arthur said that, historically, the respondent had not fully engaged in psychological treatment but rather had given the “impression of engaging”. The history indicated that he had formed apparently significant positive relationships with therapists in the past and yet, during his most recent interview, had been “incredibly critical of them and quite demeaning and derogatory about them”. Based upon his understanding of the respondent’s history, Dr Arthur had “some scepticism as to whether he’s truly motivated to continue treatment afterwards”. Dr Arthur was encouraged by Ms Richards’ “positivity”, but he held reservations about how effective the psychological treatment had been. He noted that in his recent interview with the respondent, the respondent had avoided talking about his sexual functioning. The material provided to Dr Arthur had also indicated that the respondent had been very resistant to talking with his case managers about anything to do with his sexual functioning. As far as Dr Arthur was concerned, the provision of true information about the respondent’s sexual functioning was “the cornerstone of assessing his risk”. Dr Arthur said that he had no information describing the details of any discussions between Ms Richards and the respondent regarding his risk of recidivism. Dr Arthur noted that whilst Ms Richards had stated that she had been counselling the respondent with a focus on community transition, he was not sure what that meant and how effective the counselling had been. -- 10 of 14 -- 11 [35] I have no hesitation in accepting the opinions of each of the psychiatrists. I was particularly impressed by the evidence, written and oral, of Dr Arthur. That evidence was based upon a recent interview of some length, which appears to have been significant in the formulation of Dr Arthur’s clear and readily understandable opinions. Whilst it is a positive development that the respondent has established and maintained an ongoing professional dialogue with Ms Richards, Dr Arthur was guarded about the significance to be placed upon that development. Similarly, Dr Harden found it very hard to say to what extent the therapeutic relationship between Ms Richards and the respondent would reduce the risk associated with the respondent returning to the community. Ms Richards herself had no independent information about AZ other than reporting from the respondent. She was of the belief that the respondent’s mother could be a pro-social support for the respondent. The most recent evidence suggested that the respondent’s mother is in a nursing home and that the respondent proposed to reside with his brother. Principles relevant to an application for further supervision [36] A further supervision order may only be made if the Court is satisfied that the released prisoner is a serious danger to the community in the absence of such an order.1 A released prisoner is a serious danger to the community if there is an unacceptable risk that the released prisoner will commit another serious sexual offence if a further supervision order is not made.2 The Court may decide that it is satisfied that the released prisoner is a serious danger to the community in the absence of a further supervision order, only if it is satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify that decision.3 [37] In Attorney-General for the State of Queensland v Travers,4 Davis J noted: “It is important for present purposes that the issue is not one of risk of reoffending in general, (or even of offending violently) but a risk of reoffending in a particular way, namely by the commission of ‘a serious sexual offence’.” [38] In Attorney-General for the State of Queensland v Sutherland,5 McMurdo J observed: “The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order … a supervision order need not be risk free, for otherwise such orders would never be made. What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression “unacceptable risk” within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.”6 1 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 13(1), 13(5) and 19D(1). 2 Ibid ss 13(2) and 19D(1)(f). 3 Ibid s 13(3). 4 [2018] QSC 73, [30]. 5 [2006] QSC 268. 6 Ibid [29]. -- 11 of 14 -- 12 [39] In Attorney-General for the State of Queensland v DBJ,7 Bowskill CJ observed: “As to what constitutes an ‘unacceptable risk’, that is ‘a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty’. The test is not satisfied by evidence of any risk that the released prisoner may commit a further serious sexual offence. What must be established by the Attorney-General, to the requisite standard, is an unacceptable risk, the determination of which involves a balancing of competing considerations…”. [40] The expression “unacceptable risk” is incapable of precise definition but requires the striking of a balance.8 The relevant risk is the risk of the commission of a serious sexual offence, that is, an offence of a sexual nature involving violence or against children. Risk means the possibility, chance or likelihood of the commission of such an offence. In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates.”9 A further supervision order is required [41] Based upon the clear weight of the psychiatric evidence, the findings I make are as follows: (a) The respondent is in the range of a moderate or average risk of committing a further serious sexual offence. (b) The risk escalates to high in the context of intoxication and conflict within intimate relationships. (c) In the context of his existing supervision, the respondent’s alcohol and drug abuse are in remission. (d) The respondent remains ambivalent about a return to drug use and alcohol consumption. (e) The respondent’s personality disorder is still evident. Whilst the respondent has matured, his apparent lack of capacity to self-regulate whilst under supervision does not bode well for his future functioning in an unsupervised environment. (f) There are core aspects of the respondent’s functioning that potentially act to maintain an elevated risk of sexual recidivism, namely his capacity to seek out and maintain appropriate intimate relationships, his ability to control aggressive, dominant drives, his insight into the risk of ongoing substance abuse and his level of insight and control over sexual pre- occupation/functioning. (g) The most difficult, destabilising period for the respondent will be the period when he transitions from the Townsville precinct or from a supervision order. 7 [2017] QSC 302, [12]. 8 Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, 593 [22] (McHugh J), 605–6 [60] (Gummow J) and 657 [225] (Callinan and Heydon JJ); Attorney-General for the State of Queensland v Kennedy [2016] QSC 287, [23]. 9 Attorney-General for the State of Queensland v DBJ [2017] QSC 302, [12]–[13] (Bowskill CJ). -- 12 of 14 -- 13 (h) Ongoing psychological treatment will be very important during any such transition. (i) Whilst it is a positive development that the respondent has established and maintained an ongoing professional dialogue with Ms Richards, the significance of that development to the reduction in risk is less than clear. (j) Based upon his history, there is some cause for doubt as to whether the respondent would in fact commit to ongoing psychological treatment in the community. [42] The evidence of Ms Wildermoth supports the following findings which I make: (a) If the respondent were to reside in AZ, the QCS could not provide the level of specialised case management, support, surveillance and localised response required to supervise an offender subject to a supervision order made under the Act. (b) In the last 12 months there have been occurrences which attracted a police response at the respondent’s proposed address in AZ. (c) AZ police hold victim access concerns should the respondent return to the community. (d) The proposed residence is frequently visited by the respondent’s extended family. (e) The respondent’s older brother consumes alcohol on a daily basis and intermittently uses cannabis. (f) The respondent’s older brother has little to no understanding of the respondent’s offending history or risk factors. (g) AZ has significant areas in which there is no communication coverage, which means that the respondent’s movements could not be monitored. (h) The QCS could not conduct random substance tests or home visits in AZ. (i) The QCS and the Queensland Police Service have a minimal presence in AZ. [43] The respondent has disclosed to his senior case manager a concern that some of his family members regularly consume alcohol and cannabis. He repeated the substance of that concern to Dr Beech. [44] Having regard to the evidence and the totality of my findings, my conclusion is that if the respondent were released into the community without supervision, there is a real and significant likelihood that the worse scenario described by Dr Beech would eventuate. When Dr Beech described that worse scenario as “now less likely”, he referenced the respondent’s maturation, the settling of his thoughts and behaviours, and his understanding of the risk of substance use but was also careful to note that he had been unable to confirm the support which the respondent could expect to receive in AZ. The findings I have made based on the evidence of Ms Wildermoth indicate that the respondent could expect to receive very little support in AZ. There is evidence that the respondent could expect to be exposed to anti-social influences in AZ. I am satisfied that the evidence in this case is of sufficient weight to justify a decision, which I make, that the respondent is a serious danger to the community in the absence -- 13 of 14 -- 14 of a further supervision order. In reaching that decision, I have had regard to acceptable, cogent evidence and I am satisfied to the requisite high degree of probability. [45] The weight of the psychiatric evidence supports the conclusion that the risk can be reduced to an acceptable level by the imposition of a further supervision order. As to the terms of the further supervision order, Ms Wildermoth gave considered, clear evidence in relation to the respondent’s prospective supervision. Her relevant evidence may be outlined as follows. On the existing information, AZ presents as an inappropriate, unsuitable place for supervision. In the absence of alternative approved accommodation, the respondent will be accommodated at the Townsville precinct. The respondent may from time to time apply to the Department of Housing in respect of any proposed address in the Townsville region at which he wishes to reside in the community. The HROMU will engage with relevant housing services in Townsville to assess any properties put forward by the respondent. The HROMU will continue to engage Ms Richards to provide ongoing psychological treatment to the respondent. The HROMU is able to develop a written progression plan in consultation with the respondent and Ms Richards which will identify what the respondent must demonstrate in order to progress through the curfew stages and achieve set goals or planned activities in the community. The QCS will continue to assess the respondent’s suitability to travel to AZ to visit his family. Should the respondent demonstrate a period of stability, good behaviour and compliance, the HROMU will consider supervised visits by the respondent to AZ. Should the respondent continue to demonstrate a positive response to supervision and compliance whilst on any supervised visit to AZ, the HROMU may further assess the respondent’s suitability to travel to AZ unsupervised. The HROMU may consider overnight or short term stays in AZ in the future and as part of any progression plan. [46] In her evidence, Ms Wildermoth described the goal for the respondent’s supervision as being to achieve a period of stable compliance with the supervision order which would mean that the respondent would progress through the curfew stages and be better supported in finding accommodation outside of the Townsville precinct. Ms Wildermoth’s evidence about the approach to any prospective supervision of the respondent is consistent with the pursuit of that commendable goal. Any further supervision order should contain appropriate conditions which are not unduly burdensome or restrictive. The psychiatrists were asked to comment upon a proposed form of order which was marked for identification as MFI A. The weight of the psychiatrists’ opinions supports the conclusion that proposed conditions 16, 17, 22, 23, 30 and 37 to 43 of MFI A are too onerous or unnecessary. There was no real dispute that the appropriate term for the further supervision order is 2 years. Orders [47] The Court being satisfied that the respondent is a serious danger to the community in the absence of a further supervision order pursuant to Division 4A of the Act, a further supervision order will be made. [48] I will hear the parties as to the final form of the order. -- 14 of 14 --