Attorney-General for the State of Queensland v Valence [2024] QSC 293

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Valence [2024] QSC 293 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v KERRY PATRICK VALENCE (Respondent) FILE NO/S: 2941 of 2009 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 2 December 2024 DELIVERED AT: Brisbane HEARING DATE: 11 November 2024 JUDGE: Ryan J ORDER: 1. Pursuant to s 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the decision made on 13 August 2009, that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act be affirmed. 2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 November 2018. 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 respondent has refused to engage in group sexual offenders’ treatment – where individual sexual offenders’ treatment prior to the respondent’s last release on supervision was essentially ineffective – where the supervision order was rescinded and a continuing detention order (CDO) made instead –where the CDO was reviewed – where the respondent did not contest the outcome sought by the applicant, namely that he remain in detention – where the respondent’s risk of serious sexual reoffending was moderate to high or high – whether the -- 1 of 6 -- 2 respondent should continue to be subject to a continuing detention order. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 30(1) and 30(3)(a) COUNSEL: J Rolls for the applicant The respondent appeared on his own behalf SOLICITORS: Crown Law for the applicant The respondent appeared on his own behalf [1] On 10 March 2006, the 67-year-old respondent was sentenced for sexual offences committed upon children. He did not participate in any programs which would have enabled him to progress to group based sexual offender treatment whilst serving his sentence. He was thus an untreated sex offender. At the end of his sentence, on 16 November 2018, an order was made for his continuing detention under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA or the Act). [2] On 11 November 2024, after hearing an application under section 27 of the Act for a review of the continuing detention order, I made orders in the following terms: THE COURT, being satisfied to the requisite standard that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT: 1 Pursuant to s 30(1) of the Act, the decision made on 13 August 2009, that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act be affirmed. 2 Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 November 2018. [3] I indicated to the parties that my reasons for making the orders would be delivered later. These are my reasons. [4] On 13 August 2009, White J (as her Honour then was) found the respondent to be a “serious danger to the community” (as that phrase is understood in the context of the Act) and ordered that he be detained in custody for an indefinite term for care, control and treatment. -- 2 of 6 -- 3 [5] The continuing detention order was reviewed and affirmed on six occasions: on 8 September 2010; 10 October 2011; 8 October 2012; 8 October 2013; 29 September 2014; and 9 November 2015. [6] On 21 November 2016, at a review, it was rescinded, and the respondent was released on a supervision order. [7] On 16 November 2018, the respondent was found to have contravened his supervision order by having contact with two boys, aged eight and 14, without the permission of a Corrective Services Officer. Nor had he made the required disclosures to the parents of the boys. The supervision order was rescinded, and the respondent was returned to custody under a continuing detention order made by Davis J. [8] The continuing detention order made by Davis J was reviewed and affirmed on 21 October 2019; 19 October 2020; 25 October 2021; 25 November 2022; and 23 October 2023. [9] The 2024 review of the order was heard by me. [10] The law which applies to the conduct of these reviews is well known and well established. I will not repeat it in these reasons. [11] In June 2024, the respondent commenced fortnightly sessions with a psychologist, Janet O’Sullivan. The purpose of his treatment was to: (a) address his risk and treatment needs, including in relation to avoidant behaviour and cognitive distortions; and (b) facilitate the development of a relapse prevention plan. [12] He had completed eight sessions prior to the review before me. Ms O’Sullivan reported that the sessions had focused on the behaviours which led to the respondent’s return to custody. Initially, the respondent had been guarded and cautious, although his level of engagement improved over time. Ms O’Sullivan considered the respondent responsive to the limited treatment he had received to date. She has a plan for the content of future sessions, which includes (but not only) developing the respondent’s insight; reducing his cognitive distortions; and equipping him with coping skills to reduce his avoidant behaviour. -- 3 of 6 -- 4 [13] The respondent appeared for himself at the hearing before me. The two psychiatrists, who had prepared reports for the purposes of the review, were called as witnesses – but the respondent did not wish to cross-examine them. [14] In his submissions to the court, the respondent did not contest the order sought by the Attorney-General, which was the order I made, continuing his detention. [15] Notwithstanding the respondent’s position, for my benefit and his, I asked each of the psychiatrists to give brief, sworn evidence outlining their opinions about the respondent’s risk. Given the position taken by the respondent, it is sufficient for me to set out in these reasons the critical points made by each in their oral evidence, which was consistent with their written reports and which, of itself, provided ample support for my findings and orders. Dr Karen Brown [16] Dr Brown explained that the respondent has a long history of sexual offending, primarily involving prepubescent male children. [17] He fell within the DPSOA regime many years ago. For a period of time, he did not engage in any relevant treatment. In particular, he did not engage in group sexual offender treatment, which is the mainstay of sexual offender treatment in Queensland. Eventually, he engaged in individual treatment and was able to create a relapse prevention plan, which essentially involved his avoiding children. On the strength of that plan, he was released into the community under a supervision order, and spent about a year at the Wacol Precinct. Then he moved out to a property in Toowoomba. Thereafter, whilst still subject to the supervision order, he formed a relationship with a family which included the two boys referred to above. He spent time with them, and engaged in massage and other behaviours with them. [18] Once his contravention was established, his supervision order was rescinded and he was placed on a continuing detention order. Again, he refused to engage in group sexual offender treatment. He demonstrated quite marked cognitive distortions about consent and quite significant minimisation of the incidents that led him to return to custody. -- 4 of 6 -- 5 [19] Dr Brown noted that she and other psychiatrists had given evidence to the court in the past about the need for the respondent’s engagement in sexual offenders’ treatment, which might include anti-libidinal medication. [20] Only recently had he been willing to engage with a psychologist for individual treatment. And he had attended only a few sessions with Dr O’Sullivan before Dr Brown assessed him. [21] Dr Brown noted that Dr O’Sullivan’s report highlighted the respondent’s treatment goals – but treatment was still in its infancy. Obviously, his treatment needs were still outstanding. [22] Dr Brown discussed the advantages of group sexual offender treatment programs which were difficult to replicate in individual therapy. She explained that group therapy relied (in part) on a social challenge model, whereby participants are expected to take accountability and hear feedback in a social setting, which was thought to deliver a therapeutic advantage. The respondent had already engaged in individual treatment prior to his last release, and it had proven to be essentially ineffective. Before individual psychological treatment could be relied upon as (potentially) offering protection to the community, there would need to be a considerable amount of therapy and an opinion from an assessing psychiatrist that there had actually been some treatment gains. [23] The respondent’s current risk of committing a serious sexual offence if he were released was moderate to high. It was hoped that treatment would (among other things) increase understanding of, and insight into, his offending “pathway”, and allow for the creation of a relapse prevention plan/risk reduction plan. But whether treatment was efficacious or not depended upon the respondent’s willingness to engage with it. [24] Dr Brown observed that there was evidence that, despite being in his late 60s, the respondent was sexually active, which was relevant to his risk. [25] The respondent had offered to take “SSRI” medication. SSRIs could, in some circumstances, such as where there had been low-level offending with an obsessive component, reduce sexual drive. But they were not as effective as hormonal anti- libidinal treatments, which were to be considered as the first-line treatment for the -- 5 of 6 -- 6 respondent. It remained to be seen whether SSRIs were of any use to the respondent in reducing his relevant risk. Regardless, medication was to be considered part of a package of care in relation to paraphilia. Dr Anna Lenardon [26] Dr Lenardon explained that the respondent had a chronic history of offending against children and an established diagnosis of paedophilic disorder. [27] She had assessed the respondent in 2023 for the purposes of a review. In her view, he had made limited progress since her 2023 assessment. He was a little bit warmer and more engaged. However, his views in relation to the contravention which saw his return to custody had not changed. His rigidity and black-and-white reasoning remained evident. She considered the respondent at high risk of serious sexual reoffending if he were released into the community, particularly if he was out of the precinct. [28] She considered group sexual offender treatment as the gold standard – as did Dr Brown – especially for high risk offenders because of its deployment of group dynamics; the participation of others; and exchanges between offenders. With individual therapy, it was possible for a respondent to manipulate or control the therapeutic interaction – leading to less efficacious treatment. Given what occurred after a senior psychologist considered him to have made really good progress last time, individual therapy might not be the way forward for the respondent. After his first round of individual treatment, he'd developed a relapse prevention plan that was considered good, which was why he was released. But the problem emerged when he had to put his plan into practice. He failed. Effective individual therapy would likely involve 30 – 40 sessions – although it would be for the treating psychologist to judge. The hope was that through therapy – particularly group therapy – he might not only learn the strategies but learn how to put them into practice if the risk arose. [29] With respect to medications, in Dr Lenardon’s view, it was possible that an SSRI could reduce libido, but the vast majority of people taking SSRIs did not have a sexual dysfunction. It could help with obsessive-compulsive thoughts around sex. But having regard to the respondent’s high-risk profile, she had no confidence in SSRIs mitigating future relevant risk. -- 6 of 6 --