Attorney-General for the State of Queensland v ECA [2023] QSC 286

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v ECA [2023] QSC 286 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ECA (respondent) DIVISION: Trial Division PROCEEDING: Annual Review Hearing ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 12 December 2023 DELIVERED AT: Brisbane HEARING DATE: 20 November 2023 JUDGE: Kelly J ORDERS: 1. Pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”), the decision made on 5 August 2019, that the respondent is a serious danger to the community in the absence of a Division 3 order, 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 5 August 2019. 3. A copy of the report of Dr Harden dated 24 October 2023, the report of Dr McVie dated 26 October 2023, the letters of Dr Voita dated 15 September and 30 September 2023 and the respondent’s inpatient notes from his most recent period as an inpatient at the High Secure Inpatient Service at the Park Centre for Mental Health be provided to the Prison Mental Health Service and the Office of the Chief Psychiatrist, Queensland Health. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where, on 5 August 2019, the respondent was found by the Court to be a serious danger to the community in the absence of an order pursuant to -- 1 of 17 -- 2 Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) – where this finding has been affirmed on two occasions, most recently on 2 November 2022 – where the respondent has been subject to either a continuing detention order since 5 August 2019 – where the current proceedings are the third annual review of the continuing detention order made on 5 August 2019 – whether the decision made on 5 August 2019 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act be affirmed – whether the respondent should continue to be subject to the continuing detention order, pursuant to s 30(3) of the Act – whether the adequate protection of the community can be ensured by the release of the respondent on a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(5)(a), 30(3)(a) Mental Health Act 2016 (Qld) Attorney-General for the State of Queensland v DBJ [2017] QSC 302, cited Attorney-General for the State of Queensland v ECA [2021] QSC 220, related Attorney-General for the State of Queensland v ECA, unreported, Boddice J, SC No 2842 of 2019, 5 August 2019, related Attorney-General for the State of Queensland v ECA, unreported, Crowley J, SC No 2842 of 2019, 21 November 2022, related Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Attorney-General (Qld) v Guy [2018] QSC 179, cited Attorney-General (Qld) v Kennedy [2016] QSC 287, cited Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, [2004] HCA 46, cited COUNSEL: J Tate for the applicant L D Reece for the respondent SOLICITORS: Crown Solicitor for the applicant Hodgson Lawyers for the respondent [1] This is an application by the Attorney-General pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for the review of the continuing detention of the respondent. Historical matters [2] On 5 August 2019, this Court found that the respondent was a serious danger to the community in the absence of a Division 3 order and ordered that he be detained in custody pursuant to s 13(5)(a) of the Act. On 2 August 2021, this Court affirmed the -- 2 of 17 -- 3 finding that the respondent was a serious danger to the community and ordered that he continue to be detained in custody. On 2 November 2022, this Court again affirmed the finding that the respondent was a serious danger to the community and ordered that he continue to be detained in custody. This is the third review of the order made on 5 August 2019. [3] The parties accept that there is acceptable cogent evidence which would satisfy the Court to the high degree of probability required that the respondent remains a serious danger to the community in the absence of an order made under Division 3. There is no issue that the finding that the respondent is a serious danger to the community in the absence of a Division 3 order should be affirmed. The real issue concerns the manner in which the discretion conferred by s 30(3) of the Act ought to be exercised. Section 30(3) provides that the Court may order that the prisoner “continue to be subject to the continuing detention order” or “be released from custody subject to a supervision order”. Section 30(4) provides that in deciding whether to make either of those orders, “the paramount consideration is … the need to ensure adequate protection of the community”. The applicant sought the continuation of the continuing detention order. The respondent sought orders rescinding the continuing detention order and releasing him from custody subject to a supervision order. Statutory Scheme [4] The application is governed by s 30 of the Act which is in the following terms: “30 Review hearing (1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order. (2) On the hearing of the review, 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. (3) If the court affirms the decision, 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. (4) In deciding whether to make an order under subsection (3)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and -- 3 of 17 -- 4 (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (5) If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order. (6) In this section— required matters means all of the following— (a) the matters mentioned in section 13(4); (b) any report produced under section 28A.” [5] Section 30 contemplates a two-stage decision making process. First, the Court must be satisfied, by acceptable cogent evidence, that the decision previously made, that the prisoner is a serious danger to the community in the absence of a Division 3 order, should be affirmed. If the decision is affirmed, a discretion arises under s 30(3) of the Act to determine whether the respondent ought to continue to be subject to the continuing detention order or be released from custody subject to a supervision order. The paramount consideration is the need to ensure adequate protection of the community. [6] In Attorney-General (Qld) v Guy,1 Davis J observed: “Section 30 operates in this way: 1. Firstly, the Court must consider whether the respondent is ‘a serious danger to the community in the absence of a Division 3 order’; 2. If the answer to that question is in the affirmative, then consideration must be given to whether ‘adequate protection of the community’ can be ensured by release of the respondent on a supervision order; 3. If the answer to that question is in the negative, then generally (subject to any discretion to make no order) a continuing detention order should be made.”2 [7] For a continuing detention order to be made, the applicant must demonstrate that the community will not be adequately protected by a supervision order. 1 [2018] QSC 179. 2 Attorney-General (Qld) v Guy [2018] QSC 179, [10]. -- 4 of 17 -- 5 [8] In Attorney-General for the State of Queensland v Sutherland,3 McMurdo J relevantly 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.”4 [9] The expression “unacceptable risk” is incapable of precise definition, but requires the striking of a balance.5 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. [10] In Attorney-General for the State of Queensland v DBJ,6 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. … 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.”7 Respondent’s history of serious sexual offending [11] The respondent’s offending involved sexual offending against complainants of varying ages. [12] On 7 November 2011, the respondent was sentenced in the District Court in respect of two counts of indecent treatment of a child under 16 (under 12) and one count of entering a dwelling with intent by break at night-time. The offending occurred on 21 January 2009. The respondent pleaded guilty to the offences on the third day of his trial. The sentencing judge imposed an effective head sentence of five years and three months imprisonment for the offences. A parole eligibility date was set at 3 [2006] QSC 268. 4 Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, [29]. 5 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 (Qld) v Kennedy [2016] QSC 287, [23]. 6 [2017] QSC 302. 7 Attorney-General for the State of Queensland v DBJ [2017] QSC 302, [12]–[13] (Bowskill CJ). -- 5 of 17 -- 6 21 January 2013. The sentencing judge provided the following summary of the respondent’s offending and conduct: “The facts of the case may be summarised as follows: on the night in question [the respondent] went to the complainant’s house in the early hours of the morning. He ultimately obtained access to the house through a window. He then made his way to the bedroom of a three and a-half year old girl. There he removed her pyjama bottoms and underpants and exposed her vagina, licked her vagina and took indecent photos of her in her semi- naked state. He was found at the scene by the complainant’s father. [The respondent] was naked. He was restrained until apprehended. The offences are, of course, serious offences. …. The experience was harrowing for all concerned and continues obviously to have its consequences. At the scene of the crime [the respondent] gave a false name. He took part in an interview; the next day but made denials. He was interviewed some days later and made relevant admissions, but subsequently claimed that those admissions were forced. He pleaded not guilty. The matter went to trial. On the third day of the trial he changed his pleas to pleas of guilty to a number of counts and to an alternative in relation to count 2. The Crown was prepared to accept those pleas in discharge of the indictment. The pleas were made in circumstances where an overwhelming Crown case was becoming even stronger. Subsequently, he applied unsuccessfully to withdraw his pleas of guilty. When the matter then came on for sentencing, he behaved in an inappropriate manner.” [13] On 14 December 2011, the respondent was sentenced in respect of two counts of indecent treatment of a child under 16 (under 12) and two counts of indecent treatment of a child under 16 (child under 12) take photograph etc. He was sentenced following a trial. The offending occurred between March and June 2007. The sentencing judge sentenced the respondent to an effective head sentence of two years imprisonment to be served cumulatively upon the sentences imposed on 7 November 2011. A parole eligibility date was set at 21 January 2014. [14] The sentencing judge summarised the circumstances of the offending as follows: “… the accused was a visitor in the home of his relatives. Those relatives occasionally looked after the complainant child who was, … about 10 to 13 months old at the relevant time. They baby-sit that child whilst her mother had other things to do. It was during one of those occasions that he entered the room in which the child was sleeping in her cot. He had a camera with him. On the jury’s finding he must have placed his fingers in the area of her vagina but not inserted his fingers into her vagina. He then rubbed the area of her breasts and subsequently took photographs of her.” -- 6 of 17 -- 7 [15] On 15 February 2012, the respondent was sentenced, following guilty verdicts after a trial, in respect of two counts of indecent treatment of a child under 16 and one count of indecent treatment of a child under 16. The offending was committed between October 2007 and March 2008. The complainant was a child aged approximately 14 or 15 years. The offences involved sending and receiving explicit photographs. Two of the counts of indecent treatment involved procuring to commit. The remaining count involved indecent images. The respondent was sentenced to an effective head sentence of six months imprisonment to be served cumulatively on the existing terms of imprisonment. A parole eligibility date was set at 21 March 2014. A continuing detention order and subsequent referral to QCAT [16] On 5 August 2019, this Court found that the respondent was a serious danger to the community in the absence of a Division 3 order and ordered that he be detained in custody pursuant to s 13(5)(a) of the Act. Boddice J then observed: “The respondent’s offending behaviour the subject of the index offences involved sexual offending against separate complainants of varying ages on three separate occasions. It is properly to be characterised as involving serious sexual offending of an escalating nature. That feature was considered by both Dr Beech and Dr Sundin to be particularly compelling when considering the risk presented by the respondent in respect of future serious sexual offending, particularly in the context of not only a treatment resistant mental illness but ongoing lack of insight and denial of the offences. I accept the opinions expressed by both Dr Beech and Dr Sundin as to the respondent’s current diagnoses and as to the risks he currently presents in respect of serious sexual offending in the future. I accept that that risk is properly to be characterised in the moderate-high range. That risk is exacerbated by not only the treatment resistant nature of his mental illness but the respondent’s poor insight and ongoing denials of his previous sexually deviant behaviour.”8 [17] On 6 August 2020, this Court made a reference to QCAT in relation to the respondent’s capacity. Davis J then observed: “Dr Stewart, who is the respondent’s treating psychiatrist, in a report of 19 June 2020, speaks of [the respondent] continuing to express entrenched delusional beliefs of persecution. His central persecutory belief is that he has been convicted by a gross miscarriage of justice. He believes that there has been a conspiracy involving the judiciary, the Courts, the police and even mental health services. …. Dr Beech in his report also spoke of [the respondent’s] persecutory delusional stance and the fact that he is not on medication. Dr Beech also observes that [the respondent’s] schizophrenic illness and his persisting claims of innocence preclude him from undertaking a sexual 8 Attorney-General for the State of Queensland v ECA, unreported, Boddice J, SC No 2842 of 2019, 5 August 2019 13 [49]–[50]. -- 7 of 17 -- 8 offender treatment program or engaging in meaningful discussions aimed at risk management strategies. Dr Beech also spoke of [the respondent’s] preoccupation in relation to what he sees as false allegations made against him. Dr Beech’s interview with [the respondent] was impaired because [the respondent] returned quickly to what Dr Beech described as his, that is, [the respondent’s], persecutory theme of false allegations, illegal searches and a corrupt criminal justice process. …. Dr Timmins noted that [the respondent] refused treatment for his psychotic illness and that she observed that he presented with what she described as a relapse of his schizophrenic illness with formal thought disorder and a preoccupation with persecution from various agencies.” [18] On 2 March 2021, QCAT appointed a guardian for the respondent’s legal matters relating to proceedings under the Act. The first and second reviews [19] On 2 August 2021, this Court affirmed the finding that the respondent was a serious danger to the community in the absence of a Division 3 order and a continuing detention order was made.9 Wilson J then observed: “Counsel for the respondent notes that the respondent suffers from severe paranoid schizophrenia. He has no insight into his illness. He has refused medication since January 2020. He has been untreated since that time, save for a regular review of his condition in custody by Dr Stewart, who is employed by prison mental health. Dr Stewart opines that the respondent’s mental health has not deteriorated since cessation of medication. Dr Timmins opines that the respondent’s psychiatric illness is worsening and that it will inevitably continue to do so absent treatment. Dr Beech’s view is that the respondent remains chronically delusional but has not deteriorated much since the cessation of medication. Those psychiatrists see a likely benefit for the respondent being transferred to a secure psychiatric facility. However, the transfer to a secure psychiatric facility can only be ordered by the prison mental health service in conjunction with the treating psychiatrist. Dr Stewart does not support the transfer of the respondent to a secure psychiatric facility at this time, and this will occur only if he observes the significant deterioration of his mental state. … … In Dr Timmins’ view, the respondent’s unmodified risk of sexual offending is high and he could not be safely managed in the community. 9 Attorney-General for the State of Queensland v ECA [2021] QSC 220. -- 8 of 17 -- 9 In Dr Beech’s view, the respondent represents an unmodified risk to the community without suitable alternatives being available. … I note the explanations that Dr Beech provides for the contrast between the records and reports of Dr Stewart and the observations of others, including Dr Timmins. Taking into account the longitudinal opinions of Dr Beech and Dr Timmins, in my view, a supervision order would not provide for the adequate protection for the community. The respondent remains an unacceptable risk. He requires adequate treatment to stabilise his mental illness, and needs to at least undergo a tailored intervention before consideration could be given to whether his risk is such that he could be released into the community under a supervision order.”10 [20] On 2 November 2022, this Court affirmed the finding that the respondent was a serious danger to the community in the absence of a Division 3 order and a continuing detention order was made.11 The ongoing treatment of the respondent’s mental illness was then an important issue. Crowley J observed: “… it does appear … that there is a consensus view that the treatment criteria under the [Mental Health Act 2016 (Qld)] are met and that there is an urgent need for assessment and ultimately treatment for [the respondent’s] psychiatric illness, and that that must happen before any step can sensibly be taken with respect to engaging in further treatment and counselling in respect of his risk of re-offending of his sexual offending. It has been expressed by the consultant psychiatrists who have provided their reports today that the position is disappointing that it remains substantially the same as it was on the last occasion. I agree. … As Justice Wilson noted, however, I have no power nor authority in respect of making any such order that might facilitate that to occur. That is a matter ultimately for Prison Mental Health Services.”12 The contemporary psychiatric evidence [21] Some seven months after the second review, on 25 May 2023, the respondent was transferred as a classified patient to the Forensic and High Security Inpatients Service at the Park Centre for Mental Health (“the Park”).13 His admission followed a period of some three years during which he had been effectively unmedicated. [22] Dr Angela Voita is the respondent’s treating psychiatrist at the Park. By a letter dated 15 September 2023 to the Crown Solicitor, Dr Voita materially stated: 10 Attorney-General for the State of Queensland v ECA [2021] QSC 220, [56]–[57], [64]–[67]. 11 Attorney-General for the State of Queensland v ECA, unreported, Crowley J, SC No 2842 of 2019, 21 November 2022. 12 Attorney-General for the State of Queensland v ECA, unreported, Crowley J, SC No 2842 of 2019, 21 November 2022, 13–14. 13 Dr Voita’s Report dated 13 September 2023, 1. -- 9 of 17 -- 10 “[The respondent] has a longstanding history of paranoid schizophrenia, diagnosed as early as 2015 when he was referred to Prison Mental Health Services (PMHS). Since then, he has required three involuntary admissions to [the Park]: twice in 2015-2016 and again in 2017 for depot administration. This current admission is his fourth. Each admission was precipitated by a deterioration of [the respondent’s] mental state with a relapse of psychotic illness following refusal of pharmacological treatment due to poor insight to his illness with associated concerns of risks of harm to self and others. … [The respondent] has a current diagnosis of paranoid schizophrenia with active symptoms of paranoid persecutory thought content and thought disorder. He is currently receiving treatment as an inpatient at [the Park]. He is on a depot antipsychotic medication – zuclopenthixol 300mg – that he receives every 2 weeks. [The respondent] is currently a Classified patient and subject to a Treatment Authority (Inpatient Category) under the [Mental Health Act]. He was made subject to the current Treatment Authority on 25/05/2023. … On 23/05/23, [the respondent] was placed under a Recommendation for Assessment with concerns regarding active symptoms of paranoid schizophrenia - thought disorder, paranoid delusions that his food was being poisoned and property stolen by other inmates - and refusal of treatment with an ongoing profound lack of insight. … Currently, [the respondent] requires ongoing mental health treatment. While his mental state has improved significantly since admission to The Park, he continues to display symptoms of thought disorder with paranoid systemised delusions incorporating the police and at times, health authorities. He has limited insight into his psychotic illness and does not accept any psychiatric diagnosis, including that of schizophrenia. He does not accept that he needs treatment with antipsychotic medications but has passively acquiesced with these under the Treatment Authority. Given the longstanding nature of his schizophrenic illness and multiple relapses in the context of poor medication compliance, he will require ongoing care under a Treatment Authority for the foreseeable future. Consideration is currently being given to augmentation with other antipsychotic medications.” [23] By a further letter to the Crown Solicitor dated 13 November 2023, Dr Voita materially stated: “[The respondent] has remained an inpatient in [the Park]. He remains … on a Treatment Authority. His depot antipsychotic, Zuclopenthixol Decanoate has been uptitrated to 400 mg IMI fortnightly (last -- 10 of 17 -- 11 administered on the 31/10/23). He was also commenced on a second oral antipsychotic lurasidone 20 mg bd on the 25/10/23. The dose of lurasidone was increased to 40 mg bd on the 9/11/23. He has tolerated the medication well and reports no side effects. [The respondent] remains behaviourally settled and there has been a noted improvement in his mental state. Currently there is no evidence of formal though[t] (sic) disorder during reviews and he does not appear preoccupied with persecutory delusions. Although he does not spontaneously report persecutory delusions, it remains evident that he still holds entrenched beliefs regarding a conspiracy having led to his incarceration. There are no residual bizarre delusions. His insight into his illness remains very poor and he attributes a change of environment and a better diet to be the reasons as to why he is no longer persecuted by other prisoners or having side effects due to the Covid vaccine. [The respondent’s] inpatient treatment will soon be completed and a plan is currently being formulated for his return to custody following the upcoming DPSOA hearing. As I have previously stated, given the longstanding nature of his schizophrenic illness and multiple relapses in the context of poor medication compliance, [the respondent] will require ongoing care under a Treatment Authority for the foreseeable future.” [24] Drs McVie and Harden were engaged as the consultant psychiatrists. [25] Dr McVie examined the respondent at the Park on 8 September 2023 and reported on 26 October 2023.14 [26] Dr McVie’s report materially opined: “[The respondent’s] progress has been impeded by the development of a psychotic illness which required inpatient treatment in 2015. He spent over three years un-medicated resulting in deterioration in his mental state and required transfer back to [the Park] in May 2023. He remains an inpatient treated with depot antipsychotic medication. He continues to display very poor insight into his mental illness and need for treatment. There has been significant improvement in his mental state since re-commencement of treatment. … Though his initial symptoms appeared to be delusional beliefs around his arrest and conviction, and he presented with some evidence of these beliefs, and associated behaviours at the time of his first trial in 2011, and at trial in 2012, there is no clear evidence to link his sexual offending with his psychotic illness. The background material, previous psychiatrists’ reports, and his current delusional accounts do not suggest the sexual offending was related to, or a consequence of, his mental illness. 14 Dr McVie’s Report dated 26 October 2023, 1. -- 11 of 17 -- 12 In terms of risk for re-offending sexually, [the respondent] has not complied with formal assessment, partly due to his psychotic illness and partly due to his complete denial of the offences. Risk assessment on available facts and clinical assessment, does indicate he presents a high risk of re-offending. He has no insight into his sexual offending behaviour and continues to deny committing his offences.”15 [27] Dr McVie gave oral evidence. She noted that the respondent’s history of prior admissions to the Park had all been precipitated by deteriorations in his mental state following the refusal of pharmacological treatment due to what she considered to be “poor insight into his illness”.16 She identified the most relevant risk as arising from the respondent’s diagnosis of paedophilia. She said “… it’s quite clear from the nature of [the respondent’s] offending …and the collateral that he has been offending over a period of time, … that he will be a high risk into the future”.17 Dr McVie considered that the fact that the respondent denied his offending also increased his risk. [28] Dr McVie had seen the respondent approximately 12 months ago, when she had observed him to be “floridly psychotic and very disturbed by his psychosis”.18 She recalled that it had been “very difficult to see somebody … in custody … extremely distressed by the nature of their psychotic symptoms.” She considered that the first step to assist the respondent to learn how to keep his emotions and sexual drives in check was to “get him to accept that he does have a … paedophilia … and then … the treating psychiatrist will be able to work with him to develop techniques … to manage that”.19 She considered that whilst the respondent’s mental state had dramatically improved from his observed state in September 2022,20 it was very important that he to continue on his medication and remain compliant with both his depot and his oral medication.21 [29] It is worth setting out the following exchange from Dr McVie’s evidence in chief:22 “Would you feel more comfortable in terms of providing a psychiatric view about [the respondent] if he had a period of time to demonstrate that stability before release to the community?---I would like to see [the respondent] … - demonstrating at least some insight into his mental illness and some insight into his need for treatment before he was released to the community, and I think he needs to demonstrate that before he can actually meaningfully engage in terms of the nature of his sexual offending. How important is it that [the respondent] receives some sort of psychological assistance or intervention to decrease his risk of serious sexual offending?---I think it’s very important with [the respondent], because he does have a clear diagnosis of paraphilia, paedophilia, and 15 Dr McVie’s Report dated 26 October 2023, 26. 16 T1-5.47. 17 T1-4.25-31. 18 T1-4.45-47. 19 T1-5.17-20. 20 Ibid. 21 T1-6.44-45. 22 T1-6.46-T1-7.10. -- 12 of 17 -- 13 that in itself will indicate high risk of sexual reoffending, which is really what we’re looking at here, but he is impaired in his ability to address that because of his schizophrenia.” [30] Dr McVie’s preference was for the respondent to remain in custody, engage with a psychologist for further assessment and commence a treatment process to address his risk of sexual offending.23 She preferred for these steps to be taken before the respondent’s release into the community was further considered.24 She made it plain that if the respondent were to remain in custody, it was important that Dr Voita’s reports and the inpatient notes from his time at the Park be made available to the prison mental health psychiatrist. She said in cross-examination:25 “One would hope that the Prison Mental Health Services would be well aware of his case and would be more proactive in ensuring that he remained on treatment, after what he’s gone through in recent months.” [31] Dr McVie accepted that the respondent’s unmoderated risk posed on release into the community was high and that, “if he remained mentally well and he was under the stringent conditions of a supervision order, his risk would be moderated”.26 However, she was careful to add the following observations:27 “But, I mean, the difficulty with this man is he was very pushy about saying he doesn’t have a mental illness. He was very pushy to come off his medication, and he does have underlying residual beliefs, still, when I saw him in September, though he wasn’t distressed by them and didn’t become thought-disordered and disturbed when I interviewed him in September, which is very different to last year. But if somebody looks at this man cross-sectionally, they understand his criminal history, his beliefs appear to be directly related to his criminal offending and his criminal history, and the differential diagnosis that they’re likely to come up with on a cross-sectional interview is delusional disorder. Now, delusional disorder isn’t schizophrenia, which is what I’ve diagnosed and what Dr Voita’s diagnosed. Delusional disorder is something that usually develops later in life, and it starts gradually, and people have beliefs that on one level can seem realistic. There are many psychiatrists who believe that delusional disorder is untreatable, and therefore, they refuse to treat it. So he’s a high risk of being seen by somebody who thinks he’s got a delusional disorder that won’t respond to medication.” [32] Dr Harden examined the respondent at the Park on 9 October 2023 and reported on 24 October 2023.28 Dr Harden’s report materially opined: “Since the restarting of antipsychotic medication the material is clear that [the respondent] has not developed any insight into his illness but 23 T1-7.11-25. 24 T1-7.25. 25 T1-23.40-46. 26 T1-24.08-10. 27 T1-24.40-T1-25.10. 28 Dr Harden’s Report dated 24 October 2023, 1. -- 13 of 17 -- 14 is significantly less agitated and poses less of a risk to himself and other people. It is not clear to what extent there is a relationship between the paraphilia and the psychotic disorder although it is notable that they developed and were expressed in a way that was detectable around the same time.” [33] On the question of risk, Dr Harden’s report materially provided: “The actuarial and structured professional judgement measures I administered in combination with my clinical assessment would suggest that his unmodified future risk of sexual reoffence is Moderate - High (above average). Victims are likely to be prepubertal females. The risk is elevated above that predicted on static instruments due to the pattern of the offending that occurred during his initial index cluster with a clear progression of offending to very high risk “hands on” offending against a stranger child as well as the presence of his psychotic disorder that has made assessment of his re offending risk more difficult and introduces increased error of measurement due to the unknown nature of the details of his internal sexual function. The critical risk issues are his Paraphilia and Psychotic disorder. Supervision and intervention consistent with a supervision order in my opinion will likely reduce the risk to moderate if he remains on antipsychotic medication.”29 [34] Dr Harden gave oral evidence. He noted that the respondent suffered from paraphilia and a psychotic disorder which he described as “the critical risk issues”.30 He candidly accepted that he did not yet have a complete understanding as to how those two issues interrelated in the assessment of risk. He relevantly said:31 “We know that [the respondent] committed the offences. We know that shortly afterwards, he started developing psychotic symptoms. Much of his complex delusional structure involves persecutory beliefs that a conspiracy was responsible for his being incarcerated, and the merging of the two - we don’t have a clear understanding … he has been unwell, … we’ve had a lack of information, and he has poor insight, both into his psychotic disorder and into his offending.” [35] Dr Harden accepted that it was important for the respondent to receive “effective doses of anti-psychotic medication delivered in a way that maintains his compliance”.32 To ensure that outcome, he considered that the respondent required involuntary treatment for the short to medium term.33 Whilst he initially opined that the respondent could be released to supervision, he later qualified that opinion. He did not accept the proposition that his evidence was supportive of a release on a supervision order. He said “I think it’s probably more accurate to say my evidence is 29 Dr Harden’s Report dated 24 October 2023, 19. 30 T1-27.22-27. 31 T1-27.36-43. 32 T1-30.25. 33 T1-30.29. -- 14 of 17 -- 15 that there is a reduction of risk of sexual reoffending by the strictures of a supervision order, given that his current mental state, as far as I could tell now, is … stable and improved”.34 Dr Harden linked the reduction in risk to the respondent’s current mental state whilst a resident at the Park and observed that, if the respondent was not treated with psychotic medications, his condition would inevitably deteriorate. Lay evidence concerning QCS practices [36] The applicant read an affidavit of Jolene Monson, an employee of the High Risk Offender Management Unit, Queensland Corrective Services (“QCS”). Ms Monson relevantly deposed: “Should stabilisation of the respondent's mental state continue to be observed, QCS will engage a suitability qualified psychologist, to complete an assessment of the respondent's suitability for ongoing treatment. Should he be considered ready willing and able, ongoing treatment to address his sexual offending will be facilitated. Any treatment will be in consultation with QCS and will be guided by the available psychiatric material. It is the preference of QCS that when he is stable and ready to commence psychological treatment that this be commenced in custody and the respondent demonstrate a period of meaningful engagement within this environment. Treatment provided will be in consultation with QCS and in consideration of the psychiatric reports in order to address the respondent's sexual offending behaviour.” Consideration [37] The parties accept that there is acceptable cogent evidence which would satisfy the Court to the high degree of probability required that the respondent remains a serious danger to the community in the absence of an order made under Division 3. In the absence of a Division 3 order, there is a very high risk of what Dr Harden described as “hands on” offending against a stranger child. The assessment of risk in the present case has been made more difficult by reason of the presence of the respondent’s psychotic disorder and the “unknown nature of the details of his internal sexual function”.35 The respondent has no insight into his sexual offending behaviour and continues to deny committing his offences.36 The respondent suffers from paedophilia and a schizophrenic illness. He is in denial about each condition. At various times in his history, he has been strongly resistant to prescribed medication. He has had multiple admissions to the Park, each of which have been precipitated by deteriorations in his mental state following refusal of pharmacological treatment. Whilst at the Park since May 2023, his condition has improved whilst he has been the recipient of involuntary prescribed medication. [38] Having considered the written and oral evidence of Drs McVie and Harden, I am satisfied that the community would not be adequately protected by a supervision 34 T1-31.04-08. 35 Dr Harden’s report dated 24 October 2023, 19. 36 Dr McVie’s report dated 26 October 2023, 26. -- 15 of 17 -- 16 order. The evidence of Dr McVie, which I have earlier outlined and accept, was not in favour of a supervision order being imposed at this stage. The evidence of Dr Harden was in important respects in agreement with Dr McVie’s evidence, particularly as to risk factors and the respondent’s denial of his conditions. Dr Harden plainly accepted that if the respondent were not treated with medications his condition would deteriorate and he was only prepared to acknowledge a reduction of risk of sexual offending in the context of the respondent’s current mental state being “stable and improved”. Dr Harden considered that the respondent required involuntary treatment for the short to medium term and emphasised that it was important for the respondent to receive “effective doses of antipsychotic medication delivered in a way that maintains his compliance”. [39] The psychiatrists accepted that, were the respondent to be released into the community, there could be no assurance that he would continue to be effectively medicated. In that regard, whilst the respondent is presently the subject of a treatment authority under the Mental Health Act 2016 (Qld), it was accepted that any psychiatrist under that Act could remove the respondent from his treatment authority. One of Dr McVie’s concerns, which she articulated in a cogent way, was that by reason of the respondent’s strong personality and underlying residual beliefs, he could quite readily persuade a treating professional that he suffered from a delusional disorder rather than schizophrenia and thereby be released from his treatment authority. This opinion was expressed in the context of the respondent being in denial about his illnesses, conditions and offending and having a history of multiple relapses in the context of poor medication compliance. [40] Having regard to the respondent’s history of admissions to the Park, the circumstances in which those admissions occurred and his continuing lack of insight and denials, I find that there is a real and significant prospect that were the respondent to be released into the community on a supervision order, he might not continue to receive effective doses of anti-psychotic medication and his condition would deteriorate. In those circumstances, there is a very likely risk that the respondent would reoffend by committing a sexual offence against a pre-pubescent female. I accept Dr McVie’s opinion that the preferable course, and the course that has most regard to adequate protection of the community, is to require the respondent to remain in custody where he can engage with a psychologist and commence a treatment process to address his risk of sexual offending. I find that on the weight of the evidence the applicant has demonstrated that the community would not be adequately protected by a supervision order. [41] At the time these reasons were delivered, it was expected that the respondent would have returned to custody and no longer be an inpatient at the Park. The psychiatric evidence before this Court questioned the suitability of historical medical treatment that has been provided to the respondent whilst in custody. It may be observed that, from a psychiatric assessment perspective, the respondent’s present position is not far advanced on his position at the first review. In the interim, he has suffered repeated setbacks and periods of turmoil when he has been unmedicated. [42] During his most recent stay at the Park, the respondent’s health and wellbeing dramatically improved whilst he was prescribed involuntary medication. Dr McVie was obviously very concerned about the respondent’s condition in 2022 when he was unmedicated. Each of Drs Harden and McVie expected the respondent’s condition to -- 16 of 17 -- 17 deteriorate if he was not effectively prescribed medication. As has been previously observed by this Court at the first and second review, the respondent’s psychiatric treatment whilst in custody is the responsibility of the Prison Mental Health Services. I accept Dr McVie’s evidence that the two letters from Dr Voita and the clinical notes pertaining to the respondent’s most recent stay at the Park should be made available to the Prison Mental Health Service for consideration in the respondent’s future treatment whilst in custody. Having regard to the psychiatric evidence tendered and adduced upon the third review, it is appropriate for this Court to direct that the reports of Drs McVie and Harden, the letters of Dr Voita and the inpatient notes from the respondent’s most recent period at the Park be provided to the Prison Mental Heath Service and the Office of the Chief Psychiatrist at Queensland Health. The Court makes that direction for the purpose of ensuring that relevant information is made available to the professionals treating the respondent whilst he is in custody. Orders [43] The order of the Court is that: 1. Pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”), the decision made on 5 August 2019, that the respondent is a serious danger to the community in the absence of a Division 3 order, 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 5 August 2019. [44] The Court directs that: 1. A copy of the report of Dr Harden dated 24 October 2023, the report of Dr McVie dated 26 October 2023, the letters of Dr Voita dated 15 September and 30 September 2023 and the respondent’s inpatient notes from his most recent period as an inpatient at the High Secure Inpatient Service at the Park Centre for Mental Health be provided to the Prison Mental Health Service and the Office of the Chief Psychiatrist, Queensland Health. -- 17 of 17 --