Attorney-General for the State of Queensland v GFC [2023] QSC 277

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v GFC [2023] QSC 277 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v GFC (respondent) FILE NO: 12357 of 2023 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 1 December 2023 DELIVERED AT: Brisbane HEARING DATE: 27 and 28 November 2023 JUDGE: Applegarth J ORDER: The respondent be released from prison and must follow the rules in the supervision order for 10 years, namely until 8 December 2033. 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 seeks a supervision order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) - where the applicant submits that the evidence supports the conclusion that a supervision order will provide adequate protection of the community - where the respondent submits that the Court should not be satisfied that he is an unacceptable risk of committing a serious sexual offence if released from custody without an order being made - whether the respondent poses a serious danger to the community in the absence of a Division 3 order - whether the respondent should be released on a supervision order - whether a supervision order of 10 years duration should be made - whether the proposed terms of the supervision order are appropriate Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) -- 1 of 28 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 13A Attorney-General for the State of Queensland v KAH [2019] QSC 36, cited COUNSEL: J Tate for the applicant S Hedge for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] The 44-year-old respondent has a diverse history of sexual and other offending. It includes counts of indecent treatment of children and offences against adults. [2] On 8 May 2020, in the District Court at Roma, the Respondent pleaded guilty and was sentenced for these serious sexual offences: • Three counts of indecent treatment of a child; • One count of sexual assault; and • One count of choking, suffocation and strangulation. [3] The respondent’s full-time release date is 8 December 2023. [4] The three counts of indecent treatment relate to family members in the mid-1990s. They were aged between seven and thirteen. These historical offences only came to be charged in recent years. [5] The offence he committed on 24 January 2019 was perpetrated against a 31-year-old woman with whom the respondent had been in an intimate relationship, described as “volatile and violent” for about 18 months. He entered the victim’s home with intent to commit an indictable offence at night. He punched her, then grabbed her by the throat and threw her on the couch, causing the couch legs to break. He then grabbed her by the hair and dragged her into a bedroom. He removed her shorts. She struggled, screamed, kicked and lost consciousness. When she regained consciousness, she resumed screaming at him and told him to leave. The respondent then got off her and left. When apprehended, the respondent denied being at the relevant location and gave a false account of having stayed with a nephew. [6] The respondent has a very low intelligence. He has been diagnosed by three psychiatrists in this proceeding as having a range of mental disorders, including substance abuse in remission whilst in a custodial environment, an anti-social personality disorder or, at least, anti-social personality traits, a mild intellectual disability, psychopathic traits or diagnosed psychopathy. For example, Dr McVie recently scored him at 34/40 on the Hare Psychopathy Checklist-Revised, which puts him in the range for criminal psychopathy. [7] The respondent has a range of outstanding treatment needs to address his hostility towards women, impulsivity, poor cognition, impaired problem-solving, and lack of cooperation with supervision. -- 2 of 28 -- 3 [8] The respondent is a compulsive, some would say, pathological liar. He has given inconsistent accounts of his background and greatly exaggerated the extent of his physical ailments. He has claimed to have heart and other conditions which are not supported by the evidence. He has probably lied to occupational therapists and others who have assessed him for a NDIS support package of slightly under $500,000 over a two-year period. This is not to say that the respondent is not deserving of NDIS support since, on any view, he has an intellectual impairment and many other problems. [9] The respondent is morbidly obese. His obesity and presumed limited agility and foot speed may reduce the risk of his committing a serious sexual offence compared to an individual with most of his conditions, but who is not obese or is more physically agile. The respondent’s physical conditions did not prevent him from committing acts of violence, including sexual assault on 24 January 2019. They are unlikely to do so were he to be released into the community in the absence of a supervision order. [10] Counsel for the respondent, Ms Hedge, developed considered and persuasive submissions that emphasised “the sporadic and relatively low level previous serious sexual offences as defined”. Despite these submissions, I consider that the evidence supports the conclusion that the respondent is a serious danger to the community in the absence of an order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003. [11] The Attorney-General seeks a supervision order and submits that the evidence supports a finding that adequate protection of the community can be ensured by the making of a supervision order in the form I propose to make. [12] An issue that emerged during the hearing was whether the supervision order should be of a duration of five or ten years. That is a decision for the Court rather than a matter of opinion by the expert psychiatrists. However, I was assisted by the oral evidence of the psychiatrists exploring the expected course of events over the next five years and whether, assuming the respondent complies with a supervision order, the risk of sexual offending in the absence of a supervision order will be reduced to an acceptable level by then. I will return to that topic. [13] In summary, a supervision order will reduce what has been assessed by the psychiatrists to be an above average, moderately high, or high risk of sexual reoffending. It will reduce the respondent’s access to potential victims, ensure he remains abstinent from illicit drugs and other intoxicants, and limit his contact with anti-social peers. It also will provide the respondent with access to individualised counselling. However, the respondent’s past response to treatment programs in custody, denial of committing certain offences (despite pleading guilty), lack of empathy for his victims, entrenched poor attitude towards women, psychopathic traits, and intellectual impairment do not suggest that individualised counselling in the years ahead is likely to be very productive in altering the respondent’s attitudes or his risk of reoffending. Personal history [14] Any account of the respondent’s life comes with the caveat that he is an unreliable historian. For example, over the years he has given a variety of accounts for an alleged head injury and consequential brain damage. They have ranged from falling -- 3 of 28 -- 4 from a windmill, being in a motor vehicle accident, being run over at aged 15 and having been bashed by his brother. [15] What is clear is that the respondent had a highly prejudicial early life. He identifies as indigenous and was born in the Mater Hospital at Brisbane. His mother was a heroin addict. He claims to have had 16 siblings, sometimes fewer, but always many. He gives an account of having nearly died at birth and being in hospital for the first three months of his life. He lived in Inala until the age of five. He then lived in Roma and other parts of South East Queensland until aged 26. He attended a special needs school until the age of 15, but he did not learn to read or write at school. At school, he was poorly fed and dirty. [16] He left home aged 15. He moved around the countryside and lived in Victoria and South Australia, before returning to Queensland in around 2018. [17] He began using drugs at an early age. He reports having used heroin. He seems to have rarely worked and has relied on a disability support pension. He has grievances that his mother stole his welfare benefits. [18] The respondent reports being the victim of childhood sexual abuse and also of being sexually abused whilst in custody. [19] The respondent reports having been in a relationship that lasted about five years, and that his partner drank heavily and used drugs. The relationship resulted in a son with whom the respondent has no contact. He told Dr Arthur that the child of this relationship was born in Mackay. He also told Dr Phillips that he had a brief relationship with a woman that resulted in the birth of a son who is now 10 years old. He also reported having another brief relationship with a prostitute that resulted in the birth of an eight-year-old. One can only guess how many children the respondent might have, given his inconsistent reporting. [20] The respondent reported having a relationship with a woman in Melbourne. This relationship ended badly with charges of domestic violence and stalking. He reports having had a number of casual encounters over the years, with some relationships lasting a couple of months. [21] The respondent presents with poor attitudes towards women and, as Dr McVie reported, he has “acted on his entitled beliefs resulting in sexual violence and other domestic violence towards mainly adult women”. Criminal history [22] The respondent has an extensive criminal history in Queensland and Victoria. Unfortunately, details of a certain offence in Victoria were unable to be ascertained by the applicant. I reproduce the following table from the applicant’s submissions which sets out his relevant Queensland and Victorian criminal history: -- 4 of 28 -- 5 Queensland Date Description of offence Sentence Toowoomba Magistrates Court 17 August 2010 • 1 x Carnal knowledge with or of children under 16 (on 20 February 2010) • 1 x Commit public nuisance (on 19 December 2009) • 1 x Improper use of emergency call service – vexatious (on 29 November 2009) Conviction recorded. Sentenced to 10 months imprisonment, to be suspended for 2 years. Conviction recorded. Sentenced to 155 days imprisonment. Conviction recorded. Sentenced to 155 days imprisonment. Recognisance in the sum of $500. Good behaviour for 5 months. All terms of imprisonment to be served concurrently. Roma Magistrates Court 12 October 2010 • 1 x Unlawful stalking (on 25 September 2010) • 1 x Sexual assault (on 25 September 2010) Suspended sentence imposed on 17/08/2010 partly invoked for both offences. Conviction recorded. Sentenced 5 months imprisonment. Conviction recorded. Sentenced 5 months imprisonment. All terms of imprisonment be served concurrently. Gladstone Magistrates Court 30 August 2011 • 2 x Fail to comply with reporting (on 11 July 2011 & 8 April 2011) On all charges: Conviction recorded. Fined $1200. Roma Magistrates Court 28 March 2018 • 1 x Stealing (on 8 January 2018) • 1 x Commit public nuisance (on 11 January 2018) • 1 x Burglary and commit indictable offence (on 12 January 2018) • 4 x Fail to comply with reporting (three charges on or about 14 January 2018; one charge on a date unknown between 6 November and 6 December 2017). • 2 x Fraud. dishonestly gain benefit/ advantage (on 11 December 2017) • 2 x Stealing (on 3 December 2011, between 7 October – 11 November 2011) • 2 x Contravene direction or requirement (on 10 December 2011 & 21 December 2011) On all charges: Conviction recorded. Sentenced to 1 month imprisonment. On all charges: Conviction recorded. Sentenced to 12 months imprisonment. Restitution $220 to be paid within 28 days. On all charges: Conviction recorded. Sentenced to 4 months imprisonment. On all charges: Conviction recorded. Not further punished. -- 5 of 28 -- 6 Date Description of offence Sentence • 1 x Failure to appear in accordance with bail undertaking (on 6 February 2012) • 1 x Breach of bail (15 January 2018) All terms of imprisonment be served concurrently. Brisbane Magistrates Court 9 September 2019 • 2 x Fail to comply with reporting (on 4 July 2019). • 5 x Breach of bail (on 21, 24, 26, 28 June and 1 July 2019) • 1 x Receiving tainted property (on 12 June 2019) • 3 x Fraud – dishonestly gain benefit/advantage (on 12 June 2019) • 1 x Burglary and commit indictable offence (on 12 June 2019) On all charges: Conviction recorded. Sentenced to 9 months imprisonment. On all charges: Conviction recorded. Sentenced to 1 month imprisonment. All terms of imprisonment to be served concurrently. Roma District Court 8 May 2020 Domestic Violence Offences: • 1 x Enter dwelling with intent (on 24 January 2019) • 2 x Choking, suffocation, strangulation (on 24 January 2019) • 1 x Sexual assault (on 24 January 2019) • 2 x Common assault (on 24 January 2019) Non-domestic Violence Offences: • 2 x Indecent treatment of a child under 16 (one charge between 31 December 1993 & 1 January 1995; one charge between 30 September 1995 & 1 January 1996). • 1 x Indecent treatment of a child under 12 (Between 31 December 1996 and 1 January 1998) On all charges: Conviction recorded. Sentenced to 4 years 6 months imprisonment. Conviction recorded. Sentenced to 12 months imprisonment. Conviction recorded. Sentenced to 9 months imprisonment. On all charges: Conviction recorded. Sentenced to 6 months imprisonment. All terms of imprisonment to be served concurrently. Victoria Melbourne Magistrates Court 21 May 2014 • 2 x Make threats to kill (on 26 December 2012) • 1 x Stalking (between 24 and 26 December 2012) • 1 x Use carriage service to harass (between 24 and 26 December 2012) • 1 x Fail to answer bail (on 31 July 2013) Conviction recorded. Sentenced to 2 months imprisonment. Conviction recorded. Sentenced to 9 months Community Correction Order. Convicted and discharged. Conviction recorded. -- 6 of 28 -- 7 Sentenced to 2 months imprisonment. Melbourne Magistrates Court 25 Sept 2014 • Contravene Community Correction Order issued on 21 May 2014 Conviction recorded. Sentenced to 2 months imprisonment. Melbourne Magistrates Court 13 April 2015 • Persist contravene family violence order (between 2 and 20 November 2014) • Stalking (between 2 and 20 November 2014) • Make threats to kill (on 26 October 2014) • Unlawful assault (on 26 October 2014) • Deal with property suspected of proceed of crime (on 30 May 2014) • Unlawful assault (on 30 October 2014) Conviction recorded. Sentenced to 3 months imprisonment. Conviction recorded. Sentenced to 3 months imprisonment. Conviction recorded. Sentenced to 4 months imprisonment. Sentences to be served concurrently Conviction recorded. Sentenced to 2 months imprisonment. To be served cumulatively Conviction recorded. Sentenced to 1 month imprisonment. Conviction recorded. Sentenced to 1 month imprisonment. Sentences to be served concurrently Effective total State term imposed is 6 months imprisonment Melbourne Magistrates Court 21 November 2016 • 3 x Contravene a condition of bail (from 29 June and 5 July 2016) • 2 x Breach of Act – change personal details (on 26 June 2016) • 1 x fail to comply with reporting obligations (from 29 June and 5 July 2016) • 4 x Commit indictable offence whilst on bail (on 26 June 2016) • 2 x Fail to comply with reporting obligations (from 11 to 26 June 2016) • 1 x Contravene a condition of bail (on 25 June 2016) • 1 x Contravene a condition of bail (from 28 June to 9 July 2016) • 1 x Fail to comply with reporting obligations (from 4 to 11 June 2016) • 1 x Theft from shop (on 26 June 2016) • 1 x Sexual assault (on 24 June 2016) On each offence: Conviction recorded. Sentenced to 4 months imprisonment. To be served concurrently, but cumulative on sentence of Sexual assault detailed below. Convicted and discharged. Conviction recorded. Sentenced to 8 months imprisonment. -- 7 of 28 -- 8 Sex Offender Registration Order granted. Offender to report to Victoria Police for Life. Effective total State term imposed is 1 year imprisonment [23] I should mention that the material discloses that the respondent was charged over the rape of a 16-year-old female that allegedly occurred on 13 February 2010. The complainant reported that the respondent took her to a disabled toilet at Southbank and had forced sex with her. She claimed that she was fearful about reporting it, as he had previously threatened her family. He was charged in relation to the matter. No plea was entered and no evidence was offered on 18 January 2011. [24] The respondent is entitled to the presumption of innocence on this charge. No explanation has been given as to why the prosecution was discontinued and therefore it is inappropriate to speculate as to whether it was because the complainant was thought to be unreliable by the prosecuting authorities, did not wish to cooperate, or some other reason. The respondent has not given or called any evidence as to the circumstances in which he came to be charged or the charge discontinued. The lack of evidence about this alleged offence means that no reliance can be placed upon it by me. Sexual offences [25] The respondent’s extensive criminal history has the potential to cloud his relevant sexual offending history. [26] The applicant accepts that the respondent’s history of serious sexual offending is “at the lower scale of seriousness”. The respondent’s counsel describes it as “sporadic and relatively low-level”. Ms Hedge of counsel produced the following table in relation to “serious sexual offences” (as defined in the Act): Date of offence Offence Short particulars 1993-1998 3 x indecent treatment of a child under 16 Indecent treatment of two of his nieces aged between 7 and 13 on separate occasions, including exposure to masturbation, having one child touch his penis, having one child remove her underwear. 20 February 2010 Carnal knowledge of children under 16 Sexual intercourse with 14 year old child with whom he was in a 3 month relationship. 25 September 2010 Stalking and sexual assault Approached a woman who he knew in public place, repeatedly asked her out, followed her and forcibly kissed her. -- 8 of 28 -- 9 24 January 2019 Sexual assault Took off complainant’s shorts during otherwise domestically violent assault including an offence of choking. Complainant was his ex-partner after an 18 month relationship. [27] The following account of the respondent’s history of sexual offending is drawn from [13]-[30] of the applicant’s submissions, the accuracy of which are not contested by the respondent. [28] On 17 August 2010, he was convicted and sentenced after pleading guilty in the Toowoomba Magistrates Court to one count each of carnal knowledge with or of children under 16 years of age, improper use of an emergency call service, and public nuisance. [29] The 14-year-old female victim of the sexual offence was known to the then Department of Communities and was deemed a missing person at the time. On 6 March 2010, the victim contacted police, stating she had been assaulted and was being threatened by the respondent. She reported that the respondent was her boyfriend and she had been living with him in Roma, and that their relationship had broken down and that the respondent had become violent. [30] Further enquiries undertaken by police revealed that the victim had earlier disclosed to Department of Communities officers in Beenleigh that she had been involved in sexual intercourse with an older male person (the respondent) and that she may have been pregnant. The victim later reported to police that she knew the respondent was 31 years old. [31] On 7 March 2010, the respondent attended the Roma police station in relation to other matters. Police served him with a copy of a domestic violence order relating to the victim and asked to speak to him about his relationship with her. After initially denying any involvement with the victim, he eventually admitted to having had sexual intercourse with her. [32] For the offence of carnal knowledge, the respondent was sentenced to a period of 10 months imprisonment, to be suspended for two years. [33] On 12 October 2010, the respondent was convicted and sentenced in the Roma Magistrates Court after pleading guilty to one count of sexual assault and one count of unlawful stalking. Both offences were committed on 25 September 2010 in breach of the suspended sentence imposed on 17 August 2010. [34] The 22-year-old victim was walking to her sister’s residence. The respondent came across the victim, who was known to him. He attempted to talk to her and asked her to go out with him. When she refused he obstructed her path, and forcibly kissed her on the mouth. The victim had to push the respondent away for him to let her go. She was then able to continue walking to her sister’s house. He followed her and she told him to go away. When she reached her sister’s house, she reported the respondent to police. Police spoke to the respondent about these matters the following day. He initially denied knowing the victim or committing the offences. -- 9 of 28 -- 10 [35] On each offence, the respondent was sentenced to concurrent periods of five months imprisonment. [36] On 18 January 2011, no evidence was offered in the Brisbane Magistrates Court in respect of one charge of rape of a 16-year-old girl allegedly committed by the respondent on 13 February 2010. It is not known why this prosecution was not pursued. [37] On 21 November 2016, the respondent was convicted and sentenced in the Magistrates Court at Melbourne for one offence of sexual assault, and a number of lesser offences, the facts of which are unknown. Requests by Crown Law to the Victorian authorities for further information about these offences was unsuccessful. It is evident, however, that the respondent was sentenced to a period of eight months imprisonment for the sexual assault and four months imprisonment for the lesser offences. Index Offences [38] On 8 May 2020, the respondent pleaded guilty and was convicted in the District Court at Roma to three counts of indecent treatment of children, committed between 1993 and 1998. He also pleaded guilty to one count of sexual assault, two counts of common assault, two counts of choking, suffocation, strangulation and enter dwelling with intent. The domestic violence offences were committed against his former partner on 24 January 2019. [39] The two counts of indecent treatment of a child under 16 involved the respondent’s biological niece. The offending occurred in Roma on an unknown date in 1994, when the child was either 11 or 12 years of age and the respondent was 15 years of age. The child was in the backyard hanging out washing, when the respondent arrived with a bottle of soft drink and a bag of lollies. When the child asked for some soft drink, he stated: “I want you to do something for me first” then pulled out his penis and began masturbating. He then encouraged the child to put her hand on his penis and masturbate him, stopping when her grandmother called out. [40] On a date between 30 September 1995 and 1 January 1996, the same child and her siblings were again at their grandmother’s house. When the grandmother went to bed, the respondent told the child he had something for her, and she followed him into his bedroom. The respondent was naked on the floor, masturbating. He then encouraged the child to masturbate him until he ejaculated. He gave the child a chocolate bar and she returned to her bed. [41] The single count of indecent treatment of a child under 12 was committed in 1997 and involved the respondent’s seven-year-old niece. The respondent was either 18 or 19 years old at the time. The child was staying overnight with her aunt in Roma. The respondent was asked to take care of the victim and her two siblings while his aunt went out. He took the child into the bedroom and shut the door before laying down on the bed and masturbating. The child started to cry, and her two brothers tried to open the door. He told the child to take her underwear and pants off. The child complied but began screaming. Her brothers eventually opened the door. The respondent yelled at the child to get out of the room. She did so and she and her brothers hid under their aunt’s bed for some time, later retrieving her clothing from the bedroom. -- 10 of 28 -- 11 [42] The two victims made formal complaints to police in December 2017 and February 2019. [43] The domestic violence offences were committed on 24 January 2019, when the respondent was 40 years old. The 31-year-old victim had previously been in a relationship with the respondent for about 18 months. That relationship had been characterised by violence. The victim had commenced a new relationship shortly before the commission of the offences. These offences included punching and choking the victim, dragging her by the hair and removing her shorts. [44] Ambulance officers attended and the victim complained of pain in her shoulder and right wrist. Bruising was noted to her neck and wrist. She told paramedics she was seven weeks pregnant and sustained vaginal bleeding but refused further treatment. The respondent was arrested by police on 28 January 2019. He initially denied the offences and provided police with a false alibi. [45] For the domestic violence offences, Dearden DCJ sentenced the respondent to four years and six months imprisonment. For the sexual and common assaults, the respondent was sentenced to concurrent periods of nine and 12 months imprisonment, respectively. For the indecent treatment offences, the respondent was sentenced as a juvenile to periods of six months imprisonment. All sentences were ordered to be served concurrently. A parole eligibility date was fixed at 7 December 2020. Custody and programs [46] The respondent participated in a Getting Started: Preparatory Program in August – September 2020. He also completed an Inclusions Sexual Offending Program. He began but did not complete another program at Wolston Correctional Centre in January 2022. [47] He has been involved in a number of incidents whilst in custody in recent years. In 2019 there were four major breaches for positive test samples. He has insulted and threatened staff in order to get his way. There was an incident involving alleged sexual assault on 28 March 2022, when the respondent appeared on CCTV footage to be touching another prisoner in the crotch area whilst a third prisoner was trying to kiss the victim. The respondent was placed on a safety order. He has engaged in acts of self-harm. Breach of parole [48] The respondent was released on parole on 13 March 2023. He breached that order within a few weeks by not complying with a condition that prohibited him from being in the company of a person under the age of 16, unless accompanied by an adult, as approved by an authorised Corrective Services officer. A missing eight-year-old child was located at the respondent’s residence in addition to several other “pro-criminal adults”, one of them being a known drug associate. His accommodation had been arranged by NDIS-funded support workers. [49] His parole was suspended on 31 March 2023 because he posed an unacceptable risk of committing an offence and had failed to comply with his parole order. He told Community Corrections that he was no longer interested in working with his NDIS support provider. -- 11 of 28 -- 12 [50] The respondent claimed that a female associate had brought a missing eight-year-old child to him, after they were found on the street. The respondent told Dr Arthur that he felt sorry for the woman who he had met at Centrelink and said she could stay for a couple of days. She then brought the eight-year-old there. [51] The respondent could not easily explain to Dr Arthur the circumstances of his parole breach. He could not explain how the child’s school was given his number or why the woman brought the child back to his house, instead of simply taking her to a police station. The respondent was very angry about being returned to custody. [52] On any view of the matter, the respondent’s breach of parole is a matter of concern about his ability, in the absence of a strict supervision order, to avoid inappropriate contact with vulnerable women and children. On the best possible view of the episode, he was acting as some kind of good Samaritan providing shelter to a woman who manipulated him and who he allowed to take up residence in his home, along with an eight-year-old child. A more sinister view is that he offered accommodation to a vulnerable woman and child and exploited their vulnerability. Lack of empathy and lack of insight [53] In a recent lengthy interview with Dr McVie, the respondent effectively denied committing the offences in January 2019 and the child sexual offences in the 1990s. In interviews with psychiatrists he has denied using any pornography, but some material indicates he was sexually preoccupied and frequently watched pornography when living on a remote property. During one program he apparently admitted providing a victim with drugs and exposing her to pornography. [54] During programs he has made negative comments about women, using labels and stereotypes, sometimes glorifying violence towards women, and then saying “women are the problem”. When asked about the charge of sexual assault in Victoria, he simply replied “bullshit”. [55] The respondent has no empathy for the victims of his crimes. Psychiatric diagnoses [56] The examining psychiatrists have offered the following diagnoses of the respondent: Dr Arthur • Psychopathy; • Mild Intellectual Disability; • Antisocial Personality Disorder; and • Substance Use Disorder (mainly amphetamines and opiates) in remission in prison. Dr Phillips • Mild Intellectual Disability; • Stimulant And Opiate Use Disorder (in remission in a controlled environment); -- 12 of 28 -- 13 • Previous Drug Induced Psychosis (currently in remission); • Post Traumatic Stress Disorder (PTSD); • Antisocial Personality Traits; and • Psychopathic Traits (in the clinically significant range). Dr McVie • Borderline intellectual functioning; • Substance abuse; • Personality disorder with psychopathy; Risk assessments [57] Dr Arthur’s report described the respondent’s unmodified risk of sexual reoffending as “moderately high” or “above average”. [58] Dr Phillips assessed the respondent’s risk as being high. [59] Dr McVie also undertook a risk assessment based both on actuarial and structured clinical assessments. She concluded that he presented as “a high risk of reoffending with sexual violence if released without a supervision order. He would also present a high risk of general criminal reoffending”. Medical conditions [60] The respondent presents with a number of medical conditions, having been diagnosed with diabetes and morbid obesity. He claimed to the psychiatrist to be suffering from acute medical conditions and of having had stents inserted and heart infections. These claims were not supported by the medical evidence. Compulsive lying [61] According to Dr McVie, and I accept her opinion in the light of the evidence of the other experts, the respondent displays a compulsive pattern of telling others things that are known by him to be untrue. He is not simply an unreliable historian with a borderline intellectual capacity who is prone to make mistakes. For example, he reports having had a variety of major accidents resulting in acquired brain injury and the insertion of a metal plate in his head. However, there is no medical evidence to support that he had a plate inserted and no consistency in the account of the incident that caused a brain injury that led to that procedure. Summary of psychiatric opinions [62] I shall quote, with emphasis added, from parts of the expert reports. Dr Arthur “[295] Despite his physical ill-health, based on structured clinical judgement I estimate that [the respondent’s] unmodified risk of sexual recidivism remains moderately high, or “above average”. -- 13 of 28 -- 14 [296] Critical risk factors for sexual recidivism include his personality pathology (callous, poor behavioural regulation, promiscuity, impulsivity, egocentricity), hostility towards women, poor problem solving and the disinhibiting effects of intoxicants. The primary driver of future sexual offending would be sexual gratification, although there may also be a need for dominance over his partners. There are a wide variety of potential victims based on his offending history. Given his pairing of violence and sexual assault, future sexual offending may cause serious physical harm to his victims, particularly if they resist him. [297] Any future sexual offending is likely to be opportunistic. In seeking out a sexual partner, [the respondent] may rely on his association with other criminals or providing drugs to entice or coerce women into sex. Due to his impulsivity, amorality and lack of consequential thinking, if sexually aroused he is unlikely to consider issues around consent. His choice of sexual partners is likely to be indiscriminate and without consideration of boundaries regarding age or power differentials. [298] If he enters into another relationship, it is possible that [the respondent] will engage in coercive control/manipulation as a way of maintaining dominance, possibly pairing sex and violence if he feels slighted or rejected. [299] It is difficult to predict the imminence of sexual offending. A return to substance abuse is likely to acutely escalate his risk due to factors relating to victim access, disinhibition and possibly a destabilisation in his mental health. [300] Whilst it appears that [the respondent’s] physical illnesses have some impact on his sexual functioning, it is difficult to form a clear opinion on this. [301] A supervision order may act to reduce the risk of future sexual violence, primarily through the mechanisms of reducing victim access, limiting his contact with antisocial peers and ensuring he remains abstinent from intoxicants.” Dr Phillips “Taking into account the results of the above risk assessment tools, it is my opinion that [the respondent’s] risk of future serious sexual re- offending falls in the high range, if released from custody without a supervision order. His risk of future physical violence and intimate partner violence both fall in the high range. At the time of the assessment [the respondent] did not present as an imminent risk of physical, intimate partner or sexual violence. It is my opinion that a supervision order would assist in reducing the risk of re-offending by offering assertive monitoring and interventions to target dynamic risk factors for sexual and physical violence. It is my opinion that if he were to be released from custody with a supervision order, in the context of ongoing sexual -- 14 of 28 -- 15 offender maintenance therapy, individual psychological intervention, abstinence from alcohol and illicit substances and robust supervision in the community, that his risk of serious sexually re-offending would be in the moderate range. The future risk of sexual re-offending would increase in the setting of relapse to substance use, acute intoxication or psychosocial stressors, for example, relationship breakdowns, perceived rejections, or loss of social supports. [The respondent] has limited adaptive coping skills to manage psychosocial stressors and would be at risk of emotional collapse and returning to his long-standing maladaptive pattern of substance use. The risk of sexual re-offending may also increase in the context of a deterioration in his mental state, for example, should he experience disorganisation and disinhibition during a future episode of Drug Induced Psychosis. The risk of sexual re-offending would also increase in the setting of increased sexual pre- occupation or rejection of supervision. Due to the diverse nature of [the respondent’s] previous sexual offending, there are a number of potential future victims. This may include pre-pubescent or underage females; stranger or acquaintance adult females; or current or previous female intimate partners. One potential scenario for future sexual offending is that [the respondent] will sexually offend in a similar manner to previous offending, for example, against underage females, either relatives, those with whom he engages in a relationship, or vulnerable female children that he has access to. Alternatively, [the respondent] may sexually offend against a former intimate partner, and this may include serious violence. A further scenario is that [the respondent] will escalate in the severity, which may be an escalation in severity of sexual offending (for example, to escalate to penetrative sexual offences), or alternatively for future sexual offending to be accompanied by even more serious physical violence. Future sexual offending has the potential to cause significant physical and psychological harm to the victims.” Dr McVie “[The respondent] is a 44 year old part indigenous man who appears to have had borderline intellectual function from an early age. He remain illiterate. Though he reports having had major accidents resulting in an acquired brain injury, there is no medical evidence to support these incidents. Though he reports having been diagnosed with paranoid schizophrenia and bipolar disorder, there is no conclusive evidence to support these diagnoses and his historic medical information to 2010 indicates possible amphetamine induced psychotic symptoms but no diagnosis -- 15 of 28 -- 16 of a major psychotic illness through that period. He has been removed from the Prison Mental Health Services, as he is not considered to require their input and is not prescribed psychotropic medication. There is some evidence of sexual preoccupation or a high sexual drive as a late teenage as evidence by his charges from the 1990’s, though no evidence to support a diagnosis of any paraphilia or paedophilia. He does appear to continue to present with poor attitudes towards women and has acted on his entitled beliefs resulting in sexual violence and other domestic violence towards mainly adult women. He has a clear history of substance abuse with heroin and methamphetamine, though has also variously reported use of other drugs including in prison, namely Seroquel, Lyrica, Tramadol and Suboxone. Despite being approved for NDIS and, as he reported, having daily input by support workers, he failed an attempt at parole within two weeks in March 2023 by having an adult female and an 8 year old child in his accommodation. He appears to have limited reliable family support. He does list one ex-prisoner who now is involved in a Baptist Church, as a support in the community. He has a lengthy past criminal history, lack of employment history and limited plans for the future. He has a history of providing inconsistent and unreliable information and could be considered to exhibit Pseudologia Fantastica, a compulsive pattern of telling others things which are known to be untrue. I would consider his primary diagnoses to be borderline intellectual functioning and substance abuse. He does have substantial medical problems with morbid obesity and various cardiac issues though note some scepticism of the validity of his complaints emerging in the more recent medical assessments. Risk assessment, both actuarial and structured clinical, indicates he presents a high risk of reoffending with sexual violence if released without a supervision order. He would also present a high risk of general criminal reoffending.” Risk assessments and recommendations [63] The respective expert reports elaborate upon the risk assessments undertaken by the psychiatrists including the results of actuarial instruments. [64] Dr Arthur provided the following tabulation on the question of risk in terms of propensity, pattern of offending, change and effects of treatment: -- 16 of 28 -- 17 Propensity to reoffend Utilising the Static 99-R, [the respondent’s] static risk factors place him in the above average to well above average risk category for sexual recidivism. He has a lifelong history of sexual offending as part of his extensive suite of criminal behaviours. He fulfils the criteria for a Psychopathic Personality, which has implications for both recidivism and treatment/supervision response. He harbours a hostile attitude towards women, subscribes to hypermasculine views and has a history of disturbed attachments. There are a large number of dynamic risk factors evident. Pattern of offending His sexual offending has occurred over many years with a variety of victim types. Whilst he does not appear to have a deviant sexual drive, there is evidence of poor sexual boundaries and little concern for the age of his sexual partners or their capacity to consent. He has used sex in a violent/retributive manner. The earlier offences showed some degree of planning and persistence. The later offences appeared opportunistic and driven by negative attitudes towards women, sexual objectification and a lack of concern for the rights of others. The role of intoxication is unclear. Attempt to change [The respondent] has engaged in a group treatment program in his most recent period of incarceration. He has also attempted drug and alcohol courses. Effect of Treatment Programs It is unclear how much he has internalised from these programs. At interview he was able to identify issues around consent and consequential thinking, but admitted he retained little else. The exit report identified many outstanding areas of need including hostility towards women, emotional regulation, risk of violence and limited acceptance of responsibility. [65] Dr McVie assessed the respondent as having a high psychopathy score which correlates with an increased risk of reoffending. He scored 34/40 on the Hare Psychopathy Checklist-Revised which puts him in the range for criminal psychopathy. On Static 99-R he was in the “above average range” for the risk of recidivism of sexual violence. His dynamic risk factors according to Stable 2007 included hostility towards women, impulsivity, poor cognitive problem-solving skills, and cooperation with supervision. The Risk for Sexual Violence Protocol 2003, being a structured clinical judgment tool, including scores across factors with chronicity, coercion, and diversity in sexual violence history. [66] Dr McVie observed that the respondent continues to minimise or deny any sexual offending, externalising blame to victims, and continues to display attitudes of hostility and entitlement in relationships. She added: “He does have personality disorder with psychopathy as well as borderline intellectual functioning and a significant history of substance abuse. He has no validated history of employment and a lengthy past criminal history with multiple episodes of violence including domestic violence. He has previously presented problems with supervision, breaches, failing to report and recent failing two week on parole.” -- 17 of 28 -- 18 [67] Dr McVie made the following important recommendations: “[The respondent’s] risk of recidivism could be reduced to moderate with a supervision order. He will be difficult to supervise as he is an unreliable historian, even for simple basic information. He may present difficulties for female QCS officers due to his attitudes towards women. Even though he may have an NDIS package, I would consider that he should initially be managed at the precinct to enable QCS staff to assess and monitor him closely. He will need to be progressed though stages of curfew very slowly. His illiteracy, inability to read, will make monitoring more difficult as conditions of his order, and weekly planning for example, will need to be repeated verbally to ensure he is aware of what is expected of him. I note that a psychologist has been engaged to provide ongoing treatment in the community. [The respondent] should also be referred to a Drug and Alcohol Program. Any contact with a General Practitioner would need to be monitored closely as [the respondent] has an established history of providing false information to medical practitioners about both his physical and his mental health past diagnoses and treatments. He should not be prescribed any form of medicinal cannabis. If he is considered suitable for Suboxone, this should be by monthly injection, not oral administration. The supervision order should include provisions preventing any unsupervised access to children under the age of 16 years. He should not have access to any internet capable devices. Any potential partners should be fully informed of his past history. I would recommend that a supervision order be in place for a minimum of ten years.” Oral evidence Dr Arthur [68] Dr Arthur explained that the respondent’s diagnosed conditions of mild intellectual disability and psychopathy were relevant to the longevity of risk and the effectiveness of treatment. The respondent’s mild intellectual disability was relevant to his capacity for self-regulation, to manage stress, to engage in treatment and respond to treatment. People with high psychopathy ratings tend to do less well with treatment compared to people who do not. Also, the diagnosis of anti-social personality disorder meant that the respondent was likely to be resistant to treatment and a challenge to manage in the community. [69] The respondent presented problems with supervision and with treatment. Dr Arthur’s report assessed risk at above average, with what would have been a higher risk being modified by regard to the respondent’s physical morbidly obese condition. The respondent, though not a young man, still represented a relatively high risk. His complaints with cardiac abnormalities and other conditions did not mean that he was not at a risk of committing sexual offences if he had access to victims. Upon -- 18 of 28 -- 19 reviewing the medical documentation that was provided to him after he provided his initial report, Dr Arthur found very little evidence of actual pathology to support the respondent’s alleged chronic health conditions. Dr Arthur was disinclined to rely upon the respondent’s self-reports without collateral information to support them. This included the respondent’s self-report about lack of sexual functioning. Dr Arthur concluded that the respondent was not as medically unwell as he reported to Dr Arthur at his initial interview. [70] In terms of future sexual offending, Dr Arthur thought it was likely to be “opportunistic” and to be “quite broad”. The respondent did not have a particular pattern of sexual offending, with victims ranging from young children to adult women. There also were issues of substance abuse, his long-standing hostility towards women and use of violence as a conflict resolution tool. These all led to a concern that if the respondent was in a relationship there was a risk of violence, and therefore a risk of sexual violence. [71] Dr Arthur explained his use of the term “opportunistic” referred to the fact that the respondent did not put much planning into his offences. Intoxication would be an acute risk indicator. While the respondent had done programs appropriate to his intellect, he did not seem to take much away from them. They did not have much of an effect on his overall risk. [72] While he was in jail, the respondent was reasonably well-contained. He has a history of behaving aggressively towards NDIS and support workers, and when on parole did not behave well. There is a risk of having female staff go into his home to support him and Dr Arthur recommended that it would be prudent to ensure that he had only male staff. [73] Significantly, Dr Arthur emphasised that NDIS support workers are not supervisory. They can observe and support an individual to develop or maintain skills, but had to observe the patient’s wishes, for example, an instruction to not attend on a certain day. While support workers would be of some assistance in terms of having people around, they do not necessarily modify risks significantly. [74] In assessing risk, Dr Arthur considered the capacity of an individual to change, to be able to learn, and to be motivated to improve their capacity to self-regulate. This included whether or not matters could be managed with psycho-social interventions. In the respondent’s case, Dr Arthur thought that one cannot rely upon him internalising concepts and changing. He stated: “This is a man who has had a lifetime of violence, a lifetime of dysregulated anti-social behaviour. He has a psychopathic personality, it makes it very difficult for him to empathise with other people or understand the reasons why he shouldn’t do the things he does … and he has got an intellectual disability which limits learning and application learning.” [75] In those circumstances, Dr Arthur thought a supervision order of longer than five years was necessary, and that a 10-year supervision order would be appropriate. [76] Under cross-examination Dr Arthur accepted the general proposition that in the absence of a deviant sexual interest, risk of sexual reoffending starts to lessen at about -- 19 of 28 -- 20 the age of 50. This may be because of diminishing testosterone, emotional maturity, and a loss of physical vigour. These were gross generalisations and did not apply to someone who was unlikely to mature with a capacity to learn from therapy or lacked the motivation to change. Dr Arthur accepted that the respondent’s morbid obesity affected his mobility “somewhat” and he was at risk of developing serious cardiac disease and endocrine disorders. While his obesity affected his agility, as Dr Arthur observed, one could also say that because of his “great size he is actually quite physically intimidating and he could exert physical violence very easily on somebody smaller than himself”. [77] Dr Arthur, like the other two psychiatrists, was cross-examined about the episodes of sexual offending and the respondent’s background, and the fact that there has been no offence against a child for more than 20 years. He observed that there was a sexual offence in Victoria about which the Court had little detail. Dr Arthur accepted the distinction between the risk of sexual recidivism generally and the risk of serious sexual offence recidivism. He was examined about the actuarial instruments and the extent to which they or a clinical assessment of risk was affected by a generalised risk of criminal offending or a general propensity for violence. I found his, Dr Phillips’ and Dr McVie’s evidence on these questions acceptable. Their assessments of the risk of serious sexual offending were not distorted by irrelevant criminal offending in general. By reference to relevant actuarial instruments and their clinical judgment, they had appropriate regard to the respondent’s sexual offence history, his offending in general, and his complex psychological condition. [78] Dr Arthur adhered to the view that he expressed in his report that the conditions in the supervision order that would most reduce the risk of sexual violence included reducing victim access, limiting contact with anti-social peers and ensuring abstinence from intoxicants. These were the most obvious and most general factors, with access to anti-social peers having been an issue when he was on parole. The respondent had expressed the idea that he was vulnerable to peer pressure and coercion from others. This is relevant to his engaging in drug taking, with drugs playing a significant role as a disinhibitor. [79] Dr Arthur supported other conditions in the draft supervision order as a means of the authorities mitigating risk and allowing QCS to have a better understanding of factors that might lead to an escalation in risk. [80] As to the duration of any supervision order, Dr Arthur accepted the general proposition that if someone stays in the community for five years and does not reoffend, then their risk of reoffending reduces by about half. That data, however, did not include people who are on supervision orders. While on supervision orders, individuals have their risk generally reduced to low. The concern is what happens after the supervision order comes to an end. [81] During a supervision order, some people develop insight, skills, social networks and self-management during the first five years that allow them to better manage risks so that at the end of the five years their risk has reduced significantly. For others, nothing much changes during the five years apart from being five years older. [82] In considering the duration of an order, Dr Arthur considered the ability of a person to develop self-management skills to manage their risk, as distinct from someone who -- 20 of 28 -- 21 relies on external factors in order to manage the risk of recidivism. He put the respondent in the latter category. [83] Dr Arthur concluded that the respondent “is someone who is going to need long-term external modification in order to manage his risk, and so, therefore, I don’t think five years would be sufficient”. [84] Dr Arthur thoughtfully stated in his report in relation to the respondent’s NDIS package that ideally “support workers should be male and have experience in the management of forensic clients”. He expressed the concern that the respondent might have access to potential female victims who were support workers in the home or elsewhere. He also concluded that any NDIS support worker should have specific forensic knowledge because people who are untrained and relatively unskilled are easily manipulated by psychopaths. They were vulnerable. And if not victims, they might inadvertently allow people they were caring for to get into risky situations. Dr Phillips [85] In her oral evidence Dr Phillips observed that the respondent’s intellectual disability would make it more difficult for him to retain information, that he is likely to be more impulsive and will have a lower frustration tolerance because of that intellectual disability. The respondent’s substance use history was very relevant to risk. [86] The respondent’s psychopathic traits made it challenging for those supervising to develop a meaningful and trusting working relationship. The evidence suggested the respondent would provide misinformation, manipulate and be deceitful. [87] Dr Phillips agreed with Dr Arthur’s view that the benefit of the supervision order related to “procedural security” and that there is no evidence of a probable internal change. [88] Dr Phillips’ initial report recommended a supervision order of five years, and observed that if an individual remains offence-free in the community for five years his risk of reoffending would have dropped by about half. However, there are factors that favoured a longer order of 10 years’ duration, since some of the respondent’s risk factors are going to be longstanding and difficult to change. His intellectual disability was not going to change and his psychopathy was unlikely to change. The general data about a risk reduction of a half over a five-year period related to persons who are released into the community without any form of supervision. There is less evidence about people under supervision orders and what happens after the order is removed. [89] Dr Phillips acknowledged gaps between the respondent’s offending and that his history did not include gratuitous violence. She thought that his offending against children was relevant, given their vulnerability. The risk of sexual offending was not imminent in terms of days or even weeks. It would escalate if he relapsed to using drugs including cannabis. Dr Phillips explained the overlap between risk factors in relation to violence and risk factors in relation to sexual offending. [90] Victim access was one of the dynamic risk factors for sexual offending and it was notable that his parole was breached. Although the respondent’s sexual offences towards children did not involve penetrative offences, and he was not charged with rape, his offending by way of unlawful carnal knowledge with a 14-year-old was -- 21 of 28 -- 22 indicative of exploiting someone who was vulnerable. In re-examination, Dr Phillips clarified that her assessment of risk took account of likelihood, seriousness and imminence. A proper characterisation of the respondent’s risk was sexual assault or rape of a female child or an adult, intimate partner. Dr McVie [91] Dr McVie also considered that the risk reduction achieved by a supervision order was principally in relation to procedural security. She noted that the respondent had been on parole for less than two weeks and managed to have an eight-year-old female and an adult female in his flat in that time. That did not predict that he was going to do very well if he was released to similar accommodation, even with a higher level of NDIS support. Dr McVie agreed with Dr Arthur’s comments on NDIS supports. [92] As to the most likely future offending, Dr McVie observed that little was known about the respondent’s sexual ideas, attitudes, fantasies and behaviours. What was known is that he had committed offences against children, and that he had a difficulty in intimate relationships, ending up in domestically violent situations with partners, and sometimes that included sexual violence. This was the case on the last occasion. [93] Dr McVie noted in her report the charge of rape that was later withdrawn, and Ms Hedge submitted that this was inappropriately taken into account by Dr McVie in arriving at her assessment of risk. Dr McVie accepted that the 2019 episode did not result in the conviction for attempt to rape. Having regard to that fact, and the fact that the 2010 charge was withdrawn, did not alter her opinion that the respondent’s risk was high. Even looking at only the four rows in the table that Ms Hedge produced and which became Exhibit 2, Dr McVie under cross-examination adhered to the view that the respondent’s risk was high. [94] I accept that Dr McVie’s assessment of risk was not based upon a conviction for attempt to rape in 2019. As she explained, whether he had such an intent to rape in 2019 was speculative. Dr McVie did not speculate about why the matter was resolved on the basis of a sexual assault charge, rather than a charge of attempted rape being pressed. One inference is that the respondent did have such an intent. As Dr McVie explained, one could argue about why someone would rip off somebody’s shorts and hold them down on a sofa. The respondent had not given a clear account of his intent or his actions. [95] I agree with Dr McVie. The fact that a plea was negotiated on the basis of the respondent pleading to the historical sex offences and a serious assault, does not detract from the seriousness of the respondent’s sexual violence towards a former, intimate partner. He broke into her home with intent. He violently assaulted her. He removed her shorts. He rendered her unconscious. He did not rape her when she was unconscious or when she regained consciousness. It is possible, but speculative, that he removed his victim’s shorts in order to humiliate her. A more likely inference is that he had a sexual intent that was not carried out once his victim became unconscious and he realised the gravity of what he had done in rendering his victim unconscious. [96] The fact that the respondent was not charged with attempted rape does not alter the fact that he presents a risk of committing a similar serious sexual offence to the -- 22 of 28 -- 23 offence he committed in 2019 against an adult woman in similar circumstances, attended by frustration and violence. Conclusion on risk [97] For a supervision order to be made the Court must be satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order. To make this finding there must be an unacceptable risk that he will commit a serious sexual offence if released from custody without a supervision order being made. The Court may only be satisfied as required by s 13(1) if it is satisfied by acceptable, cogent evidence and to a high degree of probability, that the evidence is of sufficient weight to justify the decision. I am required to have regard to the many matters stated in s 13(4) and I have done so. I need not list them. [98] I am not bound by the psychiatrists’ respective assessments of risk. I must arrive at my own view. However, their opinions are persuasive in this case. [99] Counsel for the respondent makes the valid point that regard must be had to the fact that some of the respondent’s sexual offences are very dated and he has not committed sexual offences against children for at least a few decades. This fact reduces, but does not remove, the risk of serious sexual offending, for example, towards a vulnerable 15-year-old, homeless girl who he befriends and shelters in any apartment that he will occupy with NDIS support. His NDIS support workers may attempt to deter him from inviting vulnerable individuals and drug users into his apartment, but they are not supervisors and they cannot stop him from doing so. The fact that the respondent was prevailed upon, permitted or invited an adult woman and an eight-year-old child to live with him when he was on parole, demonstrates an inability to self-manage risk. [100] Counsel for the respondent makes the important point that, while serious, the sexual offences in the respondent’s history are not of the most serious kind. Those directed against children did not involve actual violence. However, the most recent serious sexual offence did. He did not need to resort to actual violence in order to sexually abuse children because he exploited his age and power imbalance over those vulnerable girls. [101] Counsel for the respondent identified certain matters that mitigate risk. The first is a lack of physical ability to effect an offence of violence that required mobility or agility that the respondent lacks. The respondent is obese, but is not so immobile that he requires a walking frame or crutches. I infer that his large weight does not make him fast on his feet. I am prepared to assume that he weighed less when he committed the offence in 2019 than he presently does. Still, he remains a risk to vulnerable individuals, particularly women with whom he establishes a relationship, or other women who might temporarily be at his residence. His large weight would permit him to overpower and pin down a smaller, vulnerable female victim. [102] Next, counsel for the respondent points to the NDIS support. Leaving aside the fact that this did not prevent him from breaching his parole, I accept that NDIS support is likely to provide the respondent with a degree of stability and assistance in not getting into risky situations. However, it cannot be equated with supervision. [103] The fact that the respondent will be a reportable offender under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) is also pointed -- 23 of 28 -- 24 to by counsel for the respondent as a mitigating factor. The Act will require him to make an initial report to police and periodic reports thereafter. If a reportable offender is identified as posing a risk to the safety or wellbeing of any child or children, then additional orders can be sought by the police by application to a court. I accept that this may have some mitigating effect, provided the respondent complies with his obligations. However, he has a poor history of compliance with orders in general and he did not comply with his parole order earlier this year. Therefore, I do not regard the obligations imposed upon him under the Act as particularly protective, compared to the protections which might be provided by a supervision order. In my view, they do not significantly reduce the identified risk. [104] The fact that the respondent’s history of serious sexual offences involves only four episodes over the decades is relevant. The respondent is correct to point out, and the applicant accepts, that his sexual offences are relatively low compared to more serious sexual offences of rape. [105] His history of previous convictions for serious sexual offences is relevant in determining the probability of reoffending and the likely consequences of offending in a similar way. The fact that the applicant has not been convicted of rape or attempted rape is relevant to an assessment of risk, and whether the risk of his committing a serious sexual offence is unacceptable. [106] The relevant risk, however, is not defined simply by reference to his previous convictions, as important as they may be. It is assessed by reference to the matters stated in s 13(4) and the many matters considered by the psychiatrists in giving their opinions about risk. [107] The evidence was persuasive that the matters that bear upon risk in terms of the respondent’s intellect and psychiatric conditions are unlikely to change. He denies committing offences to which he pleaded guilty. He has no empathy for his victims. He has no insight into his offending. Courses in custody have had limited beneficial effect. NDIS support workers are not counsellors or therapists. There is no indication that the respondent intends to voluntarily obtain counselling or would benefit much from it if he did. His significant intellectual impairment will not get better. [108] If he has not matured by his age he is unlikely to mature and become reflective in the coming years, even with whatever support he can obtain from NDIS support workers. His anti-social personality disorder will remain with him, as will his psychopathic traits. His predisposition to lie may be deployed to engage the trust of a vulnerable homeless person. [109] His substance abuse is currently in remission whilst in custody. That said, he has breaches for taking drugs in custody. He is at risk of resuming drug use which will elevate his risk of sexual reoffending by disinhibiting him. [110] His most likely victim will be a vulnerable adult woman, possibly someone with whom he develops a relationship and who comes to stay at his residence. It may be a young, homeless woman or even a 15-year-old child who is manipulated into trusting the respondent when he offers her shelter. The possibility also exists that the respondent will be manipulated by persons who prevail upon him to provide them with shelter and money, and that the relationship comes to an unhappy and violent end. These are only possibilities, but they are real possibilities given all that is known -- 24 of 28 -- 25 about the respondent’s personality, impulsivity, lack of self-regulation and resort to threats and violence. The respondent’s lack of insight into the seriousness of his offending in 2019, despite his guilty pleas, provides little indication that he is equipped to avoid a repetition of such offending. [111] Overall, the evidence, including the evidence of the psychiatrists which I accept, is of sufficient weight to justify a finding under s 13(1) of the Act. The respondent’s unmodified risk of committing a serious sexual offence if released from custody without a supervision order being made is reasonably high. The consequences of such an offence for a victim includes serious psychological harm, but are not limited to it. The January 2019 offending shows his propensity for sexual violence towards a woman who ends an intimate relationship. [112] In reaching the decision to impose a Division 3 order, the paramount consideration is to ensure the adequate protection of the community.1 In forming a view on the s 13(1) issue, I must consider the factors described in s 13(4). One relevant matter is the infringement on the respondent’s liberty and his human rights. I have considered those matters in reaching the conclusion that a Division 3 order should be made to ensure adequate protection of the community against a serious sexual offence, as defined by the Act. [113] I am satisfied by acceptable, cogent evidence and to a high degree of probability that the respondent is a serious danger to the community in the absence of a Division 3 order, a supervision order. [114] The applicant submits that there is not a proper basis to make a continuing detention order and that, for the reasons given by the psychiatrists, a supervision order will reduce the risk to an acceptable level, and that adequate protection of the community can be ensured by the making of a supervision order. I accept that submission. The duration of the order [115] In Attorney-General for the State of Queensland v KAH,2 Davis J considered the proper construction of s 13A of the Act. In doing so he considered earlier authorities to the effect that in fixing the period of a supervision order the Court must predict the time in the future at which the respondent will be an acceptable risk without supervision. The correct legal consideration is “when will the respondent reach a point at which he/she is an acceptable risk without a supervision order?”3 The issue is not whether the prisoner may become the subject of an application for a further supervision order in the future. Instead, the appropriate length of the order is undertaken by reference to the statutory scheme. [116] The Court has to make a prediction, based on evidence, of what kind and duration of supervision order is required to provide adequate protection of the community. That may entail a working assumption about compliance with the supervision order. However, it involves many other considerations. In this matter it includes the matters addressed by the psychiatrists as to the respondent’s entrenched personality disorder, his psychopathic traits and his intellectual deficits. This is not a case, unlike many, 1 The Act, s 13(6). 2 [2019] QSC 36. 3 At [56]. -- 25 of 28 -- 26 in which one might have a degree of confidence that, with appropriate engagement with counselling and support, employment, abstinence from drugs, and the development of a pro-social network of family and friends, an individual will mature, gain insight into their offending and vulnerabilities, develop coping strategies and behaviours that minimise risk, and not be an unacceptable risk after a period of five years of support and supervision. [117] In five years’ time the respondent will be older, and close to 50. He may be less physically able and have reduced mobility. One cannot predict his likely physical course. Presumably he will have had five years of support from the NDIS, assuming it does not review its assessment in the light of the evidence in this Court concerning the respondent’s capacity to exaggerate his physical disabilities and assuming suitable male support workers can be found to manage a complex and deceptive client. However, even with continuing NDIS support the respondent is unlikely to mature greatly, gain empathy for his victims, alter his deep-seated attitudes toward women, or engage and learn from counselling. [118] I am not persuaded that his risk of serious sexual offending will have reduced to an acceptable level after five years. In my view, the order should be of 10 years’ duration. Terms of the order [119] Counsel for the respondent submitted that the draft order submitted by the applicant adopted a template that was inappropriate to his circumstances. [120] Before I address some specific conditions, I consider that most of those which were in contention are the kind of matters that, in their absence, would be the subject of a reasonable direction, and that it is just as well that they appear in black and white so that they can be explained to the respondent and followed by him, rather than being the subject of a direction from an officer which the respondent may not understand or accept. [121] Paragraph 7 requires him to answer and tell the truth if a Corrective Services officer asks him about certain matters. It is completely appropriate, even for someone with the respondent’s intellectual shortcomings. [122] The monitoring requirement in condition 15 is appropriate in order to monitor the respondent’s presence at places he is required to live. Conditions concerning mobile phones and computers and the internet are appropriate in order to control the respondent’s access to online pornography, and for the authorities to monitor the individuals with whom he associates. Rules about medicine are appropriate, including that he must take prescribed medicine only as directed by a doctor. [123] The limitation upon where he can go in condition 44 might seem more suitable to a paedophile or someone with an entrenched history of offending against children. However, there is not a blanket prohibition upon the applicant going to certain places such as parks, shopping centres and places where children may play. If the respondent wants to do any of those things, he must first get written permission from a Corrective Services officer. Such a limitation upon his movement seems reasonable, particularly in the early stages of a supervision order. -- 26 of 28 -- 27 [124] Conditions 37 to 39 about speaking to a Corrective Services officer about what he plans to do is reasonable. Given his recent parole violation, and the people with whom he was reportedly consorting at the time, it is reasonable for him to be required to tell a Corrective Services officer the name of new persons who he has met, including people he spends time with or speaks to regularly. [125] The draft conditions seem appropriate to an individual with the respondent’s manifest deficits, substantial needs and who will require close supervision, particularly in the early years of the supervision order I propose to make. The safety of NDIS support workers [126] Dr Arthur helpfully reported: “304. [The respondent] will initially require a high level support, supervision and control. He is likely to push boundaries and utilise intimidating and aggressive behaviour as a way of controlling his environment. I would be concerned about the safety of female staff. 305. I recommend that there be close liaison between Community Corrections and his NDIS support provider prior to his release from custody. Ideally, support workers should be male and have experience in the management of forensic clients. There needs to be clear boundaries around roles and responsibilities of his supports and plans in place to manage interpersonal violence and other manipulative behaviour.” (Emphasis added). [127] I echoed these concerns during the hearing and raised the issue with Ms Monson, the Manager, Strategy and Risk of the High Risk Offender Management Unit. She advised that her unit works very closely with NDIS support co-ordinators and surveillance staff for QCS work closely with support workers. They can request only male support workers, but it may take some time to get the right supports. [128] That provides some reassurance but systems can fail and support co-ordinators and support workers change. [129] The Court’s role is not to micromanage these processes. However, it would be open, in my view, for the authorities to give a reasonable direction to the respondent, for example, that he not have a female support worker, unless she is accompanied by suitable, additional staff to ensure her safety. [130] Limiting the respondent’s access to children and vulnerable women in places like parks and shopping centres is one thing. In terms of victim access and risk, the respondent’s most frequent contact with a vulnerable woman is likely to be a female NDIS support worker, unless steps are taken to prevent that from occurring. [131] If preventing access to female, inexperienced or vulnerable NDIS support workers delays the respondent’s transition from the QCS contingency accommodation at Wacol to suitable, NDIS-supported accommodation in the community, then this is a small price to pay in the interests of community safety and the safety of vulnerable NDIS support workers who will visit the respondent in his home. -- 27 of 28 -- 28 [132] I directed that the three reports of the psychiatrists and the transcript of their oral evidence, including Dr Arthur’s evidence about the lack of evidentiary support for some of the respondent’s claimed medical conditions, be provided to the NDIS co-ordinator so that the NDIS has access to these expert views and relies less on self- reporting by the respondent about his medical conditions and other circumstances. These documents, along with these reasons, are best provided by QCS to the NDIS, rather than by the Court’s Registry, so that they reach the appropriate NDIS co-ordinator and decision-makers as soon as possible. Conclusion [133] I am satisfied that the respondent is a serious danger to the community in the absence of a Division 3 order. [134] I order that he be released from prison and must follow the rules set out in the supervision order that I have signed for 10 years, namely until 8 December 2033. -- 28 of 28 --