Attorney-General (Qld) v Valence [2022] QSC 261

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v Valence [2022] QSC 261 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v KERRY PATRICK VALENCE (respondent) FILE NO/S: BS No 2941 of 2009 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 25 November 2022 DELIVERED AT: Brisbane HEARING DATE: 31 October 2022 JUDGE: Davis J ORDER: The Court, being satisfied to the requisite standard that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), orders that: 1. The decision made on 13 August 2009 that the respondent, Kerry Patrick Valance, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed. 2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 November 2018. CATCHWORDS: CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent has been detained on a continuing detention order - where the Attorney-General applied for a review of the continuing detention order - whether the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act - whether the adequate protection of the -- 1 of 10 -- 2 community can be ensured by the release of the respondent on a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 20, s 21, s 21A, s 22, s 22A, s 27, s 30 Attorney-General v Francis [2007] 1 Qd R 396, cited Attorney-General v Lawrence [2010] 1 Qd R 505, cited Attorney-General (Qld) v Guy [2018] QSC 179, cited Attorney-General (Qld) v Valence [2018] QSC 265, related Attorney-General for the State of Queensland v Valence [2010] QSC 335, related Attorney-General for the State of Queensland v Valence [2011] QSC 304, related Attorney-General for the State of Queensland v Valence [2012] QSC 310, related Attorney-General for the State of Queensland v Valence [2020] QSC 397, related Attorney-General for the State of Queensland v Kerry Patrick Valence, unreported, Supreme Court of Queensland, Brisbane, 25 October 2021, Freeburn J, related Kynuna v Attorney-General [2016] QCA 172, cited Turnbull v Attorney-General [2015] QCA 54, cited COUNSEL: J B Rolls for the applicant The respondent appeared on his own behalf SOLICITORS: GR Cooper, Crown Solicitor for the applicant The respondent appeared on his own behalf [1] The respondent is the subject of a continuing detention order made under s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). [2] This is an application brought by the Attorney-General pursuant to s 27 of the Act to review the continuing detention order to which the respondent is subject. Background [3] The respondent was born on 15 June 1957. He is presently 65 years of age. [4] As to the respondent’s criminal history which led to proceedings being taken against him under the Act, I observed this in earlier proceedings:1 “[12] The respondent has a criminal history both in New South Wales and Queensland. Serious offences of a sexual nature were committed in New South Wales in 1975 and again in 1980. His criminal history in Queensland commenced in 1996. Between 1996 and 2000 the respondent appeared in the Emerald Magistrates Court on three occasions and was dealt with for various offences: wilful and unlawful destruction of property in 1 Attorney-General (Qld) v Valence [2018] QSC 265. -- 2 of 10 -- 3 the night-time,2 possession of a dangerous drug,3 refusal to leave premises when required by the licensee and being drunk and disorderly.4 Between 1999 and 2004, the respondent offended sexually against two young boys. Between September 2003 and March 2004, he was also convicted for various offences under the Bail Act 1980 (Qld) and fined in the Magistrates Court. [13] The sexual offending in New South Wales and Queensland was described by White J (as her Honour then was) when making a continuing detention order,5 against the respondent on 13 August 2009,6 as follows: ‘It is convenient to start with the respondent’s relevant prior criminal history. He is now aged 52. Some sexual offending occurred in New South Wales in 1975 and 1980 when the respondent was aged 18 and 23 respectively. The criminal history describes the offences as buggery and indecent assault on a male and assault with intent to commit buggery. He was bound over to be of good behaviour in 1975 and in 1980 sentenced to two years' imprisonment which was deferred on him entering into a recognisance and under supervision. In 1970 the victim was about 12 and in the 1980 offences, the victim eight years. In the latter case, after an encounter in the caravan park showers, the respondent invited the boy back to his caravan. In both cases the respondent denied penetration but admitted physical contact with the boys to ejaculation. He has numerous other offences involving excessive consumption of alcohol and possession of illegal drugs. The history supports a long-existing problem with alcohol and unlawful drugs of various kinds. The current offences concern two boys aged about 10 years and the offences were separated by some years. The first offence occurred in 1999 and 2000 against a boy with whose family the respondent was friendly. On one occasion he grabbed the boy’s penis through clothing. On the second, despite resistance, the respondent engaged in fellatio on the boy and threatened to kill him if he revealed the assault. The later offence occurred in 2004 when the respondent was on bail for the earlier offences when he was befriended by a family and when in the home fondled the boy’s penis after pulling 2 30 September 1996. 3 7 April 1997. 4 17 November 2000. 5 Section 13(5). 6 Attorney-General for the State of Queensland v Valance [2009] QSC 255. -- 3 of 10 -- 4 down his pants. The respondent tended to attribute initiating conduct to the boy.’ [14] As a result of the offending between 1999 and 2004, the respondent was charged with three counts of indecent treatment of children under 16 with the circumstance of aggravation that the child was under 12 years of age. On each of those charges, he was sentenced respectively to 2 years and 6 months imprisonment, 4 years imprisonment and 3 years imprisonment. Those terms were all ordered to be served concurrently. The respondent’s bail had been revoked by the time he was sentenced and 193 days of pre-sentence custody between 30 August 2005 and 10 March 2006 was declared as time served.” [5] An application was, in due course, made under the Act and White J (as her Honour then was) made a continuing detention order on 13 August 2009. The psychiatric evidence at that point7 was that the respondent was a high risk of offending sexually against young male children. However, the doctors opined that the respondent’s risk of reoffending could be reduced by his participation in a High Intensity Sexual Offender Program (HISOP) followed by development of a robust relapse prevention plan that could be monitored in the community by supervision. Completion of the HISOP was, therefore, the respondent’s path to release.8 [6] The continuing detention order was reviewed on each of 8 September 2010,9 10 October 2011,10 9 October 2012,11 8 October 2013,12 29 September 201413 and 9 November 2015.14 On each of those occasions, the continuing detention order was continued. [7] The respondent did not undertake a HISOP. He did receive individual treatment and counselling. He was released on supervision by order of Flanagan J on 21 November 2016. [8] By late 2017, the respondent had contravened the terms of the supervision order by interacting with three children aged eight, 10 and 14.15 [9] Contravention proceedings were brought.16 At the time of his release in 2016, the respondent had undertaken intensive individual therapy but had not undertaken group based sexual offender therapy programs, in particular, the HISOP. He had refused to participate in these. [10] On the contravention proceedings, Dr Beech observed: 7 From Dr James, Dr Moyle and Dr Beech. 8 The evidence is summarised in Attorney-General (Qld) v Valence [2018] QSC 265 at [15]-[16]. 9 Attorney-General for the State of Queensland v Valence [2010] QSC 335. 10 Attorney-General for the State of Queensland v Valence [2011] QSC 304. 11 Attorney-General for the State of Queensland v Valence [2012] QSC 310. 12 Order of Jackson J, 8 October 2013. 13 Order of P Lyons J, 29 September 2014. 14 Order of Dalton J, 9 November 2015. 15 As to the facts of the contravention, see Attorney-General (Qld) v Valence [2018] QSC 265 at [24]. 16 Dangerous Prisoners (Sexual Offenders) Act 2003, Part 2, Division 5, ss 20-22A. -- 4 of 10 -- 5 “Mr Valence has eschewed intensive group therapy, probably the most effective form of treatment for recidivist offenders. The individual intensive therapy has explored the paedophilia, but the central strategy has failed. He has refused anti-libidinal medication. In my opinion, it is probably now time to return to the advice of Professor James in 2009 who said: ‘… in my opinion, the generally high risks are demonstrated by the dynamic considerations, and should be considered valid. I consider it unlikely that Mr Valence will make any progress or act in any way to reduce the risk of reoffending, unless he completes the appropriate SOTP17 prior to his discharge from prison.’ In my opinion, the risk now could be reduced by Mr Valence’s participation in a high intensity sexual offender treatment program augmented possibly by anti-libidinal medication.” [11] Dr Aboud also considered that treatment was problematic. He observed: “… He remains adamant that he will not engage in group sexual offender therapy, and also that he will not consider medication to reduce libido or sexual preoccupation (ie antilibidinal hormonal medication or high dose SSRI antidepressant medication). At very least, it is my recommendation that he be engaged in individual psychological therapy (in custody) to specifically: assist him in understanding the pathway by which he has returned to custody; identify the junctions in that pathway where he might have made a different decision; help him understand how he might have trusted the professional staff to obtain support and guidance at an early stage; plan for how he might behave differently in any future similar situations. Given his tendency towards becoming defensive and defeatist, a motivational style of therapy may be required. I believe that there should be an exit report, provided by the psychologist, which can be reviewed, prior to any consideration of release to the community.” [12] The continuing detention order was confirmed on 21 October 2019 by Bradley J. On 19 October 2020, Bradley J again reviewed the continuing detention order. His Honour observed that the respondent had been offered, but had refused, participation in group sexual offender treatment programs.18 His Honour accepted the evidence of Drs Aboud and Brown to the effect that the respondent’s failure to undertake group sexual offender treatment programs was significant and that he required treatment.19 His Honour affirmed the continuing detention order. [13] The continuing detention order was again reviewed in October 2021. On that occasion, Freeburn J noted that the respondent continued to refuse to participate in 17 A reference to sexual offender treatment programs. 18 Attorney-General for the State of Queensland v Valence [2020] QSC 397 at [11]. 19 At [20] and [27]. -- 5 of 10 -- 6 group sexual offender treatment programs such as the HISOP. His Honour accepted the medical evidence as to the significance of that fact: “I now turn to the second question, which is whether the Court should order continuing detention or a release from custody subject to a supervision order. On that issue, the recent psychiatrists’ reports reflect a moderate to high risk of reoffending. They also take the view that Mr Valence ought to be properly treated and, in particular, should undertake a High Intensity Sexual Offender Treatment Program (HISOP) prior to release. There are, the psychiatrists note, numerous ways in which meaningful engagement in such a HISOP program could assist Mr Valence and thereby reduce the risks to the community. Regrettably, Mr Valence continues to decline that treatment. Indeed, he recently terminated one of his interviews with Dr Brown.”20 [14] The respondent has, since the order of Freeburn J, been asked whether he will participate in a group treatment program. Those requests were made on 26 November 2021 and 5 August 2022. He said that he would not. [15] Drs Arthur and Moyle examined the respondent for the present proceedings and produced reports. Both were briefly cross-examined by the respondent, but nothing of substance came from that. [16] Dr Moyle expressed his opinion on risk in these terms: “RISK STATEMENT 83. Mr Valence, if released into the community not subject to the DPSOA, is at least moderate if not high risk of reoffending sexually against boys 8 to 12 years of age he befriends in the community through their parents, irrespective of whether he is intoxicated by substances. 84. Mr Valence is at least moderate if not high risk of reoffending even if subject to a Supervision Order.” [17] It is unnecessary to delve deeply into Dr Moyle’s report. Dr Moyle had previously diagnosed the respondent with paedophilia. Although the respondent had earlier completed a “Getting Started Program”, which is a prerequisite to a HISOP, Dr Moyle considers that it would be necessary for the respondent to complete another Getting Started Program and then “he needs the High Intensity Sex Offender Program”. In conclusion, Dr Moyle observed: “89. In custody, such behaviour continues as he befriends young new offenders, refuses to agree to tasks unless his crystals are found, and when they are still refuses. He refuses to attend the usual rehabilitation programs and take antiandrogens to assist with the psychotherapy for Paedophilia, that would allow him an opportunity to progress into the community, where he refused treatment by psychiatry and formed a duplicitous therapeutic 20 Attorney-General for the State of Queensland v Kerry Patrick Valence, unreported, Supreme Court of Queensland, Brisbane, 25 October 2021, Freeburn J. -- 6 of 10 -- 7 relationship with two psychologists to whom he fails to tell of his contact with parents of children, along with the senior case manager. When discovered to be grooming children with a risk that sexual offending may occur, he has returned to custody where he fails show he understands risk management and rejects advise of professionals that he accept that he needs treatment and rehabilitation. His longstanding rigid attitudes may be understood in terms of his disappointment in adults living up to his childhood needs, and children may be easier to relate to, and playing with children may have some psychological meaning to him. However, in custody, he relates to adult inmates in jail enough to talk and play cards, and he has status we can get titillated by younger boys when he forms relationships with them and friendships with them, advising them how to survive in jail. He has an active sexual drive at 65. His behaviour over time therefore suggests he has active resistance to adapting to Paedophilia. He seems to show the psychological thoughts and behaviours indicative of paedophilic arousal. I therefore see him as treatment and rehabilitation resistant at present with institutionalisation making any incentive to change presently beyond him thinking. This is sad in a relatively healthy man who could learn to live a productive and enjoyable life safely in the community in future should he wish to do so. Ultimately the High Intensity Sex Offender Program can inform risk management. He could formulate a well-structured and understood list of issues that make him more like to reoffend, strategies to prevent such reoffending as issues arise, that include the capacity to say no to any visits by children, even if it is upsetting to the children or appears rude. 90. Without this, I think the risk remains at least moderate and probably high that he will reoffend against 8 to 12 year-old boys, gradually encouraging contact with them through their parents by doing good deeds for parents and children alike, i.e. he is a friendly old man.” (emphasis added) [18] It is clear from much of the material that was before me, and also clear from the manner in which the respondent cross-examined the psychiatrists, that he considers the doctors to be unsympathetic and very much “against him”. The passage that I have emphasised from Dr Moyle’s report suggests very much the contrary. Like in 2009, the psychiatrists have mapped a plan for the respondent’s treatment and release on supervision; the HISOP. [19] Dr Arthur diagnosed the respondent as suffering “paedophilia, homosexual, non- exclusive”. In conclusion, Dr Arthur observed: “198. I am not confident that prisoner Valence’s long term risk of sexual recidivism can be adequately managed in the community under a supervision order. Whilst in the initial stages the strict application of a supervision order would effectively manage risk by limiting victim access, I believe the risk will escalate after he has progressed through the curfews and once again -- 7 of 10 -- 8 moves off The Precinct into private accommodation. Despite the use of GPS monitoring, random surveillance, regular case management meetings and psychological treatment, prisoner Valence will eventually come into contact with potential victims. Due to his lack of a comprehensive risk management plan and questionable motivation to address his offending behaviour, there is a significant risk that he will once again opportunistically (or purposely) engage in high risk behaviours which may lead to sexually offending against boys. 199. Based on his recent history, it is apparent that individual therapy did not provide him with the insight, motivation or skills to effectively collaborate in risk management. I suspect that his entrenched avoidance coping style has been a significant limiting factor. 200. I recommend that prisoner Valence engage in a group therapy program whilst in custody. I believe that high dose treatment in a group therapy format is the most effective way to address his avoidant behaviour and challenge his cognitive distortions. I believe it is only then that he will be in a position to gain advantage from further individual therapy addressing his personality vulnerabilities and deviant sexuality. 201. I would also recommend that prisoner Valence be referred to a psychiatrist for further discussion and consideration of antilibidinal medication. This could take the form of hormonal therapy, or alternatively trials of high dose SSRI medications such as Paroxetine. These drugs may assist in reducing deviant sexual drives.” (emphasis added) Statutory scheme [20] Section 13 of the Act empowers the court to make orders, including a continuing detention order, upon a finding that a respondent is a serious danger to the community in the absence of an order under the Act. A respondent is a serious danger to the community if there is an unacceptable risk that the respondent will, relevantly here, commit an offence of a sexual nature against a child.21 Such a finding was made against the respondent by White J in 2009. [21] A supervision order (as opposed to a continuing detention order) should be made when the supervision order will ensure adequate protection of the community.22 [22] If a continuing detention order is ordered, it must be annually reviewed. [23] Section 30, in many ways, mirrors s 13. It incorporates the concepts of “serious danger to the community in the absence of a Division 3 order”23 and “adequate protection of the community”,24 and provides that the continuing detention order may 21 See generally Attorney-General v Lawrence [2010] 1 Qd R 505 at [31], Turnbull v Attorney-General [2015] QCA 54 at [36]. 22 Attorney-General v Francis [2007] 1 Qd R 396 at [39]. 23 Sections 13(1) and 30(1) and (2). 24 Sections 13(6) and 30(4). -- 8 of 10 -- 9 only be affirmed if justified by “acceptable, cogent evidence” and “to a high degree of probability”.25 [24] 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”.26 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.27 3. If the answer to that question is in the negative, then a continuing detention order should be made.28 Consideration [25] In 2009, when the continuing detention order was originally made, the respondent was considered an unacceptable risk of committing sexual offences against boys. That risk stemmed from the respondent’s paedophilia for which he had not received treatment. At that stage, what was recommended was the HISOP. [26] Consistently over the years, findings have been made that the respondent continues to be an unacceptable risk of committing sexual offences against boys because of his paedophilia. His release in 2016, after individual treatment, proved a failure. Consistently from the recission of the supervision order, the psychiatric evidence has been that he remains a serious danger to the community which cannot be reduced to an acceptable level by a supervision order. That is the effect of the psychiatric evidence before me on this review and I accept it. [27] The respondent appears to be treatment adverse. Dr Moyle, in particular, seems convinced that the respondent could undergo the HISOP and be released under a supervision order. That appears to be a way forward for the respondent. [28] On the evidence currently before me, I find the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003. It is therefore appropriate to affirm the finding made on 13 August 2009 to that effect. The continuing detention order ought to be continued as a supervision order will not reduce the risk to an acceptable level. [29] I order that: The Court, being satisfied to the requisite standard that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), orders that: 25 Sections 13(3) and 30(2). See generally Kynuna v Attorney-General [2016] QCA 172. 26 Section 30(1) and (2). 27 Section 30(3). 28 Section 30(4) and see generally the discussion in Attorney-General (Qld) v Guy [2018] QSC 179. -- 9 of 10 -- 10 1. The decision made on 13 August 2009 that the respondent, Kerry Patrick Valance, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed. 2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 November 2018. -- 10 of 10 --