Attorney-General v Flenady [2022] QSC 231

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General v Flenady [2022] QSC 231 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v JAMES BRIAN ROBERT FLENADY (Respondent) FILE NO/S: 10062 of 2019 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 28 October 2022 DELIVERED AT: Brisbane HEARING DATE: 24 October 2022 JUDGE: Bowskill CJ ORDERS: 1. The decision made by Burns J on 13 March 2020, that the respondent is a serious danger to the community in the absence of a division 3 order, is affirmed. 2. The respondent, James Brian Robert Flenady, continue to be subject to the continuing detention order. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – review of a continuing detention order COUNSEL: M Maloney, for the applicant S Robb, for the respondent SOLICITORS: Crown Solicitor, for the applicant Legal Aid Queensland, for the respondent [1] On 13 March 2020, the Court found that the respondent is a serious danger to the community in the absence of an order under division 3 of part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and made an order, under s 13(5)(a) of the Act, that the respondent be detained in custody for an indefinite term for control, care or treatment: Attorney-General (Qld) v Flenady [2020] QSC 44. -- 1 of 10 -- 2 [2] As required by s 27(2) of the Act, that order was first reviewed by the Court on 30 August 2021. For reasons given on 15 October 2021, the Court affirmed the decision that the respondent is a serious danger to the community and ordered that the respondent continue to be subject to a continuing detention order: Attorney-General (Qld) v Flenady [2021] QSC 256. [3] This is the second annual review of the continuing detention order. [4] In July 2017, the respondent was convicted following a trial of five offences – common assault with intent to rape, attempted rape, common assault, deprivation of liberty and indecent treatment of a child under 12. All the offences arose from one incident, committed in December 2013, against the nine year old daughter of the respondent’s then de facto wife. The circumstances of the offences are, as Burns J said in the 2020 decision, confronting; involving persistence and a degree of personal violence. They are described in [11]-[12] of that decision. For those offences, the respondent was sentenced to an effective head sentence of three years’ imprisonment. He had a relevant criminal history prior to that, which is summarised in [7]-[10] of the 2020 decision. His full time release date would have been 14 March 2020. As a consequence of the continuing detention order, the respondent has remained in custody since then. [5] In the 2020 decision, Burns J recorded, at [20], that: “At different times whilst in custody, risk assessments have been made, in consequence of which it was recommended that he participate in a specialised sexual offending program, as well as low intensity substance intervention. Although the respondent did accept a place on the Short Substance Intervention Program conducted at the Wolston Correctional Centre in late 2009, (he could not complete that program) he has steadfastly refused any offence specific sexual treatment in custody. This is not because he maintains any denial of the index offending; rather, it is because he does not wish to participate in group therapy. He is however willing to engage in individual treatment.” [6] It was also noted that the respondent had, in 2018, declined two offers of a place in the Getting Started: Preparatory Program (GS:PP), a program designed, among other things, to motivate offenders to participate in a group setting to address their offending in a more intensive treatment program and reduce anxiety about being in a group environment (at [21]). It was also noted that, in October 2019, the respondent was offered, and accepted, a place on the Moderate Intensity Substance Intervention Program. However he failed to attend the first session, and declined later offers to re- engage with that program (at [22]). [7] The more intensive form of sexual offending treatment is the High Intensity Sexual Offending Program (HISOP), which is an intensive group based program, requiring 351 hours to complete and taking about a year (at [23]). The consistent opinion of the three psychiatrists who gave evidence before Burns J (Dr Beech, Dr Arthur and Dr Phillips) was that the respondent was, then (in March 2020), essentially an untreated sex offender, who posed a high risk of reoffending if released from custody unsupervised, and that he should complete the HISOP prior to release from custody, even on a supervision order. That was, in essence, because he had very limited insight -- 2 of 10 -- 3 into, and there was a very poor understanding of, the drivers of his offending, which would make effective supervision of him in the community difficult. The group therapy element of the HISOP was regarded as important, and preferable to individual treatment, for the respondent. [8] Justice Burns said, at [57]-[59]: “Here, each of the psychiatrists has expressed the opinion that it would be preferable for the respondent to undertake the GS:PP followed by the HISOP before consideration is given to his release from custody. To my mind, such a course is not only preferable, it is essential. It is not to the point to argue, as the respondent’s counsel did (at least in writing) that there are good reasons why the respondent is resistant to group therapy, that he is quite prepared to undertake individual therapy in the community under a supervision order and that there will now be a lengthy delay in the delivery of that therapy to the respondent if he remains in custody. In the first place, the expert evidence is to the effect that the respondent’s resistance to group therapy is not uncommon and may be capable of being overcome. Secondly, individual therapy is not an adequate substitute for group therapy, for the various reasons advanced by the psychiatrists in evidence and which are discussed above. Thirdly, assuming the respondent now accepts that he will need to participate in group therapy, the expected delay before that will occur is most unfortunate but that does not change his current treatment status. He is untreated and, if released on supervision, he will still be untreated. Even if individual therapy in the community was to be regarded as an adequate substitute for group therapy, that may be expected to take a considerable period of time before it has any real effect. As Dr Arthur said in evidence, if the respondent were to be released he would be leaving ‘jail pretty much the way he came into jail, with the same level of risk, the same lack of insight and with an inadequate plan to manage his risks and to better understand his triggers and … specific risk factors for his sexual reoffending’. Although I accept that, were the respondent to be released on a supervision order on the strict conditions proposed in this case, there would be some reduction in the risk the respondent poses due to the strictures of such an order, the risk of commission of a serious sexual offence will remain unacceptably high unless and until the underlying causes of his sexual offending are properly explored and then addressed. Currently, that can only be achieved through his participation in the GS:PP followed by the HISOP. Individual psychological therapy as a forerunner to the GS:PP (and then running alongside the two successive group programs) is also indicated.” [underlining added] [9] For those reasons, a continuing detention order was made. [10] At the time of the first review of the continuing detention order, there had been some progress, although the respondent remained resistant to attending group therapy. As -- 3 of 10 -- 4 Callaghan J observed, at [10] and [11] of the 2021 decision, whilst the respondent’s resistance to group therapy may be understandable, given his background: “Such therapy is, however, the cornerstone of so much of the treatment included in programs calculated to rehabilitate sexual offenders. The respondent has therefore not received any treatment directed at the behaviour which is the reason for his incarceration. He presents before me as he did before Burns J, as ‘very much an untreated sex offender’.” [11] The respondent had, however, by the time of the review, engaged in the high intensity substance abuse program, known as HISI. As Callaghan J observed, at [12] of the 2021 decision, this had significance beyond its content, because it involved the respondent overcoming his aversions and engaging in group therapy, which was an “important development”. [12] He had also been seen on four occasions by a forensic psychologist, not for treatment per se, but to assess his motivation to engage in treatment. He had expressed a willingness to engage in individual therapeutic sessions if they were offered on an ongoing basis (at [9]). [13] The evidence from the psychiatrists (Dr Arthur and Dr Beech) before the court at the time of the first review was essentially unchanged – in terms of the assessment of the risk posed by the respondent; the fact that he was still “untreated”; and the recommendation that he engage in the intensive group therapy offered by the HISOP in custody. [14] Acknowledging the respondent’s submissions, that he could be released on a supervision order and be required to undertake individualised treatment, Callaghan J said, at [18]-[19]: “The difficulties that remain, however, could be expressed in a recapitulation of that which was written by Burns J … I agree with his Honour’s comments to the effect that the respondent should complete programs that explore and address the underlying causes of his sexual offending. This should be regarded as an essential prerequisite to the respondent’s release – it is necessary in order to inform the development of plans which will prevent a relapse. These plans will, in turn, inform the requirements for and indeed, form a part of a supervision order. Although there is, as noted, some denial attaching to the circumstances of the crimes that led to his incarceration, the respondent is not one of those offenders described as a ‘complete denier’. He has acknowledged enough about his behaviour for it to be expected that he can understand the benefits of and need for his completion of a sexual offenders program. He has, by participating (in another context) in group therapy taken a difficult but highly commendable step in the direction towards rehabilitation. It seems, on the materials, he is evincing an attitude that suggests his release on a supervision order is a realistic proposition, but he is not yet at that point.” [15] The continuing detention order was affirmed. -- 4 of 10 -- 5 [16] On this, the second review, the court must first consider whether it is appropriate to affirm the decision that the prisoner is a serious danger to the community in the absence of a division 3 order (s 30(1)) and, if that decision is affirmed, then consider whether to order that the respondent continue to be subject to the continuing detention order or be released from custody subject to a supervision order (s 30(3)). [17] The respondent accepts that the evidence supports a finding that he is a serious danger to the community in the absence of a division 3 order. That concession is appropriately made, having regard to the evidence. I am satisfied it is appropriate to affirm the decision to that effect. [18] Turning then to the order to be made. [19] There have, again, been some positive developments. However, regrettably, the position remains the same now, as it was before Callaghan J in 2021 – the respondent is still untreated; still poses a high risk of relevant reoffending if he were released from custody unsupervised; and, because he is untreated, insufficient is known about him for the conclusion to be reached that a supervision order would provide adequate protection for the community from the risk that he poses. [20] For the purposes of this review, updated assessments of the respondent have been undertaken, and reports prepared, by Dr Arthur and Dr Phillips. [21] Dr Phillips saw the respondent on 4 August 2022 and prepared a report dated 4 September 2022. In relation to his attitude regarding previous sexual offences, the respondent indicated to Dr Phillips that he was not guilty of the index offences (those involving the nine year old girl). He also indicated he had previously made false statements to Dr Beech and Dr Phillips during previous assessments, with the intention of providing a partial admission so that he would be eligible for individual intervention. [22] Dr Phillips remains of the opinion that the respondent’s risk of future sexual re- offending falls in the high range, if released from custody without a supervision order. She expresses the opinion that a supervision order would assist in reducing the risk of reoffending to some extent, such that “his risk of sexually re-offending would be in at least the moderate range”. Dr Phillips notes that it remains unclear how well the respondent would respond to the conditions of a supervision order (referring to his poor response to supervision, under other kinds of court orders, including domestic violence orders and bail orders, in the past). She also says that “[h]is willingness to be deceptive and provide false information to those assessing him is a concern”. [23] In Dr Phillips’ opinion, the respondent “remains essentially untreated with regards to sexual offending interventions” and his “risk of sexual reoffending is essentially unchanged compared to the previous court hearing”. Her opinion is that the respondent requires treatment prior to being released into the community. [24] Dr Phillips also recorded that, at the time of her interview with him, the respondent “presents with a sense of hopelessness and futility about his prospects of being released from custody and presents with suicidal ideation, plan and a clear intent to commit suicide in custody at some undisclosed time in the future”. Dr Phillips says that she discussed with the respondent her concerns regarding a deterioration in his mental state -- 5 of 10 -- 6 with worsening symptoms of depression and anxiety and suicidal ideation. He gave his consent to Dr Phillips making a referral to the Prison Mental Health Service, which she did. [25] Dr Arthur saw the respondent on 5 August 2022, and prepared a report dated 7 September 2022. The respondent maintained his stance of denial of the index offending, when interviewed by Dr Arthur. Dr Arthur remains of the opinion that the respondent’s unmodified risk of sexual reoffending remains high. Dr Arthur notes that: “His offences are recurrent and show a pattern of escalation in severity. The index offences involve physical coercion and threats of violence. He continues to display a poor understanding of the drivers for the offences and remains in denial regarding the presence of deviant sexual interests. His appreciation of his risk of sexual recidivism is poor and his risk management strategies do not incorporate deviant sexual interests or sexual preoccupation . He is yet to engage in any offence specific treatment and he does not express any particular motivation to develop a relapse prevent plan. He maintains a negative attitude towards Corrective Services.” [26] Both Dr Phillips and Dr Arthur express the view that, because of the diversity of the respondent’s prior offending, and the escalation of it, coupled with the lack of understanding – by the respondent, and by medical professionals – about what drives his offending, the scope of potential offending, and potential victims, is very broad (ranging from grooming conduct to serious contact offences, against children, teenagers or adults). [27] Dr Arthur also says that the respondent remains untreated. Given the respondent’s entrenched use of avoidance and denial, Dr Arthur remains of the opinion that the respondent should complete a group sexual offender treatment program prior to release from custody. Dr Arthur considers group therapy is “far superior to individual therapy alone for the following reasons – • It provides a much higher dose of treatment in a shorter period of time, which learning theory shows is more conducive to the acquisition and retention of new material. • A group program would effectively challenge prisoner Flenady’s extensive use of avoidance and denial in regard to the offences he was convicted of. Even should he continue to protest his innocence for the index offences, the prior sexual offences would be sufficient material to allow exploration of his underlying sexual interests, use of sex as coping, maladaptive attitudes, the use of pornography, intimacy deficits and attachment style. • [The respondent] has yet to develop an adequate relapse prevention plan or prosocial plans for the future.” [28] In addition, even if the respondent agrees to a group treatment program, Dr Arthur recommends that he be provided with additional one to one interventions, concurrently with the program, in order to provide him with extra emotional support and strategies to manage his anxiety. -- 6 of 10 -- 7 [29] In August/September 2022 the respondent did participate in the GS:PP program. As Ms Carah describes it in her October 2022 affidavit: “The GS:PP is a preparatory program designed to motivate offenders to participate and address their offending in a more intensive treatment program, reduce anxiety to being in a group environment, identify any possible barriers to offenders participating in a more intensive sexual offending program, and increase offenders belief in the ability to change and maintain that change. The GS:PP is not a treatment program and should not be considered as a substitute for, or an addition to, any other form of sexual offending treatment or management. Instead, the GS:PP provides recommendations in relation to an offender’s treatment needs. The GS:PP must be completed prior to placement on a treatment program.” [30] The completion report from the respondent’s participation in the GS:PP is quite positive, particularly in so far as his engagement in a group program is concerned. It includes the following: “During prisoner Flenady’s participation on the [GS:PP], he demonstrated limited insight into his sexual offending behaviour and accepted limited responsibility for his index sexual offending behaviour. However, he was able to demonstrate increasing insight and responsibility taking for his historical offences. In addition, was not able to demonstrate empathy for his victim, but was able to display general empathy towards others. Throughout prisoner Flenady’s participation on the GS:PP, he demonstrated a commitment to change and a willingness to participate in future sexual offending programs. … Despite denying his offending there were moments when the prisoner made comments that might indicate some responsibility for the offending, specifically stating he had asked the victim’s mother to have a lock on the victim’s door as he could not ‘control or trust himself’. This may need further exploration within a treatment program. Attempts were made to explore the prisoners index offence however due to his stance of innocence this was not successful. … Prisoner Flenady’s level of engagement with group participants and facilitators in the GS:PP was deemed to be good, whereby he was an active and engaged group member. He demonstrated an emerging understanding to the programs modules which was evidenced in his ability to detail the purposes of the modules and his ability to assist other group members with their understanding. He presented with leadership like qualities within a group setting, evidenced through his encouragement of other group members and their level of participation. Prisoner Flenady did not present with any responsivity factors that may be barriers to future participation on sexual offending programs.” [31] The recommendation was that he participate in a Stable 2007 assessment to identify his specific treatment needs and then participate in the HISOP. -- 7 of 10 -- 8 [32] Upon being advised of the respondent’s completion of the GS:PP, both Dr Phillips and Dr Arthur were asked whether this altered their previously expressed opinions. [33] In a supplementary report provided by email dated 18 October 2022, Dr Phillips said: “It is a positive that [the respondent] has engaged in the GS:PP to an appropriate level, has been recommended to participate in the HISOP and it was considered that he did not present with any responsivity factors that may be barriers to future participation in sexual offending programs. My opinion remains largely unchanged. It remains my opinion that [the respondent] should remain in custody to complete the HISOP. In the event that he is either deemed ineligible for the HISOP, refuses to engage in HISOP or commences HISOP and then disengages from the program, it is my opinion then he should be provided with individual intervention with a forensic psychologist with experience in managing sexual offenders (for example, Nick Smith) in custody. I agree with the recommendation by Dr Arthur … that it would be beneficial that should [the respondent] agree to a group treatment program that he be provided with additional one to one interventions run concurrently with the program in order to provide him with extra emotional support and strategies to manage his anxiety (either via QCS staff or an external psychologist). Given [the respondent’s] statements regarding intent to commit suicide in custody in the future, as outlined in my report, he will require careful monitoring of his mental state and dynamic risk factors for self-harm and suicide. I note the statement he made at the DPSOA Welfare Check on the 04/08/2022 (in the updated prison material) that ‘I find it comforting to know that I would have an option to end it (ie overdose) if I am to remain in custody for over double my initial sentence’ (ie March 2023). At my assessment [the respondent] also highlighted that the trigger for his suicidal thoughts had been a realisation that on the 14/03/2023 he will have served twice his original sentence… Given that [the respondent] has highlighted the importance of this anniversary date, I recommend that he have further increased support and monitoring of his mental state and risk of suicide in the time surrounding this stressor.” [34] As to why the HISOP program is so strongly recommended, Dr Phillips further explained, in oral evidence at the review hearing, that the HISOP is only available in custody, and there would not be any suitable group program available to him in the community. She reiterated that the respondent is essentially untreated in terms of his sexual offending and said “the best evidence exists for treatment with group programs in this type of offending”. Whilst she acknowledged individual therapy is an option, Dr Phillips said in her opinion it was less suitable for the respondent – having regard to the structured nature of the HISOP, involving over 350 hours of group therapy, with the benefits of the group dynamic, where any cognitive distortions can be challenged by the group dynamic. -- 8 of 10 -- 9 [35] In very clear evidence, in response to the question put to her by the respondent’s counsel in cross-examination, “do you think the supervision order would effectively prevent the commission of such an offence [a serious sexual offence, being any sexual offence against a child or a sexual offence involving violence against an adult] in a practical sense were the respondent released to it in the short term”, Dr Phillips said “Not at this point in time, no”. [36] In a supplementary report from Dr Arthur dated 19 October 2022, Dr Arthur said: “The tone of the exit report was generally positive in that [the respondent] participated to an appropriate level and that his degree of engagement with the group participants and facilitators was deemed to be good. I was encouraged by the fact that there were times during the program where he made comments that may indicate taking some responsibility for the index offences, although I note he refuted this in a handwritten comment at the end of the document. He also displayed signs that he was developing insight into some attitudes which contributed to his offences. Given his reported social anxiety, I was surprised to read that the program facilitators considered he demonstrated leadership-like qualities within a group setting due to his encouragement of other group members and his level of participation. It is relevant that the facilitators did not consider there were any responsivity factors which would impact on future participation in group treatment programs. Overall, this information does not lead me to change any of my opinions or recommendations as stated in my recent risk assessment. I believe that [the respondent] remains an untreated sex offender and should complete a group treatment program whilst in custody prior to his release on a supervision order. His performance in the GS:PP indicates that his previously reported anxiety is unlikely to be a significant barrier to engagement in future group treatment.” [37] The evidence demonstrates that the respondent will be offered a place in the HISOP, provided he is ready, willing and able to participate in it. The next opportunity for him to enter this program is not too far away – December 2022. It is ultimately up to the respondent to make the decision to participate in the program – although the psychiatric evidence is very clear as to the need for this to occur prior to any release under supervision. If he does agree, given the length of time the respondent has been in custody, it is very important that the start date for the respondent to enter this program is not delayed by Corrective Services. [38] I note the evidence from Mr Tannock, the Acting Manager of the High Risk Offender Management Unit (HROMU) that, if the respondent continues to be detained, and is offered a place on the HISOP, the HROMU will monitor his engagement in the program and arrange for a centre-based psychologist to work with him to support his engagement in the program and, if he requires additional support, the HROUMU will engage an external psychologist to support the respondent’s engagement in the HISOP. [39] On the evidence, the provision of such individual support, to run concurrently with participation in the HISOP, is important. In his oral evidence, Dr Arthur further -- 9 of 10 -- 10 explained that having such extra support “would help [the respondent] remain in the program, which is really important, because there’s a lot of data out there to suggest that if people attempt programs and fail, then their outcomes are much worse, and their risk of recidivism actually increases”. [40] It is also important given the issues raised, in particular by Dr Phillips, about the respondent’s mental state more broadly. [41] Given that the purpose of a continuing detention order is, in part, care and treatment, it is essential that Correct Services implements this recommendation. [42] If the respondent refuses to participate in the HISOP, then as both Dr Phillips and Dr Arthur say, he should be provided with individual therapy; although they are both clear in their opinions that this alternative would not be ideal. [43] The evidence overwhelmingly supports the conclusions, first, that the respondent is still a serious danger to the community, in the absence of a division 3 order and, second, that at present adequate protection of the community cannot be reasonably and practicably managed by a supervision order. The psychiatric evidence strongly supports the conclusion that the only appropriate order is an order that the respondent continue to be detained in custody, for control care or treatment – most specifically, so that he can participate in the HISOP. His treatment, and care, also needs to involve additional psychological support, to run concurrently with his participation in the program, to support him to remain in the program, and to help him with the feelings of distress and hopelessness he has conveyed in particular to Dr Phillips. [44] The respondent has made quite significant gains since the last review before Callaghan J – most particularly, his successful participation in the GS:PP. It is to be hoped that, by the time of the next review, he will be able to demonstrate even more improvement, as a result of participation in the HISOP. Although that will be a matter for him, of course. He is aware of the psychiatric opinions about the importance of this. [45] Whilst the respondent pressed for an order for his release subject to a supervision order, his counsel quite properly acknowledged that the psychiatric evidence is against him, and supports his continued detention to complete the HISOP. [46] I therefore order that the respondent continue to be detained in custody for control, care and treatment. -- 10 of 10 --