Attorney-General for the State of Queensland v Wilkes (No. 2) [2022] QSC 59

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Wilkes (No. 2) [2022] QSC 59 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v HARLEY JAYMES WILKES (respondent) FILE NO: BS No 11697 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 22 April 2022 DELIVERED AT: Brisbane HEARING DATE: 4 April 2022 JUDGE: Dalton J ORDER: 1. The supervision order made by Justice Ryan on 6 April 2018 is rescinded. 2. Harley Jaymes Wilkes is detained in custody for an indefinite term for control, care or treatment. COUNSEL: J Tate for the applicant L Reece for the respondent SOLICITORS: Crown Law for the applicant Jasper Fogerty Lawyers for the respondent [1] This matter originally came before me on 13 September 2021. It was an application under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). That is, it was a proceeding for a contravention of a supervision order. I adjourned the proceeding, and it came back before me on 4 April 2022. I gave a judgment after the hearing of 13 September 2021.1 [2] As I explained in my earlier judgment: “Section 22 of the DPSOA provides that if the Court is satisfied that a prisoner on a supervision order has contravened a requirement of it, the Court must rescind the supervision order and make a detention order unless the prisoner satisfies the Court on the balance of 1 Attorney-General for the State of Queensland v Wilkes [2021] QSC 245. -- 1 of 9 -- 2 probabilities that the adequate protection of the community can be ensured by a supervision order. If the prisoner discharges the onus on him, the Court must make a supervision order.” [3] I find that Mr Wilkes breached the supervision order made by Ryan J on 6 April 2018. I rescind that supervision order and order that Harley Jaymes Wilkes be detained in custody for an indefinite term for control, care or treatment. I now explain my reasons for so doing: History of Sexual Offending [4] The history of Mr Wilkes’ sexual offending is set out in my earlier judgment: “[ 2] … Mr Wilkes had committed sexual offences as a 17, 18 and 19 year old. He then committed further offences as a 20 year old for which he was sentenced by Judge Martin on 19 February 2015. Those offences were: (a) procuring a young person for carnal knowledge; (b) 11 x indecent treatment of a child under 16; (c) 3 x indecent treatment of a child under 12, and as a care giver; (d) 11 x indecent treatment of a child under 12; (e) common assault, and (f) damaging evidence with intent. [3] In relation to the bulk of the offending which Judge Martin dealt with, Mr Wilkes had obtained work as a babysitter and then sexually abused the children in his care. He made threats to kill two of the victims, should they tell anyone, and another equally wicked threat to another victim. The count of common assault was committed on one of the victims when that victim called out loudly in response to Mr Wilkes sexually assaulting him. On 26 February 2016, Mr Wilkes pleaded guilty to another similar offence dealt with by Judge Smith. The total sentence imposed on Mr Wilkes for all the offending just recorded was four-and-one-half-years. [4] During the period he was jailed under the sentences imposed by Martin DCJ and Smith DCJ, Mr Wilkes participated in the Getting Started: Preparatory Program for Sexual Offending (20/04/2016 - 24/05/2016) and the High Intensity Sexual Offending Program (HISOP) (03/08/2016 - 09/11/2017).” [5] On 6 April 2018 Ryan J made an order providing for Mr Wilkes’ release on supervision. Very soon after his release on that order he began breaching it, in a serious way, concealing those breaches, and all the time apparently remaining co-operative with Corrective Services officers and with his treating psychologist. The conduct which breached the supervision order was criminal. When it was discovered Mr Wilkes was arrested and returned to jail. I give this part of his history in my earlier judgment: “[5] Mr Wilkes was arrested on 6 September 2018 and charged with using the internet to procure children under 18, possessing child -- 2 of 9 -- 3 exploitation material, and eight contraventions of the supervision order. The arrest was five months after his release on a supervision order, but it is clear that Mr Wilkes had been offending for almost the whole time he had been in the community on the supervision order. He had obtained a smart phone, which he was not allowed to possess, and kept it hidden from Queensland Corrective Services. He had established an online identity as a 15-year-old girl and had communicated with a number of children aged between nine and 14. He had been texting a 14-year-old girl from Canada between April and September 2018. The content was sexualised and manipulative. It included promises to marry the girl. In some posts he mocked the psychological treatment he was being forced to receive. Mr Wilkes had 217 child exploitation images on the phone. Some of them were sexually violent, including a female child aged between four and six being raped. [6] These contraventions of the supervision order occurred while Mr Wilkes was living in the Wacol Precinct and was apparently co-operative both with Queensland Corrective Services and his individual treating psychologist, Dr Michele Andrews. As well as demonstrating a very quick return to sexual offending against children in that context, and in the context of having recently completed the HISOP, he demonstrated a very concerning ability to deceive those charged with his supervision and treatment. [7] Mr Wilkes was returned to custody on 6 September 2018. He was sentenced by Judge Rinaudo in relation to the new offences on 26 September 2019, on his own plea of guilty. The sentence was four years. Mr Wilkes’ full-time release date is 6 September 2022.” [6] The issue with which I dealt in my first judgment was whether or not the Attorney-General’s s 22 application ought to have been heard in circumstances where Mr Wilkes was serving a term of imprisonment imposed subsequently to the supervision order. At the commencement of the hearing in September 2021, both the Attorney-General and counsel for Mr Wilkes submitted that the hearing ought to go ahead. The Attorney-General submitted that the supervision order ought to be rescinded, and counsel for the defendant submitted that Mr Wilkes ought to be re-released under the supervision order. The psychiatrists, Dr Phillips and Dr Aboud, both gave oral evidence. Dr Phillips’ report had favoured the Attorney-General, but Dr Aboud’s report was more favourable to the defendant. However, his oral evidence was to a different effect and favoured the Attorney-General. In my earlier judgment I concluded as follows: “[14] Thus, at the end of oral evidence, both the psychiatrists had given views which supported the making of a continuing detention order rather than a supervision order, and both the psychiatrists had expressed the view that at least six months’ psychological sessions might both benefit Mr Wilkes and would also reveal information as to whether or not he was sincere in his desire to rehabilitate himself, and thus bear on his risk in the community. In these circumstances, counsel for Mr Wilkes asked that I adjourn the hearing of this contravention hearing. I think this was a sensible course so far as Mr Wilkes was -- 3 of 9 -- 4 concerned. In my opinion, this is a case where even though there is only a year between the hearing of the contravention application and Mr Wilkes’ full-time release date, circumstances might well change so that information about risk in the community is different as his full-time release date approaches. In those circumstances, I adjourned the hearing for a period of around seven months until April 2022.” Resumed Hearing [7] The hearing resumed before me on 4 April 2022. Both Dr Phillips and Dr Aboud gave evidence again. By the end of the hearing counsel for the defendant conceded that I ought to rescind the supervision order and make a detention order. Before turning to the oral evidence given on 4 April 2022 I will extract my summary of the psychiatric evidence as it was in September 2021. “[10] The psychiatric evidence in this case establishes that the diagnoses relevant to the respondent’s risk of re-offending are relatively permanent: paedophilia and personality disorder. These factors will bear on risk in much the same way now as they will in a year’s time when the respondent is approaching his full-time release date. However, in one important respect, I think that the psychiatric opinion available now will not necessarily be the same as the respondent approaches his full-time release date. The respondent had undergone the Getting Started Program and the HISOP while incarcerated before being released on a supervision order. He also received individual psychological counselling while he was in the community on the supervision order. However, since returning to jail, he has not been offered any opportunity to participate in further sexual offending programs, nor has he been offered any individual counselling from a psychologist. One result of this is that both psychiatrists who gave evidence on the contravention hearing recommended further treatment. Dr Phillips recommended that Mr Wilkes undertake the Sexual Offender Maintenance Program, and that he undergo further individual treatment from a forensic psychologist. She also thought that he would benefit from treatment from the psychiatrists at Prison Mental Health Services in relation to his post-traumatic stress disorder and his dysthymic mood disorder – p 17 of her report dated 16 August 2021. [11] Dr Aboud gave oral evidence that he would like to see Mr Wilkes engage in at least six months’ psychological therapy with a psychologist. It was clear that this might have some beneficial effect for Mr Wilkes, but would also allow that psychologist to form a view as to whether or not Mr Wilkes was genuine and sincere in his current expressions of a desire to rehabilitate. While these expressions were given to Dr Aboud during the interview he undertook prior to reporting in this matter, it is clear from his report, but clearer from his oral evidence, that he was sceptical as to whether or not Mr Wilkes was genuine. Likewise, it was clear from Dr Phillips’ evidence that she thought Mr Wilkes had learned the right things to say, and was engaging in what she thought was ‘positive impression management’ during her interview with him. -- 4 of 9 -- 5 [12] Dr Phillips’ report of 16 August 2021 assessed Mr Wilkes at high risk of sexual re-offending without a supervision order, and expressed some doubt as to how much a supervision order could be relied upon to reduce his level of risk of sexual re-offending in the community. She thought that there would be some reduction, but that he would still present a moderate to high risk – page 17 of her report. Dr Aboud gave a report which was more favourable to Mr Wilkes. He also assessed that he would be a high risk in the community without a supervision order, but thought that a supervision order would reduce his risk to moderate as regards non-contact behaviour, and low-to-moderate as regards a contact sexual offence – p 25 of his report dated 26 August 2021. [13] However, in oral evidence Dr Aboud candidly acknowledged that he had changed his view after writing his report. His view was more pessimistic as to the effect of a supervision order adequately moderating the risk which Mr Wilkes poses in the community. He discussed how Mr Wilkes had presented to him as responsible and sincere at the interview and that, still partly under the influence of that presentation, he had written his report. However, he said that the more time that passed after the interview, the more he became sceptical of Mr Wilkes’ presentation. He said, ‘So I think that that’s the effect that this man has. Certainly, it is the effect that he had on me.’ – t 1-29 when asked about it in cross-examination. I think Dr Aboud’s evidence in this regard is one of the most telling pieces of evidence before me, not so much as to Mr Wilkes’ sexual proclivities and desire to offend, but as to his dishonesty and capacity for manipulation.” Corrective Services’ Actions [8] In the seven months between the September 2021 hearing and the April 2022 hearing Corrective Services did not provide Mr Wilkes with at least six months of psychological counselling, as the psychiatrists before the Court in September had recommended and as I had recorded in my earlier judgment, see [6] above. In fact, Corrective Services only arranged for Mr Wilkes to attend six hours of counselling with Dr Andrews and these were all finished by the middle of December 2021. [9] This was most unsatisfactory both from the point of view of the information which was available to the Court at the adjourned hearing, and from the point of view of continuity of treatment for Mr Wilkes. [10] Mr Wilkes is a young man. He has been in jail nearly all his adult life. Two experienced psychiatrists had given the opinion that at least six months psychological treatment and assessment was necessary both for Mr Wilkes’ own benefit, and as a basis for the Court to assess whether or not to continue to detain Mr Wilkes. The date of the resumed hearing was determined by this six month recommendation. [11] Persons detained under the DPSOA are detained because of their risk in the community, but also for their care and treatment. The DPSOA has been interpreted so as not to allow this Court to make orders as to what care and treatment should be -- 5 of 9 -- 6 available to a person detained under the Act.2 And of course I do understand that there is a financial cost to treatment. However, when Mr Wilkes’ age, history of detention and supervision are considered, and the cost of that, and the costs of his likely future detention and supervision are considered, all in the context that the DPSOA is radical in the sense of it being a preventative detention scheme, it is beyond disappointing that treatment was not provided as recommended. [12] Corrective Services had also decided by the second hearing that it would not place Mr Wilkes in the High Intensity Sexual Offenders Program (HISOP) again, although it would make available a Sexual Offenders’ Maintenance Program (SOMP) to him. I am not critical of that decision in circumstances where Mr Wilkes had participated, insincerely although apparently genuinely, in a HISOP program before his release pursuant to Ryan J’s order of 6 April 2018, and then almost immediately breached his supervision order in very serious ways. Both Dr Aboud and Dr Phillips gave oral evidence on 4 April 2022 that they did not think Mr Wilkes’ inability to participate in another High Intensity Sexual Offenders Program was a reason which prevented a supervision order being made; they were both content with the idea that he enrol in a SOMP. Additional Psychiatric Evidence Psychologist Dr Andrews [13] On the hearing of 4 April 2022 I had a report dated 17 December 2021 from Dr Michelle Andrews. She is the psychologist who treated Mr Wilkes in the community when he was on a supervision order and who saw him for six hours after the hearing in September 2021. She thought Mr Wilkes had matured since she last saw him in 2018. He expressed a desire to engage in further treatment and “progress in a prosocial manner”. She thought he had good intellectual understanding of his sexual deviance. She thought he engaged in “impression management” which was related to his personality disorder. Her testing showed that this was so, showing “overly positive responses stemming from a trait-like tendency towards overly self-favourable presentation rather than situational demands”. She thought that “impression management and deception will continue to be a significant factor with Mr Wilkes … Additionally, it should be considered that Mr Wilkes has been rated as having a moderately high level of psychopathic traits and personality disorder …”. [14] Her opinion was that if Mr Wilkes was placed in the HISOP for a second time, he was likely to engage in impression management and engage only in a superficial manner. She says that he “would essentially go through the motions but is unlikely to benefit in any significant manner over and above any benefit already gained from his prior group involvement”. She said, “As has been well documented, Mr Wilkes’ most salient risk factors for re-offending are sexual deviance, personality disorder, intimacy deficits, disturbed attachment and emotional congruence with children. Unfortunately, the majority of these are not addressed through the HISOP.” [15] Dr Andrews’ conclusion was that, “Mr Wilkes expresses a strong motivation to rehabilitate himself and avoid further re-offending. I am of the opinion that this is 2 Attorney-General for the State of Queensland v Lawrence [2008] QSC 230, [50]; Attorney-General for the State of Queensland v Sybenga [2009] QCA 382, [32] and Attorney-General for the State of Queensland v Sambo [2012] QCA 171, [19]. -- 6 of 9 -- 7 genuine, yet Mr Wilkes has a complex presentation and will need ongoing close monitoring and appropriate intervention to manage his risk levels.” Dr Phillips [16] Dr Phillips gave a supplementary report dated 27 March 2022. She said that her diagnostic opinion remained largely unchanged. She thinks Mr Wilkes has post-traumatic stress disorder because of abuse he suffered in childhood; alcohol and cannabis use disorder both in sustained remission; borderline personality and antisocial personality traits, and paedophilia. [17] Dr Phillips thought that a supervision order would reduce Mr Wilkes’ risk of sexual offending but that the reduced risk would be “moderate to high”. She said that there were limitations on how much: “… a supervision order can be relied upon to reduce his level of risk of sexual offending when in the community. This is based upon Mr Wilkes sexual re-offending whilst under a supervision order; his multiple breaches of the previous supervision order; his willingness and ability to deceive those that are supervising him and not disclose important risk-related information; his difficulty accepting direction from those in authority both in custody and when in the community; and his inability to implement strategies that were taught during his previous engagement in HISOP and individual offence specific psychological interventions when in the community.” [18] Dr Phillips comments that six hours of counselling with Dr Andrews is not sufficient to “result in a meaningful reduction of his risk of sexual re-offending”. She thought that Mr Wilkes would benefit from engaging in the SOMP and further individual psychological intervention. She thought that he should engage in programs designed to prevent a relapse into substance abuse, but in oral evidence was fairly clear that this was secondary to his treatment needs in relation to sexual offending. She repeated her earlier view that it was clinically appropriate for Mr Wilkes to be assessed for anti-libidinal medication. She thought that there were certainly risks associated with this sort of treatment, but it was plain from her oral evidence that she thinks it is one avenue which ought to be considered. This medication, of course, cannot be given to Mr Wilkes without his consent. [19] She recommended that Mr Wilkes complete the SOMP and further individual psychological intervention, and that there be updated psychiatric risk assessments performed then. Were Mr Wilkes to be released to the community she thought that he needed to be under the care both of a psychologist and a psychiatrist. Dr Aboud [20] Dr Aboud gave a supplementary report dated 31 March 2022. He said that his opinion remained unchanged. He thought Mr Wilkes suffers from atypical post-traumatic stress disorder; mixed personality disorder (with prominent borderline antisocial and some narcissistic traits); previous alcohol and cannabis dependence, and previous pathological gambling. He also diagnosed paedophilia. -- 7 of 9 -- 8 [21] He thought that Mr Wilkes’ overall unmodified risk of sexual re-offending would be high. He thought this risk would be reduced if Mr Wilkes undertook the SOMP and a substance abuse program in custody before being released on a supervision order. In that circumstance his risk of sexual re-offending would be moderate in relation to non-contact offending, and moderate to low in relation to contact offending. Were Mr Wilkes released on a supervision order without having completed the SOMP and drug and alcohol programs in jail, but with a plan that they be completed in the community, Dr Aboud thought that Mr Wilkes’ risk of sexual re-offending was moderate to high in relation to non-contact offending and moderate in relation to contact offending. [22] Dr Aboud thought that Mr Wilkes ought to reconsider taking anti-libidinal medication. He explained that taking that medication for a period of time on release on a supervision order may allow him to engage in therapy and behaviour management without the distraction of his sexual desires, and that after a certain period the medication could be ceased. Dr Aboud thought that Mr Wilkes needed to engage with a psychiatrist and a psychologist in the community if he were released. [23] It was clear from his oral evidence that Dr Aboud sees Mr Wilkes’ paedophilia and personality disorders as static risk factors which will be very hard to overcome. It was clear from his evidence in September 2021 and in April 2022 that personality factors which make Mr Wilkes deceptive and dishonest in his interactions with Corrective Services officers and his therapists are one of the greatest problems confronting him. I thought the following exchange was pertinent: “… that is an unknown thing to us and it’s very much upon Mr Wilkes to make the best of his treatment opportunities, bearing in mind that, should he fail, as he did previously, it makes his tendencies towards deception and impression management altogether more and more difficult for him in terms of rejecting biological treatment, which is antilibidinal hormonal medication as the final measurable monit – monitorable therapy that would – that would manage his risk if he was in a community setting. So, in summary, what I’m saying is that everything that we have said about antilibidinal hormonal medication is going to become more and more apparent and important should he not properly benefit and avail himself in a meaningful way of the talk therapies. Yes, so that – well, I agree with you just as a matter of how this system works. If – if he were to repeat an insincere participation in courses, be released on a supervision order, once again offend, the choice – I mean, it’s – it’s shocking, I think, because he’s so young but the choice will eventually come to whether he wants to stay incarcerated for the rest of his life or whether he wants to take the antilibidinal medication. [To Wilkes]. And I see you look surprised when I say this. But that is starkly, starkly the consequences of insincere participation to date and the deception to date. [To Dr Aboud]. And it will – as I say, it’s shocking because he’s so young. But it will become the choice should – should this repeat?--- That is correct, your Honour. It is – it is a concern that ultimately his deception is a deception of himself because, while he might be able to successfully deceive his case manager and his psychologist for a short period of time or for – on -- 8 of 9 -- 9 occasion, in the longer term, it is he himself who will have to face the consequences of his behaviours. And – and, in a – in a rather casual manner of speaking, he has deceived himself because his situation will be that much more stark. Yes, it will – it will become like that. And it’s – I don’t know. It seems that severe personality disorder has difficulty comprehending that cause and effect: “If I behave this way, this will be the effect.” But I also wonder if there’s an idea – a narcissistic idea that, “I’m smarter than this system”?--- I believe there is. I believe that – and, in my report, his personality profile does incorporate borderline traits, antisocial traits and also some narcissistic traits. And your Honour is correct, I believe, that in identifying that his narcissistic traits are corrupting how he thinks about this process. And perhaps he thinks that this is a process to somehow circumvent or play – how to play a system. And there comes a point when that becomes more and more difficult with the weight of evidence of his behaviour against the increasing superficiality of his words.” [24] After all oral evidence had been given on 4 April 2022 counsel for the defendant conceded that the supervision order ought to be rescinded and a detention order made. That of course does not determine the matter for me, but in my view the concession was properly made. Mr Wilkes has not discharged the onus on him to show that the community can be adequately protected by a supervision order. The static nature of his paedophilia and personality disorder risks are very significant in my thinking. So is his demonstrated capacity for superficial engagement with both group programs and individual treatment. So is his ability to deceive both Correctional Services officers and those attempting to offer treatment to him. -- 9 of 9 --