Attorney-General for the State of Queensland v Donaldson [2021] QSC 339

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Donaldson [2021] QSC 339 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v SOLOMON JAMES DONALDSON (respondent) FILE NO/S: BS No 9579 of 2021 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 14 December 2021 DELIVERED AT: Brisbane HEARING DATE: 29 November 2021 JUDGE: Ryan J ORDER: See Annexure A to these reasons CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OF DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is in custody serving a sentence for sexual offences and due for full- time release on 19 December 2021 – where the applicant applies for an order under Part 2 of Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) either for the respondent’s continuing detention or for his release subject to a supervision on certain conditions – whether the respondent is a serious danger to the community in the absence of a Division 3 order – whether the adequate protection of the community can be ensured by the respondent’s release on a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003, ss 13, 11 COUNSEL: M Maloney for the applicant C Smith for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent -- 1 of 38 -- 2 Overview [1] The 39-year-old respondent has an unusual paraphilia – gerontophilia. He is presently serving a period of ten years’ imprisonment for offences including two serious sexual offences, committed upon women in their eighties, in their homes, at night. His full- time release date is 19 December 2021. [2] The first of those serious sexual offences was an attempted rape, committed in 2004, in the course of a burglary. The respondent was sentenced for the attempted rape and associated offences in October 2006 and the Court imposed a partially suspended sentence upon him. The second serious sexual offence, a burglary rape, was committed in 2008, during the operational period of the suspended sentence. [3] In anticipation of the respondent’s release, the Attorney-General applies for an order under Part 2 of Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – either an order for his continuing detention or an order for his release, under the supervision of Queensland Corrective Services (QCS), on certain conditions. [4] Although she maintains her application in the alternative, the Attorney-General acknowledges that the evidence before me supports findings that: (a) the respondent would pose a “serious danger to the community”, as that phrase is defined in section 13(a) of the Act, were he to be released without an order under Division 3 of the Act; but that (b) the adequate protection of the community from the risk posed by the respondent can be ensured by the making of a supervision order under section 13(5)(b) of the Act. The Attorney-General submits that such an order ought to be of between five and ten years duration. [5] I am satisfied that the respondent would be a serious danger to the community were he to be released without a Division 3 Order in place. I am further satisfied that the respondent’s release on a supervision order, on appropriate conditions, will ensure the adequate protection of the community and that a continuing detention order is not required. [6] I have considered the draft supervision order provided to me. In my view, its conditions adequately address the risk factors identified by the experts who gave evidence in this matter. The respondent’s positive institutional behaviour, and his engagement with programs in custody, satisfies me of his capacity to comply with those conditions. Inter alia, the draft order provides for a curfew and monitoring of the respondent’s movements by way of a tracking device, which would restrict the respondent’s access to potential victims. It prohibits his consumption of alcohol or drugs. Alcohol, at least, played a role in his offending. It provides for rehabilitation and counselling, directed at further reducing risk. And it requires the respondent to discuss with those supervising him his contacts, plans and personal relationships. Any contravention of its terms would serve as a warning to those supervising the respondent that the risk he presents to the community may have increased and steps may be quickly taken to address such an increase in risk. [7] I therefore make an order for the respondent’s release on supervision in the terms of the order attached to these reasons. I consider it necessary that such an order be of seven years duration. -- 2 of 38 -- 3 [8] I endorse the recommendations of the expert psychiatrists that the respondent be assessed by an occupational therapist and a neuropsychologist for the purposes of providing information about his adaptive and cognitive functioning to QCS so that his case manager and others may more effectively supervise his release and provide treatment and support to him. [9] Also, the respondent is likely to qualify for support under the National Disability Insurance Scheme. I have been told that QCS will refer him to an appropriate agency for the purposes of his applying for support under the scheme. Such support would reduce even further the risk he poses. [10] My detailed reasons for making the supervision order follow. The statutory scheme [11] The provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 and their interpretation and application are well known. I will not rehearse them in these reasons. [12] The first question in the application before me is whether I am satisfied that the respondent is a “serious danger to the community” in the absence of a Division 3 order. In other words, the first question for me is whether there is an unacceptable risk that the respondent will commit a “serious sexual offence” (as defined in Schedule 1 of the Act, and which includes a sexual offence involving violence) if he were to be released from custody, on his full-time release date, without an order under Division 3 of the Act. [13] I cannot reach the conclusion that there is an unacceptable risk unless I am satisfied to a high degree of probability, upon sufficiently cogent evidence, that such a risk exists. [14] If I conclude that a Division 3 order must be made for the respondent, in deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure the adequate protection of the community (section 13(6)(a)). Also, I must consider whether the adequate protection of the community can be reasonably and practicably managed by a supervision order (section 13(6)(b)(i)) and whether the conditions of a supervision order may can be reasonably and practicably managed by QCS officers (section 13(6)(b)(ii)). [15] In accordance with the case law, there is a preference for a supervision order over a continuing detention order. It is therefore for the Attorney-General to persuade me (if she wishes to do so) that the adequate protection of the community cannot be ensured by the imposition of a supervision order. [16] A supervision order must state the period for which it is to have effect, which may not be less than five years. Attorney-General’s position in the present application [17] As is not uncommon, the Attorney-General brings this application in the alternative, seeking orders for the respondent’s continuing detention or his release subject to supervision, but she acknowledges that, on the evidence, the adequate protection of -- 3 of 38 -- 4 the community can be ensured by his release subject to a supervision order on certain conditions. The respondent’s submissions [18] In effect, the respondent accepts that the evidence before the Court cogently establishes, to the degree required, that, upon his release, he would be a serious danger to the community in the absence of a Division 3 order. He submits that the evidence does not justify his continued detention and – as acknowledged by the applicant – that it supports the making of a supervision order. [19] In support of that submission, he points not only to the evidence of the experts but also to his satisfactory completion of various sexual offender treatment programs in custody. He points to his family and community supports, which include an aunt and uncle in Mount Isa as well as professionals. Dr Malcolm Frost, a psychologist who treated the respondent in prison, has offered to continue to treat him, including remotely if necessary, under a mental health care plan were he to be released under supervision. He reminds the Court that the requirements of a supervision order should only be as onerous as is necessary to protect the community from the risk that he might commit a serious sexual offence. In that context, he submits that a supervision order of five years duration only is warranted. Section 13(4) matters [20] In reaching the conclusion that the respondent would be a “serious danger to the community”, I had regard to the evidence before me of the matters listed in section 13(4) of the Act. [21] The evidence of those matters was acceptable and cogent. It persuaded me, to a high degree of probability, that, in the absence of a Division 3 order, there was an unacceptable risk (moderately high, if not high) that the respondent would commit a sexual offence involving violence against women, driven by his paraphilia. [22] The evidence before me, especially the evidence of the expert psychiatrists, Drs Arthur, Sundin and Timmins, also supported my conclusion that the adequate protection of the community could be ensured by the respondent’s release subject to supervision because the imposition of a supervision order upon him would reduce his risk to an acceptable level – that is, to the level of low or moderately low. [23] An outline of the most relevant aspects of the evidence upon which I relied follows. Section 13(4)(g) antecedents and criminal history [24] The respondent has convictions for non-sexual criminal offences, including for offences committed as a child. The respondent has many convictions for burglary type offences. He has a significant history of breaching court orders. [25] In addition to the sexual offences committed upon the older women, on 1 November 1995, he was convicted of the offences of aggravated assault upon a female and deprivation of liberty. It is not clear whether there was a sexual dimension to that offending and I understand the experts to have proceeded on the basis that there was not – to the respondent’s advantage. -- 4 of 38 -- 5 [26] The respondent is currently incarcerated at the Lotus Glen Correctional Centre. He is housed in the “Residential” part of that facility and has a low security classification. [27] Generally, it is reported that he is polite to staff, maintains good hygiene, interacts well with fellow prisoners and keeps to himself. He has been employed in various occupations during his incarceration, including as a cook, groundsman, industry overseer, industry team leader, laundry worker and cleaner. [28] He has undertaken many vocational courses in custody, including courses in literacy, numeracy, working safely at heights, “OH&S” and workplace safety arrangements. [29] He has been breach and incident free since July 2017. [30] The respondent became eligible for parole on 19 June 2018. His application for parole was considered by the Queensland Parole Board on 5 September 2018. The Board formed the preliminary view that it ought not to release the respondent on parole because he posed an unacceptable risk to the community. The Board confirmed its preliminary view on 6 November 2018. Its view was informed by the report of Dr Sarah Steele, psychologist, dated 7 August 2018, which is discussed below. [31] The respondent made another application for parole, which was considered by the Board on 18 February 2020. Initially, the Board approved the respondent’s release on parole and told him (on 20 February 2020) that he would be released on 3 March 2020. But on 26 February 2020, the Board told the respondent that it had revoked its decision to release him on parole and was awaiting a risk assessment report. Such a report was prepared by Dr Malcolm Frost, psychologist. It is dated 9 September 2019 and is discussed below. Obviously, the respondent was not released on parole. Section 13(4)(d) whether or not there is any pattern of offending behaviour on the part of the prisoner [32] The respondent has targeted older women for sexual offending. There is an obvious pattern to his offending, which enables a supervision order to be crafted to respond to the risk of it. [33] On 2 October 2006, the respondent pleaded guilty to one count of attempted rape and one count of having entered a dwelling with intent, by break, at night. The victim of his offending was an 85-year-old woman. The respondent broke into her home late at night. He entered her bedroom. She was asleep. He got on top of her and attempted to rape her. She struggled with him and he got off her and left. She sustained injuries to her right arm. [34] It seems that it was then thought that the attempted rape offence was not premeditated but rather opportunistic when the respondent was under the influence of alcohol. [35] On 14 July 2009, the respondent pleaded guilty to one count of rape, one count of attempted enter dwelling with intent by break at night, and one count of enter dwelling with intent by break at night. The respondent raped an 86-year-old woman. He had first attempted to break into the house next door to the rape victim’s house, which was occupied by a 90-year-old woman, but was deterred by a barking dog. -- 5 of 38 -- 6 [36] He broke into the 86-year-old complainant’s house by putting a chair beside a window and taking out the screen. He went into the complainant’s bedroom and attempted to smother her with a pillow. She fought back. He inserted his finger into her vagina. She suffered serious abrasions requiring hospital treatment, and bruising. [37] The sentence proceeded (on 27 November 2009) on the basis that the attack upon the complainant was premeditated. [38] In discussing his sexual offending with Dr Steele (for the purposes of his parole application) the respondent said that he removed his pants prior to entering the residence because he “wanted to take his frustration out on someone”.1 [39] During an interview with Dr Kovacevic (also for the purposes of his parole application) the respondent said he knew the victim he attempted to rape. He told Dr Kovacevic that he was heavily intoxicated at the time and that he was angry with his partner who had, only days before, informed him that she was pregnant with their child and left him. Section 13(4)(j) any other relevant matter: drug and alcohol history [40] Alcohol was a feature of the respondent’s sexual offending. He described himself as a binge drinker. He drank heavily on “paydays”, including until he “fell asleep”. He often woke in the police watch-house. [41] He commenced using cannabis in his early twenties. He told Dr Steele that he would smoke up to five “buckets” of marijuana (cones smoked through a bucket of water rather than a pipe) on most days of his adult life.2 Dr Arthur’s impression was that the respondent consumed cannabis regularly. The respondent denied narcotic or amphetamine use. Section 13(4)(e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs [42] The respondent has completed several treatment programs whilst in custody. As the following paragraphs reveal, he acted on every recommendation made for further treatment in custody. However, perhaps because of his cognitive limitations, he does not appear to have retained much of that which he was taught. [43] On 19 April 2013, he completed the “Getting Smart Program” at the Townsville Correctional Complex. The Program Facilitators noted that he made a reasonable effort to participate in the program and provided a basic level of disclosure. He demonstrated a reasonable level of understanding of the program concepts. [44] In 2013, the respondent completed the “Getting Started: Preparatory Program” at Townsville Correctional Complex. The Program Facilitators described him as a reserved group member who at times required encouragement to complete tasks. However, he responded well to assistance to overcome his literacy barriers. During this program, the respondent denied that his use of substances had ever caused or 1 I note that during his participating in the Sexual Offender Program for Indigenous Males (the SOPIM), he acknowledged that he had removed his pants, but was unable to explain why he did so. 2 I note that he had said previously that he was an occasional user. -- 6 of 38 -- 7 increased his sexual pre-occupations. Upon its completion, it was recommended that the respondent participate in the Sexual Offending Program for Indigenous Males (SOPIM). [45] On 17 April 2014, the respondent completed the SOPIM at the Lotus Glen Correctional Centre. The SOPIM Facilitators considered the respondent to have made only limited treatment gains during it, although he benefitted from the connections he made during group therapy and his sense of belonging. [46] The SOPIM Facilitators recommended that the respondent: • engage with professional groups or services such as the Men’s Group or the Justice Group, to create more positive interpersonal associations; • engage in substance abuse counselling; • be supported to develop coping strategies to better manage stressful life events; • undertake the Sexual Offending Maintenance Program (SOMP); and • undertake individual counselling exploring potential deviant preferences. [47] On 20 May 2016, the respondent completed the SOMP at the Lotus Glen Correctional Centre. [48] At its conclusion, the SOMP Facilitators recommended that the respondent: • engage with relationship services to develop his relationship skills, particularly to assist in managing conflict with a focus on circumstances of jealousy; and • engage with substance abuse services such as ATODS. [49] On 5 November 2018, the respondent completed the Low to Moderate Intensity Alcohol and other Drugs Intervention Program at Lotus Glen Correctional Centre. He was an active participant in the program and displayed insight into the relationship between his use of substances and their negative impact on his health and well-being. [50] On 23 April 2020, the respondent commenced, and later completed, a further SOMP at the Lotus Glen Correctional Centre. [51] I note that, in Dr Arthur’s opinion, despite the respondent completing the various sexual offending treatment programs referred to above, the respondent displayed little retention of the core concepts taught to him and demonstrated very little shift in his levels of insight over the years of his incarceration. That opinion is relevant to the appropriate duration of the supervision order. Section 13(4)(b) any medical, psychiatric, psychological or other assessment relating to the prisoner (apart from the section 11 reports prepared by Dr Sundin and Dr Timmins) [52] Many reports have been prepared about the respondent including for the purposes of his sentencing, to inform the Parole Board and to inform the Attorney-General’s decision to make the present application (that is, Dr Arthur’s report). In broad terms, -- 7 of 38 -- 8 these reports describe the respondent as a person with intellectual limitations who poses a moderately high to high unmodified risk of committing a sexual because of his paraphilia. Report by Dr Robert Walkley, Forensic Psychologist, dated 28 August 2006 [53] The Aboriginal and Torres Strait Islander Community Legal Services instructed Dr Walkley to prepare a report about the respondent for the purposes of his sentencing hearing in 2006. Dr Walkley found the respondent to have an IQ range of 72-79 – that is, within the Borderline Intellectually Functioning range. I note however that adaptive functioning is more important than IQ in assessing the respondent’s ability to comply with the terms of a supervision order. Report by Dr Robert Walkley, Forensic Psychologist, dated 6 November 2009 [54] Dr Walkley prepared reports about the respondent at the request of the sentencing court in 2009. [55] The respondent told Dr Walkley that he was totally unable to recall the offending because he was highly intoxicated. [56] Noting the similarity between the 2008 and the 2004 offending, Dr Walkley considered the respondent’s offending to be indicative of a dysfunctional and deviant sexuality. Although he found the respondent difficult to assess, Dr Walkley concluded that he was a man with a low intellectual capacity and sexually deviant thinking who acted out against helpless, defenceless and highly vulnerable women. [57] He considered the respondent’s risk of re-offending to be extremely high. He recommended psychological and sexual offender treatment for the respondent, but considered that, even with treatment, it would be difficult to manage the respondent risk into the future. Report by Dr Riccardo N Caniato, Consultant Psychiatrist, dated 21 December 2009 [58] Dr Caniato prepared a report about the respondent at the request of the sentencing court in 2009. [59] The respondent first denied committing, then denied recalling, the sexual offence. He told Dr Caniato that he had been drinking heavily at the time. He said he felt remorseful and regretful for what he did to the victim. Dr Caniato thought the respondent could not admit to what he had done because of his shame, although he told Dr Caniato that he would appeal his conviction. [60] Because of gaps in the information provided to him, Dr Caniato was unable to make an evidence-based assessment of the respondent’s risk of recidivism. However, on the apparent risk factors, (namely, repeat offences in a short period, difficulties with employment and relationships, other non-violent offending and the respondent’s minimising or denying the offences), the respondent presented a moderate to high risk. Dr Caniato believed the respondent met the criteria for Alcohol Misuse (binge pattern) and possible paraphilia. Report by Dr Sarah Steele, Psychologist, dated 7 August 2018 -- 8 of 38 -- 9 [61] Dr Steele prepared a report for the Parole Board in relation to the respondent’s 2018 application for parole. In Dr Steele’s opinion, the respondent was a man of low intelligence who displayed limited insight into his offending and the impact upon his victims. His judgment in relation to management of his risk of reoffending was poor. [62] The respondent told Dr Steele that he had experienced fantasies about engaging in sexual behaviour with older women since prior to puberty, and he continued to enjoy them. When Dr Steele questioned the respondent about the chances of his reoffending in the future he said, “If I find someone (to be in a relationship) with I’ll be ok but it would be tempting to have sex with an old lady again”. In response to how he could mitigate this he said he would “be myself. Go for a long drive. Men’s group. Avoid alcohol”. [63] Dr Steele considered that the respondent met the DSM-5 criteria for the following: • anti-social personality disorder; • other specific paraphilic disorder (gerontophilia, sexually attracted to females), frotteuristic disorder and probable sexual sadism disorder; • alcohol use disorder, severe, in sustained remission in a controlled environment and cannabis use disorder, severe, in sustained remission, in a controlled environment; • cannabis-induced psychotic disorder, with onset during intoxication (guarded prognosis); and • borderline intellectual impairment. [64] After administering various risk assessment instruments, Dr Steele assessed the respondent’s risk of sexual re-offending as high due to his unmodified sexually sadistic gerontophilic paraphilia. She was concerned that the index offence represented a trend towards escalating sexual violence. She did not believe that the respondent could be safely released into the community. She was of the opinion that the respondent deliberately used alcohol to disinhibit himself to the point at which he would allow himself to satisfy his sexual urges. She was of the opinion that he made a calculated decision to act out his sadistic gerontophilic sexual fantasies. His urges came about when he felt the emotional turmoil of being rejected and abandoned by his mother and his partner. Report of Dr Malcolm Frost, Clinical Psychologist, dated 9 September 2019 [65] Dr Frost has engaged in treatment with the respondent. [66] His report was before the Queensland Parole Board. In his opinion, the respondent had “modest, plausible and realistic” long term goals and had made “important gains and has demonstrated changes in his thinking and behaviour via the specialised treatment program”. [67] Although the respondent has a favourable view of Dr Frost, and Dr Frost felt that the respondent had made progress with him, the experts who gave evidence before me noted -- 9 of 38 -- 10 that Dr Frost had not (or not yet) embarked upon treatment for the respondent’s paraphilia. Report by Dr Velimir Kovacevic, Consultant Psychiatrist, dated 5 June 2020 [68] This was another report prepared for the Queensland Parole Board. In Dr Kovacevic’s opinion, the respondent was in the moderate to high risk category for further sexual violence. Despite reservations, Dr Kovacevic recommended the respondent’s release on parole, noting how difficult it would be for the respondent to engage in further therapy in custody (because his end date was approaching). It was therefore difficult for Dr Kovacevic to see that he would be any less of a risk by the time of his custodial end date. Report by Dr Ken Arthur, Psychiatrist, dated 17 December 2020 [69] Crown Law asked Dr Arthur to prepare a risk assessment report to enable the applicant to decide whether to bring this application for a Division 3 order. [70] Dr Arthur’s diagnosis and opinions are as follows: FORMULATION & DIAGNOSIS 1) Prisoner Donaldson is a 38 year old single, never married indigenous man born on Palm Island. He has an 11 year old son that he has never met and limited contact with family. 2) On 29 November 2009 prisoner Donaldson pleaded guilty to charges of attempt break and enter, enter dwelling with intent by break and the rape of an elderly woman in her own home. He committed a similar offence 4 years earlier where he was found guilty of enter dwelling with intent by break at night and the attempted rape of an 85 year old woman who was known to him. For the initial offence he was sentenced to 5 years suspended after 2 years; the index offence occurred whilst he was still on parole and he was sentenced to a further 10 years in addition to serving the balance of the suspended sentence. 3) At the time of the first sexual offence he was living with his parents in Townsville, unemployed and regularly consuming alcohol and cannabis. Whilst intoxicated, he wandered the streets before breaking into the victim’s house. When he saw her asleep he unclothed then forcibly rubbed against her while she struggled against him until he ejaculated. Whilst he admits he was aware the lady lived alone in the house, he would not confirm or deny that he had entered the property with the intent of sexually assaulting her. 4) In relation to the index offence, prisoner Donaldson was living in Richmond with his stepfather and working casually as a landscaper. Again, he reported drinking heavily and consuming cannabis prior to the offences. His family had left town and he had separated with his long term partner after she disclosed that she was pregnant. Again, he found himself wandering the streets at night in an intoxicated state and attempted to break into the house of a 90 year old woman, although left after being challenged by her carer. He then forcibly -- 10 of 38 -- 11 broke into a neighbouring house where he assaulted the second elderly victim and digitally raped her. At interview prisoner Donaldson admitted to forcibly rubbing himself against the elderly woman until he ejaculated. 5) He claimed to have incomplete recollection of events pertaining to both assaults and denied any sexual preoccupation or intent to break into the victims’ houses in order to sexually assault them. He admits to becoming sexually aroused at the sight of the elderly women asleep. He recalled that the victim of the first offence was crying and appeared scared and that the second woman resisted him. He attributes the index offence to his state of intoxication and feeling angry with his ex-partner. 6) Prisoner Donaldson has undergone numerous risk assessments. In 2009 he gave Dr Caniato an inconsistent and evasive version of events, denying any deviant sexual interest. During the GS:PP in 2013 he claimed the offending was opportunistic and he only became aroused when he noticed the victim lying naked in bed, but eventually acknowledged that he had intended to rape the victim but stopped prior to this occurring. During the SOPIM in 2014 he stated that he had broken into the victim’s house to steal from her in order to help his father out of financial distress. When he saw the victim asleep he experienced sexual arousal and hate towards the victim and anger at his mother for breaking up the family. He also admitted to playing out a fantasy where the victim would awake and ask him to have sex with her. The index offence similarly related to acting out a similar fantasy. He also disclosed that he had imagined the victim as his partner and that he wanted to take out his anger on her. 7) He was most candid in an interview with Dr Sarah Steele in July 2018, when he described a longstanding sexual fantasy involving older women that has been present since puberty. He had attempted to role play these with his previous partner (M). He also admitted to gaining the most sexual pleasure from fantasising about intercourse and frottage with elderly women. He told Dr Steele he believed his offending related to anger towards women in his life who had let him down and admitted to entering the victims’ house with the intention of sexually assaulting them. He told Dr Steele he preferred rubbing to penetration. He found his victims’ fear sexually arousing. 8) Prisoner Donaldson was much less forthcoming at interview. Although he (begrudgingly) acknowledged his previously reported sexual fantasies, he denied these fantasies persisted or that he became aroused at the thought of the offences. He no longer acknowledges feelings of anger or a wish to punish the victims or to take out his frustrations on them. He claimed that he no longer has these drives or fantasies because of what he has learnt in treatment sessions. 9) The convenors of the SOPIM opined that his sexual offending demonstrated a pattern of emotional collapse, sexual arousal and a desire for revenge against significant women in his life in the context of substance abuse. It was thought that he used sex as a coping strategy and identified a fear of rejection and -- 11 of 38 -- 12 mistrust in relationships. Dr Steele expanded on this, opining that feelings of abandonment by a central female figure were powerful triggers to the expression of sadistic gerontophilic acts which she considered were maladaptive strategies to cope with loss and abandonment. She also believed that the attempted and actual rape were planned attacks and the intoxication was a deliberate act of disinhibition that allowed him to act out his fantasies. 10) Despite his extensive involvement in Sexual Offender Treatment Programs in addition to individual therapy provided by an external Psychologist, prisoner Donaldson displayed little retention of course material. He has poor self- awareness, has retreated somewhat into denial and minimisation, and is now disavowing his previously reported sexual fantasies. Whilst he reports risk factors such as substance use and negative emotional states, his understanding of their relationship to his offending was extremely superficial, as were his risk management strategies. His future plans appear to rely heavily on the support of others yet he also talks about living an itinerant lifestyle which would isolate him from these same supports. 11) There is a history of non-sexual offences dating back to the age of 13. There are 13 prior sentencing dates for offences including stealing, unlawful use of motor vehicles, enter premises, driving offences and multiple breaches of bail, probation and suspended sentences. He has previously admitted to enjoying the thrill of stealing cars and breaking into people’s houses. He made excuses for his non-compliance with community based orders. Apart from the unusual charge of aggravated assault at the age of 13, there is no history of violent offending apart from the sexual offences. 12) Much has been made of prisoner Donaldson’s developmental history, namely that his stepfather was a somewhat strict disciplinarian and that he felt abandoned after his mother left the family and engaged in a new relationship. However, it does not appear that he was exposed to domestic violence and his parents did not separate until he was an adult. By his report, he was well cared for and his parents made some attempt to enforce boundaries and provide him with an education. His reported sexual abuse was a single episode that did not involve coercion or violence; whilst he now attributes his sexual offending in part to this abuse, he has previously claimed that it had little effect on his life. 13) Prisoner Donaldson was a poor student and it is likely he had learning difficulties associated with some form of intellectual impairment. There are reports of behavioural disturbances in primary and high school and although he claims to have completed year 12 education, he is poorly literate and numerate. He has a limited employment history and for the most part remained living with his parents until incarcerated. 14) There have been difficulties in relationships, with prisoner Donaldson claiming that he did not feel ready to settle down nor wish to be a parent. His longest relationship was an “on and off again” affair characterised by conflict and jealousy, which ended when his partner became pregnant. -- 12 of 38 -- 13 15) There is a significant history of alcohol and cannabis abuse. Whilst there is a past history of suicidal ideation and some minor deliberate self-harm in jail, there is no other suggestion of a major mental illness. 16) According to DSM-5 criteria, I have given the following provisional diagnosis: • Antisocial Personality Disorder • Mild Intellectual Impairment • Gerontophilia and Frotteuristic Disorder, possibly with some sadistic elements • Alcohol and Cannabis Use Disorder, currently in remission in a controlled environment RISK ASSESSMENT 17) Refer to Appendix A in relation to the assessments listed below. Static – 99R 18) The Static-99R is an actuarial risk assessment tool which positions offenders in terms of their relative risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders. 19) The instrument places offenders in risk groups relativeto the recidivism rates of the reference population (North American sex offenders). 20) The authors note that the information provided by the Static-99R can be thought of as a baseline estimate of the risk of new sexual charges and convictions which can be used to guide treatment supervision strategies designed to reduce the risk of recidivism (Static-99R coding rules revised 2016). 21) The Static-99R does not measure all relevant risk factors and prisoner Donaldson’s recidivism risk may be higher or lower than that indicated by the instrument based on factors not included in this tool. 22) Prisoner Donaldson’s Static-99R score was 6 which places him in the “well above average risk” group. 23) In the category of “prior non-sexual violence” I note that he had a juvenile offence of aggravated assault. The Static-99R rules state that both adult and juvenile convictions should be counted. 24) In regard to the “ever lived with a lover” category, prisoner Donaldson reports that he has been in relationships longer than 2 years, although I was not convinced that he cohabitated consistently with his partners. The scoring manual notes that live in relationships can be counted even if they are living with parents. If this item is not endorsed, then prisoner Donaldson’s Static- -- 13 of 38 -- 14 99R score is 5, which places him in the “above average risk” range. If this item is endorsed, then that places him in the category of “well above average risk”. 25) I acknowledge that some indigenous relationships do not conform to standard western ideals in terms of living arrangements. However, the basis of this item is that the research suggests having a prolonged intimate connection with someone may be a protective factor against sexual reoffending and the relative risk to sexually reoffend is lower in men who have been able to form and maintain partnerships. Based on my understanding of prisoner Donaldson’s history, I am not convinced that he has been able to form enduring intimate relationships. In the absence of a further corroborative history, I have chosen to endorse this item, which places him in the “well above average risk” range. The Hare Psychopathy Checklist (PCL-R) 26) This is a symptom construct rating scale utilising clinical and collateral information to assess an individual on 20 items relevant to the construct of psychopathic personality. The PCL-R has been validated for adult males in forensic settings. Psychopathy has been correlated with significantly higher rates of sexual and violent recidivism compared to non-psychopathic offenders. 27) Utilising this instrument, prisoner Donaldson achieved a score of 20/40 which is in the average range of scores seen in the adult male North American offenders and does not indicate elevated Psychopathy. I note he scores significantly higher on factor 2 – social deviance (lifestyle and antisocial factors) compared to interpersonal/affective. RSVP 28) The RSVP (Risk for Sexual Violence Protocol) is a structured professional judgement tool that aids risk assessment of sexual violence. It was developed following a systematic review of sexual recidivism literature and consists of 22 items associated with recidivism based upon that data. The authors recommend that the items are not summed to provide a risk score but rather used to anchor the assessor’s judgement and to facilitate the formulation of future risk scenarios and to inform risk management recommendations. 29) Utilising this instrument, I have identified the following factors relevant to the future risk of sexual recidivism – Sexual Violence: • Chronicity – duration/frequency • Escalation • Physical coercion Psychological Adjustment: • Problems with self-awareness -- 14 of 38 -- 15 • Problems with stress/coping Mental Disorder: • Sexual deviance • Problems with substance abuse Social Adjustment: • Problems with intimate relationships • Problems with employment • Non-sexual criminality Manageability: • Problems with planning • Problems with supervision 30) I have identified further possible risk factors of relevance – • Extreme minimisation or denial • Attitudes supporting sexual violence • Problems resulting from child abuse • Problems with non-intimate relationships • Problems with treatment RISK STATEMENT 31) Propensity to reoffend Based on the Static-99R, prisoner Donaldson is in the “well above average risk” range for sexual recidivism. He has a number of dynamic risk factors that were either observable at interview or were present at the time of his incarceration and have yet to be tested outside of jail. Prisoner Donaldson has a complex Paraphilic Disorder consisting of gerontophilia, frotteurism and possibly a degree of sexual sadism. These deviant sexual drives have yet to be addressed, either in psychological therapy or through medical interventions. Pattern of offending Both of the sexual offences follow a very similar pattern. In the context of intoxication, prisoner Donaldson goes out into his neighbourhood at night. He forms the intention of acting out his sexual fantasies and forcibly breaks into the homes of elderly women, whom he may already know of although has no direct relationship with. After observing them sleeping, he becomes sexually aroused and physically restrains the -- 15 of 38 -- 16 women whilst rubbing his penis against them until he ejaculates. He has used threats to subdue his victims. He claimed to have felt ashamed and remorseful immediately after the event and quickly decamped from the scene. It has been hypothesised that the drivers for his offending relate to his deviant sexual fantasies which are triggered and perhaps justified by emotional states where he feels rejected or abandoned by significant women in his life, resulting in a desire for retribution which he displaces onto his victims. Intoxication acts as a potential disinhibitor and emotional amplifier. There has been an escalation in that he digitally raped the second victim, who suffered soft tissue injuries as a result of the assault. There was also a degree of persistence in that he did not desist after being thwarted on his first attempt to break into an elderly woman’s home, suggesting a strong urge to offend regardless of the consequences. Attempt to change To prisoner Donaldson’s credit, he has availed himself of all appropriate programs in relation to addressing his sexual offending and substance abuse. He has also engaged in individual therapy with Dr Frost, which he described in a positive light. Exit reports have indicated that he was an active and enthusiastic participant. Effects of treatment programs Whilst the exit reports have generally been positive, at interview prisoner Donaldson displayed little retention of core concepts and very little shift in his levels of insight. Whilst he has consistently identified drugs and alcohol and relationship conflict as his main risk factors, he was noted to have poor problem solving skills, a history of impulsivity and the use of avoidant coping strategies. It appears that prisoner Donaldson has gained some understanding of his underlying psychological issues and verbalises strategies such as using distraction, seeking help and not using sex as coping. However, it remains to be seen whether he is able to utilise this knowledge on release and access the required supports. 32) The most significant risk factors for sexual recidivism are the presence of a Paraphilic Disorder, a return to substance abuse, relationship conflict, poor capacity for problem solving and avoidant coping. 33) Were prisoner Donaldson to reoffend, this would most likely occur in the context of conflict with an important woman in his life, leading to feelings of rejection/abandonment and anger. It is also possible that his offending may be triggered by feelings of disempowerment or an inability to cope with other -- 16 of 38 -- 17 stressors. These emotions would trigger his underlying deviant sexual fantasies, and in the context of intoxication he would follow his pattern of offending by breaking into the home of an elderly woman and assaulting her. He is likely to choose victims that he knows of but is not associated with, such as a neighbour. Any future offending will cause psychological harm, with the potential for serious physical harm if the victim struggles violently. 34) Factors that might indicate an acute escalation in risk would be a return to substance abuse (particularly alcohol), conflict with female family members or intimate partners, withdrawal from supports and a return to nocturnal activities, criminal or otherwise. 35) An important risk mitigation strategy would be to ensure that prisoner Donaldson is well supported on release from jail to minimise adjustment issues. Financial distress, accommodation instability and social isolation should be avoided. He will also need support to ensure that he follows through with his plans of re-engaging with family, seeking out employment and developing appropriate recreational/stress management activities. Due to his deficits in planning and problem solving, it is unlikely that he will be able to initiate or maintain these activities independently. 36) Prisoner Donaldson remains at significant risk of returning to substance abuse without ongoing supports in place. 37) Whilst he identifies that it is important for him to achieve stability in his life before considering relationships, he has few strategies to manage his sexual needs. Based on past patterns of behaviour, it is likely that he will engage in superficial relationships, which increase his risk of experiencing relationship conflict. Due to problems with self-awareness, he may not be able to identify these issues in time to seek assistance. 38) Whilst he has proven to be a cooperative and well behaved person in jail, he has a history of poor compliance with community based orders and admits he is stubborn and headstrong by nature. Even his authoritarian father was unable to enforce boundaries on his substance use and criminal activities. As such, there is a significant risk that even though he is dependent on relatives such as his uncle, he may not take advice or direction. 39) Utilising structured clinical judgement, I would estimate prisoner Donaldson’s unmodified risk of sexual recidivism to be in the above average risk group, or moderately high. 40) Whilst he has engaged extensively in treatment programs in jail, his Paraphilia remains untreated, there are significant dynamic and static risk factors and his capacity for self-regulation and engagement in community supports remains untested. His mild intellectual impairment, poor problem solving and low levels of insight render him vulnerable to future emotional distress and a return to dysfunctional coping strategies. -- 17 of 38 -- 18 RECOMMENDATIONS 41) It is my opinion that a supervision order would reduce his risk to low by ensuring he remains abstinent from substances, the provision of a curfew to curtail any nocturnal activities and hence reduce victim access, providing support structures to reduce his overall levels of distress, facilitating engagement with appropriate community supports and offering appropriate psychological therapy. 42) A 5 year supervision order would be sufficient to ensure that he undergoes appropriate treatment, establishes a support network, develops the capacity to utilise adaptive coping strategies, maintain abstinence from substances and learns to manage relationships effectively. 43) I would envision that, at least initially, prisoner Donaldson will need a high level of support to ensure his needs are met in regard to financial assistance, the development of life skills and accommodation stability. I am concerned that such a level of support may not be available to him in remote or regional areas. 44) I was not provided with any assessments of prisoner Donaldson’s cognition; a formal neuropsychological evaluation would be useful, particularly in regard to determining his capacity for independent living and appropriate employment opportunities. Supplementary Report by Dr Ken Arthur, Psychiatrist, dated 27 January 2021 [71] After realising that certain of the material before the Queensland Parole Board had not been provided to Dr Arthur, Crown Law provided it to him and asked him to consider it. Having done so, Dr Arthur made no changes to his diagnosis, risk assessment or recommendations. He said: 1. My reading of Dr Kovacevic’s report indicates that he identified and acknowledged the relevant risk factors and correctly (to my mind) concluded that prisoner Donaldson represents a chronic risk of sexual recidivism. His recommendation that prisoner Donaldson be released on parole with stringent conditions implies that he requires much support and supervision in the community to manage his risk. 2. Whilst prisoner Donaldson’s claims that he has difficulty expressing himself verbally may have merit, this does not in any way lessen my concerns about his low level of self-awareness, his retreat into denial and minimisation and his disavowal of previously reported sexual fantasies. Whilst I have no doubt that he has matured over his time in jail, advancing age does not automatically equate to an improved capacity for problem solving or adoption of adaptive coping strategies. Prisoner Donaldson’s level of self-control and ability to seek appropriate assistance has not been tested in the community. I remain concerned about his disavowal of sexual needs. -- 18 of 38 -- 19 3. It is my understanding that Sexual Offender Treatment Programs do not address sexual deviancy. From the material provided, it does not appear that Dr Frost addressed this issue either in individual treatment sessions. 4. Given the chronicity of his deviant sexual interests and presentation at interview, I am not satisfied that he has the requisite self-awareness or appreciation of how his deviant sexual interests relate to his future risk of offending. 5. I am not confident that, in the absence of a supervision order, prisoner Donaldson will follow through with his risk management plan or engage in appropriate therapy to address his sexual deviancy. [72] Dr Arthur elaborated on his written report in oral evidence before me. He also addressed the question of the necessary duration of a supervision order. [73] Dr Arthur was concerned that the respondent had either: not retained core information from his treatment programs; or had started to “re-process” matters as he got closer to his release. Although the respondent might have developed a certain “awareness” whilst undertaking relevant programs in custody (reflected in the exit reports), Dr Arthur thought that there was a risk that his old coping strategies – like avoidance and denial – had re-emerged. Dr Arthur was concerned that the respondent had “rescripted” (or might rescript) things, to minimise the offences and his risk factors. Dr Arthur was particularly concerned that the respondent told him that his paraphilia no longer bothered him because it had been resolved in the group programs he had undertaken because group programs do not address paraphilias. [74] The respondent was keen to continue treatment with Dr Frost. Dr Arthur was asked whether their therapeutic relationship ought to continue upon the applicant’s release. Dr Arthur considered it positive that the respondent had formed a good relationship with a clinician and noted that Dr Frost provided the respondent with general support and counselling. Whilst beneficial, that was not the same as “hard hitting therapy” which addressed the respondent’s paraphilia. In Dr Arthur’s firm view, treatment of the respondent’s paraphilia in the community was required. [75] Dr Arthur expected the respondent to be able to cope with “the precinct”, where he was likely to reside upon release, even though his personal resources were limited. [76] In the short term he was likely to cope with limitations of a supervision order, but he would need support for things like setting himself up financially and navigating public transport. More generally, Dr Arthur was concerned about the respondent’s ability to live independently in the community, which was significant because of the link between the respondent’s offending and his emotional distress. Dr Arthur considered occupational therapy and neuropsychological assessments to be important. Their results would assist in the respondent’s supervision and treatment. Dr Arthur encouraged an application to the NDIA for NDIS funding for the respondent – noting that the respondent was unlikely to have the capacity to make the relevant application himself. [77] On the question of the duration of the order, Dr Arthur explained that an issue for the experts, in making a recommendation about the order’s duration, was the lack of data -- 19 of 38 -- 20 about the respondent’s paraphilias. However, taking a broad view of the respondent’s risk, and bearing in mind the issues which might arise for the respondent when he is granted more independence by those supervising him, Dr Arthur considered a five year order “long enough”, relying on statistics to the effect that, by that time, if there had been no other offending, the risk posed by the respondent would have halved. Section 13(4)(a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner co-operated in the examinations by the psychiatrists [78] Dr Josephine Sundin and Dr Eve Timmins, consultant psychiatrists, prepared section 11 reports. It was not suggested that the respondent did not co-operate in their examinations of him. [79] Dr Sundin considered that the unmodified risk the respondent posed of committing a serious sexual offence upon his release from custody would be reduced to below moderate were he released on supervision on certain conditions. In Dr Sundin’s opinion, such an order ought to be in place for five years, by which time the risk of his re-offending would probably have halved. Dr Timmins thought that a supervision order could reduce the respondent’s unmodified risk to moderate. In her view, the order ought to remain in place for between seven and ten years. Report of Dr Josephine Sundin Psychiatrist, dated 25 October 2021 [80] Dr Sundin’s diagnosis, risk assessment and recommendations are as follows: Section C: Diagnosis Using the DSM-V system of classification, I consider that Mr Donaldson showed evidence of: 1) Mild Intellectual Impairment; 2) Paraphilic Disorder – Gerontophilia; 3) Substance Use Disorder – Alcohol, Cannabis; in sustained remission whilst incarcerated; and 4) Antisocial Personality Disorder. Section D: Risk Assessment [Noting the caution required in the application of risk assessment instruments in the case of the Australian Indigenous Prison Population, Dr Sundin continued.] On the Static-99R (Hanson and Thornton, 1999; Helmus 2009) I gave Mr Donaldson a score of 6 placing him amongst a group of offenders who were considered to be at well above average risk for future sexual recidivism when compared with their cohort. International studies on the Static-99R have shown that this instrument has a high degree of reliability in both indigenous and non- indigenous offenders for those sex offenders with a score of 6 or above. A Queensland study by Professor Smallbone in 2013 on 399 adult sexual offenders, found that the predictive accuracy of the Static-99 and Static-99R was comparable to international study results.(1) -- 20 of 38 -- 21 On the Hare Psychopathy Rating Scale (PCL-R 20), I was not satisfied that Mr Donaldson met the criteria for Psychopathy. I also assessed Mr Donaldson on the Risk for Sexual Violence Protocol. This is a structured professional judgement tool that aids in assessing the risk for future sexual violence. It was developed following systematic review of sexual recidivism literature and consists of 22 items associated with recidivism based upon that data. The authors recommend that the items are not summed to provide a risk score, but rather used to anchor the assessors judgements and to facilitate the formulation of future risk scenarios and to inform risk management recommendations. I have identified the following factors as relevant to Mr Donaldson’s future risk for sexual violence. Sexual Violence History: • Chronicity of sexual violence; • Escalation of sexual violence; • Physical coercion of sexual violence. Psychological Adjustment: • Problems with self-awareness; • Problems with stress or coping; Mental Disorder: • Sexual deviance; • Problems with substance abuse. I did not find evidence of either Psychopathic Personality Disorder, major mental illness or violent or suicidal ideation. Social Adjustment: • Problems with intimate relationships; • Problems with non-intimate relationships; • Problems with employment; and • Problems with non-sexual criminality. Manageability: • Problems with planning; and • Problems with supervision. With respect to risk scenarios identified within the RVSP, I note that Mr Donaldson has had an enduring sexual deviance with his attraction to, and sexual fantasies -- 21 of 38 -- 22 around, older women. Acting upon these fantasies has been enabled by intoxication, emotional distress, sex as a coping strategy and poor problem-solving skills. In my opinion, the most relevant risk factors for future management for Mr Donaldson pertain to treatment of his paraphilic cognitions, avoidance of future substance abuse, better management of future relationship conflict, assistance in achieving better problem solving, and developing alternative strategies to his anxious, avoidant coping pattern. Future victims are likely to be vulnerable elderly women with the offences occurring at times of heightened emotional tension within a relationship, emotional collapse with both scenarios aggravated by intoxication. Any re-engagement with drinking, association with antisocial peers or return to risk taking, non-sexual offending, would be flags for potential rising risk for future recidivism. His risk factors can be reduced and his overall risk reduced to below moderate if Mr Donaldson complies with supervision, avoids alcohol, cannabis and other intoxicating substances, engages with prosocial activities such as finding employment and developing a prosocial network and engages with professional supports to develop better strategies for managing communication and relationships into the future. I would recommend that in addition to attending a psychologist for further treatment in the community, that Mr Donaldson be encouraged to repeat the Sexual Offenders Maintenance Programme, participate in an alcohol and drug treatment programme, participate in indigenous prosocial network activities such as those run by Uncle Alfred Smallwood in Townsville. There is some lack of clarity given his history as to the issue of his renal condition. He will need to be followed up by Indigenous Health Services when he is released under supervision into the community. In my opinion, Mr Donaldson’s unmodified risk for future sexual recidivism is moderate to high. If he complies with a supervision order and engages in further psychological treatment for his paraphilic conditions and substance use issues, his risk will be reduced to below moderate. In my opinion, a supervision order does have the capacity to provide for the adequate protection of the community. I would recommend that Mr Donaldson should be subject to a five-year supervision order within the community. [81] In her oral evidence, Dr Sundin summarised her opinion in the following way. The respondent’s principal diagnosis with respect to sexual offending was the paraphilic disorder of gerontophilia. It was an unusual and little-known paraphilia but it was, in -- 22 of 38 -- 23 the respondent’s case, associated with an enduring sexual deviance which was the principal concern with respect to his ongoing management. [82] The natural history of the paraphilia was not known but, positively, the respondent had participated in all programs asked of him and had good exit reports from those programs. He also had a good institutional record. He was agreeable to abiding by the requirements of a supervision order and appeared to understand those requirements. [83] In Dr Sundin’s view, he had benefitted from his interview with Dr Arthur in that he had an appreciation of his risk factors and, whilst simplistic, he had ideas about how they might be managed. [84] Dr Sundin elaborated on the way in which she saw a supervision order operating to reduce the risk posed by the respondent. In the short term, the supervision order would provide adequate protection to the community by way of its curfews, its ensuring abstinence from intoxicants and its prohibiting access to potential victims. The respondent would engage frequently with his case manager. Under the first stage of curfews, he would not be able to leave the precinct unaccompanied. The respondent would benefit from group and individual therapy in the community. The individual therapy would be directed at his paraphilias. [85] Dr Sundin made it clear that she was not suggesting that the respondent would have a “easy glide” into the community. He had a mild intellectual impairment. He was institutionalised and had been antisocial in the past. In the past, he displayed a pattern of impulsivity and had issues with problem solving. However, those matters could be addressed or accommodated by the order. A condition that he remain abstinence from alcohol and other intoxicants was a key feature of the proposed supervision order. That condition and its other conditions in combination reduced the risk posed by the respondent. Dr Sundin repeated the information provided by Dr Arthur that if a sexual offender remained offence free for five years, then the risk that they would commit a sexual offence in the future was halved. The peak risk period for any offender was in the first two years of the order. For those reasons, Dr Sundin recommended a supervision order of five years’ duration. [86] I noted that the draft supervision order provided to me anticipated that the respondent would – in effect – find his own way to certain treatment and rehabilitative programs. I asked Dr Sundin whether the respondent would need assistance to navigate, for example, an Alcoholic Anonymous website so that he could understand how he could participate in their program. The short answer was “no”. Dr Sundin hoped to see an application for NDIS funding made to the NDIA soon. She had no doubt that the respondent would receive an NDIS package. The package would cover the cost of a “support person” who could assist the respondent to link in with relevant recommended programs. Dr Sundin agreed with Dr Arthur that a neuropsychology report would be of some benefit to QCS, but it was not as critical as an occupational therapy assessment which would speak to issues about how the respondent functioned in the community. Report of Dr Eve Timmins Psychiatrist, dated 8 November 2021 [87] Dr Timmins’ diagnosis, risk assessment and recommendations are as follows: -- 23 of 38 -- 24 DIAGNOSIS Mr Donaldson has evidence of a sexual to elderly women, namely Gerontophilia. He also has evidence of a second paraphilia, Frotteurism. He may also have sadistic sexual interests when he offends given that he enjoyed the victims fear of him during the commission of the offences. He has evidence of a Mild Neurocognitive Disorder with a below average intellect as identified in a report in 2006 with his performance on neuropsychological testing revealed a FSIQ in the range of 72 to 79. He has evidence of an Antisocial Personality Disorder with but does not score highly on the PCL-R thus he does not have particularly strong psychopathic traits to his personality structure. He has a Substance Use Disorder, mainly alcohol but has also used cannabis. This disorder is to the level of dependence and is currently in enforced remission in the custodial environment. He has previously reported experiencing auditory hallucinations, but I do not think this represents a mental illness that is currently active. It could occur in the context of heavy substance use, thus representing a propensity for a substance induced psychotic illness. RISK ASSESSMENT Psychopathy Checklist (PCL-R) I scored Mr Donaldson at 17 out of 40 indicating some psychopathic traits but not to the level of a diagnosis. There is a weighting towards criminal activities (the antisocial aspects of psychopathy) rather than the affective (interpersonal aspects) of psychopathy. Static-99R For the sake of scoring the Static-99R I have considered Mr Donaldson has two previous sex offending episodes with the Unlawful Use of Motor Vehicle on 13 August 2000 (he was in the person’s bedroom and was exposing himself while she was asleep) AND the Attempted rape on 14 December 2004 as sex offences. I suspect the Aggravated assault and deprivation of liberty from his juvenile history are with sexual motivation. I have requested further information about these charges. Whether they are or not does not significantly change the Static-99R scoring. The Break & Enter with intent from his Index offences are not considered violent offences. Item 4 (Prior non-sexual violence, any convictions) is a 1 regardless of whether you count the Aggravated Assault & Deprivation of liberty at 13yo as a previous sex -- 24 of 38 -- 25 offence. The Deprivation of liberty is considered a violent offence and you count both juvenile and adult offences when scoring the Static-99R. For Item 5 (Prior sex offences), if don’t count Aggravated assault and Deprivation of liberty as sexual violence then they become past non-sexual violent charges and the number of previous sex offences decreases to 3 over two sentencing dates, not 5 over three sentencing dates – this does not change the score on Item 5 however (still scores two). Mr Donaldson scored 7 which is regarded as HIGH risk of reoffending according to the Static-99R risk assessment instrument. RSVP I have considered Mr Donaldson to have positive scored for the following items: • Chronicity of Sexual Violence • Escalation of Sexual Violence • Physical Coercion in Sexual Violence • Problems with Self-Awareness • Problems with Stress or Coping • Sexual Deviance • Problems with Substance Abuse • Problems with Intimate Relationships • Problems with Non-Intimate Relationships • Problems with Employment • Non-sexual Criminality • Problems with Planning • Problems with Supervision I consider Mr Donaldson to have partial/possible scores for the following items: • Extreme Minimisation or Denial of Sexual Violence • Attitudes that Support or Condone Sexual Violence • Problems resulting from Child Abuse • Violent or Suicidal Ideation • Problems with Treatment He does not have evidence of: • Diversity of Sexual Violence -- 25 of 38 -- 26 • Psychological Coercion in Sexual Violence • Psychopathic Personality Disorder • Major Mental Illness Thus, Mr Donaldson would be considered as a HIGH risk of reoffending if released into the community at this time according to the RSVP. He scores positive or partial for 18 out of a possible 22 items. Mr Donaldson is a 39-year-old Indigenous man who is currently incarcerated in the Lotus Glenn Correctional Centre for charges of Rape and break and enter with intent in addition to breaching his Suspended Sentence that he had been placed on for Attempted rape and break and enter with intent offences from 2004. His full- time date is on 16 November 2021. This is his third episode of sexual offending with the 2004 Attempted rape offences but also an offence from August 2000 of Unlawful use of a motor vehicle having a sexual intent when he was stealing the keys from the lady’s bedroom. He admitted to exposing himself to her whilst she was asleep and desisting when she stirred. He stole her keys and vehicle and whilst he was not charged with a sex offence there is clearly sexual behaviour to his offending on that occasion. There are also suspicions of other sexual charges when younger in the documentation; one occasion against C……..A……..’s daughter where he was run out of town and another where he apparently had sexual assault charges that were dismissed in addition to an Aggravated assault and Deprivation of liberty that may possibly have had sexual undertones when he was 13 years old. His offences from 2004 and 2008 have involved elderly women where he has broken into their homes with the intent to rape them. His offending has been in the context of substance use, mainly intoxication with alcohol and marijuana. On the latter occasions he was emotionally distressed by several significant events, namely the death of his mother and sister and arguments and breakdown of his only intimate relationship with his pregnant girlfriend. At interview he presented with a degree of shame and remorse around his offending against elderly women. Other relevant background history is a difficult upbringing with a strict but supportive stepfather and a close attachment to his mother but the early onset of truancy, aggressive behaviour towards female teachers, problems in the school environment and poor school performance. He has been assessed as having a below average intellect which has limited his ability to learn. There was one incident of sexualised behaviour from an adult male when he was 11 years old but he confronted this person when older and does not seem to have any lasting issues from this event. He has a history of general offending in addition to the sexual offending, His offences are related to mainly to aggression when younger, stealing of motor vehicle and burglary offences. He has breached various community-based orders and has -- 26 of 38 -- 27 spent a good deal of his adulthood incarcerated. He meets the criteria for anti-social personality disorder but is not psychopathic. He has a history of use of substances, mainly alcohol and marijuana. He has experienced some perceptual disturbances in the context of substance use but denied these were an aspect of the sex offending. He denied current symptoms of a major mental illness. His substance use contributed to his offending in that he is less inclined to stop himself from acting out his fantasies when intoxicated. He has had one serious intimate partner, albeit an unstable relationship involving substances and arguments. He has admitted to several one-night stands. He seems to have little interest in same-age sexual partners. This appears to be related to sexual fantasies of much older women. Same age female peers do not give him the same sexual satisfaction as the fantasies of older women. These fantasies date back to about 10 years old and given his offending history indicate he has a sexual paraphilia namely gerontophilia. He has limited work history, although seems capable of working in the prison environment. He has few prosocial community supports given his parents are both deceased and he has limited contact with family members or friends. He has had no issues in the custodial environment which is a positive sign. He has largely maintained work, got along with officers and peers and completed the sex offending and substance use programs. He has reasonable reports from these programs. He has some plans for his release that are positive. He seems to understand, at least to some degree, his offending pathway and has some ideas regarding how to manage himself in the community to mitigate against re-offending sexually. He has completed the programs but remains untested in the community. With regards to future sexual offending, Mr Donaldson’s victims are likely to be elderly women rather than any other adult female. He is not attracted to children. These elderly women could be known to him or strangers. His pattern will be to break into their homes when intoxicated with the intent to offend sexually against them. The offences could be related to his paraphilia of frotteurism i.e. rubbing against them sexually or could extend to digital or penile rape. The offences could involve the use of physical violence to achieve his end goal. There is a risk of physical and psychological harm to the victim. His sex offending has been in the context of intoxication with alcohol and marijuana. He may or may not be distressed or angry with an intimate partner or significant female in his life. He could be at risk if he returns to general offending, particularly anything to do with breaking into a house. There may be an element of planning, or at least knowing the occupant of a house he breaks into is an elderly woman. In summary, I am of the opinion that Mr Donaldson will be at a HIGH risk of re- offending in a sexual manner if released into the community at this time without a supervision order. -- 27 of 38 -- 28 He has completed several programs to address his risks to the community in particular sex offending programs and substance use programs. He has some understanding of his offending pathway and a relapse prevention plan but remains untested in the community setting. In my interview I was less convinced that he had not learnt or retained enough information to contribute to his own risk mitigation than Dr Arthur. It is possible that he has thought about this aspect and decided to engage more openly on this assessment. If the court is of a mind to release Mr Donaldson, he will require significant support otherwise he is at risk of using substances and committing further sexual offending against elderly women driven by his sexual paraphilias and substance use. He will require electronic monitoring and restrictions of movements in the community. He will require stable accommodation, suitable work and engage in appropriate activities and pro-social relationships, both male and female, which will require monitoring. He would benefit from engagement in appropriate cultural activities especially his artwork and Elders groups for support and guidance. He needs to abstain from substance use. He should undergo regular and random drug and alcohol testing. He may respond favourably to rehabilitation services to continue to reinforce abstinence from substance use. He requires treatment from a forensic psychologist to address his sexual paraphilias, emotional management and difficulties he may have in intimate relationships. His risk may be modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003. He would most likely fall into a Moderate risk category. This would depend on whether he implements strategies to manage himself and his risk of sexual re-offending in the community. A Community Supervision Order of 10 years may well be best for the protection of the community given that he has two sexual paraphilias, is a relatively young man, has a long history of sexual offending, substance use and a difficult personality structure in addition to a poor response to previous community orders. He is likely to require significant time to settle into the community such that he manages himself and his risk of sexual re-offending. [88] In her oral evidence, Dr Timmins expressed a less optimistic view of the respondent than that expressed by Drs Arthur and Sundin. She referred to the trouble the respondent had had with community orders in the past but acknowledged that supervision under the Act was much more stringent and involved much more oversight than those previous orders. [89] In Dr Timmins’ opinion, in the short term, “things” were likely to be “ok”. But issues might arise as the respondent was given more independence. She did not expect the respondent to like rules. She thought he would test boundaries. Whether he went on to commit criminal offences remained to be seen. The respondent’s risk (of re- offending) escalated as he was permitted more freedoms. -- 28 of 38 -- 29 [90] She explained that her concern about the respondent’s compliance with supervision was based on his history, his personality structure and his intellectual impairment. She was concerned that, because of his antisocial personality disorder, he might not respect boundaries or society’s rules. He would be less motivated to engage in relevant services and would not understand (because of his intellectual limitations) that it would be in his best interests to so engage. Dr Timmins was concerned that, whilst the respondent might engage in therapies or supports that were coordinated for him by the Department of Corrective Services, he was less likely to get there under his own steam. In Dr Timmins’ opinion, the respondent had not retained much from the group programs. She also noted that the programs did not address paraphilias. It was her impression that the respondent didn’t really understand where his paraphilic sexual interests came from or how to stop himself from acting on his paraphilic thoughts. His answer to questions about how he would deal with difficulties in a relationship (one of the triggers for his offending) was that he would not have a relationship. This was an example of his basic thinking. Dr Timmins considered it a positive sign that the respondent had formed a therapeutic relationship with Dr Frost but he would require a much more intensive therapeutic relationship to deal with his paraphilias. He had seen Dr Frost 16 times, but that was not nearly enough to deal with his complex issues. Dr Timmins was not a fan of treatment being provided via telehealth or telephone consultations (an option for the respondent if he were housed at the precinct and wished to continue with Dr Frost). Face to face treatments was likely to be more effective. [91] Dr Timmins considered neuropsychological assessments and occupational therapy assessments to be of particular importance, including in an application for NDIS funding. NDIS support and funding would help the respondent feel more comfortable and supported. That comfort and support would likely advance his compliance with supervision and enable him to do better functionally. If he were doing better in the community then his risks would decrease. [92] Dr Timmins was not as confident as Dr Sundin and Dr Arthur that a five-year period subject to a supervision order would reduce the risk to the community posed by the respondent. She preferred an order of seven years duration. She offered the following as her reasons for that opinion: This is a man who has two sexual paraphilias at least. He is a sexual recidivist with a long history of sexual fantasies involving elderly women dating back to 10 or 11 years old. And there are some concerning issues in his previous history, as well as the two clear sex offences periods in 2008 and 2004. He also has an antisocial personality disorder structure, and has not done well on previous community orders in the past. So I’m less confident that he will comply, given his … antisocial personality structure. He’s also a relatively young man who will have a sex drive, and, in general … a man’s sexual interest doesn’t tend to decline until after 70. And an antisocial personality disorder tends not to burn out until they’re well into their 40s. He has a history of substance use. He had a very difficult time in the … community with a chaotic lifestyle. And underlying all of that, he seems to have a low intellect, and there are concerns with regards to his retention of program concepts and his ability to conceptualise his risk factors and then go on to managing his -- 29 of 38 -- 30 risk factors in an appropriate way so that his risk is decreased. I think it’s going to take a long time of him to really fully manage himself better. [sic] Evidence of Marissa Piat [93] I wished to know more about the way in which QCS would support the respondent were he to be released under a supervision order. I was not satisfied with the generality of the affidavit evidence provided by Ms Piat, a principal adviser with the High Risk Offender Management Unit within the Department of Corrective Services. (Though in saying that, I stress I make no criticism of Ms Piat.) She was then called to give evidence before me. [94] She explained that, with the respondent’s consent, QCS would assist him to apply for NDIS funding by referring him to relevant organisations or suitably qualified individuals. During oral submissions, counsel for the respondent indicated that he would consent to QCS making relevant referrals. [95] Ms Piat said that QCS had psychologists available to provide highly specialised treatment to the respondent. Also, the respondent would be referred to a sexual offenders’ maintenance program depending on the availability of/demand for that program. [96] The High Risk Offender Management Unit had made inquiries with relevant cultural mentors to deliver culturally appropriate services to the respondent. This would include his participating in a men’s group conducted by a respected Indigenous elder. [97] Ms Piat also explained that the respondent would be assisted by his case manager to ensure compliance with the order, such as by assisting him to access relevant treatment or engage in relevant activities. In the early stages of the order, that support would extend to accompanying the respondent to relevant appointments or activities. Consideration of evidence [98] The evidence was clear that the respondent posed a moderately high to high risk of committing a sexual offence involving violence if he were released into the community, having served his sentence, without a Division 3 order. As noted, he did not suggest otherwise. I was satisfied, as required, that he was a serious danger to the community in the absence of such an order. [99] The respondent’s unmodified risk of re-offending was assessed as falling within the moderately-high to high range. It was predicted to fall to a risk in the low to moderate range if he were released on supervision. [100] I am required to give paramount consideration to the need to ensure adequate – but not absolute – protection of the community. [101] Consistent themes emerged in the evidence before me which informed my decision about the terms of the respondent’s release. Broadly, the psychiatrists who gave evidence agreed that the respondent’s risk of re-offending in a sexually violent way could be reduced to an acceptable level in the short term if he were to comply with the conditions of a supervision order which limited, if not removed, his access to -- 30 of 38 -- 31 potential victims and provided him with tailored, one-on-one rehabilitation/risk reduction treatment. On the evidence, the likely path to the respondent’s re-offending will involve either or all the following: his returning to substance use, his experiencing relationship instability, and his associating with anti-social peers and committing non-sexual offences. These are matters which the supervision order is designed to guard against or detect – thereby reducing the risk of the respondent’s actually re-offending in a sexually violent way. Coupled with therapy or treatment designed to treat his paraphilia, also provided for under supervision, the community will be, in my view, thereby adequately protected from the risk he poses. I am satisfied that the release of the respondent under supervision, on the conditions proposed, will ensure adequate protection of the community. [102] As to the duration of the order, and bearing in mind the provisions of section 13A(2) of the Act, I placed greater weight on Dr Timmins’ analysis and predictions about the likely effect of the order upon the respondent than on the more optimistic views of Drs Arthur and Sundin. [103] I found Dr Timmins opinion, about the appropriate duration of the order, a particularly thoughtful and considered one – which expressly took into account the respondent’s personality traits. I have also borne in mind the vulnerability of the respondent’s potential victims and the issue, acknowledged by each of the psychiatrists, that little was known about the respondent’s particular paraphilia. I considered an order of seven years’ duration to be warranted in this case. [104] Accordingly, I have made an order in terms of the draft supervision order provided to me for a period of seven years. -- 31 of 38 -- ANNEXURE A Supervision Order Filed on behalf of the applicant Form 59 R. 661 Per Margaret Maloney PL4/ATT110/4056/MAM GR Cooper CROWN SOLICITOR 11th Floor, State Law Building 50 Ann Street Brisbane Qld 4000 Telephone 07 3031 5851 Facsimile 07 3031 599 SUPREME COURT OF QUEENSLAND REGISTRY: Brisbane NUMBER: BS 9579/21 Applicant ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND AND Respondent SOLOMON JAMES DONALDSON SUPERVISION ORDER Before: Justice Ryan Date: 14 December 2021 Initiating document: Originating Application filed 20 August 2021 (CFI No.l) THE COURT is satisfied that Solomon James Donaldson, is a serious danger to the community. The rules in this order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003. THE COURT ORDERS THAT Solomon James Donaldson be released from prison and must follow the rules in this supervision order for 7 years, until 19 December 2028. TO Solomon James Donaldson: 1. You are being released from prison but only if you obey the rules in this supervision order. 2. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison. 3. You must obey these rules for the next 7 years. -- 32 of 38 -- Reporting 4. On the day you are released from prison, you must report before 4 pm to a Corrective Services officer at the Community Corrections office closest to where you will live. You must tell the Corrective Services officer your name and the address where you will live. 5. A Corrective Services office will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A Corrective Services officer might visit you at your home. You must let the Corrective Services officer come into your house. To “report” means to visit a Corrective Services officer and talk to them face to face. Supervision 6. A Corrective Services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a Corrective Services officer gives you about: a) where you are allowed to live; and b) rehabilitation, care or treatment programs; and c) using drugs and alcohol; and d) who you may have contact with; and e) anything else, except for instructions that mean you will break the rules in this supervision order. A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation. If you are not sure about a direction, you can ask a Corrective Services officer for more information, or talk to your lawyer about it. 7. You must answer and tell the truth if a Corrective Services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with. 8. If you change your name, where you live or any employment, you must tell a Corrective Services officer at least two business days before the change will happen. A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday. -- 33 of 38 -- No offences 9. You must not break the law by committing a sexual offence. 10. Not commit an indictable offence involving the unlawful entry onto the premises of another person during the period of the order. Where you must live 11. You must live at a place approved by a Corrective Services officer. You must obey any rules that are made about people who live there. 12. You must not live at another place. If you want to live at another place, you must tell a Corrective Services officer the address of the place you want to live. The Corrective Services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a Corrective Services officer to live at another place. This also means you must get written permission from a Corrective Services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place. 13. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a Corrective Services officer. You are allowed to leave Queensland only after you get written permission from a Corrective Services officer. Curfew direction 14. A Corrective Services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction. Monitoring direction 15. A Corrective Services officer has power to tell you to: a) Wear a device that tracks your location; and b) Let them install a device or equipment at the place you live. This will monitor if you are there. This is called a monitoring direction. You must obey a monitoring direction. Employment or study 16. You must get written permission from a Corrective Services officer before you are allowed to start a job, start studying or start volunteer work. -- 34 of 38 -- 17. When you ask for permission, you must tell the Corrective Services officer these things: a) What the job is; b) Who you will work for; c) What hours you will work each day; d) The place or places where you will work; and e) (if it is study) where you want to study and what you want to study. 18. If a Corrective Services officer tells you to stop working or studying you must obey what they tell you. Motor vehicles 19. You must tell a Corrective Services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the Corrective Services officer these details immediately (on the same day) you get the vehicle. A vehicle includes a car, motorbike, ute or truck. Mobile phone 20. You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a Corrective Services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone. 21. You must give a Corrective Services officer all passwords and passcodes for any mobile phones you own or have. You must let a Corrective Services officer look at the phone and everything on the phone. Computers and internet 22. You must get written permission from a Corrective Services officer before you are allowed to use a computer, phone or other device to access the internet. 23. You must give a Corrective Services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a Corrective Services officer look at the computer, phone or other device and everything on it. 24. You must give a Corrective Services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social -- 35 of 38 -- networking sites that you use. You must do this within 24 hours of when you start using any of these things. No contact within any victim 25. You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you. “Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way. Rules about alcohol and drugs 26. You are not allowed to take (for example, swallow, eat, inject, or sniff) any alcohol. You are also not allowed to have with you or be in control of any alcohol. 27. At all times, your blood-alcohol content must be 0. “Blood-alcohol content” means the amount of alcohol in your blood, which can be tested by the police or a Corrective Services officer using a sample of your breath. 28. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs. 29. A Corrective Services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, or pee (urine) when they tell you to do this. 30. You are not allowed to go to pubs, clubs, hotels or nightclubs which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go. 31. You are not allowed to visit any business that is only licensed to supply alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go. Rules about medicine 32. You must tell a Corrective Services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a Corrective Services officer about any over the -- 36 of 38 -- counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine. 33. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor. Rules about rehabilitation and counselling 34. You must obey any direction a Corrective Services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor. 35. You must obey any direction a Corrective Services officer gives you about participating in any treatment or rehabilitation program. 36. You must let Corrective Services officers get information about you from any treatment or from any rehabilitation program. Speaking to Corrective Services about what you plan to do 37. You must talk to a Corrective Services officer about what you plan to do each week. A Corrective Services officer will tell you how and when to do this (for example, face to face or in writing). 38. You must also tell a Corrective Services officer the name of new persons you have met. This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly. 39. You may need to tell new contacts about your supervision order and offending history. The Corrective Services officer will instruct you to tell those persons and the Corrective Services officer may speak to them to make sure you have given them all the information. Offence Specific Conditions 40. You cannot get or look at pornographic material of any type without written approval from a Corrective Services officer. Your treating psychologist may provide advice regarding this approval. This includes pictures on a computer, photographs, movies, or magazines. -- 37 of 38 -- 41. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence. You must talk about this with a Corrective Services officer when asked. 42. You must advise a Corrective Services officer of any personal relationships you started. -- 38 of 38 --