Attorney-General (Qld) v ZBA [2021] QSC 313 [2021] 48 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v ZBA [2021] QSC 313 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ZBA (respondent) FILE NO/S: BS 10345 of 2019 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 26 November 2021 DELIVERED AT: Brisbane HEARING DATE: 22 November 2021 JUDGE: Brown J ORDERS: The order of the Court is that: 1. The decision that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) be affirmed 2. The respondent, ZBA, continue to be subject to the Continuing Detention Order. 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 was detained in custody for an indefinite term for control, care and treatment – where the applicant applies for a continuation of the order – whether the adequate protection of the community can be reasonably and practically managed by a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 13, 30 -- 1 of 12 -- 2 Attorney-General (Qld) v Cobbo [2018] QSC 131, cited Attorney-General (Qld) v Francis [2007] 1 Qd R 396, cited Attorney-General (Qld) v Kennedy [2016] QSC 287, cited Attorney-General (Qld) v S [2015] QSC 157, cited Attorney-General (Qld) v Sutherland [2006] QSC 268, cited Attorney-General (Qld) v ZBA [2020] QSC 4, cited Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited Turnbull v Attorney-General (Qld) [2015] QCA 54, cited COUNSEL: J Tate for the applicant S Robb for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] By an order dated 31 January 2020, Davis J ordered that the respondent be detained in custody for an indefinite term for control, care and treatment.1 At the first annual review, the Attorney-General for the State of Queensland (the applicant) applies for a continuation of that order. [2] The relevant circumstances surrounding the respondent’s offending and the sentences imposed upon him are set out in the reasons of Davis J, which I adopt and which I will not repeat.2 His previous offending involved a 17 year old male and, in respect of the index offence, a four year old girl.3 [3] There is no contest that the evidence relied upon on by the applicant supports a finding that the respondent is a serious danger to the community in the absence of a division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). The real contest is whether the adequate protection of the community can be reasonably and practicably managed by a supervision order. Proceeding in which Division 3 Order made [4] As to the Court affirming the previous order that the respondent is a serious danger to the community, the applicant particularly relies upon the evidence of two psychiatrists, Dr Arthur and Dr Harden. They also provided reports in the proceeding before Davis J. Their evidence was extensively replicated in the reasons of Davis J, as was the evidence of Dr Aboud who also gave evidence at that time.4 [5] Significantly, although not as forthcoming to Dr Harden and Dr Arthur, the respondent disclosed to Dr Aboud that he:5 1 CFI 28. 2 Attorney-General (Qld) v ZBA [2020] QSC 4 at [3]-[8]. 3 Attorney-General (Qld) v ZBA [2020] QSC 4 at [5]-[6]. 4 Attorney-General (Qld) v ZBA [2020] QSC 4 at [20]-[32]. 5 Attorney-General (Qld) v ZBA [2020] QSC 4 at [22]. -- 2 of 12 -- 3 (a) was primarily sexually attracted to males; (b) is sexually attracted to children; and (c) had previously resorted to child pornography to achieve sexual satisfaction. [6] I will not repeat that evidence in detail, but Dr Aboud’s evidence diagnosed the respondent as suffering from “Paedophilia, non-exclusive type, and sexually attracted to both males and females”, “Alcohol Dependence Disorder”, and “Antisocial Personality Disorder”.6 Dr Aboud assessed the respondent’s overall unmodified risk in the absence of a division 3 order to be high in respect of sexual offending, and moderate in respect of general (non-sexual) violence. He considered that before the respondent could be safely released into the community, he must first participate in the High Intensity Sexual Offender Program (HISOP) and the Pathways (Substance Misuse) Program. Dr Aboud was of the view that if he undertook both programs he would then be manageable in the context of supervision. In Dr Aboud’s view:7 “Engagement and successful completion of these programs would likely reduce his risk for sexual offending to either moderate or above moderate...” [7] As a result of the disclosure to Dr Aboud, Dr Harden confirmed the diagnosis of paedophilia. Dr Harden stated that while the disclosure did not change his broad risk category of recidivism as being well above average, or in the high risk group, it changed the longevity of that risk given the literature suggests that paraphilia tends to persist and act as an ongoing risk factor.8 [8] Dr Harden also stated that even with the disclosure made to Dr Aboud, there was very limited data to allow a calculated risk to occur, which he described as what, in effect, happens when Queensland Corrective Services (QCS) allow people to go out into the community on various levels of curfew.9 Dr Harden considered that the respondent needed to undertake a sexual offenders’ program prior to being released. [9] Dr Arthur also regarded the respondent as being in the high risk category for recidivism relevant to the DPSOA and that he should undertake a sexual offenders treatment course prior to his release. [10] According to Davis J, Counsel for the respondent established through his cross- examination that:10 “While the respondent was on very strict supervision, he is not an unacceptable risk of committing serious sexual offences. The psychiatrists though are all of the view that if untreated, the risk will escalate once the supervision period ends.” Evidence in the present proceeding 6 Attorney-General (Qld) v ZBA [2020] QSC 4 at [23]. 7 Attorney-General (Qld) v ZBA [2020] QSC 4 at [24]. 8 Attorney-General (Qld) ZBA [2020] QSC 4 at [25]. 9 Attorney-General (Qld) ZBA [2020] QSC 4 at [31]. 10 Attorney-General (Qld) v ZBA [2020] QSC 4 at [33]. -- 3 of 12 -- 4 [11] The respondent did not co-operate with the assessment process with either Dr Arthur or Dr Harden, in relation to the present proceeding. As a result, the medical opinions provided do not have the benefit of any updated assessment of the respondent and have relied on information as to the respondent’s conduct provided by QCS. [12] Both Dr Arthur and Dr Harden maintain their opinions expressed before Davis J, which is unsurprising given they had little further information upon which to base their opinion from that which they relied on last year. [13] Dr Arthur diagnosed the respondent as suffering from:11 • Non-exclusive Paedophilia (attracted to both males and females); • Antisocial Personality Disorder; • Alcohol Abuse (currently in remission in a controlled environment); and • Possibility some form of intellectual/learning disorder (requires further assessments to quantify). [14] Dr Arthur noted that the respondent had declined placements on sexual offenders’ programs, had declined opportunities to address substance abuse and had been unco- operative with psychological interviews and DPSOA case management meetings, on occasion expressing anger and distrust with the process. Dr Arthur noted he “appears distressed by his situation; it is unfortunate that due to his lack of co-operation it is not possible to know how much he understands of the process, his level of insight into the nature of his sexual offences or his capacity to engage in offence-specific treatment.”12 As to respondent’s risk he states that: “[43] Due to a lack of information I am unable to provide any further assistance to the court regarding prisoner ZBA’s risk of sexual recidivism. There does not appear to have been any progress in his insight or motivation to address this issue. Prisoner ZBA has previously indicated that he expects to remain in jail until he dies; again it is not clear whether this is his choice or he simply does not understand the process. [44] According to the available information, he continues to represent a high unmodified risk of sexual recidivism if released to the community, based on the presence of deviant sexual drives, ego-dystonic homosexual orientation, his lack of insight and apparent unwillingness to engage in any offence specific treatment. Furthermore, he has a history of maladaptive coping strategies and longstanding issues with emotional dysregulation, poor self-control and impulsivity made worse by intoxication. [45] I remain of the opinion that he should be detained in custody to complete a High Intensity Sexual Offender Treatment Program, either the HISOP or the SOPIM. If it is determined that he has significant intellectual difficulties that would preclude his involvement in these programs, an alternative would be the Inclusions Program. He also needs to complete a Substance Abuse Program whilst in custody as intoxication may increase his risk of sexual recidivism through disinhibition. 11 CFI 38, KA-2 at [42]. 12 CFI 38, KA-2 at [40]. -- 4 of 12 -- 5 [46] Even if he did not complete any relevant programs, his risk would be mitigated to some degree by the provision of a supervision order which placed severe restrictions on his unsupervised access to the community. However, given the chronicity of his risk, without some evidence of attitudinal change, it would be difficult for Community Corrections to justify any progression from the most stringent application of such an order.”13 [15] In oral evidence, Dr Arthur clarified that his assessment that the respondent poses a high unmodified risk of sexual recidivism is based on the fact that he has an untreated paraphilia, and that he has been exposed to a lot of abuse in his upbringing and appears to have developed an antisocial personality disorder and has a propensity for violence. He noted that the respondent has a lot of psychological issues which are not fully understood, has not shown any interest in treatment, has no reasonable plans when released nor any support in the community. [16] Dr Arthur considered that while it was known that the respondent has a fiery temper and could, at times, show verbal and physical hostility and violence, there is no knowledge of his level of self-awareness, acceptance of his diagnosis and how he could cope in the community. The question of whether the respondent would comply with a supervision order or any treatment is not known. In that respect he noted that he had a history of truculent behaviour. Dr Arthur considered it was very difficult to formulate an adequate plan to manage the respondent’s risk. [17] Dr Arthur stated that if the respondent was on a 24-hour curfew and constantly monitored and supervised in the community, then his risk of recidivism would reduce to moderate given victim access restrictions. However, Dr Arthur could not see how the respondent could progress past that point. Dr Arthur considered that the respondent should undertake courses in jail so that he would be in a position to start to address some of his issues and commence rehabilitation. Dr Arthur stated that the respondent would gain some benefit in understanding himself a little bit better and understanding the drivers of his offending and formulating a relapse prevention plan so that he felt he had control over the process. He considers the respondent is carrying a great deal of emotional distress around his sexuality and sensual behaviour. Dr Arthur stated that, given the respondent is distrustful and isolated, the peer support from others in the program would be important. He considered that participation in the course would help reduce the risk if he actively participated in it so it altered his attitudes and self-awareness as well as informing those supervising him in the community by giving a baseline of his insight, acceptance of responsibility and the formulation of a self-management plan. It would inform those supervising him of his capacity for self-regulation and his capacity and motivation to engage in rehabilitation and to comply. [18] Dr Arthur considered that the way forward for the respondent was to participate in one of the sexual offender courses, have his IQ assessed and understand the interaction, if any, between his medical comorbidities and how it might impact on his motivation and capacity to engage in treatment. Dr Arthur stated however that the respondent also needs psychological treatment one-on- one to address the diagnosis of paedophilia. That was not a matter he identified as necessary to be done in custody. Dr Arthur considers that it is not a positive sign that the respondent will not engage in sexual offender programs and it suggests that he is non-compliant and not willing to address his risk issues or co- operate with treatment, which increases the risk. 13 CFI 38, KA-2 at [43]-[46]. The respondent’s name has been anonymised. -- 5 of 12 -- 6 [19] He agreed that the respondent’s personality might be a reason for his lack of participation. He agreed that, while the respondent’s conduct on a supervision order may provide a baseline of the respondent’s conduct in the early days of managing him and it would give a practical baseline as to how he managed, it would not provide evidence of his motivation, his level of sexual preoccupation and there would be no way to determine why the respondent was non-compliant with the Supervision Order, if he did not comply. While the order may capture contraventions, QCS would not know his risk factors. Dr Arthur accepted that a supervision order applied at its most stringent, with the respondent kept under 24 hour supervision with no unsupervised access in the community and was supervised proactively, that would restrict victim access as long as he complied with it. However he stated even under a Supervision Order the respondent may abscond and may not comply such that he would pose a risk to supervising staff and other residents given the amount of things which are unknown about the respondent. Dr Arthur stated that in order for QCS to be able to allow the respondent to have access to the community, the important matters to understand are the drivers for his offending and his capacity for self-regulation which would inform QCS whether it was safe or appropriate to provide less supervision. [20] Dr Arthur considered that the biggest barrier to the respondent engaging with a sexual offenders’ program is shame and mistrust of the system. Dr Arthur considered that there is a need to build trust. [21] Dr Harden considered that the respondent has anti-social personality disorder, paedophilia, alcohol misuse disorder and that his future risk of sexual reoffending is high, or well above average.14 He identified the critical issues to be his “paraphilia, alcohol abuse, probable intellectual/learning issues and anti-social personality.” He considered that if the respondent was to reoffend, it would most likely be while he was intoxicated with alcohol with physical harm and psychological harm to the victim being likely. In particular, he considers that “Victims are likely to be opportunistic targets and could be females and males of any age.” He considers that supervision and intervention with a supervision order would likely reduce the risk to moderate. He considered that there would likely be compliance issues, particularly if the respondent returned to substance abuse. [22] Dr Harden considers from a treatment perspective that the respondent should undertake the preparatory program prior to his release, in order to ascertain his ability to participate in further group programs. He considered it was possible that the respondent’s personality and intellect could prevent him from being able to participate in group programs and he should also have individual psychological therapy. [23] Dr Harden stated that his recommendation that the respondent should participate in a preparatory program to determine the most appropriate program for the respondent to participate in, because it identifies a person’s ability to participate in a group program talking about offending processes. He considers that, ideally, the respondent should also have a neuro-psychological assessment to look at his cognitive function and individual psychological therapy on a weekly basis. Dr Harden considered such a regime would be likely to decrease his risk somewhat. If the respondent participated well and benefited from his participation and therapy, that would make the tasks of identifying the important aspects of his supervision easier. Dr Harden is of the view that if the critical issues are 14 CFI 35, AM-9. -- 6 of 12 -- 7 worked out for a person, it increases the chance of successful supervision and transition to the community. [24] Dr Harden considers that the respondent is presently engaging in avoidance in dealing with the issues. Dr Harden considers that given the respondent co-operated in half of his interview with Dr Harden previously, he would be likely to benefit from group and individual treatment but of course there remains the possibility he won’t be responsive to the program and improve. [25] Dr Harden stated that if the respondent was released under a supervision order, that would provide an observational baseline but nothing as to his intention. He stated beyond the obvious condition of avoiding children there are many things that are uncertain as to how to manage the respondent on a supervision order given the limited data. He agreed there would be practical ways of observing if he was complying with the order and that given the order will restrict his access to potential victims and things like alcohol, it is practically suited to protecting the community. He considered that the respondent would be on a 24 hour curfew for a very long time. Dr Harden opined that more would need to be known about the respondent’s internal world to predict whether or not he could move beyond that. In that regard the whole process of building prosocial relationships is a matter which Dr Harden considers is critical and would be much more difficult with a 24 hour curfew. He pointed out that the 24 hour curfew can have a very negative effect, the longer it continues because it can result in a build up of anger of the subject, when the subject of the curfew can observe the freedoms of others. If the individual is not co- operating to be able to be given freedoms it remains the case that no-one can work out the detail of managing the risk. Dr Harden did not know whether releasing the respondent on a supervision order could break the impasse because he was not talking to anyone. Dr Harden stated that, presently, how the respondent would be managed in terms of community interaction is not something that can be predicted. [26] Both Dr Arthur and Dr Harden were of the view that the respondent’s unmodified risk of sexual recidivism relevant to the Act was high, and under a Supervision Order the risk would reduce to moderate. Both Dr Arthur and Dr Harden considered that the respondent needs to participate in a sexual offender’s program, prior to being released, to commence the rehabilitation process and inform the content of any supervision order needed to control the respondent’s risk. Evidence of Queensland Corrective Services [27] Ms Kelly, on behalf of QCS, deposes to the fact that the respondent has been offered and declined places on substance abuse programs and the “Getting Started: Preparatory Program”. The Getting Started: Preparatory Program (Preparatory Program) is used to identify the participant’s specific needs and barriers in regards to the subject participating in other more intensive programs, and to select the appropriate program for the person. A prisoner needs to engage in the Preparatory Program before being able to be placed in other programs. That includes the HISOP or the Sexual Offending Program for Indigenous Males (SOPIM), which Dr Arthur has identified as being appropriate for the respondent. Dr Harden, however, indicates that the respondent may also benefit from, and may be more suited to, the Inclusion Sexual Offenders Program (ISOP) after undertaking the Preparatory Program if it is identified that the respondent has cognitive difficulties. Neither the HISOP, SOPIM or the ISOP are available in the community. The advantage of the Preparatory Program is that it will also identify any relevant anxieties or limitations that the respondent might suffer, particularly if he suffers from -- 7 of 12 -- 8 difficulties due to his lack of education. Undertaking the preparatory program may identify if the respondent is not suited to being able to engage in any group program at all and the reasons why that is so. That would then inform the relevant psychiatrists and QCS as to what may be the more appropriate way to address the needs of the respondent [28] Ms Monson, who is the Manager of the High-Risk Offender Management Unit, having reviewed the reports of Dr Arthur and Dr Harden, is concerned about the respondent’s ability or willingness to comply with any order made by the Court to manage his risk, and the ability of QCS to reasonably or practicably apply a supervision order to the identified and potentially unknown risks posed by the respondent. She points out that while the QCS contingency accommodation will be available to the respondent, offenders are expected to actively source suitable long term accommodation in the community. While some initial support is offered on a case-by-case basis, offenders are expected to live independently and be responsible for their re-integration activities in accordance with the requirements of the order. She points out that the Townsville contingency precinct is not a secure facility and offenders are able to freely access the community within the terms of their order requirements and curfew needs. Those matters demonstrate the difficulty with the respondent being placed on a supervision order in the expectation that his risk would simply be contained by a 24 hour curfew unless his situation changed. The evidence to date from the Integrated Offender Management System records indicates that the respondent is not willing to engage with the DPSOA case management review and appears to feel it is an injustice that he is subject to the DPSOA. At present there is a real likelihood that he would not b co-operate if under a Supervision Order. Serious Danger to the Community in the Absence of an Order [29] For the Court to make a division 3 order under the Act, it must be satisfied that the prisoner is a serious danger to the community in the absence of such an order.15 Section 13(2) defines “serious danger to the community”. There must be an unacceptable risk that the prisoner will commit a “serious sexual offence”16 if released at all, or if released without a supervision order. [30] The definition of “serious danger to the community” applies to the determination that is required to be made under s 30 of the Act. [31] The expression “unacceptable risk” is undefined by the Act. It is incapable of precise definition but is an expression which requires the striking of a balance.17 The relevant risk is the risk of commission of a serious sexual offence (an offence of a sexual nature involving violence or against children). Risk means the possibility, chance or likelihood of commission of such an offence. An unacceptable risk is a risk which does not ensure the adequate protection of the community. [32] In determining whether the decision ought to be affirmed under s 30 of the Act, the matters mentioned in section 13(4) of the Act must be considered. 15 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13(1). 16 Defined in the Schedule to the Act. The offence must be an offence “of a sexual nature”, with the added requirement that it either involve violence or be an offence against a child or a person the prisoner believed to be a person under the age of 16 years. 17 See Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [22], [60] and [225] and Attorney- General (Qld) v Kennedy [2016] QSC 287 at [23]. -- 8 of 12 -- 9 [33] The evidence of the psychiatrists of the fact that the respondent is a high risk of reoffending in respect of children, has an untreated paraphilia and the fact the respondent is presently is showing no insight into his condition and need for treatment supports the fact that he poses an unacceptable risk of committing a serious sexual offence particularly against children. I am satisfied that the evidence is to the standard required under the Act to conclude that the respondent is a serious danger to the community, in the absence of such a division 3 order under the Act, and the order of Davis J should be affirmed. Supervision Order or Continuing Detention [34] By s 30(3) of the Act, the Court may order the respondent to be subject to continuing detention or be released from custody, subject to a supervision order.18 [35] In determining whether to make such an order, the “paramount consideration” is to “ensure adequate protection of the community”.19 The Court is also required to consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order, including whether the mandatory requirements under s 16 of the Act “can be reasonably and practicably managed by corrective service officers.” [36] The onus is on the applicant to establish that the adequate protection of the community can only be ensured by a continuing detention order and not by a supervision order.20 [37] The Court of Appeal observed in Attorney-General (Qld) v Francis21 that the arrangements to prevent a risk, such as the risk of absconding, do not need to be “watertight”. It is a question of whether the protection of the community can be adequately ensured. The Court further stated that if supervision of the prisoner is apt to ensure the adequate protection, having regard to the risk to the community posed by a prisoner, the supervision order should be preferred to a continuing detention order. The liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorises the constraint. [38] The applicant submits that, given the serious harm posed to a child if the respondent reoffended, which Dr Harden considered could possibly involve physical harm and very likely psychological harm where victims would be opportunistic, and the fact that the respondent is an untreated sex offender with a diagnosis of paedophilia who is refusing treatment recommended by the psychiatrists, the continuing detention order should be continued. [39] The respondent submits the risk posed by the respondent could be contained if he was subject to a 24 hour curfew and constant supervision,22 the adequate protection of the community can be assured by a supervision order. It is also contended on behalf of the respondent that, given the respondent will not engage in treatment in custody, his ongoing detention on the basis that he may be amenable to group sex offender treatment is aspirational and his detention is punitive rather than protective. In that respect the respondent refers to Attorney-General (Qld) v Francis: 18 Section 30(3)(a) and (b) of the Act. 19 Section 30(4) of the Act. 20 Attorney-General (Qld) v Sutherland [2006] QSC 268. 21 [2007] 1 Qd R 396. 22 CFI 38, KA-2 at [46]. -- 9 of 12 -- 10 “It is possible, too, that the view taken by Gummow J in Fardon v Attorney-General for Queensland supports an argument that executive government repudiation of the preventive objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amenable to, rehabilitation) could lead the court to refuse to make any order at all. If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee’s liberty would be out of character with the intention of the legislature: that such restraint is preventative. The character of the detention authorised by the Act is, as was explained in the reasons of the High Court in Fardon v Attorney-General for Queensland, not punitive but preventative.”23 (footnotes omitted) [40] Notably, the Court’s example of how an order for detention may be punitive in character was one where Corrective Services or the State refused to provide treatment to a prisoner who was capable of and amenable to it. That is not the case here. Treatment is being offered to the respondent by the offer of placement on programs and presently been refused. [41] I consider that the applicant has discharged the onus to establish that a continuing detention order is necessary to ensure the adequate protection of the community for the following reasons: (a) The respondent presently is not engaging in any recommended treatment for his sexual paraphilia which the psychiatrists consider should be undergone prior to his release; (b) Even if placed on a supervision order, psychiatric opinion is that the respondent’s risk would be reduced to moderate; (c) If the respondent were to reoffend it could involve possible physical harm and likely psychological harm to a child; (d) That the nature of the risk posed by the respondent against which the ability of a supervision order to reasonably and practically manage the adequate protection of the community is not fully known due to the respondent not engaging in treatment.24 One cannot presently be satisfied that a Supervision Order could be reasonably and practicably managed to provide adequate protection against the risks of reoffending posed by the respondent given the limited information known about him, his motivations and his triggers beyond his psychological conditions and paraphilia. In those circumstances the conditions of the supervision order structured to meet that risk; 23 [2007] 1 Qd R 396 at [31]. 24 Turnbull v Attorney-General (Qld) [2015] QCA 54 at [37]-[38]. The comments of Morrison JA have not been construed as suggesting anything to the accepted position that the onus of establishing that the community cannot be adequately protected except by a continuing detention order: see McMurdo J in Attorney-General (Qld) v S [2015] QSC 157 at [39]. -- 10 of 12 -- 11 (e) The respondent has a level of complexity arising from his disadvantaged and abusive childhood about which little is known and his difficult personality which involves a fiery temper with some propensity for violence; (f) There is no indication from the respondent that he is willing to comply with a supervision order or would comply with such an order. Given his present resistance to engage in any program, engage with the DPSOA case management or the psychiatrists appointed to assess him or even to address his physical medical issues, there is a real likelihood he would not co-operate. As Dr Arthur identified even with a Supervision Order with a twenty-four hour curfew that cannot guarantee that the respondent will not abscond. Given Dr Harden’s identification that his reoffending is likely to be opportunistic against a child and may involve physical harm but likely psychological harm, the potential consequences of non-compliance are serious for any potential victim; (g) The evidence of QCS is that QCS has real concerns in light of the psychiatric evidence that respondent cannot be reasonably and practicably managed under a supervision order. That is supported by the fact that there is little information known about the respondent and his present lack of co-operation and resentment at being the subject of the DPSOA order such that he will not engage with his case manager; and (h) The psychiatrists have identified that the respondent needs treatment given his untreated paraphilia as well as his substance abuse. While the respondent’s counsel submits the prospects of the respondent engaging in any treatment programs are aspirational, Dr Harden considers that there is a prospect based on his assessment of the respondent in 2019 when he did engage for half of the interview that he can participate in the preparatory program and that there would be a suitable program that would be available that could meet the respondent’s needs that he could participate in. There does appear to be a need for someone to engage with the respondent to establish a relationship of trust who could explain the DPSOA and the need for the respondent to be treated. While the respondent has not been prepared to engage to date that doesn’t mean that he will not do so. At present the psychiatrists don’t suggest it is counter-therapeutic to the respondent to continue to require him to undertake such a program.25 [42] The notion that the continuing detention is punitive because the respondent is refusing treatment is presently not borne out by the evidence. The psychiatrists have identified that he is an untreated sexual offender with a paraphilia who requires treatment. Dr Arthur also considers he is emotionally distressed and ashamed. Both Dr Arthur and Dr Harden consider that participation at least in the preparatory program and whatever program may be determined to be appropriate could address his anxieties and provide him with self- 25 Cf Attorney-General (Qld) v Cobbo [2018] QSC 131 at [8]. -- 11 of 12 -- 12 awareness of his conditions which is presently avoiding doing. While the psychiatrists have raised the need for the respondent to have a neuro-cognitive assessment to identify any cognitive difficulties and the effect of the respondent’s lack of education on his ability to understand the process under the Act, the respondent has actively refused to co-operate with DPSOA case manager as well as engaging in treatment and expressed anger at being subject to the Act. The psychiatrists have not presently assessed him as having a level of difficulties such that he is unable to engage in treatment or that there is any lack of capacity in his decision-making, albeit that he presently is making decisions which appear to be to his detriment both medically and psychologically, no doubt because he is in a distressed state at least in part due to his lack of treatment intervention and neglect in his life and he is now in 50s. The psychiatrists consider that treatment needs to occur while he is in custody before his risks can be managed in the community. The purpose of the applicant’s continuing detention is for his care, treatment and control. The fact he is not presently cooperating in his rehabilitation does not, in the circumstances, take the order outside its purpose or make it punitive. While I consider it is a misconception to suggest that a Supervision Order can be efficacious because an individual’s risk can be contained by a twenty-four hour curfew in the precinct when given the individual’s risks there is no real prospect of being able to be released into the general community, even in that situation there is a real prospect of the respondent not complying with the Supervision Order, absconding and reoffending prior to being arrested with serious consequences for a child. The evidence also does not support the fact that the respondent can be reasonably and practicably managed by QCS to ensure the adequate protection of the community which is the paramount concern nor meet the requirements of s 16 of the Act. [43] The applicant has discharged the onus upon it and the continuing detention order should be affirmed. Orders [44] The orders of the Court should be that: 1. The decision that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) be affirmed and orders that: 2. The respondent, ZBA, continue to be subject to the Continuing Detention Order. -- 12 of 12 --