Attorney-General for the State of Queensland v KBM [2021] QSC 329

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v KBM [2021] QSC 329 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v KBM (respondent) FILE NO/S: BS 2785 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 23 November 2021 DELIVERED AT: Brisbane HEARING DATE: 23 November 2021 JUDGE: Kelly J ORDER: 1. The interim detention order made on 17 June 2020 is rescinded. 2. The supervision order made 20 June 2019 is rescinded. 3. The respondent be detained in custody for an indefinite term for care, control and treatment under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). 4. The applicant shall use all reasonable endeavours to ensure that the reports of Dr Ken Arthur and Dr Scott Harden provided in the course of these proceedings, the judgment of the court, and the transcript of the hearing on 23 November 2021 are provided to appropriate treatment providers for the purposes of treatment and assessment under this order. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was subject to a supervision order made under the -- 1 of 7 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003 – where the respondent breached conditions of the continuing detention order – where the applicant applied for rescission of the supervision order – whether the order should be rescinded. Attorney-General for the State of Queensland v Francis [2012] QSC 275, cited Kynuna v Attorney-General [2016] QCA 172, cited Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 22 COUNSEL: Applicant: M Maloney Respondent: V Trafford-Walker SOLICITORS: Applicant: Crown Law Respondent: Legal Aid Queensland [1] By an application filed on 17 June 2020, the Attorney-General applied under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) for rescission of a supervision order made by his Honour, Justice Davis, on 20 June 2019 and an order that the respondent be detained in custody for an indefinite period for care, control or treatment. [2] The 20 June 2019 order imposed the following requirements upon the respondent, namely that he was required to: “16 respond truthfully to inquiries by a Corrective Services Officer about his activities, whereabouts and movements generally; 41 obtain the prior written approval of the Corrective Services Officer before accessing a computer or the internet; 45 obtain prior written approval of a Corrective Services officer before possessing any equipment that enables him to take photographs or record moving images; 47 advise a corrective services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by you within 24 hours of connection or commencement of use, including reporting any changes to mobile phone details; 48 except with prior written approval from a Corrective Services officer, not own, possess or regularly utilise more than one mobile phone.” [3] The respondent concedes that he has breached each of these abovementioned requirements. He further accepts that the Court would be satisfied on the balance of probabilities that the respondent has contravened the 20 June 2019 order. Having regard to the evidence before me, I find that the respondent has contravened requirements 16, 41, 45, 47 and 48 of the 20 June 2019 order. [4] The respondent was returned to custody via an arrest warrant on 12 June 2020 and was charged with five offences pursuant to s 43AA of the Act for contravening the -- 2 of 7 -- requirements of the 20 June 2019 order. Following the finalisation of the five s 43AA charges, items belonging to the respondent were provided to police, which resulted in criminal charges and further s 43AA charges being laid against the respondent. [5] The respondent was charged on an indictment with two offences of possessing child exploitation material under s 228D(1)(b) of the Criminal Code. The offences arise following an investigation involving a number of electronic devices belonging to the respondent being examined, including a mobile phone, a laptop and two USB storage devices. The examination of those devices discovered some 2710 images and 26 videos meeting the definition of child exploitation material. [6] The charges were dealt with in the District Court on 21 September 2021. The respondent entered pleas of guilty to all of the charges. For the two counts of possessing child exploitation material, he was sentenced to three years imprisonment to be suspended after 375 days for a period of three years. For the further two offences, the respondent was sentenced to six months imprisonment suspended after 375 days pre-sentence custody for a period of three years. [7] Pursuant to s 22(2) of the Act, upon being satisfied on the balance of probabilities that the respondent has contravened a requirement of a supervision order, then unless the respondent satisfies the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured, the Court must, in the case of an existing supervision order, rescind the order and make a continuing detention order. The onus is on the respondent to demonstrate that the adequate protection of the community can be ensured by his release again on supervision. [8] In Kynuna v Attorney-General [2016] QCA 172 at [60] the Court observed: “The reference to ‘the adequate protection of the community’ in section 22(2) and section 22(7) is clearly a reference to that term as explained in section 13, that is, adequate protection of the community from the unacceptable risk that the appellant will commit a serious sexual offence, namely one involving serious violence of the kind discussed in Phineasa, which caused or was likely to cause significant physical injury or significant psychological harm.” [9] In Attorney-General for the State of Queensland v Francis [2012] QSC 275, Byrne SJA observed at [64] and [65]: “[64] But where contravention of the supervision order is proved, the Act does not require continuing detention unless the prisoner can show that the supervision order would in future be complied with. Rather, continuing detention is the consequence unless ‘adequate protection of the community’ can be ensured by ‘a’ supervision order. [65] The inquiry focuses on whether a supervision order would be efficacious in preventing the commission of a violent sexual offence.” [10] The respondent accepts that pursuant to ss 22(2) and (7) of the Act, the onus is on him to satisfy the Court that the adequate protection of the community can be ensured by reason of a supervision order. The respondent also does not contest the applicant’s submissions that the 20 June 2019 order should be rescinded and that the respondent -- 3 of 7 -- be detained in custody for an indefinite period for care, control or treatment, that is, a continuing detention order. [11] That concession by the respondent is made against the background of the evidence of two psychiatrists, who have provided reports in this proceeding. The first psychiatrist, Dr Harden, has relevantly opined as follows: “The actuarial and structured professional judgment measures I administered in combination with my clinical assessment would suggest that his future risk of sexual reoffence is above average (moderate to high). If he were to reoffend, it would be likely to be either the viewing of child exploitation material or hands-on sexual offending against a prepubertal girl involving grooming. The risk of physical harm is low and the risk of psychological harm is significant.” My assessment of this risk is based on the combined clinical and actuarial assessment. The critical risk issue for this man is his deviant sexual attraction to prepubertal girls with a secondary issue of developing more appropriate mechanisms for coping with psychological distress. Supervision and intervention consistent with a supervision order, in my opinion, will reduce the risk to medium (for accessing child exploitation material). The risk of ‘hands on’ offending whilst under the strictures of a supervision order would be moderate to low. This reduction in risk on a supervision order would only occur if he was released on a supervision order at a time when he feels that he is ready to deal with the stress associated with such an order and to comply with the conditions of the order. At the moment, he says (at least at the interview with myself) that he is not ready and feels that he requires more time and treatment prior to a further trial in the community on a supervision order. This would mean that the risk reduction associated with the supervision order would be minimal and the risk would remain moderate to high of sexual reoffence if he were discharged from custody on a supervision order when he had not expressed his readiness to do so. Recommendations He would prefer not to be released from custody at this time. I would recommend that if he were released from custody, that he continue on a supervision order. If he remains in custody, he should complete the High Intensity Sexual Offenders Program or similar and also have individual psychological therapy for his sexual offending with some of the therapy focussed on his paraphilia. Clearly, he should have no contact of any kind with girls under 16 years of age. -- 4 of 7 -- If he is released from custody on a supervision order, he should have the same individual psychological therapy and should undertake either the Medium Intensity Sexual Offenders Program or the Sexual Offenders Maintenance Program in the community.” [12] The other psychiatrist, Dr Arthur, relevantly opined: “Given the severity of his personality pathology and lack of treatment over the last 12 months, it is unsurprising that there has been no significant shift in prisoner KBM’s thinking or behaviour. His diagnosis remains non-exclusive paedophilic paraphilic disorder, attracted to females, and a severe Mixed Cluster B Personality Disorder with narcissistic, borderline and antisocial traits. There is an historical diagnosis of substance misuse disorder, predominantly stimulants, which appears to be in remission in a controlled environment. …Prisoner KBM has a high propensity to reoffend. His behaviour in the community whilst under supervision was indicative of a high level of sexual preoccupation and strong deviant sexual drives. …He continues to display prominent narcissistic coping strategies and overestimates his capacity for self-awareness... …Over the last 12 months, there has been little attempt at change. …Whilst I have previously opined that prisoner KBM has developed a degree of intellectual appreciation of his underlying personality pathology and now is more willing to acknowledge his deviant sexual thoughts, the effects of treatment programs to date has been modest at best and did not prevent him from reoffending whilst in the community under supervision. Utilising structured clinical judgment, I estimate his unmodified risk of sexual reoffending to be high or well above average. Recommendations As previously noted, prisoner KBM’s risk of reoffending was not mitigated by the restrictions of his supervision order, intensive psychological intervention and assertive case management. He now reports that he was not committed to the supervision process and needs to change his attitude. Whilst I agree with this sentiment, I question his current capacity and motivation to engage with treatment and comply with supervision. Although I have previously questioned the utility of group therapy, given his severe personality pathology, I would defer to the opinions of QCS program managers in regard to this. Certainly, the High Intensity Sexual Offenders Treatment Program would provide ample opportunity to challenge prisoner KBM’s narcissistic defences and facilitate the formulation of a more viable risk management plan which does not solely rely on external modifiers and requires him to take some personal responsibility for his risk. -- 5 of 7 -- Given the persistence of deviant sexual drives and sexual preoccupation, prisoner KBM would benefit from a trial of antilibidinal medication, which could be commenced in custody. He should also restart Paroxetine as this appeared to be of some assistance to him in the past.” [13] By a more recent report dated 22 November 2021, Dr Arthur materially recommended: “Based on the available medical information, there did not appear to be any absolute contraindications for the use of antilibidinal medication. Given that his persistent sexual deviance remains the primary risk factor for recidivism, it would be important to ensure that he receives effective medical treatment and his compliance is closely monitored. For this reason, I would recommend that consideration be given to an injectable GnRH agonist such as Zoladex, which is given in a monthly depot injection. Whilst this is more expensive than oral treatments such as Cyproterone or other depot preparations such as Medroxyprogesterone, Zoladex is highly effective in lowering testosterone and has a more favourable side-effect profile. I remain of the opinion that at the current time, his risk of sexual recidivism cannot be adequately managed by a supervision order based on his recent presentation and past behaviour with little evidence of attitudinal change.” [14] Against the background of this evidence, I am not satisfied that the adequate protection of the community can be ensured by a supervision order. [15] Dr Harden and Dr Arthur each gave evidence before me today. It appears from their evidence that they accept that, prior to entering into the High Intensity Sexual Offenders treatment program, it would be appropriate for the respondent to complete the Getting Started Preparatory Program. [16] A Ms Claire Kelly, who is currently employed by Queensland Corrective Services as an acting manager of the Offender Intervention Unit, and a Ms Jolene Monson, who is currently employed as the manager of the High Risk Offender Management Unit within community corrections of the Queensland Corrective Services Department, also gave evidence before me. Their evidence was to the effect that, in order to undertake the Getting Started Preparatory Program and the High Intensity Sexual Offenders treatment program, the respondent would have to be moved to Brisbane. [17] That movement, of itself, will raise important practical judgment considerations as to when the respondent should undertake any individual psychological therapy in conjunction with or separate to the High Intensity Sexual Offenders treatment program. Each of the psychiatrists expressed the view that it would be beneficial and preferable for individual therapy to be undertaken in conjunction with the High Intensity Sexual Offenders treatment program but there are at least two practical matters which will need to be considered by any relevant decision maker. First, the High Intensity Sexual Offenders treatment program is an exacting and somewhat pressurised course which needs to be undertaken by the prisoner having due regard -- 6 of 7 -- to the other requirements and realities of prison routine and lifestyle. Any individual therapy sessions would need to be undertaken in circumstances where the respondent had adequate available time to both undertake and reap the full benefit of the High Intensity Sexual Offenders treatment program. Secondly, the completion of the High Intensity Sexual Offenders treatment program may lead to the respondent being transferred away from Brisbane and any disruption to an existing well-established relationship with an individual psychotherapist would be a matter that would have to be weighed in the balance at the appropriate time. [18] The question of medications and what medications are appropriate depends upon, initially, the willingness of the respondent to undertake a course of medication and then, subsequently, any assessment as to suitability of medications by an external psychiatrist. The respondent, as a matter of some priority, would need to receive education about any proposed medications before he would be in a position to make any informed decision about his willingness to undertake and receive medications. [19] The psychiatrists were unanimous in their view that any education about possible medications and, the subsequent offering of medicinal courses, should be provided to the respondent as soon as possible. The psychiatrists were also of the unanimous view that the Getting Started Preparatory Program should be undertaken with all due expedition. Dr Arthur, in particular, noted his concern that the respondent is presently a person in distress who would stand to benefit from the programs that he identified as well as the medication that he identified. [20] In the circumstances, I am prepared to make the following orders: 1. The interim detention order made on 17 June 2020 is rescinded. 2. The supervision order made 20 June 2019 is rescinded. 3. The respondent be detained in custody for an indefinite term for care, control and treatment under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). 4. The applicant shall use all reasonable endeavours to ensure that the reports of Dr Ken Arthur and Dr Scott Harden provided in the course of these proceedings, the judgment of the court, and the transcript of the hearing on 23 November 2021 are provided to appropriate treatment providers for the purposes of treatment and assessment under this order. -- 7 of 7 --