Attorney-General for the State of Queensland v Black [2021] QSC 300 [2021] 48 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Black [2021] QSC 300 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v STEPHEN ANTHONY BLACK (respondent) FILE NO/S: BS No 10014 of 2015 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 19 November 2021 DELIVERED AT: Brisbane HEARING DATE: 1 November 2021 JUDGE: Williams J ORDER: THE ORDER OF THE COURT IS THAT: 1. The supervision order dated 8 February 2016 is rescinded. 2. The respondent be detained in custody for an indefinite term for control, care and treatment under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). 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 released to the community under a supervision order in February 2015 – where the supervision order was for a period of five years – where the respondent was alleged to have contravened requirements of the supervision order relating to the possession of child exploitation material, computer possession and use and deletion of material – where the respondent accepts that he has contravened the supervision order – where the respondent ultimately submits that he ought to be released on the supervision order without amendment or the supervision order be extended for a period of 10 years – where the applicant submits that the psychiatric evidence -- 1 of 48 -- 2 establishes that the respondent’s current unmodified risk of future sexual reoffending remains high and the psychiatric evidence is mixed as to whether the adequate protection of the community can be ensured – where the applicant contends that if the respondent is returned to the community on a supervision order, the term of the existing order should be extended for a period of 10 years – whether the applicant has satisfied the Court on the balance of probabilities that the respondent has contravened the supervision order – whether the respondent has satisfied the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its current form or as amended Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 13A, s 16, s 22 Attorney-General for the State of Queensland v Black [2015] QSC 302, considered A-G for the State of Qld v Black [2018] QSC 29, considered Attorney-General for the State of Queensland v DBJ [2017] QSC 302, considered Attorney-General for the State of Queensland v Fardon [2011] QCA 155, considered Attorney-General for the State of Queensland v McKellar [2019] QSC 92, considered Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, considered COUNSEL: J Tate for the applicant T G Zwoerner for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] This is a contravention proceeding brought by the Attorney-General for the State of Queensland seeking orders under Part 2, Division 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSO Act) in relation to the respondent. [2] Pursuant to s 22 of the DPSO Act, if the Court is satisfied that the prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order, the onus of proof passes to the respondent to satisfy the Court that the existing supervision order, despite the contravention, provides adequate protection to the community. [3] The respondent was charged with certain offences in May 2020 and pleaded guilty to all charges in the District Court on 20 April 2021. The respondent was sentenced to a term of imprisonment with a head sentence of two years six months imprisonment. [4] Psychiatric reports have been prepared by Dr Beech and Dr Arthur for the purposes of these contravention proceedings and the psychiatric evidence is “mixed” on the -- 2 of 48 -- 3 issue of whether the adequate protection of the community can be ensured at this time by the respondent’s return to the community under the existing supervision order. [5] Further, the applicant seeks an order that if the respondent is returned to the community on a supervision order, the term of the existing supervision order should be extended for a period of 10 years. Background [6] On 8 February 2015, Byrne SJA found the respondent to be a serious danger to the community. The respondent was released from custody on a supervision order containing 40 requirements. The duration of the supervision order was five years, expiring on 16 February 2021. [7] In relation to the index offence and the respondent’s criminal history, Byrne SJA stated as follows: “The respondent was born in August 1974. He has been convicted on several occasions of crimes committed over the internet concerning child pornography in Queensland, Victoria and South Australia. Most recently, in March 2013 he pleaded guilty to several counts charging Commonwealth offences, including using a carriage service for child pornography material and using a carriage service to cause child pornography material to be transmitted to himself, as well as a State offence of knowingly possessing child exploitation material. His criminal history began more than 20 years ago with a stealing offence. In 2006 he was convicted in the Brisbane District Court of possession of child exploitation material and sentenced to imprisonment. In Victoria, in 1999, he had been sentenced to imprisonment in respect of knowingly possessing child pornography and, in South Australia in 2002, he was sentenced to imprisonment in respect of a similar offence. The offence for which he was imprisoned in the Brisbane District Court in 2006 had been committed when the respondent was 31 and on bail. The details of the offences need not be discussed at length. It suffices for present purposes to record some of those that relate to the most recent offending: that which led to the sentences of imprisonment in this Court in March 2013. The sentencing remarks of the Judge reveal that the respondent had accessed hundreds of images that were child pornography and hundreds of videos which were to the same effect. Her Honour concluded that his behaviour involved sexual exploitation, corruption and moral degradation of children. The recorded images involved a range of activities involving adults and children, and including penetrative sexual activity. He has a history of polysubstance abuse and at one stage had been a heavy user of alcohol. … I have, in discussing the reports of the psychiatrists, adverted to considerations that are pertinent under section 13(4), including -- 3 of 48 -- 4 information indicating whether there is a serious propensity to commit serious sexual offences in future, whether there is a pattern of offending behaviour on the part of the offender, his efforts to address the causes of the offending behaviour, including participation in rehabilitation programs, and the effect upon the respondent’s participation in rehabilitation programs. His antecedents and criminal history have already mentioned and has the risk that the respondent would commit another serious sexual offence if released into the community. The need to protect members of the community from the relevant risk is evident. The risks which the psychiatrists have identified can be reduced to moderate to low by compliance with the terms of a supervision order.” [8] The respondent contravened the supervision order in June 2016. On 21 November 2016, Flanagan J found the contravention proved and commented as follows: “He commenced committing the index offences in December 2012. The respondent’s activities were uncovered as a result of a covert police operation. He was involved in downloading child pornography in the course of 19 separate instances, some of them using the Wi-Fi at the state library. This included 933 images and 226 movie files. His conduct extended to sharing child pornography and to making it available to other users. In sentencing the respondent Justice Ann Lyons stated as follows. It is clear that you have by your behaviour been involved in sexual exploitation, corruption and moral degradation of children. Your offending is such that strong denunciation and deterrence are factors which are particularly powerful, and they are factors which have ultimately influenced me in considering that an overall penalty for the most serious of the offences of five years should be imposed. The current offending involves children, and general deterrence is a paramount consideration. There were a huge number of items involved, and the content of those items is particularly concerning. As I have indicated, all of the categories of the Oliver scale are involved. It is also clear that there was further distribution involved. I accept that there would be no profit to you from your sharing, but you did use the internet to access and to make available child pornography, and a very serious penalty should clearly be imposed. Justice Lyons sentenced the respondent to periods of imprisonment ranging from two and five years to be served concurrently. Presentence custody served between the 17 th of February 2011 and the 1st of March 2013, being 744 days, was declared as time served. For the Commonwealth offences a single non-parole period of two years, six months was fixed. For the state offence a parole eligibility date of 17 August 2013 was set. Turning then to, the psychological and psychiatric reports. I wish to commence first with the report of Ms Woods. Following the -- 4 of 48 -- 5 respondent’s release from custody pursuant to the order made by the Senior Judge Administrator he was referred to the Forensic Psychology Centre by Queensland Corrective Services for assessment and treatment. Following the respondent’s return to custody in June 2016 Ms Wood finalised an addendum treatment progress report in relation to the respondent on 18 July 2016. In that report she notes as follows. In keeping with his complex profile and enduring problems. Mr Black requires treatment of a high dosage and lengthy dosage in order to address his difficulties. He has engaged well in treatment to date and, in my opinion, has the capacity to benefit from this in the longer term. Having stated the above, there remains no evidence of Mr Black posing a risk as regards contact sexual offending. Ongoing risk therefore appears solely related to internet non- contact sexual offending. Risk should therefore be able to be managed in community if he does not have access to the internet. Whilst his procurement of a USB - and loitering in Wi-Fi areas is obviously of concern, this was identified by corrective services surveillance and monitoring at a relatively early stage, and this would suggest that any risk he poses can be managed on the order. Whilst imprisonment may well be considered appropriate as a consequence for his deliberate decision not to abide by conditions of the order, it is my opinion that another period of imprisonment will have minimal impact on factors driving his offending. However long he is imprisoned, Mr Black will return to the community order needing to address risk factors underpinning his offending in order to reduce risk. Dr Joyce Arnold was a psychiatrist to whom the respondent was referred after his release from custody in February 2016. According to Dr Arnold in her report dated 18 July 2016, the respondent has a psychiatric diagnosis of paedophilic disorder but no other psychiatric diagnosis. The main issue with respect to his assessment of prognosis and re-offending relate to his personality disorder and his paraphilia. His personality disorder is not treatable, as he has narcissistic antisocial personality disorder profile. According to Dr Arnold, the respondent has such a sense of entitlement because of his narcissism that he will not accept any restrictions on his life, especially his sex life. Dr Arnold is of the opinion that there is no known history of physical contact with children. His recent activity with USB - also shows that his risk level is extremely high and imminent, even if he has not used the USB - as yet for downloading child pornography. She states that there is little evidence that he is at risk of hands-on abuse of children, as his needs are satisfied by images alone. Two assessment psychiatric reports have been completed by Dr Beech and Dr Grant. Dr Beech’s – In Dr Beech’s report he states that the material and the contravention indicate what – he believes without supervision order Mr Black would be at high risk of re-offending. The risk would most likely involve him engaging in internet-related -- 5 of 48 -- 6 offences such as accessing and distributing child exploitation material. Dr Beech thinks that there is a moderately high risk that he would seek out another victim online as he did before. There is a lower, but in his opinion not trivial, risk that his behaviour would progress to seeking to make physical contact with a victim. As I’ve noted, however, there is yet any evidence of such abuse. Dr Beech states that a supervision order substantially reduces the risk by restricting his access to the internet. Dr Beech would recommend a continuing embargo on the use of the internet, and he would recommend ongoing treatment with Ms Woods, who appears to have developed some rapport with the respondent, to have a good understanding of his personality and be able to challenge and direct him appropriately. Dr Grant is of the opinion that the contravention of his supervision order indicates the difficulties the respondent represents in terms of living with a supervision order. He has a drive to be secretive and to test limits, and it is not surprising that he has at this stage contravened his supervision order by obtaining a USB - this contravention has resulted in his return to custody, but in Dr Grant’s opinion there is no clinical reason why he should remain in custody. The supervision order was effective in identifying his contravention at an early stage. Clearly he represents challenges in supervision, but the order was effective and reduced the risk in the community. Dr Grant recommends that the respondent be returned to the community on the same supervision order with continued individual therapy and continued efforts to encourage appropriate social rehabilitation. The order should remain, according to Dr Grant, for at least the original five years.” [9] In the circumstances, Flanagan J released the respondent to the community under a supervision order in the same terms as ordered by Byrne SJA on 8 February 2016. [10] The respondent again contravened the supervision order in May 2017. On 26 February 2018, Lyons SJA considered the respondent’s risks at the time of the second contravention and stated as follows:1 “[13] The contravention arose in the context of the respondent attending at the Department of Housing for an appointment and whilst waiting for the Department of Housing to open he began communicating with an adult woman who had an infant child and another child with her. He confirmed to QCS staff that he had contact with the woman and the two male children. He denied however any form of direct or indirect contact with the children. He subsequently made an admission that he had contact with another adult female who had the care of a ten year old female child on the same date. He made admissions to spending time with the woman and her child on 4 May 2017 for almost three hours. The respondent spent a considerable amount of time in the Department of Housing waiting area 1 A-G for the State of Qld v Black [2018] QSC 29. -- 6 of 48 -- 7 talking to the mother and child and then he had travelled with both of them to the bakery across the road from the Department of Housing as well as McDonald’s. He also visited a public toilet and used an ATM. [14] As a result of the contravention, the Respondent was charged with an offence under section 43AA in the Richlands Magistrates Court. On 14 June 2017 the Respondent pleaded guilty before Magistrate Warfield and was sentenced to four months imprisonment. A cumulative term of three months was imposed in relation to the suspended sentence imposed in 2016. The Respondent’s custodial end date was 18 January 2018 with respect to this sentence. [15] There can be no doubt that given the Respondent’s criminal history and index offences, a contravention of ‘Requirement 28’ must be viewed as serious. The factual background to the contravention is set out in the Affidavit of Daniel Bear a supervisor with the Wacol Probation and Parole District Office: [8] ‘On 4 May 2017, at approximately 8:00 am, Queensland Corrective Services (QCS) staff observed the respondent at 14 Wirraway Parade, Inala. The respondent was present for a Department of Housing (DOH) appointment. While waiting for DOH to open, the respondent was observed to be communicating with an adult female who had an infant child in a pram and another child standing nearby. The respondent entered the DOH office shortly after the observations. [9] The respondent’s supervising case officer directed him to report to the Wacol Reporting Centre immediately following his DOH appointment. [10] The respondent confirmed the observations of QCS staff in that he had contact with an adult female who had care of two male children while waiting for his DOH appointment. The respondent denied any form of direct or indirect contact with the children. When challenged, the respondent disclosed he was waiting for DOH to open and his conversation with the female was in respect to opening times and general conversation about rent appointments. The respondent denied any further contact with this person. [11] The respondent made further admission to having contact with another adult female, who had care -- 7 of 48 -- 8 of a 10 year old female child. The contact occurred at the DOH office on the same date. [12] The respondent made admissions to spending time with the adult female and the female child on 4 May 2017 from approximately 8:00 am to 10:45 am. The respondent stated that he spent a considerable amount of time in the DOH waiting area conversing with the mother and child, that he travelled with the both of them to the Inala Civic Centre (Kittyhawk Parade, Inala - across the road) in order to purchase food from a bakery, McDonalds, visit the public toilet and use an ATM. [13] Disclosures of note included the respondent admitting to being alone with the child during the toilet stop at the Inala Centrelink office. The respondent also disclosed that the child had left the toilet door ajar- and that he could hear her mother saying to close the door. The respondent denied observing the child. When questioned how long he was alone with the child, the respondent responded with only ‘briefly’. The respondent went on to disclose the child directly asked him ‘101 questions’ and that he directly and freely engaged with the child and that the child was performing cart wheels. The respondent clarified he diverted his eyes away on this occasion so as to not see under the child’s dress. [14] The respondent was questioned in respect to his supervision order requirements pertaining to contact or maintaining contact with children. The respondent stated he was ‘being nice’ and he did not want to be rude or draw attention to himself. He acknowledged he had numerous opportunities to cease interaction, however he was just ‘being nice’ and ‘wasn’t thinking’. He stated he was ‘trying to minimise interaction with the child as nicely as I could’. The respondent stated ‘he knew he was stuffed after talking to them’ but ‘thought he was just being friendly following general conversation’. The respondent repeatedly denied engaging the child in conversation rather only admitted to engagement with the child when the child directly asked him a question. [15] This information was passed on by QCS to detectives from the Serious Offender Team, Child Protection Offender Registry, the Queensland Police Service (QPS) for investigation. Detectives -- 8 of 48 -- 9 subsequently obtained CCTV footage from the DOH office taken on 4 May 2017 and passed this onto QCS. The footage depicts the respondent interacting with an adult female and a female child over a period of time. [16] Detectives spoke with an adult female and her daughter on 24 May 2017. The adult female advised she is 25 years old and the female child is her daughter, who is 10 years old. [17] She stated that she had struck up a conversation with a man she now knows as ‘Steve’ in the DOH office on 4 May 2017. She stated she had never met Steve before. They stayed together at the DOH waiting for their appointments. She believed they were together at this location for about one hour. [18] As they were too early for their appointments, and her daughter ‘A’ was hungry, she invited Steve to go to the bakery with them for something to eat. The three of them walked to the bakery together, and she purchased food for herself and her daughter. She said Steve did not buy anything because he did not have any money. [19] After they had eaten the food, they walked back to the DOH office together for their meeting. They all sat together for about 15 minutes. She could not recall exactly what they were talking about other than houses. [20] She was asked if Steve had spoken to her daughter and she replied words to the effect of, ‘yes a lot, in fact more than a lot’. She stated that he spoke to her daughter more than he spoke to her. She actually stated that most of the communication was between her daughter and Steve. [21] After finishing at the DOH, she went straight home in her own car and she believed Steve stayed at the DOH. She did not obtain any contact details for Steve and she did not give any to him, No arrangements were made to meet each other again. He was never left with her daughter ‘A’ alone. She could not recall seeing any physical contact between Steve and her daughter ‘A’. [22] Steve asked her daughter questions about what school she attended, her age etc, she recalled Steve saying something similar to, ‘How old are you darling?’ and she replied ‘10’. He asked, ‘What’s your name?’ and she told him. She was -- 9 of 48 -- 10 shocked that her daughter gave out all her information and later told her not to tell strangers about personal details. She also recalled at some stage due to her daughter’s friendliness towards Steve that her daughter suggested that Steve could live with them.’ … Dr Aboud’s Report [19] In Dr Aboud’s opinion, the Respondent’s likely scenario for reoffending is through this pathway: ‘Should he reoffend, one would speculate that it would most likely take the form of offences involving possession or distribution of child pornography and it would involve use of the internet. There is a far lesser possibility that he might commit a contact sexual offence upon a minor. Such an offence would most likely be opportunistic and would rely on victim access and probable grooming behaviour, perhaps in the context of family friend or even partner of the child’s mother. His victim profile, for either type of offending, would be a female child of pubescent or prepubescent physical development. His stated preference is for girls of age 11 to 13, but in actuality he would be attracted to females much younger and also older (as indicated by his choices in child pornographic material). He would be more vulnerable to offending when experiencing negative affective states, abusing alcohol or illicit drugs, gambling heavily (marker of negative affective state), lonely, frustrated or angry. At such times, he is more likely to resort to using sexual activity to regulate emotions, and may attempt to access pornographic material. He is prone to telling lies and playing games, so as to outsmart the system. Thus he has been known to derive satisfaction from using free wifi or to cleverly deceive supervising staff.’ [20] Ultimately Dr Aboud considered that after taking into account all the various instruments, it was his view that the respondent’s overall unmodified risk of sexual offending would be high and that the offending behaviour would most likely take the form of attempts to access, possess or distribute child pornographic material. He considered that his risk of escalating to a contact sexual offending is much lower but it cannot be discounted. He considered his risk of non-sexual violence would be low and his risk of general offending would be moderate. In coming to that conclusion he took into account ‘his deviant paedophile drive, his anti-social personality structure, his psychopathic traits, the extent of his general offending history, his previous vulnerability to alcohol and other disinhibiting substances, his -- 10 of 48 -- 11 poor adaptive coping and problem solving skills, his impulsivity, his demonstrated poor judgment, his tenancy to minimise and externalise responsibility and his underlying psycho-social difficulties associated with his mildly autistic features that frustrate his social and communication style.’ [21] Dr Aboud considered that the contravention occurred in the context of general stresses associated with his frustration at the restrictions placed on him, his lack of progress in finding alternative accommodation and his inability to control his urge to interact with a female minor. He considered that in theory the various stressors he was encountering could have provoked an escalation of risk and that risk was immediately de-escalated when he was removed and re-incarcerated. He considers it possible that if the contravention had not been identified he would have rapidly escalated towards similar opportunities. Ultimately, Dr Aboud considered: ‘It is my view that in the context of a supervision order he could again be released to the community. He will require careful support, inclusive of: stable accommodation; ongoing psychologist attendance, to focus on adaptive coping and problem solving, and in particular his underlying social and communication difficulties and core personality vulnerabilities; monitoring of associations; abstinence from alcohol and substances; prohibition from gambling; prohibition, or very stringent monitoring, of internet use.’ [22] Ultimately Dr Aboud considered that if subject to a supervision order with similar requirements the risk of sexual reoffending would be moderate to low. Dr Beech’s report [23] In his most recent report dated 26 November 2017, Dr Beech referred to his previous assessments and the respondent’s criminal history and antecedence. Dr Beech concluded: ‘Mr Black has significant narcissistic dyssocial personality traits, although it is a fragile narcissism that often requires validation from others. He has taken umbrage at the notion that he is a ‘contact’ sex offender, and sees no reason for conditions that restrict his access to children. In my opinion, it is more likely that Mr Black simply chose to flagrantly breach the condition, possibly because he thought it would go undetected. He may though have at the time prioritised his contact with the woman, and the sense of validation he obtained from the interactions whereby he was providing information to her and thus boosting his self-esteem. This does not easily reconcile with her account that Mr Black seemed more -- 11 of 48 -- 12 interested in her daughter and much of the conversation was with her daughter.’ [24] Dr Beech also considered that it is difficult to know to what extent the respondent’s behaviour was a form of ‘predatory grooming’. He continued: ‘Mr Black does not have any convictions for hands-on offences but I would see his manipulation of the young girl in 2013 as a ‘contact’ offence, an interaction with an identifiable victim whom he coerced into sending images.’ Should the respondent be subject to a continuing detention order or a supervision order? [25] There can be no doubt that the respondent has contravened the supervision order, most recently in May 2017. In particular, he contravened Requirement 28 – that he not establish or maintain supervised or unsupervised contact with a child under 16 without prior written permission. I am satisfied that the contravention has been proved and indeed the respondent has previously pleaded guilty to the contravention of the conditions of the supervision order. [26] Pursuant to s 22, subsection 7 of the Act the onus is on the respondent to satisfy the court on the balance of probabilities that the adequate protection of the community, can despite the contravention, be ensured by a supervision order. Having considered the reports of Drs Beech and Aboud, I am satisfied that the respondent has satisfied the onus on him to establish that the adequate protection of the community can be ensured by the supervision order. Section 22 provides that the court on the hearing of the contravention proceedings may rescind a supervision order and make a continuing detention order or can return the respondent to the community under the supervision order, amended if appropriate. [27] I am satisfied that given the respondent’s criminal history and index offences and his contravention, that the contravention is not minor and he has struggled to live within the terms of his supervision order. However, as Dr Beech and Dr Aboud make clear, the supervision order has been effective in detecting breaches. I am satisfied that whilst the respondent’s unmodified risk of future re-offending is likely in the high range, that with a supervision order with the current conditions the risk is reduced to an acceptable level and is within the moderate to moderate to low range. [28] I am satisfied therefore that there is acceptable and cogent evidence to support the respondent’s return to the community for treatment, care and control under the existing supervision order and I am satisfied that the current supervision order -- 12 of 48 -- 13 adequately manages the risk of future re-offending.” (footnotes omitted) [11] On 26 February 2018 the respondent was released from custody subject to the supervision order made by Byrne SJA on 8 February 2016. Current contravention [12] The current contravention is that the respondent contravened requirements 8, 9, 34, 36, 38 and 39 of the supervision order relating to the possession of child exploitation material, computer possession and use, and deletion of material. [13] The relevant supervision order requirements are as follows: (a) Requirement 8: not commit an offence of a sexual nature during the period of the order; (b) Requirement 9: not commit an indictable offence during the period of the order; (c) Requirement 34: except, with prior written approval from a Corrective Services officer, not to access or use the internet or possess, own or regularly use any device which has internet capability such as, but not limited to, a computer, mobile phone or gaming device; (d) Requirement 36: obtain the prior written approval of a Corrective Services officer before possessing any equipment that enables him to take photographs or record moving images. (e) Requirement 38: not access pornographic images that display photographs or images of children on a computer or on the internet or in any other format; (f) Requirement 39: not collect or retain any material that contains images of children, and dispose of such material if directed to do so by a Corrective Services officer. [14] The circumstances of the contravention are as follows: (a) On 11 May 2020, during a home visit by the Electronic Monitoring and Surveillance Unit staff, a device which appeared to be a laptop was observed in the respondent’s residence. The respondent had not requested and did not have approval from Queensland Corrective Services to own, possess or utilise a computer or tablet. This information was provided to the Queensland Police Service Serious Offender Team. (b) A search warrant was executed on 19 May 2020 and Queensland Police Service located a Laser brand tablet which had Wi-Fi capability, and which the respondent did not have approval to possess. During questioning, the respondent admitted to having accessed Child Exploitation Material (CEM) on the device. [15] The respondent was subsequently arrested and charged in respect of four offences of contravention of the supervision order pursuant to s 43AA of the DPSO Act and one offence of using a carriage service to access child abuse material pursuant to s 474.22(1)(A)(i) and (aa) and (b) of the Criminal Code Act 1995 (Cth). -- 13 of 48 -- 14 [16] On 20 April 2021, the respondent pleaded guilty to all charges in the District Court and was convicted of the following: (a) One count of use carriage service to access child abuse material (s 474.22 Criminal Code Act 1995 (Cth)); (b) One count of possessing child exploitation material (s 228D Criminal Code Act 1899 (Qld)); (c) Four counts of contravention of relevant order (s 43AA DPSO Act); and (d) Breach of suspended sentence (s 146 Penalties and Sentences Act 1992 (Qld)). [17] For the purposes of the sentence, the Prosecutor summarised the respondent’s criminal history as follows: “I don’t propose to trawl over the entire criminal history, but rather focus on his offending predominantly for the like offending – like conduct, for which he faces his – for today. I will note the criminal history extends back over nearly 30 years. He was first sentenced in relation to child pornography material on the 19th of November of 1999, and that was in the Melbourne Magistrates Court, where he was there sentenced for possessing child pornography, to four months imprisonment which was to be served way – by way of an intensive corrections order. He was again sentenced on the 26th of May in Melbourne, for possessing child pornography. He was there sentenced to three months imprisonment wholly suspended for 18 months. Then in South Australia on the 13 th of December of 2002, he was sentenced in relation to possessing child pornography and selling indecent material. He was sentenced to an actual term of imprisonment on that occasion; a head sentence of 15 months imprisonment with a non-parole period of 10 years – sorry, 10 months, your Honour. He then came before the District Court of Queensland and on the 2 nd of June of 2006, he was sentenced before his Honour Judge Samios for possessing child exploitation material. He was sentenced to three years imprisonment, suspended after 12 months, for four years. … … on the 28th of September of 2009, Mr Black was again sentenced in Victoria for knowingly possessing child pornography. He was sentenced to 166 days imprisonment, which was the time he had served in custody at that point. That offence breached the suspended sentence that his Honour had imposed in this court and on the 4th of February of 2010. … … I’ll move to the sentence of the 1st of March of 2013. … … That was in the Supreme Court of Queensland, here in Brisbane, and he was sentenced for a number of offences related to child -- 14 of 48 -- 15 exploitation material or child abuse material. And that included the aggravated – what’s known as the aggravated offence of making child pornography material available on three occasions to two or more people, which carries a maximum of 25 years imprisonment. He was on that occasion sentenced to an effective term of imprisonment of five years imprisonment, with a non-parole period of two and a-half years. As – I should note, in relation to that offending, I have the sentencing remarks of her Honour Justice Lyons … … … Your Honour will note from his Queensland criminal history that he has been before the court on three occasions for breaching that supervision order; on the 2 nd of August of 2016, he was sentenced to three months imprisonment to be suspended for three years, for breaching the supervision order. … … On the 14 th of June of 2017, he was again before the court for breaching the order and was also dealt with for breaching that earlier suspended sentence, and served – was sentenced to four months imprisonment in relation to the breach and the three months suspended sentence was invoked, and that was accumulative and he was given a parole release date of the 14 th of August of 2017. And then most recently, on the 21st of February of 2020, he was before the court for breaching the order on three occasions and he was sentenced to two months imprisonment, which was suspended for 12 months. The current offending breaches that suspended sentence, your Honour, and I’ll be – it will be sought that he be dealt with in relation to that breach on this occasion. … … Your Honour, the defendant’s criminal history shows that the protection of the community and specific deterrents loom large in the sentencing considerations of your Honour this morning, and any sentence should reflect those.” [18] In sentencing the respondent, Kent J imposed a head sentence of two years six months imprisonment, with lesser sentences on the other offences. Time spent in pre- sentence custody of 335 days was declared. In relation to the breach of suspended sentence, the suspended sentence was fully invoked to be served concurrently. Statutory provisions [19] Section 22 of the DPSO Act deals with contravention proceedings and states as follows: “22 Court may make further order (1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has -- 15 of 48 -- 16 contravened, a requirement of the supervision order or interim supervision order (each the existing order). (2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must— (a) if the existing order is a supervision order, rescind it and make a continuing detention order; or (b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order. (3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following— (a) act on any evidence before it or that was before the court when the existing order was made; (b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order— (i) in the nature of a risk assessment order, subject to the restriction under section 8(2); or (ii) for the revision of a report about the released prisoner produced under section 8A; (c) consider any further report or revised report in the nature of a report of a type mentioned in section 8A. (4) To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a). (5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies. (6) For applying section 11 to the preparation of the report— (a) section 11(2) applies with the necessary changes; and -- 16 of 48 -- 17 (b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist. (7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court— (a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and (b) may otherwise amend the existing order in a way the court considers appropriate— (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment. (8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).” [20] Davis J in Attorney-General for the State of Queensland v McKellar2 considered the operation of s 22 of the DPSO Act and observed: “[12] By s 22, once a contravention is proved, the Court shall rescind the supervision order and make a continuing detention order3 unless the prisoner satisfies the Court that continuation on supervision in the community (either on the supervision order as it stands, or with amendment) will ensure the adequate protection of the community.4 It is well established that the concept of ‘the adequate protection of the community’ in s 22(7) has the same meaning as it bears in s 13.5 Therefore, prisoners facing an application under s 22 must prove that the supervision order will ensure adequate protection of the community by removing unacceptable risk that they will commit a serious sexual offence.” [21] Accordingly, it is relevant to consider s 13 of the DPSO Act, which states as follows: “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is 2 [2019] QSC 92. 3 Section 22(2). 4 Section 22(7). 5 Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]; see also Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36]. -- 17 of 48 -- 18 a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (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; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; -- 18 of 48 -- 19 (i) the need to protect members of the community from that risk; (j) any other relevant matter. (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (6) In deciding whether to make an order under subsection (5)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [22] A prisoner is a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or released without a supervision order being made (s 13(2) DPSO Act). [23] The relevant risk is the risk of commission of a serious sexual offence, that is an offence of a sexual nature involving violence or against a child. [24] It is recognised by s 13(6) of the DPSO Act, that the paramount consideration is the need to ensure adequate protection of the community. An unacceptable risk is a risk which does not ensure adequate protection of the community. [25] Bowskill J in Attorney-General for the State of Queensland v DBJ,6 made the following comments in relation to what constitutes an “unacceptable risk”: “[12] As to what constitutes an ‘unacceptable risk’, that is ‘a matter for judicial determination, requiring a value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty’. The test is not satisfied 6 [2017] QSC 302. -- 19 of 48 -- 20 by evidence of any risk that the released prisoner may commit a further serious sexual offence. What must be established by the Attorney-General, to the requisite standard, is an unacceptable risk, the determination of which involves a balancing of competing considerations. The notion of an unacceptable risk recognises that some risk can be acceptable consistently with the adequate protection of the community. [13] In considering whether a risk is unacceptable it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if the risk eventuates … [14] As observed in Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [6]: ‘Whether a risk is unacceptable depends upon the degree of likelihood of offending and the seriousness of the consequences if the risk eventuates. There must be a sufficient likelihood of the occurrence of the risk which, when considered in combination with the magnitude of the harm that may result and any other relevant circumstance, makes the risk unacceptable.’ [15] For present purposes, what is required is an assessment of the risk of the released prisoner committing a serious sexual offence in the absence of a further supervision order. Relevantly, the object of the DPSOA is to ensure adequate protection of the community (s 3(a)). That does not mean the purpose of the legislation is to guarantee the safety and protection of the community. If that were the case, every risk would be unacceptable …” (footnotes omitted) [26] It is also relevant to consider s 16 of the DPSO Act and whether Corrective Services are able to reasonably and practicably manage the requirements of the supervision order. [27] Section 16 of the DPSO Act states: “16 Requirements for orders (1) If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner— (a) report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and (b) report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and -- 20 of 48 -- 21 (c) notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and (d) be under the supervision of a corrective services officer; and (da) comply with a curfew direction or monitoring direction; and (daa) comply with any reasonable direction under section 16B given to the prisoner; and (db) comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and Examples of direct inconsistency— If the only requirement under subsection (2) contained in a particular order is that the released prisoner must live at least 1km from any school— 1 A proposed direction to the prisoner would be directly inconsistent if it requires the released prisoner to live at least 2km from any school. 2 A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner to live at least a stated distance from something else, including, for example, children’s playgrounds, public parks, education and care service premises or QEC service premises. 3 A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner not to live anywhere unless that place has been approved by a corrective services officer. (e) not leave or stay out of Queensland without the permission of a corrective services officer; and (f) not commit an offence of a sexual nature during the period of the order. (2) The order may contain any other requirement the court or a relevant appeal court considers appropriate— (a) to ensure adequate protection of the community; or Examples for paragraph (a)— • a requirement that the prisoner must not knowingly reside with a convicted sexual offender • a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school -- 21 of 48 -- 22 • a requirement that the prisoner must wear a device for monitoring the prisoner’s location (b) for the prisoner’s rehabilitation or care or treatment.” [28] Further, by s 13A of the DPSO Act, the Court must, if making a supervision order, set the period of supervision. Section 13A provides: “13A Fixing of period of supervision order (1) If the court makes a supervision order, the order must state the period for which it is to have effect. (2) In fixing the period, the court must not have regard to whether or not the prisoner may become the subject of— (a) an application for a further supervision order; or (b) a further supervision order. (3) The period can not end before 5 years after the making of the order or the end of the prisoner’s period of imprisonment, whichever is the later.” [29] Accordingly, it is necessary to consider the following issues: (a) Whether the applicant has satisfied the Court on the balance of probabilities that the respondent has contravened the supervision order. (b) If so, whether the respondent has satisfied the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its current form or as amended. Finding in respect of contravention of supervision order [30] The respondent accepts that he has breached the supervision order as alleged by the applicant. [31] The evidence supports the finding that the respondent has contravened requirements 8, 9, 34, 36, 38 and 39 of the supervision order relating to the possession of child exploitation material, computer possession and use and deletion of material. [32] Accordingly, I am satisfied that the respondent has contravened requirements 8, 9, 34, 36, 38 and 39 of the supervision order dated 8 February 2016. [33] As a result of this finding, the onus of proof passes to the respondent to satisfy the Court that the existing supervision order, despite the contravention, provides adequate protection to the community. Psychiatric evidence [34] For the purposes of these contravention proceedings, the respondent was interviewed and reports were prepared by Dr Ken Arthur dated 6 September 2021 and Dr Michael Beech dated 24 September 2021. -- 22 of 48 -- 23 [35] The respondent has previously been examined by Professor Nurcombe for a report dated 24 June 2015, Dr Grant for reports dated 2 December 2015 and 22 September 2016, Dr Beech for reports dated 20 December 2015, 13 October 2016 and 26 November 2017 and Dr Aboud for a report dated 16 January 2018. [36] The applicant points to the consistency in the diagnosis in respect of the respondent as follows: (a) Paedophilia (non-exclusive type, attracted to females) and, possibly, Hebephilia; (b) Antisocial Personality Disorder (with prominent Psychopathic traits); (c) Polysubstance Abuse (alcohol, cannabis and opiates) (historical evidence); and (d) Pathological Gambling (historical evidence). [37] The applicant notes there is no change in Dr Beech’s diagnostic formulation and Dr Arthur’s diagnosis does not differ from the other psychiatrists who have examined the respondent, save for the inclusion of probable mild Autism Spectrum Disorder. Dr Ken Arthur, Consultant Psychiatrist (6 September 2021) [38] Dr Arthur interviewed the respondent on 30 July 2021 at the Wolston Correctional Centre and prepared a report dated 6 September 2021. [39] Dr Arthur provided a clinical summary as follows: “[265] Prisoner Black appears to be one of a group of supervisees who has little to no insight or motivation to change, has limited engagement in treatment and is not dissuaded by the threat of returning to custody nor influenced by social pressures or moral reasoning. Ultimately, his risk of reoffending was not effectively mitigated by the provision of supervision, intensive psychological interventions or case management. [266] If released to the community under a supervision order, he represents a moderately high risk of reoffending, most likely by accessing CEM on the internet. However, his risk of contact offences is much less and could be reduced to low under a supervision order, mainly through limiting victim access. [267] Given the presence of deviant sexual interests, sexual preoccupation and the use of sex as coping, it is possible that the use of antilibidinal medication may reduce his risk of reoffending, although prisoner Black has rejected such treatment options. Likewise, it is possible that the use of psychotropic agents as mood stabilisers and/or antidepressants might act to reduce impulsivity and improve emotional regulation; unfortunately prisoner Black has refused this treatment option also. -- 23 of 48 -- 24 [268] It appears that Corrective Services are in a catch-22 situation; if prisoner Black is released to the community he will require stringent supervision with strict curfew conditions and limits on unescorted leave. [269] There would need to be restrictions placed on his use of electronic devices with stringent monitoring, and his associations would require close scrutiny. However, such measures are likely to cause him a significant degree of frustration and anger, resulting in further rejection of supervision and an escalation in his attempts to manipulate and circumvent his order. [270] Whilst individual psychotherapy may still be of benefit, this will depend on prisoner Black’s engagement. It will be difficult to gauge his progress, given his capacity for deceit. This does not suggest that psychotherapy has no value, but rather that it is unlikely to result in any significant behavioural or attitudinal change in the short term. [271] I see little value in prisoner Black repeating group treatment programs in jail. It would be advisable to recommence individual psychological therapy prior to leaving jail with a focus on his deviant sexual interests and sexual functioning. [272] The formulation of pro-social goals and engagement in meaningful activities would be of benefit. Developing strategies around meeting his sexual needs may reduce his level of preoccupation.” [40] Dr Arthur provides the following comprehensive risk statement in respect of the respondent: Propensity to reoffend Prisoner Black’s Static-99R score places him in a group of offenders whose risk of sexual recidivism is well above average. He has a number of relevant dynamic risk factors for sexual recidivism relating predominantly to his poor psycho- social adjustment and problems with manageability. Due to his severe personality pathology, he lacks internal inhibitory mechanisms such as empathy, remorse or shame. He remains sexually preoccupied with persistent deviant sexual interests. There appear to be a number of secondary gains from his recent sexual offending relating to a need to feel superior. He has proven relatively insensitive to punishment and imprisonment does not appear to be a significant deterrent. He engages in denial and blame projection. -- 24 of 48 -- 25 Pattern of offending When given the opportunity it appears that prisoner Black will rapidly return to accessing pornography on the internet. Due to his inherent problems in forming intimate and non- intimate relationships, he will return to viewing and disseminating CEM in order to reconnect with the online subculture which provides him with a sense of belonging and personal value. This behaviour is likely to intensify his deviant sexual interest and may lead to him connecting with young teenage girls in order to obtain fresh pornographic material. Attempt to change Despite extensive treatment, he has consistently failed to engage in treatment. Dr Andrews found prisoner Black resistant to therapy, deceptive, defensive and showing little motivation to address his sexual deviance. Effects of treatment programs It appears that prisoner Black has gained little from treatment to date. There is sparse evidence of any improvement in self-awareness or behavioural/attitudinal change. He remains highly egocentric, has few moral constraints on his behaviour, displays limited (if any) remorse for his offending and lacks insight/interest regarding his risk factors. (emphasis added) [41] In respect of the respondent’s risk, Dr Arthur describes the risk of reoffending as follows: “[262] Were he to reoffend, it is likely that it would be via the use of child exploitation material, both to satisfy his deviant sexual urges and to provide a sense of identity and value. In addition to the dissemination of CEM, there is also a risk that prisoner Black may return to soliciting pornographic material from young teenage girls over the internet. It is less likely that he will progress to a contact sexual offence. Possible victims include pubescent and prepubescent girls he may have contact with via social media or opportunistically in the community. The main risk would be one of psychological harm. [263] The core drivers for any future sexual offending include the gratification of deviant sexual urges, the use of sex as coping and as a maladaptive way to bolster his self-esteem. Further offending might also represent an act of angry defiance or a dysfunctional attempt to engage in an intimate relationship. [264] His risk of reoffending would be acutely increased by having access to an internet capable device, experiencing intense negative emotional states and access to potential -- 25 of 48 -- 26 victims in situations where he believes he could offend without detection.” (emphasis added) [42] Dr Arthur also provided an addendum report dated 24 September 2021 which concluded that “at the current time I do not believe that prisoner Black’s risk of sexual recidivism can be adequately mitigated by the provision of the supervision order”. [43] In reaching this conclusion, Dr Arthur states: “[3] In my risk assessment dated 30 July 2021 I opined that prisoner Black’s unmodified risk of sexual reoffending remained high. The most likely scenario is that he will return to viewing, downloading and disseminating child exploitation material both to satisfy his deviant sexual urges and to provide him with a sense of identity and personal value. I also considered there was a significant risk that he will return to soliciting pornographic material from young teenage girls over the internet, based on his past behaviour. Although I considered it was less likely that he would progress to a contact sexual offence, his interaction with a 10 year old girl in May 2017 is cause for concern. [4] It is my opinion that he remains sexually preoccupied and displays a persistent deviant sexual interest. He has proven to be insensitive to punishment and has consistently failed to engage in treatment. He is deceptive, defensive and lacks motivation to address his sexual deviance. There are potential secondary gain issues relating to the narcissistic pleasure gained from being able to breach his order undetected. He takes little personal responsibility and has essentially stated that it is Corrections’ responsibility to stop him reoffending. [5] Whilst there have been no contact offences whilst under supervision, prisoner Black has sexually reoffended by covert use of an internet capable device to download CEM over a protracted period of time. It is likely that this would have continued if he were not caught. [6] Without the provision of a supervision order he will almost certainly return to downloading CEM and if given the opportunity may progress to contact offences. He appears motivated to seek out adult relationships, which may lead to contact with children. Given his deviant sexual preferences, lack of inhibitory mechanisms and insensitivity to punishment, if given the opportunity he has the capacity to escalate into contact offending. [7] For the above reasons, it is my opinion that his supervision order should be extended. Due to the persistence of his deviant sexual interests, treatment insensitivity, lack of inhibitory mechanisms and management difficulties, I would recommend this extension be of 10 years. -- 26 of 48 -- 27 [8] The fact that he reoffended whilst on a supervision order suggests that at the time of his return to custody, his risk was not able to be adequately managed by Community Corrections. There is little evidence of any attitudinal change since that time. [9] As noted in my report, the stringent conditions required to manage prisoner Black in the community are likely to cause him a significant degree of frustration and anger, resulting in further rejection of supervision and an escalation in his attempts to manipulate and circumvent the order. As such, at the current time I do not believe that prisoner Black’s risk of sexual recidivism can be adequately mitigated by the provision of a supervision order. [10] Due to his severe personality pathology, it is unlikely that his attitudes will change in the short term and any benefit from psychological interventions will be gradual and occur over a period of many years. The most effective interventions would be those focusing on reducing his level of sexual preoccupation and deviant sexual interest. This could be managed by the use of antilibidinal medications in combination with other psychotropic agents such as mood stabilisers and/or antidepressants which may act to reduce impulsivity and improve his emotional regulation. Unfortunately, he has refused such biological treatments in the past and is unlikely to accept them. [11] It may be of benefit for him to recommence individual psychological therapy prior to leaving jail, with a focus on developing prosocial goals and finding alternate sources of self- esteem and validation. Developing strategies around meeting his sexual needs might also assist in reducing his overall level of sexual preoccupation.” [emphasis in original] Dr Michael Beech, Consultant Psychiatrist (24 September 2021) [44] Dr Beech interviewed the respondent by video-link on 6 August 2021 at the Wolston Correctional Centre and provided a report dated 24 September 2021. Dr Beech has previously prepared reports in respect of the respondent in 2015, 2016 and 2017. [45] Dr Beech considered risk and provided the following opinion: “At interview with me, as with others, Mr Black says that this offending was to spite his case manager because of the restrictions placed on him or because he perceives he was given an unexperienced case manager (below what he felt was warranted) or because there had been inconsistent if not lenient treatment of earlier breaches. In my opinion, this is a self-serving account that displaces responsibility for his offending, in keeping with his personality structure. Instead, I believe the offending represents sexual preoccupation and a reversion to accessing child exploitation material when bored, idle, or unhappy. It is possible it had been his intention all along to do this, he simply needed to find the ways -- 27 of 48 -- 28 and means while under supervision and surveillance. It is in keeping with his past offending, particularly on conditional release. I think the material indicates Mr Black has limited aversion for returning to prison. On the risk instruments used in 2015, there is little change in his risk profile. He remains at high risk of further sexual offending. The Static-99R remains the same. The dynamic factors have remained the same except that the recent offending points to a persisting dynamic risk. The limited insight, deflection of responsibility, preoccupation and persistence points to a continuing high risk of committing another sexual offence in the community on release. In my opinion, that high risk relates particularly to using the internet to access child exploitation material. This has been the predominant form of offending. I agree with Dr Andrews that it is intrinsically linked to the access and use of electronic devices. There is a lower, probably moderate, risk that he would use the internet to access a specific child as he did for the 2013 offences. There is a below-moderate risk that he would contact a child in person. The trajectory has been one of escalation up to 2013. It is difficult to know whether the trajectory has been aborted by supervision or whether he has returned simply to his predominant form of offending, accessing the internet to access, download, and share child exploitation material. While most CEM offenders do not commit a ‘contact’ offence, those who share, sell and make it have a higher risk. I believe that a supervision order substantially reduces the risk that he would contact a child in person and commit an offence, but surveillance is needed to ensure he does not establish or maintain this contact. There is a significant reduction in his ability to go online and induce a child to send images to him. His facility with electronic devices and the internet, his deceptiveness, his lack of concern about the consequences, the sexual preoccupation, and his personality structure mean that the risk that he will commit a sex offence by accessing, downloading or sharing child exploitation material remains at least moderate, probably higher, with supervision. This is particularly so when he is accommodated outside a precinct. I am uncertain if treatment would reduce this risk further. He is averse to the idea of anti-libidinal medication. Serotonin reuptake inhibitor medication might reduce some of the sexual preoccupation, but I think it is doubtful. It is difficult, in the face of Mr Black’s personality, preoccupation, and persistence to devise a supervision order that would reduce the risk of committing a sex offence to low, but supervision, monitoring and surveillance is likely to reduce the risk of committing a sex offence with a child online to moderate or below.” (emphasis added) -- 28 of 48 -- 29 Further psychiatric evidence at hearing [46] Dr Arthur gave oral evidence at the hearing which included as follows: (a) Evidence in chief: (i) “So this man has a long history of offending, and that is – the vast majority is the downloading and dissemination of child exploitation material. He’s shown no real propensity to change. He has a number of very strong static risk factors, which indicate an ongoing high risk of such behaviour. He also has a number of dynamic risk factors which remain relevant. Most of those relate to his psychosocial adjustment, his deviant sexual interests, and his difficulty in management and supervision. He’s made really no attempts to change. His engagement in psychological treatment has been described by his treating psychologist as poor. She felt that one of the major hallmarks of his engagement in therapy was his deceitfulness. He seems to … take delight in being deceitful, and he also enjoys being able to breach his order. That gives him some pleasure and excitement. So I don’t think he’s any – he’s made really any attempt to change, and his response to treatment hasn’t been significant, and, in fact, there doesn’t appear to be any real response to treatment that I could find or evidence therein of. So this is a man who is socially isolated and has very little in his life, very few interests. He’s had difficulties with attachments his whole life, with empathy. He remains pretty remorseless for his offending. And he doesn’t engage in treatment. He’s not interested in medication; he’s not interested in addressing his sexual pre-occupation. So all the factors that led to his risk and have been identified as still relevant. So when we consider him being released into the community and nothing really has changed”.7 (ii) “What we understand about people with psychopathy is that they are quite challenging to engage in treatment, and I think that Mr Black has shown many of those challenges in that, you know, he’s deceitful, he has no real motivation to change, he has very little moral imperative to change. In fact, he sort of enjoys the challenge of trying to beat – beat the restrictions placed on him. He’s not very empathic so it’s difficult to appeal to his sense of empathy or care for other people. And so the focus of treatment is often in trying to find something that the patient wants that seems to fit with society’s desires, and trying to find something to collaborate with, and that’s been very difficult with Mr Black”.8 (iii) “Well, Mr Black told me very clearly that he felt the reasons for his offending were that he wasn’t trusted. And so his logic was, well, you don’t trust me, or Corrective Services didn’t trust me to do the right thing, and so therefore that made me frustrated, and I did the wrong thing, and if you’d trusted me and given me more leeway, then I wouldn’t have done the wrong thing. So he seemed to be implying that it was the fault of Corrective Services for not trusting him. Yet on the other hand he said, well, it’s Corrective Services’ fault that I reoffended because they gave me too much leeway, they didn’t supervise me stringently enough, they 7 T1-4, L41-T1-5, L14. 8 T1-5, L37-45. -- 29 of 48 -- 30 didn’t recognise that I could have done these things, and therefore they’re at fault. So on one hand he’s saying he’s – he wasn’t trusted, and his supervision was too stringent, and on the other hand he’s saying it wasn’t stringent enough. So essentially what he’s saying is, whatever you do, I’m going to be upset with it, and then when I’m upset I tend to reoffend just in order to show how upset I am.”9 (iv) “And that leads back to my further – my previous comments, where he said that it was their fault because they – they weren’t stringent enough, and he talked about being allowed to go shopping in places where he previously wasn’t allowed to go shopping, where he was able to purchase these devices, and he, essentially, seemed to take great glee in proving that they were inadequate in their ability to stop him from reoffending”.10 (v) “You’re making it sound like Mr Black considers it almost to be a game?---That’s how it appeared to me, and that’s how he represented it when I interviewed him, and – and that fits with the observations, I think, of his treating psychologist, in that he seems to get pleasure from being able to beat the system, and he was quite open about the times that he had done so in the past. And so, as far as I can see, this is a way that he can maintain some sort of sense of control over his situation. By beating his supervision order and reoffending, not only does he get sexual gratification from that, but he also gets a sense of worth, that he’s worth something, that he’s able to beat the system”.11 (vi) “I mean, I acknowledge that – that Mr Black was supervised in the community for two years … before he was returned to custody. That wasn’t two years where he behaved himself. I mean, there were numerous breaches, and there were numerous difficulties that corrective services had in supervising him. My – I suppose I came to that conclusion based on the simple fact that this man would not say that he wouldn’t reoffend. In fact, he essentially said to me that he would reoffend and, therefore, it was up to corrective services to stop him doing so, but he also said that if corrective services were too harsh on him or he perceived them to be unfair, that he would reoffend in order to – to punish them and to show them they weren’t very good at their job. So this is a man who, one way or the other, is essentially saying, ‘I’m going to reoffend.’ Now, corrective services, if they were able to keep him under 24-hour supervision, if he was never allowed in the community unsupervised, if he wasn’t allowed to associate with other people that had internet-capable devices, then, theoretically, corrective services could stop him from downloading CEM by making sure that he had no access to the internet, but the practicalities of that, I think, aren’t – it isn’t really possible to do that. If he’s on the precinct, he can’t be isolated from other supervisees. Other supervisees have access to mobile phones and data, so I think it would be very hard to ensure that he didn’t have the opportunity to do that. Furthermore, he has to go into the community at some stage. The point of the supervision order is progression, so I think the first opportunity that he has to take advantage of accessing an 9 T1-6, L9-22. 10 T1-6, L40-45. 11 T1-7, L1-9. -- 30 of 48 -- 31 internet-capable device – I think the risk is quite high that he will use that opportunity”.12 (vii) “… I don’t think we really understand Mr Black that well. I don’t think he’s been honest and forthcoming about many aspects of his sexuality. What we do know is that he has a long history of downloading CEM and disseminating that. He gets sexual pleasure from it, but it also gives him a sense of purpose and a place in that world. He sees himself as someone who’s useful to other people who are interested in that material. So there’s an inherent – well, there’s a number of – of – of motivators for him to continue to do that. There was some escalation in that, in 2010/2011, I believe, he had made direct contact with someone over the internet, a underage girl, and procured pornographic material from her, so that can be seen as an escalation. There’s some concern his observation in the community under supervision when he – I think the last time he was returned to custody before the current one, where he was noted to be interacting with a woman and her young daughter, her prepubescent daughter, at Centrelink. I believe he spent some time with the family, and there were concerns that he was showing an inordinate amount of attention towards the child … rather than the mother. So what we have is – we have a history of someone who hasn’t committed a contact offence but someone who maintains a deviant sexual interest, and, therefore, there’s a risk, I think, of an opportunistic offence. I think the other area of concern is that if he’s not availing himself of child exploitation material, there’s a concern of maybe – where else does this man get, you know, satisfaction for his deviant sexual fantasies and desires, and there’s a possibility that there’s an opportunity that may escalate his risk to a contact offence because he doesn’t have his normal outlet”.13 (viii) “Can I return now to CEM. Unmodified … what is the risk that he will be released and commence - - -?---High. High. Do you see a supervision order reducing that risk?---Well, it’s going to reduce it somewhat, and – and the evidence has shown that it makes it harder for him to access the internet, it’s harder for him to find an internet-capable device, so there’s some reduction in risk. But because of his ongoing deviant sexual interest, his unchanged attitudes, and the secondary gains he gets from that activity, which is not just sexual, then I think it’s still quite significant. So I estimated it would drop from high to moderately high under a supervision order, only if the most stringent conditions would apply”.14 (ix) “One scenario is that there’s an aspect of Mr Black’s behaviour in which he wishes to get caught, just so he can prove that he’s done something he wasn’t allowed to do. But in the other scenario, that he continues to offend, and he’s not detected, then we know that he’s escalated in the past, to having direct contact with – with young – with minors, over the 12 T1-7, L19-42. 13 T1-8, L11-35. 14 T1-9, L23-34. -- 31 of 48 -- 32 internet. There’s no reason he couldn’t do that again. And so therefore, there is that risk as well”.15 (x) “the data that we have, and we have to go on what we have, not what Mr Black necessarily tells us, is that it’s a very high likelihood he’ll continue to download CEM, based on historical factors, the likelihood of him progressing to a contact offence, if you want to call that a serious sexual offence, is much lower. There were concerns about his behaviour, and that’s very concerning, in somebody of his – with his deviant sexual interests, that he’s showing an interest in that child. That really concerns me, and what we do know is that, you know, people with paedophilic deviant sexual interests, are at higher risk of an opportunistic offence. So there is that risk there, but it’s certainly not as high as downloading CEM”.16 (xi) “If it’s seen as a challenge not to comply?---Yes, I – I think that differentiates him from many other people on the supervision order, in that there’s a secondary gain issue there, that – that’s in addition to his deviant sexual drives. And that’s obviously, a concern as well. And I think the drive for him to not comply is quite a strong one, and when I interviewed him, it was very clear to me, that he was telling me that he gained enjoyment and pleasure from his non-compliance and proving that he could get away with not complying with his order”.17 (xii) “We’re really hampered by a lack of data, your Honour. I think that – and unfortunately, Mr Black can’t or won’t tell us what happens to his sexual preoccupation. His deviant sexual interest under the order, whether it’s escalated by his access to CEM, whether it’s reduced by his access to CEM. So I think we’re speculating. I think what your Honour’s asking is, is his noncompliance a risk factor that would lead to a contact offence, or a more serious offence. And I think the answer to that is yes, it is, but I think so far, the supervision order has mitigated against that, and any activity directed towards that was identified quickly and acted upon”.18 (b) Cross-examination: (i) “So would you agree that perhaps the supervision order is working, in terms of stopping him from contacting children on the internet?---Look, I think – I think there’s no evidence he’s done it so far … There’s nothing before the court?---There’s no evidence he’s done it so far. That doesn’t mean he hasn’t done it, we just don’t have evidence of that. What we do know, is that he is – he’s not truthful and honest about these things. We do know that he has an ongoing deviant sexual interest, which hasn’t really been modified. And we do know that his attitudes haven’t really changed. 15 T1-12, L29-34. 16 T1-12, L44-T1-13, L6. 17 T1-13, L11-17. 18 T1-13, L27-35. -- 32 of 48 -- 33 Sure?---So I don’t see that there’s been any change, inherent change, internally, in those risk factors from 2013 to a current date. Okay. So it’s essentially your evidence then, that his – his risk in terms of contacting teenage girls on the internet, remains as it was in 2013?--- Essentially, yes. Yes. And that – and there’s a big question mark on that because of course, we don’t really understand his motivations. We don’t understand whether the present set of fantasies – we don’t understand his level of motivation or drivers for that behaviour”.19 (ii) “That being the case, does that still take your – your opinion as the risk under a supervision order of him contacting a child on the internet to moderate?---I think, again, it’s very difficult for me to talk to that. I mean, he’s only done it once as far as we know. There was an escalation there. So escalation in offending is a pertinent risk factor – a dynamic risk factor. So it’s very hard to know, given the opportunity over an extended period of time, whether Mr Black will escalate once again to that type of behaviour”.20 (iii) “a supervision order is actually providing effective … trip wire in picking up not only the offending behaviour that’s seen him back in custody on this occasion, but the other less serious contraventions of his supervision order?---Look, I – I think it’s of some benefit. It doesn’t – doesn’t stop him and it hasn’t been able to stop him from accessing the internet and downloading CEM. Ergo it hasn’t necessarily stopped him from, you know, having contact with underage children over the internet. He hasn’t done it, but if he had the opportunity to do it. So the supervision order wasn’t effective, I suppose, in mitigating that risk. You know, it’s a risk; he didn’t do it, but the risk is there. So, again, I think it’s much more effective at mitigating the risk of a contact, an opportunistic contact offence, than it is mitigating the risk of an offence that occurs over the internet”.21 (iv) “Should he remain on a continuing detention order, what’s – what’s the difference? What’s going to happen to him?---Look, I think that’s a – that’s a really good question. I think that what we know about him in jail is that, you know, he hasn’t reoffended in jail. His access to the internet and his access to victims is very low. I think that the other thing that in jail he doesn’t have that secondary gain issue of trying to game the system. He doesn’t have an opportunity for that, and therefore he has no – no choice but to comply with the restrictions of jail. And it gives him time, I suppose, to decide what he wants, and what’s – whether it’s in his interest to comply with a supervision order and to cooperate, so I suppose that’s of some benefit to him. Compared to being in the community under a very strict supervision order, there might be an argument to say that, in fact, jail would be a more humane place for him in that the restrictions are across the board for everybody – he’s not singled out; he’s not being isolated from his peers – and that there’s no opportunity for him to reoffend or to breach the order, and therefore that makes his life a little 19 T1-14, L21-42. 20 T1-15, L7-13. 21 T1-15, L15-26. -- 33 of 48 -- 34 – little – little less fraught. I’m not necessarily saying that’s the case, but I suppose that there are different stressors to being in the community under very strict supervision that one doesn’t have in jail. So from that can I take that the real aspect in terms of his future risk is going to be more time to decide as to whether or not he wants to change, and that’s what he’ll get out of continuing his time in detention?---I think all it – the continuing detention order just mitigates his – his risk because it reduces his access. Like a blunt instrument?---Absolutely blunt instrument. Yes”.22 (v) “Okay?--- - - - and I don’t think that there’s any treatment that’s going to be readily available to him, apart from medical treatment which, up until now, he has declined, and I know that he’s put an affidavit that says he’s willing to consider medical treatment. That’s – that’s hope, I suppose. I don’t think that necessarily SSRI antidepressants or mood stabilisers will change his deviant sexual interest. It may reduce his impulsivity somewhat, but ultimately, I think, the only medical treatment that would significantly lower his risk would be anti-libidinal medication which he’s not interest in at this point in time”.23 (vi) “I think the catch 22 situation is more around his failure to accept responsibility for his behaviour, and his projection of responsibility onto corrective services, whilst at the same time rejecting their supervision. That’s the catch 22. I think the secondary gain issue has more to do with the fact that he, you know, he needs that to maintain his sense of control and self-esteem, and if you compare that with satisfying his deviant sexual interests, then that is only going to strengthen that behaviour, or make it more likely to occur”.24 (vii) “I think the word that you used was ‘glee’. The glee that Mr Black experiences when contravening a – his supervision order. Is that, in your opinion, a retrospective characterisation?---That’s what I observed. So he – he – he displayed that sense of excitement and pleasure when he was describing to me. How does that then affect your opinion about his need for control and self-esteem at the time of the act?---Well, I think that you can – you can determine from the pleasure that he gains from it also from the descriptions of what he said to the officers when they arrested him that he enjoyed, that was – that was, he gained pleasure from being able to do that. So what we know about him is that he actually has a fragile self- esteem, and that I think it stands to reason – or it makes sense to me that he enjoys getting one over, and, you know, it gives him a sense of superiority. It gives him an opportunity to criticise corrections for not doing a good enough job, which puts him in a position, you know, of superiority”.25 22 T1-15, L28-T-16 L4. 23 T1-16, L9-16. 24 T1-17, L25-31. 25 T1-18, L37-T1-19, L4. -- 34 of 48 -- 35 (c) In re-examination: (i) “Doctor, just flying from my learned friend’s questions, and probably out of fairness for Mr Black, his full-time release date is the 19 th of November next year. So, in essence, there’s about a year to go before his full-time release date. What I’d like to ask you is this. What sort of change would you like to see in Mr Black to have confidence that he could be released at the time of the expiration of his current sentence to the community under a supervision order?---I – I suppose what I’d like to see is I’d like to see Mr Black engaging in some form of discussion about his supervision order. I’d like to see him showing that he accepts some responsibility for his behaviour. I’d like to see him acknowledge that his behaviour, you know, is harmful to the people involved. I’d like him to be more honest about his sexual preoccupation and his deviant sexual interests. I’d like him to accept medical treatment. They’re things I’d like to see. Now, he’s not a candidate for a programme, because it’s one-on-one to deal with deviancy?---Yes, that’s correct. How important would some form of psychological intervention be for him in custody over the next 12 months?---Look, I think the concerns are that he hasn’t engaged in psychological therapy one-on-one yet. Not really. He turns up. But he doesn’t really engage in the process, as Dr Andrews has pointed out. So I think that for QCS to fund a suitably qualified psychologist to then attend the jail, to – to provide him psychological therapy, is a big ask given the likelihood that he’s not going to engage in that either. So I think what we’d like to see is I’d like – I would like to see some indication that he’s committed to that therapy prior to QCS providing that service to him. That could be shown in his monthly DPSOA team meetings. There could be liaisons with the QCS psychologist in the jail, who could have some discussions with him and assess his mental state and his attitudes”.26 [47] Dr Beech gave oral evidence at the hearing which included as follows: (a) Evidence in chief: (i) “Well, a lot of risk prediction is based upon past behaviour, or a pattern of past behaviour. And you can see there, if you look at his convictions, there’s a significant iterative pattern of possessing child pornography – child exploitation material. So I think that – and he’s done that despite sanctions, convictions, incarcerations, treatment, monitoring, surveillance. He’s continued to access or possess child exploitation material. I understand?---But he’s at high risk of doing that. There are – the co – two concerns that come out. The first is that in 2002, that he sold the indecent material. And so there’s a progression from not just possessing it, to selling it, and people who sell – people who go beyond just accessing, downloading, viewing it, are at a higher risk of committing a contact offence. And he’s gone – progressed then, in 2013, where he has 26 T1-19, L28-T1-20, L7. -- 35 of 48 -- 36 actually committed what I would call a contact offence, in that there’s an identifiable victim. Yes?---He posed as a 14 year old boy, induced a 12 year old girl to send indecent images. So that is a progression – it’s an escalation behaviour. It goes beyond simply the passive viewing, if you like, of child exploitation material. But people who do that are a higher risk of repeating that, of ident – of offending against an identifiable victim. Yes?---I don’t know whether that progression would ever have gone on to touching a child. I don’t know. But it’s – you can see that there is a progression there. And so that – his risk of touching a child, of progressing to that, has increased because he’s contacted an identifiable victim online”.27 (ii) “I think the most likely risk is that he’s going to return to accessing child exploitation material. There’s many reasons for that. I – he gets sexually preoccupied. He uses viewing this child exploitation material to meet his aversive emotional experiences, when he’s lonely, sad, bored, idle. He uses it when he’s angry or frustrated, uses it in – as in this case, probably, in retribution. He uses it to meet his sexual needs. He also uses it to gain – to boost his self-esteem. He – he sees it – his – the fact that he accesses it makes him feel better about himself. And there’s – in many ways, that works to – the fact that he can access it. That he can demonstrate he’s got this facility to go online and find it. The fact that he can do it deceitfully while under supervision. But in earlier reports, particularly about 2013, you can see that it had reached the point where his socialisation – his social group was other online child exploitation material viewers. But he got a sense of prowess in the way he could set- up the organisational links for viewing [indistinct] and that he was now going to produce it, make it – onsell it. The way he would get around passwords and encryptions and things like that. The way other people viewed what he could do made him feel better about himself”.28 (iii) “So the next part – way it might manifest itself is he’s going to do what he did in 2013. He’s going to go online. That viewing child exploitation material of itself won’t be enough; it won’t satisfy him at some point. Or that the way he feels about it – you know, the – this fact that he’s been able to go find it, is not going to be enough. He wants to be able to get the kudos from his online peer group, and so he’ll have to work out some way of doing that. And creating child exploitation material is a very commercial prospect. It’s very saleable. It allows you access to different peer groups. It boosts your – I guess – notoriety. So that’s something he could do. Plus, it – having a – an online identifiable victim is more sexually satisfying. So I think he could progress to that. Left undeterred, then he might seek to make child exploitation material in person. Like, he might follow a child and photograph them, videotape them, something like that. I’m – the – the worst-case scenario is that that would undeterred 27 T1-21, L3-27. 28 T1-21, L32-47. -- 36 of 48 -- 37 it. He would progress to actually touching a child, and – and doing the things to a child that he views online”.29 (iv) “I think the risk of viewing child exploitation material is high. It’s just – the pattern is there – I – to see. It’s difficult to know to what extent that 2013 offending was an aberration. Something – or something that was now part of a trajectory that has been aborted by incarceration, treatment, supervision and surveillance. And whether he would return to that if he were undetected”.30 (v) “how would you assess his risk?---Of? Downloading?---Downloading child exploitation material? Yes?---And then progressing to sharing it and things like that? Yes?---High. So the effect of a supervision order would be to reduce that to moderate?- --Yeah, I think it was – as I said, it’s probably higher than that, I think. If he’s on a precinct, there’s a – somehow a greater containment, or a greater restriction on his ability to access the internet, and maybe devices and things like that. So in the – I think it probably gets down to moderate. Once he gets off the precinct, I think the risk of it goes up to at least moderate/high, if not high. He’s – he’s almost incorrigible, when it comes to the child exploitation material. I think it comes through in the way he keeps on re – trying to access it, even under supervision, the way he just talks to Dr Andrews, about you know, where he’s thinking about how he’s going to access it while he’s in prison, that’s – I think there’s a drive there, and that’s – as I said before, it’s not just a sexual drive. It’s about him – his identify [sic] and his self-esteem, so I think it’s very high. Above moderate/high, that he’ll return to downloading it. Yes. You take a different view about contacting a child – a nominated child or an identifiable child?---Online. Do you see that as lower?---Yes, it is. Unmodified, what would that risk be?---I think it’s moderate. And moderate – I’m using words like moderate, but I think another word would be average risk. And with the imposition of a supervision order, would that risk - - -?--- It goes below average, I think. Yes. It interrupts. The – the interruption, though, if you look at his records, the interruption is not him being on a supervision order and abiding by conditions; the interruption is by surveillance. It’s surveillance that finds in the Centrelink talking to the mothers of children; it’s surveillance that picks up that he’s actually been with a child alone in [indistinct] in the toilet or walked across the village from Centrelink or something like that. It’s surveillance that picks up that he has got these devices”.31 29 T1-22, L1-14. 30 T1-22, L23-28. 31 T1-24, L4-T1-25, L3. -- 37 of 48 -- 38 (vi) “I think, Mr Black, it’s almost a cat and mouse game they’re on – they’re trying to catch him out and he’s trying to get around it. So it’s surveillance that seems to interrupt much of his progression. In this case, it was surveillance who noticed that he had a laptop in his room when they went to do a test on him”.32 (vii) “Is he ready, willing and able to comply with the term – the requirements of a supervision order?---Well, he’s able to comply. I’ll be – it’s – whether he’s willing to comply I’m not so sure. That’s – that’s the problem, I think. That’s the issue that comes out from Dr Andrews, and I think it’s the issue that comes out when you speak with Mr Black. His willingness to comply – he’s angry or frustrated by people telling him these restrictions, but he always deflects responsibility. If they’re too strict, he acts out in spite; if they’re not strict enough, he feels that they haven’t taken him seriously, so he acts out to show them they’re wrong”.33 (viii) “I think with Mr Black it’s a rolling risk that every time he’s accessed child exploitation material you have to say to yourself, well, he’s sexually preoccupied, he’s gone to this extent of viewing child exploitation material, so it’s still that salient for him, and so the risk of him committing a different sexual offence continues”.34 (ix) “I think it’s a rolling risk. If he’s accessing child exploitation material it’s a – it’s a sign he’s sexually preoccupied by that, his sexual needs are being met by child exploitation material, there’s an active interest still in children. And so the risks of the other offending – the more serious offending – even though they’re lower, those lower risks persist because he’s continued to be interested in child exploitation material”.35 (x) “But is there a risk that that accessing that material will get to a point where it’s not enough and he’ll go looking for something more?---If he keeps undeterred, I think he’ll keep on viewing it till he gets stopped by the supervision and returned to custody and things, I guess, stop then. And he probably does maybe reasonably well when he’s first released, but at some point it’s the way he meets all his needs – emotional and psychological needs – so he returns to it, and I think that over time it’s just not enough to look at the images. He’d – they found, what, 400 I think on his devices, but he boasted of viewing thousands to the police. Now, some of that may have just been boastfulness, but it’s quite possible that it became compulsive”.36 (xi) “Doctor, what you’ve done for me is raise an issue that I’d [sic] didn’t think about to ask Dr Arthur. But to what extent is it artificial to separate out risk 1 and risk 2, or are they really intertwined?---The – I think they’re intertwined. I think it’s about being left with unrestricted access to child exploitation material, and the child exploitation material community, well, eventually, progress to trying to create child 32 T1-24, L47-T1-25, L3. 33 T1-25, L5-13. 34 T1-25, L25-29. 35 T1-25, L42-47. 36 T1-26, :1-9. -- 38 of 48 -- 39 exploitation material by accessing someone online. But I – the caveat that is ultimately this being only one in-person victim. The difficulty I have is that from a peer group perspective, the peer group that he’s connected with would actually validate contact offences, wouldn’t they?---They will. It’d be available. It’d be commercial. He’d be able to show how good he is to them. He will feel better himself because he’s been able to deceive someone and get that. Because it’s not – it’s just about accessing, possessing, distributing, selling. It’s now making child exploitation material”.37 (xii) “I think you see this capacity for deceptiveness that comes through. He appears engaged, but, in fact, he’s doing all of these things. There’s a lack of ownership of the supervision process, if you like, that he doesn’t – he breaches many different rules, he gets frustrated by them, tries to work around them. There’s a – I think – a veiled hostility to the supervising officers that comes through the way he talks about them. So he might say the right things – I think he has said the right things, he’s completed a high-intensity sex offender program, he’s – I’ve read his affidavit. But I don’t know if you could accept any of that at face value. So I don’t know what I would look for. I would assume the worst; that he hasn’t changed, but he’s saying these things”.38 (b) Cross-examination: (i) “I think he’s always cooperated when he’s arrested, yes. So he’s more about the deceptiveness under the supervision process. But I think in – as I understand it, back in 2013, he cooperated then. Yes?---Yes. So the deception’s, really, set aside for corrective services?---Yeah. It’s about getting around the restrictions placed on him. He’s – prior to that, I think he’s been quite brazen. I think that 2013 offending where he’s sitting outside the State Library using their Wi-Fi to do this offending is very brazen and open; but, perhaps not that deceptive”.39 (ii) “This is not someone who’s particularly impulsive or intellectually challenged, or has led – little insight into how – what risk factors there might be. And so you’ve [sic] to guide them and say, ‘Look, you know, where are you going next week? Well, I would stay away from those places because of these reasons.’ If you managed to meet with him, he’s trying to argue that he should be able to go to this shopping centre, that he should have a Garmin device, that he should be able to go here. And when he’s told he’s can’t [sic], then he starts thinking about, ‘Well, how am I going to get hold of a device, then?’”40 37 T1-267, L32-45. 38 T1-27, L21-30. 39 T1-28, L33-43. 40 T1-30, L3-10. -- 39 of 48 -- 40 Respondent’s position [48] It is recognised on behalf of the respondent that there exists a risk that the respondent may contravene his supervision order again should the Court release him to the supervision order. However, it is contended that should the respondent contravene the supervision order by committing a further sexual offence, there is less of a risk that it will be a “serious sexual offence”. [49] The respondent also notes the applicant’s concession that the supervision order is proving to be effective in managing the respondent’s risk in operating as a “trip-wire”. [50] The respondent submits that the sexual offences in respect of the respondent’s contraventions were not “serious sexual offences” per Schedule 1 of the DPSO Act as they were not committed “against” a child. [51] In this regard, the respondent points to the decision of Boddice J in Attorney-General for the State of Queensland v Black41 which was the preliminary hearing in respect of the original order under the DPSO Act where his Honour found that of the original offences being considered by the Court, a number were not offences against a child. However, it was recognised that the email correspondence with a child soliciting photographs from the 12 year old female child, which involved some coercion, was properly classified as “against” a child. [52] It is in this regard that the respondent submits that both Dr Arthur and Dr Beech opine that the respondent’s highest risk of reoffending comes with a risk that he will again access CEM. In these circumstances, it is submitted that should the respondent reoffend sexually, it is less likely to be in the form of a “serious sexual offence” as defined by the DPSO Act. [53] However, it is conceded by the respondent that the psychiatric evidence supports the finding for a supervision order as there is a risk, albeit less, that the respondent may commit offences which do fit that definition (for example, contacting a child using the internet). [54] The submissions on behalf of the respondent also point to the affidavit material confirming that the respondent is willing to comply with the conditions of the supervision order and is also willing to engage with treatment involving psychotropic medication. However, the respondent remains reluctant to engage with anti-libidinal medication but is willing to consider the option in conjunction with medical advice. [55] Further, the respondent submitted that if he is released into the community on a supervision order, the applicant could apply pursuant to s 19B of the DPSO Act for a further supervision order within the last six months of the current order and this would provide a further safety net, if necessary. [56] It is also submitted that the requirements of a supervision order should only be as onerous as is necessary and in these circumstances, it is submitted that a supervision order of five years in duration ought to be preferred given the opinion of Dr Beech. 41 [2015] QSC 302. -- 40 of 48 -- 41 [57] Ultimately, the respondent submitted that he ought to be released on the supervision order made by Byrne SJA on 8 February 2016 without amendment. Alternatively, with a 10 year extension.42 Applicant’s position [58] The applicant submits that once the Court is satisfied that the applicant has proved, on the balance of probabilities, that the respondent has contravened a requirement of the supervision order the onus shifts to the respondent to satisfy the Court that if released, the protection of the community can be ensured with the continuation of the supervision order. [59] The applicant points to: (a) the psychiatric evidence that establishes that the respondent’s current unmodified risk of future serious sexual reoffending remains high. (b) the psychiatric evidence is mixed as to whether the adequate protection of the community can be ensured. [60] The applicant contends that the guiding statutory principle is to ensure the adequate protection of the community. It is also submitted that the possession of child exploitation material is not a victimless crime and that children are sexually abused in order to supply the market. The harm is serious and exacerbated by the continued circulation of the images on the internet indefinitely. [61] Further, the applicant contends that here there is a real issue as to whether the respondent is ready, willing and able to comply with the requirements of a supervision order. [62] Overall, the applicant contends that the respondent remains a high risk, unsuccessfully treated sex offender, with a diagnosis of Paedophilia. The applicant’s position is that whether a continuing detention order is required, or whether a supervision order is sufficient, requires judicial determination. [63] If the respondent is returned to the community on a supervision order, the applicant contends that the term of the existing order should be extended for a period of 10 years. Whether a supervision order, despite the contravention, ensures the adequate protection of the community? [64] Having found that the respondent has contravened the supervision order, it is necessary for me to determine the following issues: (a) Whether the respondent has satisfied the court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the supervision order in its current form or as amended? 42 In oral submissions the respondent conceded a ten year extension would be appropriate if released on a supervision order: see T1-45, L42–43. -- 41 of 48 -- 42 (b) If the answer to (a) above is in the affirmative, then consideration needs to be given as to whether the current supervision order should be amended to extend the period of the supervision order? [65] What is required to discharge the onus has been expressed in a number of different ways in the authorities. In order to discharge the onus, the Court must be satisfied, on all of the evidence: (a) that a supervision order will be “’efficacious’ in constraining the respondent’s behaviour by preventing the opportunity for the commission of [serious] sexual offences”;43 (b) that the likely effect of a supervision order will be to reduce the opportunity for the respondent to engage in a serious sexual offence against a child to an “acceptably low level”.44 [66] The assessment of the risk and whether and what terms of a supervision order would provide for the adequate protection of the community is not a matter for expert, particularly psychiatric, opinion. It is a matter for the Court. As recognised by McMurdo J in Attorney-General for the State of Queensland v Sutherland45 at [30], the exercise requires a: “… value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.” [67] Whilst this is so, the opinions of the psychiatrists are relevant to the consideration of whether the respondent is a serious danger to the community pursuant to s 13(4)(a) of the DPSO Act. Each of the two psychiatrists have provided their opinions in respect of their assessment of the risks and their clinical diagnoses in respect of the respondent which I consider in determining the application. [68] Whilst the psychiatrists reach two different ultimate conclusions there is some common ground, including: (a) The risk of the respondent seeking and obtaining access to CEM remains relatively high even on a supervision order. (b) The respondent is deceptive and deceitful. (c) The respondent does not take personal responsibility for compliance with the supervision order. (d) The risk of reoffending increases with having access to the internet, which in turn increases the risk of the respondent seeking to access a potential victim. (e) The risk of accessing or possessing CEM is not totally distinct from offending involving contact via the internet with a child and soliciting CEM from a child. To some degree they could be described as “intertwined” and are not necessarily distinct risks, particularly with this respondent. 43 See comments at [52] of McMurdo P, with whom Morrison JA and Applegarth J agreed in Kynuna v Attorney-General for the State of Queensland [2016] QCA 172 citing Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at [29] (Chesterman JA). 44 A-G (Qld) v Beattie [2007] QCA 96 at [19] (Keane JA). 45 [2006] QSC 268. -- 42 of 48 -- 43 (f) The respondent requires close supervision and surveillance. (g) The level of supervision required and the respondent’s attitude, including to Queensland Corrective Services, has the effect of the respondent being driven to look for ways around the supervision. Risk of serious sexual offending [69] It is accepted that CEM is not a “victimless crime” and sentences imposed for possession of CEM reflect the need for general deterrence and denunciation.46 Further, the harm done to victims of child pornography offences is not in dispute.47 [70] However, the language used in the definition of “serious sexual offence” is: “means an offence of a sexual nature, whether committed in Queensland or outside Queensland– (a) involving violence; (b) against a child; (c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years. [71] Paragraph (c) was an amendment introduced to specifically address the Court of Appeal decision in Dodge v Attorney-General for the State of Queensland [2012] QCA 280. The appeal concerned whether the offence was “against a child” in circumstances where a police officer pretended to be a 14 year old boy and was involved in chatting to the appellant online. Atkinson J, with whom Muir and Gotterson JJA agreed, concluded that the offence was not a sexual offence committed “against a child” as: “On the plain and unambiguous meaning of the DPSOA, his offence does not place him within that definition … The right to personal liberty is the most basic and fundamental of human rights recognised by the common law. As a result, the rules of statutory construction require courts to give effect to a presumption that fundamental rights have not been abolished or curtailed unless the plain words of a statute specifically do so.” (footnotes omitted) [72] Paragraph (a) has been interpreted by the Court of Appeal in Kynuna v Attorney- General for the State of Queensland as requiring an offence as “one involving serious violence of the kind discussed in Phineasa, which caused or was likely to cause significant physical injury or significant psychological harm.”48 It was recognised that while there was a real risk that the appellant could re-offend by “committing a relatively low level sexual offence, but this does not make a supervision order inappropriate”.49 46 R v Porte (2015) 252 A Crim R 294 at 309. 47 R v Porte (2015) 252 A Crim R 294 at 309. See also Professor K Warner, “Sentencing for Child Pornography” (2010) 84 Australian Law Journal 384 at 385. 48 Kynuna v Attorney-General for the State of Queensland [2016] QCA 172 at [60]. 49 See [66]. -- 43 of 48 -- 44 [73] Further, the words in paragraph (b) “against a child” have been considered in the context of the respondent at the preliminary hearing before Boddice J.50 His Honour had to consider whether the respondent’s offending included a serious sexual offence to attract the operation of the DPSO Act. Boddice J concluded: “[28] Whether a sexual offence has been committed against a child or children is a question of fact.51 It may be accepted that the counts of using a carriage service for child pornographic material including the count with a circumstance of aggravation, and the count of knowingly possessing child exploitation material, whilst offences involving or in relation to children, were not offences against a child. There was nothing in the particulars relied upon in support of each of those counts which established that the respondent had actual contact with the child or engaged with that child sufficient to support a conclusion that that offence was committed against a child or children. [29] The offence of using a carriage service to cause child pornography to be transmitted to himself is, however, in a totally different category. The particulars of that count were that the respondent had used the internet to exchange emails with a female child of 12 residing in Western Australia. He did so using a profile depicting himself as a 14 year old boy. In the course of those emails, the respondent coerced the 12 year old girl to send him four child pornography images of herself. That offence involved an actual child. It involved having the child forward pornographic images of herself to the respondent after direct communication by the respondent with that child. Such an offence, factually, is an offence against that child. The child was affected or corrupted by the respondent’s actions. The respondent is properly to be described as being “directly opposite” that child having regard to their direct communication via email.” [74] I accept the reasoning of Boddice J (and the authorities referred to in the reasons) as reflecting the correct approach of identifying a serious sexual offence in the context of an offence of a sexual nature against a child. Consequently, accessing and possessing CEM itself is not a serious sexual offence as required by s 13(4)(i) of the DPSO Act.52 [75] The practical difficulty in the current case is that the psychiatric evidence tries to compartmentalise the risks into accessing CEM, procuring offences (that is contact via the internet to obtain photographs from a child victim) and “contact offences”. The risk of accessing CEM remains relatively high regardless of whether there is a supervision order or not. The risk of a contact offence (that is involving actual physical contact with a child) is substantially reduced, and the respondent does not 50 Attorney-General for the State of Queensland v Black [2015] QSC 302. 51 Dodge v Attorney-General for the State of Queensland [2012] QCA 280 at [18]. 52 If offences such as possessing CEM are considered to be of a nature that they ought to be covered by the DPSO Act, then a legislative amendment would be required to clearly bring the offences within the statutory scheme. -- 44 of 48 -- 45 have a history of such offending in any event. What is more difficult is the risk of offending involving contact with a child via the internet to procure the child to provide sexual images. [76] Dr Beech in oral evidence described the risks as being “intertwined”. The practical risk is that if the respondent has unrestricted access to CEM this leads to the risk of trying to create CEM by accessing a child victim on-line. Dr Beech also notes the “peer group” of the CEM community increases the risk of seeking validation by making CEM, with increased validation if he has been able to deceive people to do it. [77] Further, in oral evidence Dr Beech described the risk in respect of the respondent as “a rolling risk”. That is, if the respondent is accessing CEM, it is a sign his sexual needs are being met by CEM and he has an active interest in children. As a result, the risk of more serious offending, while lower, remains. [78] Dr Arthur’s view (particularly as set out in the table setting out his risk assessment) is consistent with this. [79] In the particular circumstances of the respondent, the psychiatric evidence supports the conclusion that it is impossible to separate the risk of continued access to CEM from the risk of contacting a child to obtain “fresh” images and “make” CEM. [80] Whilst only the latter is a serious sexual offence, the commission of the lesser sexual offending increases the risk of the serious sexual offence occurring. There is evidence that in the particular circumstances of this respondent, accessing CEM could be described as a “precursor” to the respondent accessing a child victim and procuring images. [81] Accordingly, a consideration of a supervision order reducing one risk in isolation does not look at the entire risk presented. The two risks cannot truly be separated out in that fashion. [82] The evidence supports the conclusion that the risk of a serious sexual offence remains at an unacceptable level, particularly given the “intertwined” nature of: (a) the risk of sexual reoffending in the nature of accessing and possessing CEM (which remains high); and (b) the risk of a serious sexual offence in the nature of making contact with and procuring images from a child victim (which while lower, remains at least “average” due to the relationship between the two risks, particularly in respect of the respondent). Efficacy of the supervision order [83] Additionally, it is relevant under ss 13((6)(b)(i) and (ii) to consider whether the respondent can be “reasonably and practicably managed” by QCS under the supervision order. The respondent’s particular personality characteristics make this difficult. -- 45 of 48 -- 46 [84] The evidence includes: (a) The respondent has little to no insight or motivation to change. He is not dissuaded by the threat of a return to custody nor social pressures or moral reasoning. (b) If released into the community the respondent requires stringent supervision with strict conditions. (c) These strict conditions and supervision will result in the respondent becoming frustrated and angry. (d) This in turn, will lead to an escalation of the respondent attempting to “manipulate and circumvent his order”. [85] In oral evidence, Dr Arthur recognised that the respondent sees this as a “game”. Dr Beech similarly described it as being a “cat and mouse game” with the respondent trying to find ways around the supervision. [86] The evidence, in addition to the psychiatric evidence, includes: (a) Affidavit of Jolene Monson, Manager of the High-Risk Offender Management Unit (HROMU) at [14] states that QCS holds concerns regarding: (i) “The respondent’s willingness to comply with any order made by the court to adequately manage his risk to the community”; and (ii) “QCS’ ability to reasonably or practicably apply a Supervision Order to the identified risks posed by the respondent.” (b) Report of Dr Michele Andrews, Clinical Psychologist, dated 22 June 2020: (i) At line 44: “… has demonstrated a consistent history of boundary pushing” . (ii) At 54: “… this type of behaviour is a result of repeated smaller transgressions and [the respondent] perceives he is able to ‘get away’ with the transgressions”. (iii) at 55: “… Boundary pushing is inherent part of his personality and he will continue to engage in this behaviour. To this end he struggles to engage in appropriate consequential thinking or has limited concerns for consequences”. (iv) at 65: “He is insensitive to punishment and punishment that he does receive, is treated with a level of blame toward other parties. Additionally, he does not consider prison to be a deterrent for his actions as noted by his response to QCS officer … where he refers to ‘going away for a little holiday’”. (v) At 77: “At times [the respondent] found these conversations amusing, and he appeared to enjoy the idea of possessing something that QCS were not aware of. [The respondent’s] willingness to be deceptive with treatment providers is concerning”. (vi) At 107: “These are ongoing responsivity issues which are ultimately linked with his Personality Disorder (Antisocial, Narcissistic, -- 46 of 48 -- 47 Psychopathic traits) and are unlikely to change significantly across time. Moreover, he does not view prison as a deterrent and lacks internal inhibitors (eg, Empathy, remorse) to buffer against reoffending”. (vii) At 117: “… he has very limited motivation to address his sexual deviance which remains his most prevalent risk factor.” (viii) At 122: “… [the respondent] is unlikely to be open and transparent around major risks issues.” (ix) At 136: “… he may be more willing to discuss his sexual functioning, deviant thoughts or fantasies with a male psychologist. I suspect he will still engage in similar deceptive behaviours given his personality structure but he may be more willing or able to discuss sexual issues with a therapist of the same gender.” [87] While the respondent has provided an affidavit stating that he will comply with the conditions in a supervision order, this sits in stark contrast with the evidence of Dr Arthur, Dr Beech and Dr Andrews. [88] In this regard, I particularly note Dr Beech’s oral evidence that in his view the respondent’s affidavit could not be accepted at face value. [89] Section 16 of the DPSO Act is also relevant. Section 16(1)(f) contains a statutory requirement that a supervision order contain a provision that the prisoner “not commit an offence of a sexual nature during the period of the order”. [90] When this is considered in the context of s 13(6)(b) and in light of the evidence, it is difficult to conclude that the “requirements under section 16 can be reasonably and practicably managed by corrective services officers”. [91] In the current case, the issue of the respondent’s compliance with any supervision order is a significant factor. The moderation of the identified risks is entirely dependent on the efficacy of the supervision order. [92] In Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36], Morrison JA, with whom Philippides JA and Douglas J agreed, stated: “… The means of providing the protection, and avoiding that risk, is a supervision order. When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection.” [93] The issue of whether a respondent will properly comply with the order was considered in the case of Attorney-General for the State of Queensland v Fardon [2011] QCA 155. In that case, the Chief Justice, with whom Fraser JA and Mullins J agreed, said at [29]: “These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a -- 47 of 48 -- 48 regime of tight control. Of substantial present concern is the respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that “there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order”.” [94] Whilst the concept of a “compact” has been queried in subsequent decisions, these comments of the Court of Appeal stand. [95] On the evidence, there is a high likelihood that any supervision order is not going to be complied with by the respondent given his attitude to supervision and his personality characteristics, and as a result the full protection of any supervision order in moderating the risk of a serious sexual offence is lost. Consequently, the “real risk” may effectively be the unmoderated identified risks. [96] In these circumstances, the evidence establishes that: (a) the adequate protection of the community cannot be reasonably and practicably managed by a supervision order; and (b) the requirements under section 16 of the DPSO Act cannot be reasonably and practicably managed by QCS. Consideration [97] Considering all of the evidence and making the “value judgement” required, the respondent has not discharged the onus on him. I am not satisfied that the adequate protection of the community can be ensured by a return to the current supervision order or an amended supervision order. [98] The respondent’s release date on his current sentence is 19 November 2022. Dr Arthur has provided some guidance on what the respondent could do in the remainder of his time in custody to address some of the identified concerns. [99] Accordingly, pursuant to s 22 of the DPSO Act, I find that: (a) I am satisfied on the balance of probabilities that the respondent has contravened requirements 8, 9, 34, 36, 38 and 39 of the supervision order dated 8 February 2016. (b) I am not satisfied on the balance of probabilities that the adequate protection of the community can, despite the contravention of the supervision order, be ensured by the existing supervision order or an amended supervision order. [100] In these circumstances, the appropriate order is that the respondent be detained in custody for an indefinite term for control, care and treatment under the DPSO Act. [101] The order of the Court is that: 1. The supervision order dated 8 February 2016 is rescinded. 2. The respondent be detained in custody for an indefinite term for control, care and treatment under the DPSO Act. -- 48 of 48 --