Attorney-General for the State of Queensland v Wilkes [2021] QSC 245

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Wilkes [2021] QSC 245 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v HARLEY JAYMES WILKES (respondent) FILE NO: BS No 11697 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 6 October 2021 DELIVERED AT: Brisbane HEARING DATE: 13 September 2021 JUDGE: Dalton J ORDER: Application adjourned. CATCHWORDS: CRIMINAL LAW – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT SEXUAL OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where an application was made under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the respondent’s subsequent offending on a supervision order meant the respondent was serving a term of imprisonment at the time of the application – where psychiatrists were of the opinion that the respondent would benefit from six months of psychological therapy – where the contravention hearing was adjourned Dangerous Prisoners (Sexual Offenders) Act 2003, s 22 Attorney-General v Kanaveilomani [2015] 2 Qd R 509, cited COUNSEL: J Tate for the applicant L Reece for the respondent SOLICITORS: Crown Law for the applicant Jasper Fogerty Lawyers for the respondent -- 1 of 5 -- [1] This matter came before me on 13 September 2021. It was an application under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA), i.e., a proceeding on a contravention. Section 22 of the DPSOA provides that if the Court is satisfied that a prisoner on a supervision order has contravened a requirement of it, the Court must rescind the supervision order and make a detention order unless the prisoner satisfies the Court on the balance of probabilities that the adequate protection of the community can be ensured by a supervision order. If the prisoner discharges the onus on him, the Court must make a supervision order. [2] Mr Wilkes was released on a supervision order on 6 April 2018. The history to that order was that Mr Wilkes had committed sexual offences as a 17, 18 and 19 year old. He then committed further offences as a 20 year old for which he was sentenced by Judge Martin on 19 February 2015. Those offences were: (a) procuring a young person for carnal knowledge; (b) 11 x indecent treatment of a child under 16; (c) 3 x indecent treatment of a child under 12, and as a care giver; (d) 11 x indecent treatment of a child under 12; (e) common assault, and (f) damaging evidence with intent. [3] In relation to the bulk of the offending which Judge Martin dealt with, Mr Wilkes had obtained work as a babysitter and then sexually abused the children in his care. He made threats to kill two of the victims, should they tell anyone, and another equally wicked threat to another victim. The count of common assault was committed on one of the victims when that victim called out loudly in response to Mr Wilkes sexually assaulting him. On 26 February 2016, Mr Wilkes pleaded guilty to another similar offence dealt with by Judge Smith. The total sentence imposed on Mr Wilkes for all the offending just recorded was four-and-one-half-years. [4] During the period he was jailed under the sentences imposed by Martin DCJ and Smith DCJ, Mr Wilkes participated in the Getting Started: Preparatory Program for Sexual Offending (20/04/2016 - 24/05/2016) and the High Intensity Sexual Offending Program (HISOP) (03/08/2016 - 09/11/2017). [5] Mr Wilkes was arrested on 6 September 2018 and charged with using the internet to procure children under 18, possessing child exploitation material, and eight contraventions of the supervision order. The arrest was five months after his release on a supervision order, but it is clear that Mr Wilkes had been offending for almost the whole time he had been in the community on the supervision order. He had obtained a smart phone, which he was not allowed to possess, and kept it hidden from Queensland Corrective Services. He had established an online identity as a 15-year- old girl and had communicated with a number of children aged between nine and 14. He had been texting a 14-year-old girl from Canada between April and September 2018. The content was sexualised and manipulative. It included promises to marry the girl. In some posts he mocked the psychological treatment he was being forced to receive. Mr Wilkes had 217 child exploitation images on the phone. Some of them -- 2 of 5 -- 3 were sexually violent, including a female child aged between four and six being raped. [6] These contraventions of the supervision order occurred while Mr Wilkes was living in the Wacol Precinct and was apparently co-operative both with Queensland Corrective Services and his individual treating psychologist, Dr Michele Andrews. As well as demonstrating a very quick return to sexual offending against children in that context, and in the context of having recently completed the HISOP, he demonstrated a very concerning ability to deceive those charged with his supervision and treatment. [7] Mr Wilkes was returned to custody on 6 September 2018. He was sentenced by Judge Rinaudo in relation to the new offences on 26 September 2019, on his own plea of guilty. The sentence was four years. Mr Wilkes’ full-time release date is 6 September 2022. The consequence is that this is one of those relatively rare cases where the subsequent offending of a person on a supervision order results in a term of custody being served at the time the s 22 contravention proceedings are heard by the Court. The s 22 application was properly made by the Attorney-General, and the subsequent offending has not led to a situation where it is not properly to be heard by me, cf the situation in Attorney-General v Kanaveilomani.1 [8] However, the s 22 application is a civil application in the Court and if it comes on for hearing when the respondent is serving a term of imprisonment for subsequent offending, the Court and the parties ought to consider whether or not it ought to be determined, or whether it ought to be adjourned until a more appropriate time. There will be cases, such as this one, where the evidence in the application will have to be heard before a proper decision can be made about adjournment. [9] Whether there is any utility in making either a detention or a supervision order when the respondent is serving a term of imprisonment, and the length of the term of imprisonment which the respondent is serving, will be relevant to the question of adjournment. So will the opinions expressed in the psychiatric evidence. Here, the application is brought about a year before the respondent’s full-time release date. He cannot be released to parole before the contravention hearing.2 If I were to make a continuing detention order on the contravention application, he could not be released to parole.3 If I were to make a supervision order on the contravention hearing, there would be no legal impediment to his being granted parole. At a practical level, it might be thought that making a supervision order might increase his chances of being granted parole, for the Parole Board could rely upon the supervision order as one factor guarding against further offending. [10] The psychiatric evidence in this case establishes that the diagnoses relevant to the respondent’s risk of re-offending are relatively permanent: paedophilia and personality disorder. These factors will bear on risk in much the same way now as they will in a year’s time when the respondent is approaching his full-time release date. However, in one important respect, I think that the psychiatric opinion available now will not necessarily be the same as the respondent approaches his full-time release date. The respondent had undergone the Getting Started Program and the 1 [2015] 2 Qd R 509. 2 See s 21(2), (4) and (5) of the DPSOA. 3 See s 51(2) of the DPSOA. -- 3 of 5 -- 4 HISOP while incarcerated before being released on a supervision order. He also received individual psychological counselling while he was in the community on the supervision order. However, since returning to jail, he has not been offered any opportunity to participate in further sexual offending programs, nor has he been offered any individual counselling from a psychologist. One result of this is that both psychiatrists who gave evidence on the contravention hearing recommended further treatment. Dr Phillips recommended that Mr Wilkes undertake the Sexual Offender Maintenance Program, and that he undergo further individual treatment from a forensic psychologist. She also thought that he would benefit from treatment from the psychiatrists at Prison Mental Health Services in relation to his post-traumatic stress disorder and his dysthymic mood disorder – p 17 of her report dated 16 August 2021. [11] Dr Aboud gave oral evidence that he would like to see Mr Wilkes engage in at least six months’ psychological therapy with a psychologist. It was clear that this might have some beneficial effect for Mr Wilkes, but would also allow that psychologist to form a view as to whether or not Mr Wilkes was genuine and sincere in his current expressions of a desire to rehabilitate. While these expressions were given to Dr Aboud during the interview he undertook prior to reporting in this matter, it is clear from his report, but clearer from his oral evidence, that he was sceptical as to whether or not Mr Wilkes was genuine. Likewise, it was clear from Dr Phillips’ evidence that she thought Mr Wilkes had learned the right things to say, and was engaging in what she thought was “positive impression management” during her interview with him. [12] Dr Phillips’ report of 16 August 2021 assessed Mr Wilkes at high risk of sexual re-offending without a supervision order, and expressed some doubt as to how much a supervision order could be relied upon to reduce his level of risk of sexual re-offending in the community. She thought that there would be some reduction, but that he would still present a moderate to high risk – page 17 of her report. Dr Aboud gave a report which was more favourable to Mr Wilkes. He also assessed that he would be a high risk in the community without a supervision order, but thought that a supervision order would reduce his risk to moderate as regards non-contact behaviour, and low-to-moderate as regards a contact sexual offence – p 25 of his report dated 26 August 2021. [13] However, in oral evidence Dr Aboud candidly acknowledged that he had changed his view after writing his report. His view was more pessimistic as to the effect of a supervision order adequately moderating the risk which Mr Wilkes poses in the community. He discussed how Mr Wilkes had presented to him as responsible and sincere at the interview and that, still partly under the influence of that presentation, he had written his report. However, he said that the more time that passed after the interview, the more he became sceptical of Mr Wilkes’ presentation. He said, “So I think that that’s the effect that this man has. Certainly, it is the effect that he had on me.” – t 1-29 when asked about it in cross-examination. I think Dr Aboud’s evidence in this regard is one of the most telling pieces of evidence before me, not so much as to Mr Wilkes’ sexual proclivities and desire to offend, but as to his dishonesty and capacity for manipulation. [14] Thus, at the end of oral evidence, both the psychiatrists had given views which supported the making of a continuing detention order rather than a supervision order, -- 4 of 5 -- 5 and both the psychiatrists had expressed the view that at least six months’ psychological sessions might both benefit Mr Wilkes and would also reveal information as to whether or not he was sincere in his desire to rehabilitate himself, and thus bear on his risk in the community. In these circumstances, counsel for Mr Wilkes asked that I adjourn the hearing of this contravention hearing. I think this was a sensible course so far as Mr Wilkes was concerned. In my opinion, this is a case where even though there is only a year between the hearing of the contravention application and Mr Wilkes’ full-time release date, circumstances might well change so that information about risk in the community is different as his full-time release date approaches. In those circumstances, I adjourned the hearing for a period of around seven months until April 2022. -- 5 of 5 --