Attorney-General for the State of Queensland v Thaiday [2021] QSC 227

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Thaiday [2021] QSC 227 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALOYSIUS JOHN THAIDAY (respondent) FILE NO/S: 3821 of 2021 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 2 September 2021 DELIVERED AT: Brisbane HEARING DATE: 16 August 2021 JUDGE: Applegarth J ORDER: The respondent be released subject to a supervision order for a period of 5 years CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT SEXUAL OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY –– where the applicant seeks an order pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the parties agree that the evidence supports the conclusion that a supervision order will provide adequate protection of the community – whether the supervision order should be for more than five years Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 13A, s 24 Attorney-General for the State of Queensland v Fardon [2011] QCA 111, cited Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited Attorney-General for the State of Queensland v KAH [2019] QSC 36, cited Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited -- 1 of 24 -- 2 Attorney-General for the State of Queensland v Robinson [2017] QSC 332, cited Attorney-General for the State of Queensland v S [2015] QSC 157, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Turnbull v Attorney-General for the State of Queensland [2015] QCA 54, cited Yeo v Attorney-General for the State of Queensland [2012] 1 Qd R 276; [2011] QCA 170, cited COUNSEL: J Tate for the appellant C Smith for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The applicant seeks an order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and acknowledges that the evidence supports a finding that adequate protection of the community can be ensured by a supervision order in the terms proposed. The making of a supervision order is not opposed. [2] The respondent concedes that on the evidence, including the expert evidence, the Court would be satisfied to the requisite high degree that he is a serious danger to the community in the absence of a Part 2, Division 3 order. The respondent submits that the proposed supervision order will be effective in reducing the risk that he will commit a serious sexual offence if released. [3] An issue is whether the supervision order should be for five or seven years. The respondent submits that it should be for five years. [4] Setting a period of supervision involves a present assessment of the respondent’s state and a prediction of when he will be an acceptable risk in the community without a supervision order.1 [5] Therefore the issue is when, on the evidence, the respondent is likely to be an acceptable risk in the community without a supervision order. Overview [6] The respondent is a 44-year-old Indigenous man from North Queensland. His mother was murdered when he was about 10 years old. Apart from some brief contact when he was at high school, the respondent hardly knew his father. When he was a teenager the respondent lived with his aunt and her husband and they moved around a lot in Townsville. They then relocated to Palm Island. 1 Attorney-General for the State of Queensland v KAH [2019] QSC 36 at [68]. It would be an error if the Court considered that the respondent would only cease to be an unacceptable risk in the community after ten years on supervision, but set the duration of the order at five years on the basis that the order could later be extended under s 19B of the Act: Ibid at [70]. -- 2 of 24 -- 3 [7] After he left school, the respondent fell under the influence of an uncle and began abusing alcohol. He has been an alcoholic, itinerant and homeless for most of his adult life. Unsurprisingly, he generated a lengthy criminal history of street offences. [8] The respondent has a low IQ – it was formally tested as being 61. His low intellectual functioning may be attributed to the alcoholism of his mother before he was born, his own abuse of alcohol and other substances, head injuries or other causes. It is unnecessary to speculate about these causes. As Dr Beech writes: “Clinically, it is likely that he operates within the range of borderline intellectual functioning and mild intellectual impairment which arises from innate issues and long-term alcohol abuse.” [9] The expert psychiatric witnesses have diagnosed the respondent as having: • Alcohol dependence (currently in remission in prison); and • Neurodevelopment disorder. He also displays anti-social personality traits. [10] The respondent was intoxicated by alcohol when he committed certain sexual offences, including the rape offence for which he is currently serving a sentence. [11] Dr Sundin observes: “His risk of recidivism is substantially elevated by the presence of intoxication. His risk for sexual and/or violent recidivism is reduced to moderate, possibly to low in the absence of intoxicants. Preventing Mr Thaiday from resumption of abuse of intoxicants, principally alcohol but also inhalants, is the critical factor in mitigating risks of future sexual recidivism.” [12] The consistent opinion of the three examining psychiatrists is that the respondent’s risk for future sexual offending can be adequately controlled if he is subject to a supervision order in the form proposed. [13] Dr Sundin stated that if he could manage compliance with such a program over the first two years in the community, the intensity of supervision and frequency of alcohol/drug screening could lessen. She reported that if he remained sober and offence-free for five years, his risk for future sexual offending would drop to low. The opinions of Dr Beech and Dr Timmins are to similar effect. [14] If the respondent can abstain from alcohol and illicit substances, as required by a supervision order, and receive support to obtain accommodation and some stability in his life, then the risk of his committing a serious sexual offence is greatly reduced. [15] Fortunately, he has been approved for “everyday living” funding by the National Disability Insurance Scheme (“NDIS”). This will be tailored to supporting his social, community and therapy needs. It will enable him to obtain specialist support and he will have a support coordinator who can arrange the specifics of his support plan. -- 3 of 24 -- 4 [16] This kind of support is something which the large number of Indigenous offenders subject to the Act lack. [17] The Act was targeted in 2003 at a small number of recidivist paedophiles. It was expected to apply to the worst of the worst, “approximately a dozen or so very, very serious offenders, most of whom have been in prison for a long time”.2 Over time, however, it has swept up scores of Indigenous men who are not paedophiles, but who pose a risk of committing a serious sexual offence when they are intoxicated by alcohol or drugs. The Act is a blunt instrument for these offenders. It is poorly- designed to address the long tail of Indigenous disadvantage in this State. It also is a very expensive way to address the risk of reoffending by individuals whose problems are associated with prejudiced upbringings in places like Palm Island, histories of alcohol and substance abuse, entrenched anti-social attitudes, distorted senses of entitlement towards women, homelessness and poverty. [18] Orders under the Act do, however, address at least one of these things, namely alcohol and substance abuse, by requiring total abstinence. Such orders reduce the risk of a serious sexual offence by individuals whose offending results from the abuse of alcohol or other substances. [19] The respondent does not need an expensive, electronic ankle bracelet to reduce to an acceptable level his risk of committing a serious criminal offence. In simple words that he would understand, he needs to “stay off the grog”. He also needs a home and social support appropriate to someone with his low intelligence who for decades has not had a stable life whilst in the community. [20] The experts agree that if he remains abstinent from alcohol and illicit drugs and has the support which is expected from the NDIS and from the appropriate management of a supervision order, then the risk of committing a serious sexual offence is much lower than it would be if he resumed consumption of alcohol and was not subject to a supervision order. As noted, the applicant Attorney-General acknowledges that the evidence supports a finding that adequate protection of the community can be ensured by the making of a supervision order. I make this finding based upon my assessment of the evidence. [21] The issue then is whether the order should be for five years, as suggested by Dr Beech, or slightly longer. As noted, Dr Sundin reported that if the respondent remains sober and offence-free for five years, his risk for future sexual offending would drop to low. Dr Timmins supported a supervision order of seven years and explained her reasons for this. In oral evidence, Dr Sundin supported this view. [22] The experts do not suggest that there is any science around the selection of a period of five or seven years. I will refer in due course to their opinions. [23] Taking a pragmatic view, if the respondent does not develop a relatively stable and alcohol-free lifestyle during five years under a supervision order, then it is unlikely that he will do so in its sixth or seventh year. 2 Queensland, Parliamentary Debates, Legislative Assembly, 4 June 2003, 2581 (RJ Welford, Attorney- General and Minister for Justice). -- 4 of 24 -- 5 [24] Another view is that it may take seven years under a supervision order to manage the risk of sexual recidivism. Dr Timmins wrote: “His history of poor compliance with previous orders, difficulties with sexual recidivism, long history of substance use, low intellect and lack of understanding of his risk pathways in addition to relatively young age, antisocial personality traits and denial of sexual offending mean that it is likely to take some time to ameliorate his risk of sexual re- offending in the community.” [25] I conclude that if the respondent: • is generally compliant with the supervision order for a period of 5 years and thereby remains abstinent from alcohol; • receives supervision and support under the supervision order, with appropriate counselling that is suited to his intellect, personality and limited insight into his sexual offending; • obtains support from the NDIS and stable accommodation; • builds or rebuilds relationships with aunts, siblings and others who provide influential examples of an alcohol-free lifestyle; and • engages constructively with community organisations that can help him to remain abstinent then, at the end of five years under a supervision order, the risk of the respondent committing a serious sexual offence will be reduced to an acceptable level. [26] This may not be five consecutive years in the event the respondent is detained in custody.3 It will, however, be long enough to reduce his risk of sexual re-offending in the community to an acceptable level. [27] If, however, the respondent does not “stay off the grog” and does not comply in other ways with a supervision order and, instead, descends into a life of alcohol abuse and serious contraventions of his supervision order, then one may expect that he will be returned to custody. In that event, the risk of his committing a serious sexual offence whilst intoxicated and in the community is thereby addressed. A Division 3 order should be made [28] Having regard to each of the matters stated in s 13(4) and, in particular the risk assessments to which I will refer, I am satisfied to the high degree required that the respondent presents an unacceptable risk of committing a serious sexual offence if released from custody without a supervision order being made. The evidence is cogent and satisfies me to a high degree of probability. The statutory scheme [29] The objects of the Act and its scheme are well-established. It is not necessary to quote the terms of s 13 and other provisions. 3 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“The Act”) s 24(2). -- 5 of 24 -- 6 [30] The first inquiry is whether or not the respondent is a serious danger to the community in the absence of a Division 3 order. The statutory test is whether there is an unacceptable risk that the prisoner will commit a serious sexual offence if released without a Division 3 order. 4 That matter must be proven by sufficient cogent evidence, and the Court is required to consider each of the matters stated in s 13(4). If satisfied to the high degree of probability required that, if released without a Division 3 order there is an unacceptable risk that the respondent will commit a “serious sexual offence”, then the second inquiry is as to the form of order to be made. In considering these matters, the paramount consideration is to ensure adequate protection of the community. [31] If a continuing detention order is sought, then the applicant must establish that adequate protection of the community cannot be ensured by the adoption of a supervision order.5 [32] Ultimately, it must be open to conclude that a “supervision order will be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences.”6 It has been said:7 “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 a court has to reach a positive conclusion that the supervision order will provide adequate protection.” [33] A relevant consideration is whether the respondent is likely to comply with the requirements of a supervision order. If the respondent is unlikely to comply, and the result of such non-compliance would present an unacceptable risk of the commission of a serious sexual offence, then a supervision order is most unlikely to be made. Ultimately, the Court must be satisfied that adequate protection of the community can be reasonably and practicably ensured by a supervision order. However, this does not entail proof that a supervision order is unlikely to be contravened, even in some trivial way. [34] Many supervision orders contain numerous and exacting requirements which are designed to reduce risk and encourage positive behaviour by the respondent. Non- compliance with a particular provision may not, in itself, signal that the respondent has become an unacceptable risk of committing a serious sexual offence.8 Instead, it may alert the authorities supervising the respondent to a problem which needs to be addressed. Therefore, whilst I do not have to be satisfied to a high degree that every requirement in the supervision order is likely to be complied with over the duration of the order, I have to consider whether the respondent is likely to comply with it. Any supervision order carries some risk that it will not be complied with. The 4 The Act s 13 (2). 5 Attorney-General for the State of Queensland v Lawrence [2009] QCA 136; Attorney-General for the State of Queensland v S [2015] QSC 157 at [38]; Yeo v Attorney-General for the State of Queensland [2012] 1 Qd R 276; [2011] QCA 170 at [73]. 6 See Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at [29]. 7 Turnbull v Attorney-General for the State of Queensland [2015] QCA 54 at [36]. 8 Attorney-General for the State of Queensland v Robinson [2017] QSC 332 at [62]. -- 6 of 24 -- 7 relevant issue is whether the terms of the supervision order provide adequate protection of the community from a serious sexual offence in all the circumstances. [35] Relevant to the making of an order pursuant to s 13(5) for continuing detention or supervised release is whether the requirements of a supervision order can be reasonably and practicably managed by corrective services officers.9 Unless evidence is before the Court to indicate otherwise, the Act assumes that the requirements of supervision orders can be reasonably and practicably managed by corrective services officers.10 [36] There is an implicit requirement in s 13 that a continuing detention order should only be made where the applicant proves that the community cannot be adequately protected by a supervision order.11 A supervision order need not be risk free; that would be an impossible bar.12 The starting position for a s 13(5) order is a supervision order.13 For that starting position to be displaced, the applicant must prove a continuing detention order is an appropriate order.14 It has been said that:15 “The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.” [37] If a supervision order is made, the Court must state the period for which a supervision is to have effect. The minimum period for which a supervision order can be imposed is five years.16 [38] In considering whether to make an order under Division 3, and in deciding the form of order, the paramount consideration is to ensure adequate protection of the community. The Court’s consideration is informed by the extensive factors contained in s 13(4). [39] If the Court is satisfied that adequate protection of the community can be afforded by a supervision order, then it is necessary to consider its terms and duration. In considering the period of the order, the Court makes a current assessment of future risks and asks: when will the respondent reach a point at which he is an acceptable risk without a supervision order?17 The assessment of when a risk will be acceptable or unacceptable is for the Court, not the psychiatrists. However, the opinions of psychiatrists concerning risk and matters within their professional expertise assist the Court in determining the issue for its decision. 9 The Act s 13(6). 10 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [37]. 11 Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [27]. 12 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [39]. 13 Ibid. 14 Attorney-General for the State of Queensland v Lawrence [2010] 1 Qd R 505 at 512 at [31]. 15 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [39]. 16 The Act s 13A. 17 Attorney-General for the State of Queensland v KAH [2019] QSC 36 at [56]. -- 7 of 24 -- 8 The facts in greater detail [40] The following part of these reasons about the facts (which are not in dispute) are drawn heavily from the written submissions of the applicant. Previous offences [41] The respondent’s criminal history began when he was aged 19. It includes a long record of alcohol-related offences, breaches of community orders, assault, obstruct police, public nuisance and breaching a domestic violence order. Relevant offences [42] The respondent’s sexual offences were committed when he was intoxicated. [43] In July 2006 he raped a woman with whom he had been drinking. [44] In September 2016 he digitally penetrated a male with whom he had been drinking while the man was asleep. [45] In May 2014 the respondent committed stalking offences whilst intoxicated in public places. [46] The following table summarises his relevant history: Date Description of offence Sentence District Court Townsville 12.02.2008 • Rape x 1 • Assault occasioning bodily harm x 1 • Wilful damage x 1 5 years 6 months imprisonment 6 months imprisonment 1-month imprisonment All terms of imprisonment to be served concurrently 445 days of pre-sentence declared as time served Parole eligibility date set as 24.09.2008 Magistrates Court Townsville 27.05.2014 • Assault or obstruct police officer x 1 • Commit public nuisance x 1 • Wilful exposure x 1 14 days imprisonment suspended for 6 months 7 days imprisonment suspended for 6 months Convicted and fined $150.00 Magistrates Court Townsville 19.06.2014 • Breach of community service order x 1 • Unlawful stalking x 1 • Commit public nuisance x 1 • Common assault x 1 • Unlawful stalking x 2 • Trespass – entering or remaining yard or place for business x 1 1 month’s imprisonment 2 years imprisonment 9 months imprisonment 2 months imprisonment 15 months imprisonment 1 month’s imprisonment Parole release date set as 29.01.2015 -- 8 of 24 -- 9 District Court Townsville 23.11.2017 • Rape x 1 5 years imprisonment 442 days of pre-sentence custody declared as time served Parole eligibility date set as 07.05.2018 The 2006 offences [47] On 12 February 2008, the respondent was convicted of one count each of rape, assault occasioning bodily harm and wilful damage. The wilful damage charge was unrelated to the rape and assault charges. [48] On 1 July 2006, the respondent, his female victim and her male companion had been drinking methylated spirits and water in a Townsville park. The victim had previously been in a relationship with the respondent’s brother. She had regarded the respondent as a brother-in-law. The respondent was found to have had non-consensual sexual intercourse with the victim. When the victim’s male companion attempted to intervene, the respondent struck him and punched him to the ground. [49] When police interviewed the respondent, he attempted to deflect blame onto someone else. However he pleaded guilty to the offences once DNA evidence came to light. [50] The respondent was sentenced to a period of five years six months imprisonment for the rape offence. He received six months imprisonment for the assault, and one- month’s imprisonment for the wilful damage offence. Pre-sentence custody in the order of 445 days was declared as time already served under the sentence. A parole eligibility date was set as 24 September 2008. [51] Whilst in custody for the 2006 offences, the respondent was alleged to have pressured another prisoner for sexual favours and to have raped the victim twice. Ultimately, the victim withdrew his complaint and the alleged offences were not prosecuted. The 2014 offences [52] On 27 May 2014, the respondent pleaded guilty in the Magistrates Court at Townsville to counts of public nuisance, wilful exposure and assault or obstruct police. The offences occurred the previous day. He was fined for the wilful exposure offence. [53] On 19 June 2014, the respondent was convicted upon his guilty plea in the Magistrates Court at Townsville of three counts of unlawful stalking, and one count each of common assault and trespass. The commission of those offences also breached a community service order for which the respondent was re-sentenced. [54] Two of the stalking offences occurred on the same day, namely, 28 May 2014. The first occurred at about 3:15 pm and involved a 12-year-old female who was a student at a college in Hyde Park. She was sitting on the ground and was talking to her father on the phone when she looked up and saw the respondent about five metres away from her. -- 9 of 24 -- 10 [55] The victim hoped that the respondent would just continue past her, however he stopped and stared at her for about five seconds. The respondent then proceeded to sit down beside her, about a metre away, and slumped back into a position where he was almost lying down. After a brief interaction, the victim stood up and walked quickly back to her school. She still had her father on the phone and was crying. She looked back and saw that the respondent was walking behind her. She proceeded to walk faster back to her school and did not look behind her again. [56] Not long after, at about 4:30pm, the respondent engaged in similar conduct towards another child, this time at Hermit Park. The female child victim had walked across the road to sit on the footpath. She noticed the respondent walking directly at her; he was staring at her which frightened the victim. When he got within about ten metres of the victim, the respondent said, “I just want to talk”. This frightened the victim even more, and she got up and started to walk away across the road towards the nearby Queensland Ambulance Service. [57] At this point, the victim looked back and noticed that the respondent was following her and he was starting to walk faster towards her. He then started jogging towards her, which made the victim more frightened. The respondent called out more than once for the victim to stop. [58] At this stage, the respondent was within five metres of the victim and he attempted to grab her arm. The victim then ran off as fast as she could to get away from the respondent. He ran after her. The respondent was still calling out to the victim to stop. As the victim approached the shopping centre, she looked back and noticed that the respondent had stopped. [59] The third stalking offence occurred two days later on 30 May 2014 at a shopping centre and involved two female children, one being the victim of the stalking offence, and the other being the friend of the victim. The respondent’s conduct on that occasion involved him declaring to the friend of the victim that she was “his new missus” and that he was falling in love with her. With respect to the victim female, the respondent put his arms around her and tried to pull her close to him. The victim pushed him away. [60] The respondent was later approached by security, and when asked why he was there he said that he was shopping with his girlfriend. When he was later arrested by police, he was in possession of both lubricant and a number of condoms. During the sentence proceedings, it was submitted by the prosecution that: “…there was a sexual motivation behind the offending which is borne out by the defendant’s behaviour, particularly in the last stalking occasion. The fact that he’s approaching young girls and chasing after them, and the fact that he was found with sexual aids and condoms and lubricant when police picked him up.” [61] The sentencing Magistrate stated that he found it difficult to identify any great remorse on the respondent’s part: “It is difficult to identify any great remorse because the submissions made on your behalf are saying, well, you did not know that they were – would have been frightened, which betrays a startling lack of insight -- 10 of 24 -- 11 on your part. But that may well be, even now, it shows a startling lack of insight into the offending. That being said, it may well have some explanation in your – your mental capacity as a consequence of suffering … from foetal alcohol spectrum disorder. I will accept that on the basis of your submission … in the absence of anything else.” [62] The respondent was sentenced to two years imprisonment for the stalking offence involving the two female children, and 15 months imprisonment each for the remaining two counts of stalking. He was ordered to serve the remainder of the suspended sentence he received in May 2014. He was sentenced to lesser, concurrent terms of imprisonment for each of the remaining offences. The 2016 rape offence [63] On 23 November 2017, the respondent pleaded guilty to one count of rape. He was 39 years old at the time of the commission of the offence and 40 when sentenced. [64] Early in the morning on 4 September 2016, the male victim and his partner had been arguing. The victim left their house with two bottles of spirits and was intoxicated. The respondent came across the victim while walking around Townsville. They were unknown to each other but they continued walking around the streets together. [65] At some point, the victim was street-checked by police, who confiscated the alcohol. Later, the victim blacked out due to his level of intoxication. Whilst he was blacked out, the respondent removed the victim’s clothing, and moved him into a position where he was lying on the ground with his knees up and legs exposed. [66] The respondent then penetrated the victim’s anus with his finger. This woke his victim. The victim reported that as he woke, the respondent was on top of him and propping himself up with one arm. The respondent was kissing the victim on the neck and calling him “baby”. The respondent still had a finger in the victim’s anus and was using a thrusting motion. [67] The respondent then indicated that he wanted the victim to touch his penis. The victim then stroked the respondent’s penis, and when he saw the respondent close his eyes, he used this as an opportunity to escape. A short time later, the incident was reported to police. [68] The respondent was ultimately arrested and charged later that day. His DNA was found on the victim and he was positively identified by the victim in a photo board. The matter proceeded by way of full hand up committal and the respondent pleaded guilty at an early opportunity. [69] On 23 November 2017, the respondent was sentenced to five years imprisonment. A period of 442 days pre-sentence custody was declared as time already served. A parole eligibility date was set as 7 May 2018. [70] The respondent’s full-time release date is 6 September 2021. Neuropsychological assessment [71] Dr Sundin interviewed the respondent by video-link on 11 July 2020, but the interview had to be discontinued. She reported: -- 11 of 24 -- 12 “It was clear that Mr Thaiday has significant memory problems and reduced comprehension. He has limited literacy and relies on counting his fingers to do simple mathematics. He has very poor general knowledge. He either confabulated or gave approximate answer to a number of questions. While he reported completing Grade 10 he also said he had repeated grades 5, 6 and 7. He did remember that he left prison with 21 certificates in 2012 but did not remember what any of these were for. He could not describe in any detail any of the courses he had done in prison. He said that he had been helped a lot by the teacher when he had recently done a beginners computer course. There is mention in his records from a Judge in 2008 commenting on Mr Thaiday suffering Foetal Alcohol Syndrome. Mr Thaiday reports drinking alcohol for decades from a young age and was drinking methylated spirits regularly in the community. He abused inhalants as a young person. He has been involved in multiple fights and has suffered blows to his head, including on one occasion being struck across the front of his head with an iron bar. He has experienced Delirium Tremens on multiple occasions. He has experienced at least one withdrawal seizure and again suffered a head injury at that time. He made mention of his ‘wild temper’ and described difficulty controlling himself if he perceives he has been provoked. He described frequent altercations in prison. Despite several repetitions using simple language he did not appear to be able to understand the purpose or potential consequences of my interview with him. He had no knowledge of the DPSOA process and repeated several times that he intends to simply do his ‘full time’ and leave prison. In my opinion there is sufficient evidence to warrant Mr Thaiday being investigated and assessed for the presence of a Neuro-cognitive Disorder. A CT brain scan and screening blood pathology for potentially reversible causes would be invaluable. An assessment of cognitive function, memory and comprehension by a neuropsychologist with experience in assessment of indigenous prisoners is required.” [72] Arrangements were made for the respondent to undertake a neurocognitive assessment. A January 2021 report stated: “[67] Current cognitive testing revealed receptive vocabulary function within the extremely low range, equivalent to that of a 9- year-old child. Likewise, Mr Thaiday’s academic achievement skills were extremely low, equivalent to a Grade 1 to 2 level. -- 12 of 24 -- 13 [68] Mr Thaiday’s overall intellectual ability was extremely low with extremely low to below average overall immediate attention and processing speed. Verbal learning and recall were also extremely low, while visual memory was below average to low average. Recognition memory was relatively intact and his functional memory was reasonable, with the ability to recall 5/6 pieces of personal information provided by the examiner. In terms of executive functioning, he displayed extremely low to below average verbal/non-verbal reasoning, nonverbal problem solving and mental flexibility while his inhibitory control was average. Qualitatively, he displayed no behavioural or mood disturbance. [69] Mr Thaiday’s overall IQ falls within the intellectual disability (ID) range ie IQ < 70), with the preponderance of other cognitive test scores falling within the extremely low to below average range (1st-2nd percentiles). [70] History also indicates that he has a very low level of adaptive function with limited social and practical skills. [71] Overall, there is clear evidence for significant global compromisation of cognitive and adaptive/everyday function which is longstanding, I am of the opinion that Mr Thaiday satisfies the Diagnostic and Statistical Manual - 5jh Edition (DSM-5) diagnostic criteria for a Neurodevelopmental Disorder (Intellectual Disability - mild to moderate). [72] Whilst he may have sustained further compromisation of his cognition due to chronic alcohol/drug use and repeated concussive injuries, the defining feature of this assessment relates to a longstanding moderate impairment of intellect/cognition. Furthermore, recent CT scan does not show any significant neurological abnormality. [73] The cause of Mr Thaiday’s globally low cognition/adaptive function is speculative given the lack of strong reliable collateral history related to birth and development and family history.” (emphasis added) Psychiatric reports and risk assessments Dr Sundin [73] Dr Sundin interviewed the respondent on 15 January 2021 by video-link to the Townsville Correctional Centre.18 Her report, based on the interview and extensive written materials, summarised matters as follows: “Mr Thaiday is a 43-year-old indigenous man with a long criminal history largely reflective of his chronic Alcohol Use Disorder, itinerant lifestyle and fringe existence. He has previous convictions for both physical and sexual violence. 18 Dr Sundin prepared an interim report dated 11 July 2020 where she set out the difficulties she experienced in examining the respondent. -- 13 of 24 -- 14 He has two convictions for rape with both offences occurring whilst he was intoxicated. Neither rape was associated with high levels of violence towards the victim although the first offence was associated with an assault occasioning bodily harm to a male who tried to intervene and prevent Mr Thaiday from raping the woman. His offences were opportunistic. The female victim was known to him. The male victim was a stranger. He has no history of offending against children. He has no history of grooming. He had a pre-existing Neurodevelopmental Disorder, the aetiology of which is unclear. Foetal Alcohol Spectrum Disorder has been flagged but never formally diagnosed by a clinician. His pre-existing Neurodevelopmental Disorder has in all likelihood been aggravated by abuse of alcohol and intoxicants including petrol and methylated spirits. It has also likely been aggravated by blows to the head in pub fights. Mr Thaiday has very limited insight into his sexual offending. He is in denial of the second offence and accepts only partial responsibility for the first offence. Whilst he participated in the Getting Started: Preparatory Programme for sexual offenders, he refused subsequent programmes. He has undertaken the Drug and Alcohol Intervention Programme but had a less than glowing exit report from that programme. He has no realistic relapse prevention plan, simply repeatedly asserting that he will not drink alcohol. In my opinion, he is overstating his capacity to abstain from alcohol and underestimating the probable speed with which he will relapse back into alcohol abuse. Future victims of sexual offences could be either adult men or women, assaulted when Mr Thaiday was sexually aroused and disinhibited by virtue of intoxication. There is a likelihood of physical harm to the victims should they resist.” [74] Dr Sundin diagnosed the respondent as suffering from: • Neurodevelopmental Disorder (Intellectual Disability, mild to moderate); • Alcohol Use Disorder (in sustained remission in a controlled environment); and • Antisocial Personality Traits. [75] Dr Sundin assessed the respondent on a number of risk assessment tools and made the following observations about risk: “He has no realistic relapse prevention plan, simply repeatedly asserting that he will not drink alcohol. -- 14 of 24 -- 15 In my opinion, he is overstating his capacity to abstain from alcohol and underestimating the probable speed with which he will relapse back into alcohol abuse. Future victims of sexual offences could be either adult men or women, assaulted when Mr Thaiday was sexually aroused and disinhibited by virtue of intoxication. There is a likelihood of physical harm to the victims should they resist. In my opinion, Mr Thaiday’s unmodified risk for future sexual recidivism is moderate to high. His unmodified risk for future violence is high. His risk of recidivism is substantially elevated by the presence of intoxication. His risk for sexual and/or violent recidivism is reduced to moderate, possibly to low in the absence of intoxicants. In my opinion, preventing Mr Thaiday from resumption of use/abuse of intoxicants, principally alcohol but also inhalants, is the critical factor in mitigating risks of future sexual recidivism. … In my opinion, Mr Thaiday’s risk for future sexual offending could be adequately controlled if he were the subject of a high level of supervision which included curfews, GPS tracking, exclusion zones and assistance with identifying safe, suitable accommodation and engaging him with prosocial supports such as the Uncle Alfred Smallwood indigenous programme available in Townsville. If Mr Thaiday was placed on such a programme, he should be subject to frequent random breath tests and urinary drug screens to ensure his compliance with abstinence. He might benefit from attending a 12- step programme such as AA. If he could manage compliance with such a programme over the first two years in the community, the intensity of supervision and frequency of screening could lessen. If he remained sober and offence free for five years, his risk for future sexual offending would drop to low.” (emphasis added) Dr Beech [76] Dr Beech assessed the respondent on 11 June 2021 at the Lotus Glen Correctional Centre and reported on 14 July 2021. He diagnosed the respondent as suffering from: • Neurodevelopmental Disorder; and • Alcohol Dependence (currently in remission in prison). [77] Dr Beech reported: -- 15 of 24 -- 16 “He does not have a paraphilia. He is not psychopathic. He has some dyssocial traits of poor frustration tolerance, some unreliability, entitlement, and limited remorse. I do not think this amounts to a personality disorder; the main issue is his alcohol dependence and limited intellectual abilities. Having said that, it is important to note that at interview, Mr Thaiday describes grievance at the way he believes he has been treated in relation to the sexual offending – he feels hard done by by the complainant in the 2008 matter; he is dismissive of the stalking incidents; and he is angry that he was charged for the 2017 matter. He accepts limited responsibility for this offending, displacing much of the responsibility onto fickle companions, an unjust legal system, and alcohol.” (emphasis added) [78] Dr Beech assessed the respondent on a number of risk assessment tools and addressed the risk of sexual re-offending as follows: “In my opinion, Mr Thaiday is above average risk of sexual re- offending. His age now reduces the risk for an adult rapist. His offending occurs in the context of entitlement, limited insight, neurodevelopmental issues, and alcohol dependence. The risk is that on release he will return to his former ways – alcohol abuse, homelessness and itinerancy. In an intoxicated state, his sexual entitlement will come to the fore, and he will assault a male or female victim. It is most likely to be an intoxicated companion, probably someone who has fallen asleep or blacked out. It will most likely involve penetrative violence. The victim could suffer some physical harm and psychological harm. There is also a substantial risk that he will menace young females in public – in an intoxicated state, he will stalk them and try to embrace them. For the most part, I believe that the victims will be able to ultimately evade his offensive behaviour. The most pressing issue is his alcohol dependence. I believe that intoxication plays a significant role in the offending. In the absence of intoxication, the risk of re-offending drops substantially. A supervision order would reduce the risk further, down to low. A recent study of recidivism rates of sexual offenders under a DPSOA supervision order found a recidivism rate of approximately 4%. If Mr Thaiday is released to a supervision order, I believe it would provide a routine and stability that he aspires to, and assistance in finding appropriate and safe accommodation. It would help him in linking into community supports including cultural supports, employment assistance, and counselling services. An important element of supervision would be abstinence. To that end, I would recommend regular testing. He should be referred for substance use counselling. -- 16 of 24 -- 17 Mr Thaiday has not done well generally in the community, so there is a risk that he would find a supervision order difficult, particularly the restrictions on his movements, curfews, reporting conditions and counselling. I think he has matured and is relatively settled in prison, but he is likely to be unreliable and his intellectual difficulties mean that he will require assistance to comply.” (emphasis added) Dr Timmins [79] Dr Timmins assessed the respondent on 10 June 2021 and reported on 13 July 2021. She diagnosed the respondent as suffering from: • Neurocognitive Disorder - Intellectual Disability (mild to moderate); • Substance Use Disorder – Alcohol (in remission in the controlled environment of prison); and • Personality Vulnerabilities with Antisocial Traits. [80] Dr Timmins also assessed the respondent on a number of risk assessment tools. [81] She reported as follows on the issue of risk: “He has refused to engage in interview with me, presenting with closed behaviour and a reluctance to discuss his history. He became animated only when discussing his substance use which leads me to believe his only source of enjoyment is when he is consuming substances in a group of other drinking associates. Unfortunately, substance use increases his risk of sexual offending. He presented with limited insight into his sexual offending and few plans for his release that involved any form of risk mitigation. With regards to future sexual offending, this is likely to occur when Mr Thaiday is intoxicated and has victim access. He may seek out a female or male or simply avail himself of anyone who is in his vicinity. He may or may not be distressed emotionally with difficulties in a relationship. There is a risk that the victims could be young given his behaviour. His offending is opportunistic but he may follow the potential victim for a while before the offending occurs. He could incorporate violence into the offending given his history of violent offences. The potential harm to the victim on a physical and psychological level is high. He does not seem to clearly understand his offending pathway and refused to engage in conversations around his history. He was able to identify that alcohol is a significant problem for him but had few ideas of how to remain abstinent. There is a low intellect and personality issues that are contributing to poor problems solving and poor decisions particularly in relation to substance use and sexual behaviour. -- 17 of 24 -- 18 Despite engaging in the Getting Started Preparatory Program in custody in 2010, he has not engaged in further sex offending group programs. He may benefit from consideration of further group sex offending programs, perhaps the Inclusions Program aimed at those who have low intellect. His level of denial in relation to discussing the offending may pose a barrier. In summary, I am of the opinion that Mr Thaiday will be at a HIGH risk of re-offending in a sexual manner if released into the community at this time without a supervision order.” (emphasis added) [82] Later in her report Dr Timmins states: “If the court is of a mind to release Mr Thaiday, he will require support from a forensic psychologist to treat his sexual offending. This clinician will need to be mindful of his low intellect and difficulties with denial of offending. It is likely to be a slow process. He should have GPS monitoring and curfews. He should engage in some form of work, have suitable accommodation and engage in appropriate activities and prosocial relationships, both male and female. His intimate relationships will require monitoring particularly around any stress, violence or breakdown in addition to his behaviour around children given the stalking offences. He needs conditions around substance use monitoring and treatment. He should remain abstinent of any substance and if he uses, this would raise his risk of sexual reoffending significantly and rapidly. He may struggle with conditions of an order given his previous history of breaching community orders. If he absconds, his risk will also significantly increase, given the likelihood of substance use and subsequent sexual offending. His risk may be modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003. He would most likely fall into a MODERATE risk category if he complies with an order. An order of at least five years, perhaps even 10 years duration would be appropriate to manage the risk to the community of sexual recidivism. His history of poor compliance with previous orders, difficulties with sexual recidivism, long history of substance use, low intellect and lack of understanding of his risk pathways in addition to relatively young age, antisocial personality traits and denial of sexual offending mean that it is likely to take some time to ameliorate his risk of sexual re- offending in the community.” (emphasis added) -- 18 of 24 -- 19 Clinical recommendations [83] The views of the psychiatrists are important because of the respondent’s impaired intellectual functioning, substance use disorder and problematic personality. I have quoted above their recommendations and will add some further observations by Dr Sundin about the respondent’s participation in programs: “Mr Thaiday has very limited insight into his sexual offending. He is in denial of the second offence and accepts only partial responsibility for the first offence. Whilst he participated in the Getting Started: Preparatory Programme for sexual offenders, he refused subsequent programmes. He has undertaken the Drug and Alcohol Intervention Programme but had a less than glowing exit report from that programme He has no realistic relapse prevention plan, simply repeatedly asserting that he will not drink alcohol. In my opinion, he is overstating his capacity to abstain from alcohol and underestimating the probable speed with which he will relapse back into alcohol abuse. … Mr Thaiday has undertaken only the Getting Started: Sex Offender treatment programme (GS:PP). The only programme that may be suitable for him is the Inclusions Sexual Offender Programme, a programme designed for offenders with intellectual disabilities. I have significant doubts as to Mr Thaiday’s capacity to comprehend and integrate the material from such a programme. The level of volatility and emotional dysregulation demonstrated by Mr Thaiday when the subject of his sexual offences and the role of intoxication are raised, causes me concern as to his capacity to participate in such a programme. I think there is a significant risk that were he forced to participate in such a programme that he may become emotionally dysregulated and verbally and physically violent towards other participants and possibility facilitators.” The risk that the respondent will commit another serious sexual offence [84] The reports to which I must have regard under s 13(4)(aa) and (a) are generally consistent in their diagnosis of the respondent, their assessment of risk and the substantial effect which a supervision order would have in reducing the risk that the respondent will commit another serious sexual offence if released into the community. [85] Two key features have been diagnosed. The first is the respondent’s neurodevelopment disorder. The second is his dependence on alcohol, variously described as an Alcohol Use Disorder, Alcohol Dependence or a Substance Use Disorder which currently is in remission in the controlled environment of prison. The -- 19 of 24 -- 20 reports also refer to the respondent’s personality vulnerabilities or anti-social personality traits. [86] The respondent’s pattern of offending behaviour19 is directly related to his alcohol dependence. If the respondent was released into the community and free to resume excessive use of alcohol then his unmodified risk of re-offending in the community would be moderate to high or high compared to the recidivism rate of sex offenders generally. As Dr Sundin reports, the respondent’s risk is “substantially elevated by the presence of intoxicants” but “is reduced to moderate, possibly to low in the absence of intoxicants”. The respondent’s participation in rehabilitation programs [87] The respondent has had a limited and dated participation in programs whilst in custody to address his offending. He has not voluntarily engaged in programs such as Alcoholics Anonymous or those that are tailored to Indigenous offenders. Support and counselling in the community [88] As noted, the respondent has been approved for NDIS funding for the next year to support his social, community and therapy needs. [89] The proposed supervision order requires him to obey any direction a corrective services officer gives him about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor. [90] Careful consideration will need to be given by the officials who manage the order about the counselling which the respondent receives. It will need to take account of his intellectual impairments and minimisation of his past offending. Despite his pleas, the respondent imagines that at least one of his two rape victims consented. [91] Directions by corrective services officers about where he lives, volunteer work and counselling, coupled with the support which is expected from the NDIS, will enable the respondent to be directed and encouraged to engage in programs that are suited to his background, personality, long-term dependence on alcohol and poor ability to plan. They should require him to engage with support services and programs which are available in the community to Indigenous males, and also map out a plan by which he connects with family members who reportedly live an alcohol-free life. [92] The reports and other material which I have read, along with questions which I asked the respondent during the hearing, suggest that he has the best of intentions to abstain from alcohol. For example, I asked him what he would do if, after a game of recreational touch football in a park, someone turned up with a slab of beer, and everyone began drinking. The respondent was emphatic that he would say no and leave. However, to date, he has not engaged with groups that might equip him with strategies to abstain from alcohol in similar situations. [93] As Dr Beech observed during his evidence, despite his positive aspirations, if left to his own devices the respondent is unlikely to be able to follow through. At the 19 The Act s 13(4)(d). -- 20 of 24 -- 21 conclusion of his evidence Dr Beech remarked that “the positive aspiration shows some insight. He just needs to be tested.” [94] I do not wish to suggest that the respondent’s alcohol dependence is the only risk factor. However, the serious sexual offences that he committed in 2006 and 2016 were associated with his abuse of alcohol and severe intoxication, as were his 2014 offences. Conditions in the proposed supervision order include him not being allowed to have contact with children under 16 years of age without first obtaining written permission from a corrective services officer. The various conditions in totality will limit his access to potential victims. Will a supervision order reduce the relevant risk to an acceptable level? [95] The evidence supports the conclusion that a supervision order will reduce the respondent’s unmodified risk of committing a serious sexual offence. The parties accept that the evidence supports the conclusion that the proposed supervision order will provide adequate protection of the community. I agree with this conclusion. [96] The most important effect of a supervision order will be to prohibit the respondent from using any alcohol or illegal drugs. A corrective services officer will have the power to administer alcohol and drug tests. The order will constrain the respondent’s movements, including going to places where persons may congregate and drink alcohol. In addition to the conditions of the supervision order which require the respondent to obey any reasonable direction about where he lives, his participation in programs and the contact which he has with others, a supervision order will provide some support including, one would expect, the provision of individualised therapy and counselling. [97] The terms of the supervision order are not in contest. I conclude that a supervision order in those terms will reduce the relevant risk to an acceptable level. What should be the duration of the supervision order? [98] I have already noted the views expressed in the reports obtained under the Act. In anticipation of the hearing, further views of the three psychiatrists about the duration of the order were obtained. [99] Dr Timmins observed that the respondent “has a simplistic understanding of the order given his level of intelligence and thus will require support and assistance to adhere in addition to probable difficulties with abstaining from substances which will raise his risk of re-offending significantly, a seven year order would best assist with managing his risk to the community of sexual recidivism”. Dr Sundin agreed with this view. Dr Beech recommended a period of five years. [100] In her oral evidence Dr Timmins reiterated that, given the respondent’s intellectual impairment, alcohol dependence, difficult personality and prior poor performance on community-based orders, it would take “quite a lot of time before he will be able to … remain abstinent and manage himself under an order in the community”. She explained that it would take a long time for the respondent to get used to the idea of being abstinent and therefore favoured a supervision order that lasted seven years. The respondent’s past history on orders did not fill Dr Timmins “with great confidence”. Whilst his age was a factor, Dr Timmins did not think that he had -- 21 of 24 -- 22 mellowed to any great extent because of his age, and noted a recent incident in custody when he was found in possession of a shiv. [101] Dr Sundin agreed with the views of Dr Timmins, noting that a number of static factors would not change in five or seven years. Dr Sundin observed “the longer that he is supervised, the longer he is consolidated in the community, the better he is going to do and the better the risk to the community is contained”. Dr Sundin was concerned that, given the respondent’s history, he is likely to breach his supervision order, possibly on a number of occasions, and that, after a number of breaches, he will gain some greater insight into the problems with those breaches. There would follow a “consolidation period”. She observed a “need to consolidate over a good, solid five years of abstinence for that risk to drop”. [102] Dr Beech said that while he could not argue strongly against a seven year order, he lent towards five years. A supervision order of that duration would provide the respondent with five years of monitored abstinence and processes to enforce abstinence, which would be “a substantial change in his life trajectory up [until] now”. Dr Beech also had regard to the support which the respondent was expected to receive from the NDIS. [103] The present issue is not whether the respondent’s past poor performance on community-based orders gives one any great confidence that he will observe a supervision order. Although his past poor performance in observing community orders is relevant, it and his lengthy history of street-level crime are strongly associated with his deeply-entrenched abuse of alcohol. [104] The respondent’s intellectual impairment and difficult personality do not give one great confidence that he has the intelligence, life skills and coping strategies to engage positively with those who will be required to manage his supervision order. A supervision order will, however, provide something which he has not experienced over the many decades when he has been in the community, namely enforced abstinence from alcohol. [105] Counsel for the applicant did not urge a particular period but addressed the evidence of the three psychiatrists who had expressed opinions about duration. [106] My task is not to prefer the opinion of one expert over another on the issue of duration. It is to have regard to their thoughtful observations about the challenges which the respondent faces and the extent to which supervision and support in the community will allow the respondent to make a substantial change in his life. [107] The present issue is not whether remaining alcohol free and consolidating pro-social habits over a seven year period would reduce the risk of committing a serious sexual offence. One would expect it to do so. The issue is whether after a period of five years in the community on a supervision order the respondent’s abstinence from alcohol and other habits will be sufficiently embedded that, by then, his risk of committing a serious sexual offence will be reduced to an acceptable level. Expressed differently, the issue is whether the risk of committing a serious sexual offence will be reduced to an acceptable level only after a period of seven years on a supervision order, as compared to a period of five years. -- 22 of 24 -- 23 [108] It is not apparent to me what significant difference would occur in the sixth and seventh years of such an order. I accept Dr Timmins’ evidence that a long time will be required for the respondent to get used to the idea of being abstinent and to manage himself under a supervision order. One significant reason for this is his intellectual impairment. Five years is, however, a long period. [109] Dr Sundin’s report of 10 March 2021 stated: “If he remained sober and offence free for five years, his risk for future sexual offending would drop to low.” [110] I agree with this assessment. It was made with the expectation that at least for his first few years in the community the respondent would be subject to close supervision and frequent alcohol and drug screening. Over time its intensity might lessen. [111] In this case in order to make a supervision order of five years duration the court is not required to have a great deal of confidence that the respondent will be able to remain abstinent from alcohol for five years. If he does not and contravenes his supervision order in a serious respect (not simply by, for example, drinking one beer in a moment of weakness) then the respondent will be subject to appropriate directions about where he lives and who he meets, and may expose himself to contravention proceedings. A serious contravention of the order is likely to result in a return to custody for some period. It may, as Dr Sundin observes, give him some additional insight into the consequences of succumbing to the consumption of alcohol and then lead to a period of consolidation. [112] In fixing the period of a supervision order, the court must not have regard to whether or not the respondent may become the subject of an application for a further supervision order or a further supervision order.20 One can, however, have regard to the likely consequences of contraventions in constraining the respondent’s access to alcohol in the community, and thereby reducing the risk of sexual offending, and in encouraging future compliance. [113] If the respondent is subject to a supervision order which lasts five years then he is at risk of being required to enter the revolving door associated with detention arising from breaches of an order. In the event he is required to live in a residential precinct or is taken into custody as a result of breaching his order, then he is likely to have an even greater incentive to remain abstinent from alcohol upon any subsequent release into the community. [114] If, on the other hand, the respondent can remain largely abstinent from alcohol for a period of five years through a combination of supervision and the kind of support which he has not had before, then he will become, for the first time in his adult life, in remission from his alcohol dependency in the community. He also will have some stability in terms of accommodation and support. [115] Ultimately, I am inclined to adopt the view expressed by Dr Sundin in her report that if the respondent remains sober and offence-free for five years, his risk of future sexual offending will drop to low. In that event and at that time, the respondent’s risk of committing a serious sexual offence will have reduced to an acceptable level. 20 The Act s 13A(2). -- 23 of 24 -- 24 [116] Therefore, I propose to order that the respondent be released from prison and follow the rules in the supervision order for five years until 5 September 2026. I will make an order for that duration in accordance with the terms of the draft supervision order, which were not in contest. The evidence supports the conclusion that adequate protection of the community can be ensured by a supervision order in those terms. -- 24 of 24 --