Attorney-General (Qld) v FLM [2021] QSC 194

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v FLM [2021] QSC 194 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v FLM (respondent) FILE NO/S: BS No 9429 of 2013 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 10 August 2021 DELIVERED AT: Brisbane HEARING DATE: 12 July 2021 JUDGE: Williams J ORDER: The order of the Court is that: 1. The Interim Detention Order made on 24 January 2020 is rescinded. 2. The Supervision Order made on 2 November 2015 is rescinded. 3. The respondent be detained in custody for an indefinite term for control, care and treatment under the DPSO Act. 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 November 2015 – where the supervision order was for a period of 10 years – where the respondent was alleged to have contravened the supervision order – where the respondent was detained under an interim detention order pending hearing of the contravention application – where the respondent does not contest a finding that the respondent has contravened the supervision order – where the respondent contends that the adequate protection of the community can, despite the contraventions, be ensured by the making of an amended supervision order – where the applicant contends that the evidence supports a continuing detention order and that the -- 1 of 38 -- 2 respondent has not discharged the onus on him such that the Court could be satisfied that the adequate protection of the community could be achieved by a return to the current supervision order or an amended supervision order – where the applicant seeks orders under section 22 of Part 2, Division 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO) – whether a supervision order, despite the contravention, ensures the adequate protection of the community Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 21, s 22 Attorney-General (Qld) v Beattie [2007] QCA 96, cited Attorney-General for the State of Queensland v DBJ [2017] QSC 302, considered Attorney-General for the State of Queensland v F [2015] QSC 316, considered Attorney-General for the State of Queensland v Fardon [2011] QCA 111, cited 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, cited COUNSEL: J Tate for the applicant T A Ryan for the respondent SOLICITORS: Crown Law for the applicant Cridland & Hua Lawyers for the respondent [1] This is an application by the Attorney-General for the State of Queensland, the applicant, seeking orders under s 22 of Part 2, Division 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act), in relation to the respondent. [2] The respondent was brought before the Supreme Court of Queensland on 24 January 2020 following alleged contravention offending on 22 January 2020. Davis J adjourned the hearing of the application pursuant to s 22 of the DPSO Act to a date to be fixed and made an interim detention order pursuant to s 21(2)(a) of the DPSO Act, that the respondent be detained in custody until the final decision of the Court under s 22. [3] In January 2014, Byrne SJA was satisfied that the respondent was a serious danger to the community and ordered that the respondent be detained in custody under a Continuing Detention Order.1 [4] On 2 November 2015, Mullins J (as her Honour then was) released the respondent to the community under a Supervision Order with 38 requirements. The Supervision 1 Transcript of proceeding, Attorney-General (Qld) v F (QSC, Byrne SJA, 13 January 2014). -- 2 of 38 -- 3 Order was for a period of 10 years from the respondent’s release on 3 November 2015. [5] On 5 February 2021, the respondent pleaded guilty and was sentenced by his Honour Judge Burnett in relation to one serious sexual offence and three further indictable offences. [6] This offending which occurred on 22 January 2020 is alleged to have contravened requirements 9, 15 and 29 of the Supervision Order. [7] Pursuant to s 22 of the DPSO Act: (a) If the Court is satisfied that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the Supervision Order then the onus of proof passes to the respondent to satisfy the Court that the existing Supervision Order, despite the contravention, provides adequate protection of the community. (b) The Court may rescind the Supervision Order and make a Continuing Detention Order or release the prisoner on a Supervision Order, with any amendments the Court considers appropriate.2 [8] The application was heard before me on 12 July 2021 and further oral evidence was received from Dr Josephine Sundin and Dr Michael Beech, as well as Mr Maurice Crothers and Ms Jolene Monson of Queensland Corrective Services. [9] The key issue for determination on this application is whether a Continuing Detention Order under s 22(2) is required to ensure “the adequate protection of the community” or, alternatively, whether a Supervision Order under s 22(7) is sufficient. Background [10] Byrne SJA, in January 2014, in making the order that the respondent be detained in custody under a Continuing Detention Order observed as follows: “The respondent accepts that the evidence provides a satisfactory basis for a conclusion that he is such a ‘serious danger …’. Moreover, he does not oppose the making of an order for his continued detention in custody. Essentially, the reason for that reasonable position is related to the evidence of the three psychiatrists. All are of the view that the respondent ought to complete a high-intensity sexual offending program. To enable him to do so, it is necessary that he remain in custody. Such a course runs for approximately nine months. The next opportunity for him to participate in it is in May 2014. The concession concerning the serious danger to the community which he represents, and that he ought to be 2 Sections 22(2) and (7) of the DPSO Act. -- 3 of 38 -- 4 retained in custody to enable to him to participate in the high- intensity program, is amply justified. The respondent is a 43 year old man. His offending began many years ago with a quite young male. His more recent offending involves sexual offending in connection with males in their early to mid teens. The respondent has participated in a medium-intensity program, not with great success as a result. But he is willing to participate in the high-intensity program. The evidence of the psychiatrists indicates that appropriate participation in it is likely to produce results which would mean that the degree of risk that he would present of committing further sexual offences against children might be reduced to such an extent that his release, subject to the stringent conditions of a supervision order, may be adequate to protect the community. The concession that his continued detention is custody is required is, as I have said, amply justified.”3 [11] On 2 November 2015, Mullins J undertook the annual review of the Continuing Detention Order and ordered that the respondent be released to the community under a Supervision Order with a duration of 10 years. In making this order, her Honour observed: “[The respondent] has a criminal history for sexual offences over the period 1993 to 2012. There was a period of a number of years when there were no entries in his history. His last sexual offence was committed against a 15 year old boy. That is consistent with the opinion of Dr Beech and the opinion of Dr Sundin that [the respondent’s] paraphilia is an attraction to young peripubescent or pubescent males. In the past, his victims had aged generally between 12 and 16 years. The exit report from the sexual offenders program shows that [the respondent] did have some difficulties in engaging with it, but it has enabled him to develop some insight about himself, but more importantly it has alerted Corrective Services as to the areas where [the respondent] is most likely to be at risk of offending and the proposed supervision order addresses those risk factors. One of the risk factors is the use of alcohol. The proposed supervision order requires [the respondent] to be completely abstinent from alcohol and illicit substances. Dr Beech is of the opinion that [the respondent] presents a high risk of re-offending, if he were released without supervision, because of the limitations on his insight and self- awareness and that he may be tested, if he finds himself in circumstances that are stressful for him. Dr Beech considered 3 Transcript of proceeding, Attorney-General (Qld) v F (QSC, Byrne SJA, 13 January 2014) at [2]. -- 4 of 38 -- 5 that, although there were only limited gains made as a result of the sex offenders treatment program, [the respondent] at least now has some idea about how to manage the risk of reoffending in the community and recognises the situations he has to avoid in order to avoid further offending. Dr Beech has expressed the opinion that on a supervision order [the respondent’s] risk of re-offending would be significantly reduced to moderate or below. Dr Sundin considered that [the respondent] was at a moderate risk of re- offending in the absence of a supervision order. Dr Sundin agrees with the opinion expressed by Dr Beech that any supervision order would need to run for 10 years in order to ensure the protection of the community, but also to facilitate the support that [the respondent] will require in order to modify his past offending behaviour. … The evidence of both Drs Beech and Sundin is acceptable and cogent and satisfies me to the high degree of probability that is required under the Act that [the respondent’s] risk of sexual re-offending, which is estimated at somewhere between moderate and high, unless appropriately supervised, is an unacceptable risk as contemplated by section 30 subsection (2) of the Act. The applicant appropriately acknowledged, on the basis of the psychiatric evidence, that the weight of the expert evidence favours [the respondent’s] release, subject to a supervision order with appropriate conditions. I therefore am prepared to make the supervision order on the terms of the draft that has now been amended by me and will be initialled and placed with the file. That supervision order is for a period of 10 years and will provide for [the respondent] to be released from custody on 3 November 2015.”4 Statutory provisions [12] 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 contravened, a requirement of the supervision order or interim supervision order (each the existing order). 4 Attorney-General for the State of Queensland v F [2015] QSC 316 at pp 3-5. -- 5 of 38 -- 6 (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 of 38 -- 7 (6) For applying section 11 to the preparation of the report— (a) section 11(2) applies with the necessary changes; and (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).” [13] Davis J in Attorney-General for the State of Queensland v McKellar5 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 order6 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.7 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 13.8 Therefore, prisoners facing an application under s 22 must prove that the supervision order will ensure adequate 5 [2019] QSC 92. 6 Section 22(2) DPSO Act. 7 Section 22(7) DPSO Act. 8 Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]; see also Turnbull v Attorney- General (Qld) [2015] QCA 54 at [36]. -- 7 of 38 -- 8 protection of the community by removing unacceptable risk that they will commit a serious sexual offence.” [14] Accordingly, it is relevant to consider section 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 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; -- 8 of 38 -- 9 (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; (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).” -- 9 of 38 -- 10 [15] 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). [16] 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 children. [17] 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. [18] Bowskill J in Attorney-General for the State of Queensland v DBJ,9 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 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 9 [2017] QSC 302. -- 10 of 38 -- 11 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) [19] It is also relevant to consider section 16 of the DPSO Act and whether Corrective Services are able to reasonably and practically manage the requirements of the Supervision Order. [20] 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. Contravention offending [21] The alleged contravention by the respondent was identified in the following circumstances: (a) On 22 January 2020, the High-Risk Offender Management Unit (HROMU) received information from the Inala Child Protection Investigation Unit that a complaint had been made against the respondent in relation to conduct of a sexual nature alleged to have occurred at approximately 12.50pm on 22 January 2020 at the Forest Lake Shopping Centre. (b) HROMU were informed that the respondent had been positively identified by the complainant and a witness. (c) It was alleged that the respondent had approached a 15 year old male child at the Forest Lake Shopping Centre and offered the complainant child money in exchange for a sexual act. (d) The Electronic Monitoring and Surveillance Unit examined the respondent’s GPS monitoring device and identified the respondent as being at the location of the shopping centre at the time of the offence. (e) A search warrant was executed on 22 January 2020 and police officers obtained the alleged clothing worn by the respondent during the commission of the offence. (f) The respondent resisted arrest. The respondent was charged with the following offences: (i) Attempted indecent treatment of a child under 16 (procure to commit); (ii) Grooming a child with intent to procure engagement in a sexual act; and -- 11 of 38 -- 12 (iii) Serious assault to a police officer (three charges). (g) The respondent was arrested on 23 January 2020.10 [22] The respondent pleaded guilty on 5 February 2021 and was sentenced by his Honour Judge Burnett in relation to one serious sexual offence and three further indictable offences, namely: (a) One count of attempted indecent treatment of a child under 16 (procure to commit) (Criminal Code s 210(1)(B) and s 535); (b) One count of serious assault (police officer) (Criminal Code s 340(1)(B)); and (c) Two counts of serious assault of a police officer causing bodily harm (Criminal Code s 340(1)(B) and (A)(II)). [23] In respect of the attempted indecent treatment of a child under 16, the respondent was sentenced to a head term of two years imprisonment, with a period of 365 days pre-sentence custody declared. The sentence was suspended after 365 days with a four year recognisance. [24] In respect of the serious assault offences, the respondent was sentenced to nine months and 12 months respectively. Further, a probation order for two years was imposed following his release. [25] Burnett J made the following observations in sentencing the respondent: “The court report which has been placed before me indicates that you were released to the supervision order on the 3rd of November and, as a consequence, you resided at the Wacol Precinct from then until your arrest in respect of these matters. That is for a period of almost five years. It is noted that during that period there were difficulties in compliance with the rules and regulations that applied to the Wacol Precinct. You were warned on 29 occasions. And then, of course, there was the offence which was dealt with in the Magistrates Court on the 22nd of February 2019 which involved you approaching a 13 year old male in the precinct then of the Inala Civic Centre. It was noted that your overall response to supervision was poor and you demonstrated repeated noncompliance with the order requirements and presented ongoing attitudinal issues during the period of supervision. Those factors, of course, speak against you but give rise to another concern which I have already raised with counsel, and that is how we deal with you ultimately in the community, because the community’s protection, I think, is a significant sentencing consideration in this instance and must inform the way in which the sentence is structured.” 10 Affidavit of D Bear sworn 24 January 2020 at [8]-[21]. -- 12 of 38 -- 13 [26] In respect of the circumstances of the offending, Burnett J summarised the relevant facts as follows: “So far as the index offending is concerned, on the 22nd of January last year you approached the complainant outside a Coles Supermarket at Forest Lake Shopping Centre. You made what appeared to be an innocent inquiry, obviously having noticed him. He was a 15 year old boy. You continued to remain in the vicinity of the shopping centre and kept him under your observation. The boy in the meantime has walked across to the McDonald’s which was nearby. A little while later the complainant was alone, having left the shopping centre, walking towards the exit of the centre, and you stopped him and asked him if his name was [S], which was plainly a sort of come-on by you. He said it was not and you explained to him that [S] was a person who did anything for money, and you asked the complainant if he needed money. He declined. You asked him for his age and somewhat foolishly, it would seem, he told you he was age 15. You asked again if he needed money and explained that some people earned extra money by giving head in bathrooms, and you told the complainant he could have some extra money if he gave you a peak of his penis. He refused. Understandably he was frightened by this event. He tried to contact adults but was unable to do so. He sent a text, which evidences his distress, saying: Help. Pick me up now. Trying to take me. Please help. Ultimately, despite that, you persisted. You continued to proposition him. You asked him if he had ever sucked on another man’s penis and asked if he wanted to, to which he said he did not. You again continued to persist, but at this point he told you he had a friend picking him up. He made good his escape to McDonald’s, where he reported the matter to the manager, who in turn engaged the police. You were identified on a photoboard, for reasons I will address in a short time when I come to talk to talk [sic] of your criminal history.” Finding in respect of contravention of Supervision Order [27] The respondent does not contest a finding that the respondent has contravened the Supervision Order. The respondent’s Outline of Submissions states as follows: “The respondent does not contest a finding by the Court that he contravened requirements of the Supervision Order made on 2 November 2015 by Mullins J … as alleged by the applicant.” -- 13 of 38 -- 14 [28] A copy of the Supervision Order is exhibited to the affidavit of Daniel Bear.11 The relevant conditions state as follows: “9. not commit an offence of a sexual nature during the period of this order; … 15. not commit an indictable offence during the period of this order; … 29. not establish or maintain any supervised or unsupervised contact including undertaking any care of children under 16 years of age except with prior written approval of a Corrective Services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; and Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of children.” [29] Based on the evidence filed by the applicant and the respondent’s position, I am satisfied, on the balance of probabilities, that the respondent has contravened a requirement of the Supervision Order, being conditions 9, 15 and 29 of the Supervision Order. [30] 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 Dr Sundin [31] Dr Josephine Sundin, consultant psychiatrist, prepared a report dated 8 May 2021 for the purposes of these contravention proceedings. Dr Sundin interviewed the respondent on 8 April 2021 via video-link and had also prepared an earlier report for the Division 3 hearing in 2013 and a report in 2015 for the respondent’s annual review. [32] Dr Sundin’s diagnosis of the respondent is as follows: (a) Paraphilia not Otherwise Specified (Hebephilia, homosexual, non- exclusive); (b) Major Depressive Disorder (mild severity, now resolved); and (c) Attention Deficit Hyperactivity Disorder. 11 Exhibit “DB-2” to the Affidavit of D Bear sworn 24 January 2020. -- 14 of 38 -- 15 [33] Dr Sundin also undertook an assessment of the respondent and the actuarial scores are as follows: (a) Static-99R: the respondent scored eight, placing him at the “high” risk category; (b) Hare Psychopathy Checklist (PCLR-20): the respondent’s score is not elevated; (c) Sexual Violence Risk scale (SVR-20): the respondent’s risk of reoffending is high and the following items are present: “1. Sexual deviation; 2. Victim of child abuse - sexually molested by a family friend at the age of 10; 3. Previous substance use problems; 4. Relationship problems; 5. Employment problems; 6. Past supervision failures; 7. High density sex offences previously; 8. Extreme minimisation or denial of sex offences; 9. Lacks realistic plans; 10. Negative attitude towards intervention.”; (d) Risk for Sexual Violence protocol. The following items were present: (i) chronic sexual offending history; (ii) use of psychological coercion; (iii) lack of self-awareness; (iv) problems with stress; (v) problems from child abuse; (vi) sexual deviance; and (vii) problems with intimate relationships. [34] Further, Dr Sundin provided the following clinical summary in respect of the respondent: “The concerning elements of [the respondent’s] history are a function of the many decades of offences and his persistent offending despite sanctions, imprisonment, High Intensity Sexual Offenders Programmes and close supervision under the auspices of a DPSOA supervision order. His pattern of offending appears completely entrenched. He demonstrates little insight, has poor judgment and has very poor self-awareness. At interview he presents as glib, -- 15 of 38 -- 16 manipulative and made a series of contradictory statements. There is an ongoing pattern of avoidance of responsibility. Despite having completed a High Intensity Sexual Offenders Programme and been the subject of ongoing intense one on one treatment with an experienced forensic psychologist, [the respondent] has offended again whilst in the community whilst on a supervision order. He was convicted of a charge of grooming a child under 16 years with intent to procure engagement in a sexual act with this offence occurring in January 2020. There was an offence paralleling behaviour in 2018 for which [the respondent] was contravened, plead guilty before a Magistrate and for which he was sentenced to a one period of imprisonment wholly suspended. The material from the Integrated Offender Management System records and from Mr Hamilton show clearly that [the respondent] has continued to maintain a negative attitude towards intervention. He is resentful of his supervision order. He has had multiple contraventions whilst in the community. He does not take responsibility for these contraventions; rather he projects responsibility onto unreasonable and unfair management by his HROMU case supervisors and onto what he perceives to the unreasonableness of the supervision order.” [35] Dr Sundin reached the conclusion on the question of risk as follows: “Despite having completed a High Intensity Sexual Offenders Programme and been the subject of ongoing intense one on one treatment with an experienced forensic psychologist, [the respondent] has offended again whilst in the community whilst on a supervision order. He was convicted of a charge of grooming a child under 16 years with intent to procure engagement in a sexual act with this offence occurring in January 2020. There was an offence paralleling behaviour in 2018 for which [the respondent] was contravened, plead guilty before a Magistrate and for which he was sentenced to a one period of imprisonment wholly suspended. … In my opinion, [the respondent] represents a high unmodified, unacceptable risk for future sexual recidivism. Given his recent performance in the community and his poor exit report from the High Intensity Sexual Offenders Programme previously; I recommend that he be detained in prison to repeat the HISOP programme and be re-assessed at the end of participation in that programme. I am not confident of the risk posed by [the respondent] can continue to be adequately contained under the auspices of the existing supervision order.” (emphasis added). -- 16 of 38 -- 17 [36] In respect of the respondent, Dr Sundin recommended the following: “His pattern of offending appears completely entrenched. He demonstrates little insight, has poor judgment and has very poor self-awareness. At interview he presents as glib, manipulative and made a series of contradictory statements. There is an ongoing pattern of avoidance of responsibility. … The material from the Integrated Offender Management System records and from Mr Hamilton show clearly that [the respondent] has continued to maintain a negative attitude towards intervention. He is resentful of his supervision order. He has had multiple contraventions whilst in the community. He does not take responsibility for these contraventions; rather he projects responsibility onto unreasonable and unfair management by his HROMU case supervisors and onto what he perceives to the unreasonableness of the supervision order. … Given his recent performance in the community and his poor exit report from the High Intensity Sexual Offenders Programme previously; I recommend that he be detained in prison to repeat the HISOP programme and be re-assessed at the end of participation in that programme.” (emphasis added) [37] Prior to the hearing, Queensland Corrective Services determined that the respondent was not suitable to repeat the HISOP.12 Dr Sundin was asked her view in light of this and by email dated 7 July 2021 Dr Sundin stated: “I continue to recommend that [the respondent] be detained to ensure the safety of the community. Further sessions with his psychologist Mr Hamilton may be worthy of consideration, with the goal of attempting to help [the respondent] understand the importance/necessity of compliance with risk mitigating strategies.” Dr Beech [38] Dr Michael Beech, consultant psychiatrist, prepared a report on 23 April 2021 for the contravention proceedings. Dr Beech interviewed the respondent on 19 February 2021. Dr Beech had previously prepared a report in December 2013 for the Division 3 final hearing and also a report in 2015 for the respondent’s first annual review. [39] In respect of the respondent’s diagnosis, Dr Beech considered the respondent suffers from Hebephilia. 12 Affidavit of M Crothers sworn 6 July 2021 at [18]-[26]. -- 17 of 38 -- 18 [40] Further, in his report, Dr Beech helpfully summarises the previous diagnosis and risk assessment in respect of the respondent as follows: Date Assessor STATIC Psychopathy Score Diagnosis Risk 2013 Nurcombe 7 22/40 Hebephilia and residual ADHD High 2013 Sundin 5 No Paraphilia NOS and ADHD Moderate to High 2013 Beech 8 22/40 Hebephilia High 2015 Beech Moderate with supervision 2015 Sundin Moderate [41] Dr Beech provides the following clinical summary in respect of the respondent: “[The respondent]is a 50-year-old single man with a significant history of offending against young males. Prior to 2020, there had been four sentencing dates for indecent treatment or sexual assault of young males, predominantly peri- or pubescent males although his earliest offending had involved children. The offending has included grooming and predatory behaviours and the use of inducements such as liquor. The nature of the offending, and other material, indicates that he has he sexual paraphilia of Hebephilia although again it should be noted that his two earlier victims were five- and nine-year- old boys. He was assessed previously at high risk of re-offending. Following the completion of a High Intensive Sexual Offending Program he was released on a supervision order in 2015. … In the community, he regularly saw an experienced forensic psychologist. Mr Hamilton’s report states [the respondent] evaded questions around sexuality and the focus appears to have been on his frustrations and resentments. In 2018, he was convicted on one charge of contravening a supervision order. He had lingered with an adolescent male. In 2021, he was convicted on charges that included the attempted and indecent treatment of a child under 16 years (procure to commit). In 2020, he had approached a 15-year- -- 18 of 38 -- 19 old boy at a shopping centre carpark and persistently sought to procure sexual favours using the inducement of money, despite the boy’s obvious attempts to disengage from him. For this offence, [the respondent] offers that the restrictions, resentments, disappointments and other stresses at the time overwhelmed him. He did not seek, or could not access, timely psychological or social support and ‘made a mistake’. Consistent with the report of the treating psychologist though, I cannot find anything in the material that points to emotional collapse at the time of the offending. At interview, consistent with the psychologist’s report, I was unable to explore with [the respondent] the sexual nature of the offending. There is limited information about recidivist sex offenders who offend during the course of an intensive supervision order. An article published in 2020 looked at the recidivism rates of sex offenders under the DPSOA. They found it difficult to get complete data but examined court files of 104 community-supervised dangerous sex offenders and found there was an overall level of sexual recidivism of 7.69% (both actual offending and contraventions). While I would disagree with part of their conclusions, I think that it indicates a low risk of re-offending on a supervision order which the authors concede might be due to ‘the strict conditions of supervision’. They looked at both convictions for sexual recidivism and contraventions that were sexual or offending related in nature (for example, a child sex-offender contacting or attempting to contact a child) or related to an offending technicality (for example, not declaring a relationship). In keeping with other studies on sexual recidivism, most offending occurred within the nine-month mark. The data found that only 3.85% of supervisees were convicted for a first new sexual offence. A similar number were convicted for a first new ‘sexual’ contravention. I would see [the respondent’s] 2018 contravention as a ‘technical’ contravention as the authors defined it. [The respondent] now falls into the very small group (3.85%) of supervised sex offenders who have been convicted for a new sexual offence while under supervision.” (footnotes omitted) [42] In respect of the risk assessment of the respondent, Dr Beech provides the following opinion: “In keeping with earlier assessments, it is my opinion that [the respondent] is at high risk of committing another sexual offence if he is released into the community without a supervision order. He has a long and recurrent history of sexual offending undeterred by previous convictions and incarcerations, intensive treatment and intensive community- based counselling, and intensive supervision. The most likely scenario for re-offending is that he would come in contact with -- 19 of 38 -- 20 a young male and attempt to befriend the victim. He would offer inducements such as money or liquor. There could be psychological coercion. The offending might be opportunistic or it might involve predatory grooming behaviour. [The respondent] may be able to select vulnerable or compliant victims or may, as in this last incident, approach a stranger and persistently try to importune him. The offending might involve kissing, indecent touching, or masturbation. Within a sexual relationship it might progress to penetrative sexual activity. The victim is likely to suffer psychological sequelae. … It is notable that this offending occurred several years after release, rather than within the first 12 months. There were no evident acute risk factors such as emotional collapse, sexual preoccupation, or overt escalation in supervision rejection. While [the respondent] had been chronically resentful, and had suffered aversive experiences, there is nothing that indicates in the material that he had become overwhelmed and then sought to use sex to deal with this. Those who would monitor him, in my opinion, are unlikely to see any acute increase in risk. I am not persuaded that further treatment would reduce the risk greatly. He has completed a HISOP (and the material also refers to a maintenance program). He had regularly psychological counselling with an experienced forensic psychologist. There has been additional counselling from a general psychologist. If anything, the HISOP exit report and Mr Hamilton’s observations are that [the respondent] has continued to externalise blame and minimise his responsibility. I am not persuaded that further treatment would reduce the risk greatly. He has completed a HISOP (and the material also refers to a maintenance program). He had regularly psychological counselling with an experienced forensic psychologist. There has been additional counselling from a general psychologist. If anything, the HISOP exit report and Mr Hamilton's observations are that [the respondent] has continued to externalise blame and minimise his responsibility. A supervision order would reduce the risk of re-offending simply by the high level of monitoring and the high level of restrictions generally found within a level 1 or 2 curfew. At some point though, he would need to progress beyond that, and I think it is then he would have the opportunity to offend. I am uncertain how such a brazen attempt at offending that has occurred on this occasion could be prevented. What interrupted the offending was simply the victim’s attempts to get away from [the respondent]. Had [the respondent] -- 20 of 38 -- 21 approached a more compliant person, for example a vulnerable street kid, I think it is likely that the offending would have progressed. I believe that a supervision order must by its very nature reduce the risk of offending but [the respondent] is now in a very select group of sexual offenders and I believe that the risk of offending would remain moderate even under a supervision order. That offending though might be similar to the 2021 offence: an attempt to procure that is resisted. As before though, if [the respondent] were to target vulnerable minors, he could offend and I think it would be difficult to interrupt or even detect afterwards.” (emphasis added). [43] Dr Beech was also asked for his view in light of the evidence from Queensland Corrective Services that the respondent was not suitable to repeat HISOP and by email dated 8 July 2021 Dr Beech stated: “There is nothing there that causes me to change my opinion.” Further psychiatric evidence at hearing [44] Dr Josephine Sundin gave evidence at the hearing. Dr Sundin confirmed her diagnosis of the respondent having a “sexually deviant fixation on pubescent and peripubescent males”. Dr Sundin indicated that this is usually understood to be a lifelong sexual deviant disorder. [45] In respect of the implications of the respondent’s diagnosis on assessing the risk in respect of the respondent, Dr Sundin commented: “There are implications from that aspect of his diagnosis. There are also implications from the personality traits that were evident from the IOMS, and from his sessions with his psychologist. From a diagnostic perspective, the implication is that he has a paraphilia which is likely to be – continue to be active in influencing his behaviour for another 20 years, which is potentially problematic, given the longevity of his past preparedness to commit sexual offences. The second aspect that is concerning, in terms of his risk management, is that we have very detailed information from the IOMS and, in particular, from his treating psychologist, Mr Hamilton, which show that this man is quite actively rejecting of supervision. He’s not open or honest in his disclosures, with respect to the cognitions that are driving his behaviour. He does – he fails to take responsibility for his behaviour. He rejects responsibility. So it makes the prospect look quite poor. We have – I have been involved with any number of men who have had a similar diagnosis, who have been prepared to be – to take greater responsibility, to work more with their psychologist, and with their case officers, to try and limit the risks that they pose to the community. Unfortunately, at this -- 21 of 38 -- 22 stage, that’s not the case with [the respondent].”13 (emphasis added) [46] Dr Sundin was taken to the comments in her report in respect of the respondent, namely that: “He was glib and a prolix historian. He tended to repeat particular points. He made a number of contradictory statements. He described an external locus of control. He perceived himself to be a victim and projected blame and responsibility for his difficulties onto others … [A]ctively resentful of his supervision order … He described a persistent hebephiliac sexual attraction to teenage males, but then denied this.” [47] Dr Sundin provided further commentary in respect of the risk in light of the respondent’s history and stated as follows: “Yes, it goes to the – the comments I was making earlier, which is that whilst he continues to deny the sexual attracting, it makes it extraordinarily difficult to intervene, to be a – to work with him, and to therefore intercept any potential for acting on that sexual and deviant arousal. … His insight is reduced in the sense that he – his insight into himself, from a psychological perspective, is limited. His judgment is reduced in that we know that in 2019, and then again in 2020, he has acted on these sexual arousals. On the first occasion, simply chatting to boys, but in what could be seen as offence paralleling behaviour. But then again, in the second event, actually seeking to sexually engage with a boy.”14 (emphasis added) [48] Dr Sundin noted that in her original report she recommended that the respondent participate in the HISOP as she proposed a form of therapeutic intervention during a period of continued detention in the hope “that the future can be modified”. However, in light of the evidence of the HROMU that the respondent is not appropriate to repeat the HISOP, Dr Sundin was asked about whether the respondent was “at a point of being pre-contemplative or contemplating internal change?”. Based on her examination of the respondent, Dr Sundin’s answer was no.15 Dr Sundin made reference to the material provided by Mr Hamilton, the treating psychologist, and considered that this provided the “best insight” into the importance of this aspect from a clinical perspective.16 13 T1-5, L7-24. 14 T1-6, L3-16. 15 T1-7, L40-42. 16 T1-7, L44-46. -- 22 of 38 -- 23 [49] In relation to Mr Hamilton’s observations, Dr Sundin commented: “… I found it deeply concerning that Mr Hamilton, despite his best efforts, was experiencing [the respondent] as avoidant, as reluctant to talk about his sexual deviance, as reluctant to be honest and open in his disclosures. That speaks poorly for me from a prognostic perspective … poor prognosis means poor – heightened risk.”17 [50] In respect of whether the respondent’s release on a Supervision Order would reduce the risk given the respondent’s current presentation, Dr Sundin concluded: “Dr Beech, in his report, I think makes the excellent point that while a supervision order in theory – theoretically reduces the risk, there is no evidence that a supervision order is going to prevent this man from impulsively sexually offending against his specified age group. The supervision order can prevent him from forming relationships or socialising, undertaking activities that might expose him to vulnerable males. But as in this most recent offence, [the respondent] was quite capable of engaging with a youth in a shopping centre, a child he didn’t know, and approaching him and offering him money … No supervision order is going to prevent that … Not unless he’s got someone with him 24 hours a day … clinically and statistically, we know that [the respondent’s] risk is really not going to start to reduce until he hits the age of 70.”18 [51] In respect of how the respondent would reoffend, if he did so, Dr Sundin observed: “He’s going to reoffend against a male in his preferred age group. The offending may either be opportunistic, as in the most recent events or it may involve a period of grooming. It may involve psychological coercion. And it will certainly result in the potential psychological harm to the victim.”19 [52] In cross-examination, Counsel for the respondent questioned Dr Sundin about her view in respect of release on a Supervision Order if there was a condition which prevented the respondent from attending at shopping centres entirely. In respect of the effect on the risk, Dr Sundin commented: “If you could prevent him from going anywhere where there are teenage boys, yes, it would eliminate the – the risk but I don’t know how anything could realistically prevent that.”20 17 T1-8, L20-26. 18 T1-8, L29-45. 19 T1-9, L9-12. 20 T1-11, L40-42. -- 23 of 38 -- 24 [53] Further, in relation to this issue and whether a shopping centre was a place that was a risk for the respondent, Dr Sundin further explained as follows: “The real danger is that this man has a persistent sexually deviant arousal to adolescent males that has been present for many years and on which he has acted as recently as, you know, around 12 months ago.”21 [54] As to whether a Supervision Order might be able to be imposed to contain the risk, Dr Sundin concluded: “But a supervision order works by the prisoner having some level of motivation to work with the supervision order to be honest in their disclosures, to work with their psychologist. We don’t have a lot of evidence of that here.”22 [55] Further, Dr Sundin stated: “Someone who, like [the respondent], is querulous and aggrieved about the presence of a supervision order and the clauses of the supervision is, in my opinion, demonstrating a reduction in their insight into the reasons for the supervision order and the risks posed by their own behaviour.”23 [56] It was acknowledged that this is not a case where the respondent had refused to attend his appointments with his treating psychologist, nor was it a case where there was evidence that the respondent had been untruthful about his movements and there was a variation in movements as shown by the GPS monitoring. However, Dr Sundin concluded: “I consider that his querulousness, his rejection of supervision, his projection of responsibility onto supervisors are all clear flags as to the persistent risk that he poses to the community … one of the issues here, which his lack of honesty about his persistent deviant arousal. He doesn’t want to talk and doesn’t talk to Dr – Mr Hamilton. He doesn’t talk to case officers about, you know, his sexual arousal, his sexual attraction. He knows enough to try and keep that quiet, but it’s there, and that’s informing the risk always underneath those other factors.”24 [57] In respect of the issue of whether there was any research or empirical data that suggest that his completing the HISOP again would reduce the risk or be successful in allowing him to develop insight, Dr Sundin responded: “No. That’s in part because he does now belong to such a small group of offenders who have reoffended sexually whilst on a 21 T1-12, L12-15. 22 T1-12, L19-22. 23 T1-13, L25-28. 24 T1-13, L46–T1-14, L6. -- 24 of 38 -- 25 supervision order, but we just don’t have sufficient information to know what will work with them.”25 [58] It was put to Dr Sundin in cross-examination that apart from his lack of insight into the Hebephilia condition and the respondent being querulous with his supervisors, the respondent had otherwise complied with the requirements of the Supervision Order. Dr Sundin commented as follows: “… No. In addition to that are these issues that are – have been raised in my assessment of him, in Dr Beech’s assessment of him and Mr Hamilton’s assessment of him, which is that, thus far, no one is actually getting at the underlying paraphilia and being able to engage in any meaningful way to address that to change the risk that this man poses in an ongoing way. Yes, I agree he has been superficially complying with a number of aspects of the supervision order. And as Dr Beech rightly points out, the supervision order has been moderating his ability to form a relationship with a – a vulnerable boy in the paedophilic area. But it – the supervision order has not and does not prevent him from doing what he did on these two occasions, which is seeking to sexually engage boys that fit his sexually deviant arousal pattern.”26 [59] Further, Dr Sundin was asked about an amended Supervision Order which prohibited entirely the respondent from going to a shopping centre and whether that eliminated the particular type of opportunity that had been the subject of the contraventions. Dr Sundin responded: “It eliminates the opportunity within a shopping centre. It doesn’t eliminate the opportunity down a quiet street. It doesn’t eliminate the opportunity out in the burbs, you know – it eliminates the opportunity in one place … or one type of place.”27 [60] Dr Sundin recognised that the material provided by Mr Hamilton found no evidence of any contemporaneous emotional collapse which might have triggered the 2020 offending. Further, it does not appear that the respondent alerted anybody to what was going on “inside of him” at the time to seek out appropriate help. Rather, the respondent acted on the deviant arousal. However, Dr Sundin did acknowledge the fact that the respondent had been able to give some indication as to how the offending had arisen, this may provide some basis as a starting point for further therapy.28 25 T1-14, L14-17. 26 T1-15, L7-17. 27 T1-15, L23-28. 28 T1-16, L25-45. -- 25 of 38 -- 26 [61] In light of Queensland Corrective Services determining that the respondent was not a suitable person for HISOP, Dr Sundin provided the following opinion: “… Given that QCS has determined that, at this point, [the respondent] is not a suitable person for the HISOP, it would be my recommendation under the court that he be detained, that a new psychologist be engaged – someone like Dr Madsen – to bring a fresh perspective, and to look at barriers to change, to see if those barriers can be overcome, or if they are impassable, with the hope, perhaps, that if he can identify aspects of change that could be worked on, that that could be done in one-on-one therapy. That might enable [the respondent] to get to the point where he, actually, could, meaningfully, get something out of participating in the HISOP.”29 [62] Dr Sundin acknowledged that the respondent has not expressed any resistance to continuing to undergo treatment and this was a positive factor.30 [63] Further, Dr Sundin concluded: “As I’ve previously advised the court, I don’t recommend a supervision order at this point in time. I do recommend that QCS look at engaging a new clinical psychologist to work on one to see if barriers to change can be overcome. At that point, he may be ready to participate in a group program, or it may be that the one-on-one treatment is sufficient to get him to a point where, in my opinion, a supervision order could safely manage his risk to the community.”31 [64] Dr Sundin also recognised the difficulties of Queensland Corrective Services managing the respondent if there was a requirement that the respondent not attend where teenagers congregate. Dr Sundin commented: “… I can’t see practically how it could be actualised in real life under a supervision order that [the respondent] could be kept from any place where teenagers congregate. And as you rightly say, how would he know he was in breach or not in breach of his order given the number of cases where he could be potentially in breach of his order.”32 [65] In re-examination, Dr Sundin was taken to two extracts from the report of Mr Hamilton dated 16 March 2021 which state as follows: “[The respondent] has previously been assessed as a high or moderate risk – moderate high-risk of sexual offending on the Static 99R and Static 2002 assessment tools by assisting psychiatrists. These risk assessments remain relevant and 29 T1-17, L13-21. 30 T1-17, L23-26. 31 T1-18, L8-13. 32 T1-19, L22-26. -- 26 of 38 -- 27 further evidence of his high static and dynamic risk is demonstrated by what could be described as a brazen further offence with either extreme naivety to the likelihood of going undetected or impulsive disregard to the same. He has attempted to engage in a contact sexual offence while subject to the supervision requirements, that he had repeatedly being expressing as too onerous and unfair. As noted in the assessment report, his offending has been both opportunistic, particularly relevant to his early offending, through more frequently has featured grooming and/or predatory behaviours against teenage victims. … He denies and/or grossly minimises the later of these, despite the ongoing relevance. His cognitive distortions serve as both treatment barriers but also preserve his high-risk of offending. His offending has continued despite treatment in the community and custody and while subject to close monitoring. His offending commenced at a young age and now spans 30 years plus. Demonstrating a chronic and entrenched nature of his offending. A barrier to treatment remains his entrenched patterns of externalising blame, responsibility shifting, often onto corrective services and taking a victim’s stance. These attitudes and cognitions, coupled with a reluctance to discuss his sexual interests, arousals and strategies to either appropriately meet or manage them, into the benefits he could obtain from risk management processes and intervention.”33 (emphasis added) [66] In light of these two extracts from Mr Hamilton, Dr Sundin was asked whether she had the view that it was clinically appropriate to release the respondent to the community under any form of a Supervision Order. Dr Sundin responded that, in her opinion, no.34 [67] Dr Beech was also called to give further evidence at the hearing. In evidence in chief, Dr Beech was asked about the way forward in respect of the respondent and commented as follows: “I think the way the forward’s unclear. We are dealing in a very select area now: someone who’s managed to commit a sexual offence while on a supervision order. You don’t see much of that. There’s not much information around that I could find. As I said, there’s one report based on Queensland DPOSA supervisees and four per cent of them commit another offence. So it’s just – it’s a small group of a small group in itself. I think – so I’m not sure of the way forward. There – in some people there would be scope for further treatment, in particular, those people who’ve done a HISOP but where the 33 T1-22, L13-24, L28-39. See report at Exhibit “JM-4” (pages 61-65) to the Affidavit of Jolene Monson affirmed 6 July 2021. 34 T1-22, L41-42. -- 27 of 38 -- 28 people who the facilitators have thought, “Well, he did well. He tried to engage but he struggled in some areas,” some scope for more work to be done with this part of the HISOP. So for those people you might say well, you can do the HISOP again. Just more powers are needed to get to a certain point. For some people though who’ve done the HISOP, in [the respondent’s] case, the problem is not he needed more hours. The problem was his attitude and at the end of the 390 hours of the facilitator said, “He’s got unmet treatment needs,” but those things aren’t related to the HISOP. They’re about his attitude, his problems with evasion, difficulties with insight, problems with changing behaviours. So I don’t think HISOP – another HISOP’s going to do that.”35 (emphasis added) [68] In respect of repeating the HISOP, Dr Beech gave evidence as follows: “… But for other people like [the respondent] there’s no point doing it again. So then you have to come down to individual psychological treatment to – to see if those unmet treatment needs can be met that way and these are things about attitude, I guess resilience, the way he responds to stress, the way he might change his pattern or things like that and I – I – ultimately, I think if you’ve had three or four years with Mr Hamilton and at the same time you’re seeing another psychologist, Michelle Hobbs, for psychological treatment and this still occurs I don’t know if there’s much more value in providing more psychological treatment. So [indistinct] someone who’s at, I think, high risk of reoffending without a supervision order and who has reoffended on a supervision order where I’m not sure that more treatment’s going to be – provide much more benefit. You’re coming down to reducing risk through overly external strength and strengths on movement, associations, travel, things like that. So there is an impasse and I’m not sure that I know the way forward and part of that is I’m not too sure how much surveillance you can put on a person. As I’ve said in my report, I’m not a surveillance so I’m not so sure how much surveillance you can put on a person and for how long you can keep that surveillance. I’ve – I’ve got exposure to surveillance methods through the DPSOA processors and contraventions and things like that. But at the end of the day, this type of offending where you can find someone in the public, sort of select the person out, and then importune them and persistently importune them, I think is going to be hard to prevent.”36 35 T1-26, L24-41. 36 T1-27, L2-22. -- 28 of 38 -- 29 [69] Dr Beech acknowledges that the respondent has said that he wants more counselling and acknowledges that he “stuffed up” and “made a mistake”, and then gave reasons for it.37 However, Dr Beech goes on to recognise: “He can’t, that I can see, in his own mind though, make the link of, ‘What is my thinking, then, that having been effected by these stressors, having suffered a low mood, what is my thinking, then, that I then go to a shopping centre and try to precure a young male?’ And that’s probably the area that would need to be worked on.”38 [70] Dr Beech was also taken to the extracts from the report of Mr Hamilton and expressed the following view: “Well, I think the concerns are that he’s had a lot of treatment – individual treatment – to try to meet those needs that were identified at the end of the HISOP. And despite that, he’s offended. And I think this here, plus, I think, something else that Mr Hamilton sent through, plus the IOMS notes, indicate that he’s, in my experience with him – and I think the report or the HISOP facilitators – everybody – is that he’s evasive when it comes to the actual sexual offending. The thinking behind it, the thoughts that go with it, the planning – the whole gamut of the offending trajectory. And instead, he focuses on externalising blame, or his grievances. And when you see what’s happening, I think, with Mr Hamilton, probably – I suspect that therapy, if you like, got suborned into dealing with – [the respondent] stated the grievances about the supervision order and not progressing with so much the sexual offending per se. Now, to be fair [indistinct] because you’re on a supervision order and you got to – to – your risk reduction occurs by complying with the supervision order. And so there’s value in dealing with the stressors that arise from a supervision order. But I suspect it got diverted into him talking about his grievances, ‘This is what they’ve done to me again.’ You know, ‘These restrictions I’ve had is getting me down. I can’t find work.’ He’s focused on that, and it’s avoided some of, maybe, the core work around sexual offending, as it seems, I think, when the HISOP occurred. And I think when your try to interview him about it, he goes onto this litany of complaints. But that detracts from trying to get an understanding of the offending.”39 (emphasis added) [71] Further, Dr Beech accepts that “querulous” is a good description of the respondent rather than rejecting supervision. However, Dr Beech did acknowledge that at some point querulousness may become rejection.40 37 T1-27, L25-26. 38 T1-27, L36-40. 39 T1-28, L8-28. 40 T1-28, L42-T1-29, L2. -- 29 of 38 -- 30 [72] In respect of the ultimate question to be determined by the Court, that is, whether the respondent should be subject to a Continuing Detention Order or released on a Supervision Order, Dr Beech commented as follows: “I can’t tell – I can’t help you as to what should happen. I – I don’t know if it’s opportunistic, premeditated or impulsive, that offending. And that concerns me. And I don’t think – I’m not sure that anyone has got that far with [the respondent] in any of the treat – I don’t see anything from the HISOP or from Mr Hamilton’s reports or my interviews to know whether this was the case. To me, [the respondent] said the offending was not premeditated. He didn’t go to the shopping centre to offend. But I worry that – it may not have been premediated but unconsciously, that’s what happened, because he must have gravitated to the shopping centre – I suspect – I suspect he gravitated to the shopping centre because that’s where – that’s where young boys might be on school holidays. That’s where he met them before. You know what I mean [indistinct] so unconsciously, he may have gravitated there. I don’t think it was impulsive. It may have been opportunistic, but as I read what happened was – there was a group of boys. He spoke to one of them. He waited, stayed in the area. When that boy left the group, then he started importuning him, and it was persistent. You know, it was clumsy, but it was persistent attempts to procure a sex act with this boy. So I don’t know how you can get – prevent that with surveillance. … I look at the 29 contraventions that happened over that four- year period, now, some of them were technical, on a technical – as in administrative fines, you know, parking on the precinct grounds or I think not turning up on time, or those sort of things, that you think, well, that’s neither here nor there, but many of them were deviations or loitering. So yes, he did give a plan of where he’s going to go and what he’s going to do, his movements. He seems to have done that, in fact, reasonably well, given a log of his activities and his planned activities, but then many of those contraventions were about deviations from that plan, or loitering or lingering, and you would have to then see what his plan was, go – and then retrospectively recreate what he had done.”41 (emphasis added) [73] In respect of framing conditions, the proposed condition that the respondent be prohibited from attending shopping centres, Dr Beech gave the opinion that: “… You can take shopping centres [out] of the equation. I – I don’t – I don’t take much comfort from the fact that he only 41 T1-29, L28–T1-30, L16. -- 30 of 38 -- 31 offends in shopping centres. Do you know what I mean? I think there might be other areas that I wouldn’t know about.”42 [74] Further, Dr Beech further commented: “… it sounds reasonable to me that a supervision [order] with those restrictions must limit the opportunity … I think there are certainly things – you could more restrictions in place that must limit the opportunity. But I don’t know by how much.”43 [75] Dr Beech expressed an opinion that if the respondent is to be detained on a Continuing Detention Order then there is some benefit in a fresh perspective being obtained from a different psychologist. [76] Further, if a psychologist concluded that the respondent was ready to do the HISOP again, then there would be some benefit in him doing that, particularly in the areas of victim empathy, or distorted cognitions, as some areas are better addressed in a group process.44 [77] If the Court determines that it is appropriate to release the respondent on a Supervision Order, Dr Beech considers that the period should be extended by at least 10 years as the risk in respect of the respondent is going to continue into the foreseeable future.45 [78] In cross-examination, Dr Beech was asked his view of the risk if the respondent was released under a Supervision Order. Dr Beech recognised that the contravention offending was “a clumsy attempt for victim-selection” but the risk is that the respondent would find a more compliant victim and succeed in engaging in a sexual act. The difficulty is that there are places where the relevant aged children may go beyond shopping centres, such as train stations, which could also be risk areas. It could also include places such as a skate park or even a bus stop where it was close to a park, for example.46 [79] Dr Beech concluded: “My concern is whether it reduces the risk of him committing an offence in a shopping centre or … whether it reduces his risk of him committing an offence full stop … I do think a supervision order must reduce the risk. You put so many restrictions around. You reduce so many opportunities. It must reduce risk. I just don’t know by how much.”47 [80] Further: “… if you look at his offending … the middle tranches of offending has been to groom people he was known – he was a known person that kids could go to and get alcohol or 42 T1-31, L38-41. 43 T1-32, L10-13. 44 T1-32, L20-37. 45 T1-33, L5-13. 46 T1-36. 47 T1-38, L4-9. -- 31 of 38 -- 32 cigarettes, and in exchange for that, he – he got sexual activity. … [O]ne of the convictions was for maintaining a sexual relationship … I think those kind of offending would be prevented by a supervision order. The ability to groom … maintain a relationship, that type of predatory behaviour would stop. If there’s offending of seeking out someone you might think would be vulnerable, offering them some money, having a sexual activity, and then getting back on the bus and no one’s the wiser.”48 (emphasis added) Evidence from Queensland Corrective Services [81] Mr Maurice Crothers, the Project Manager for Offender Rehabilitation and Management Services, Queensland Corrective Services, also gave evidence by affidavit and orally at the hearing. Mr Crothers gave evidence in relation to the case conference which had been convened to consider the respondent potentially undertaking the HISOP program again. [82] Exhibit 3 is a file note of the outcome of the case conference. In summary, Mr Crothers gave evidence that the current recommendation is that the respondent not be considered to enter back into the HISOP. This position is as a result of responsivity issues about taking responsibility for offending behaviour and also, the respondent participating in a group process. The minutes of the case conference list barriers of the respondent going into a group treatment program. [83] Mr Crothers noted that if the respondent took some responsibility for his offending behaviour, that would suggest that he would gain benefit from further participation in a group program.49 Further, if there was some change in respect of the respondent, his suitability for the programs could be reassessed. Further, the respondent may need to go through the Preparatory Program prior to HISOP and also to undergo another Stable assessment to determine his treatment needs.50 [84] Mr Crothers also gave evidence that if the respondent was placed on a Continuing Detention Order but was not suitable to undertake one of the programs then he would be managed by HROMU who would consider whether he would be appropriate for one-on-one treatment.51 [85] Ms Jolene Monson, the Manager of the HROMU, Queensland Corrective Services, also gave evidence by affidavit and orally at the hearing. [86] Ms Monson’s evidence included that in light of the assessment that the respondent was unsuitable to go into the HISOP, if he continued in custody, an assessment would be undertaken of his barriers to treatment and whether it was possible to engage with him meaningfully in treatment in the future. This would include: 48 T1-38, L13-23. 49 T1-42, L25-27. 50 T1-42, L34-40. 51 T1-43, L35-45. -- 32 of 38 -- 33 “… [W]e could then explore whether there’s any scope in progressing further motivational sessions to address the barriers, or further individual treatment, or whether he may be at a point in time where he can go – whether he can attend a high intensity sexual offending program.”52 [87] Ms Monson also gave evidence that in respect to one-on-one treatment, the first step would be to engage a suitably qualified and experienced practitioner to do an assessment. Further, if the respondent was released to the community under a Supervision Order, an experienced psychologist would also be engaged.53 Respondent’s position [88] The respondent contends that: “… [T]he Court would be satisfied, on the balance of probabilities, that the adequate protection of the community can, despite the contraventions, be ensured by the making of an amended Supervision Order. It is proposed that requirement 32 of the Order be amended to prohibit the respondent from attending the premises of shopping centres at any time without the prior written approval of a Corrective services Officer.”54 [89] Further, the respondent identifies the “real issue” is whether the Court is satisfied to the requisite standard that a Supervision Order can adequately “contain” the specific risk posed by the respondent.55 The respondent submits that the fact that the respondent remains attracted to teenage boys and has limited insight into that condition does not mean that a Continuing Detention Order should be made.56 [90] It is in this context that the proposal was put forward for an amended Supervision Order which prohibits the respondent from attending shopping centres where, it is submitted, the specific risk posed by the respondent arises: that is the opportunity to make contact with teenage boys who gather at shopping centres. The prohibition would effectively contain the risk of the respondent committing serious sexual offences.57 [91] Whilst being prohibited from attending shopping centres, it is proposed that the respondent could arrange for the delivery of groceries to his residence and make purchases from smaller convenience stores that are not in a “shopping centre complex”.58 52 T1-46, L41-46. 53 T1-47, L1-16. 54 Respondent’s Outline of Submissions at [3]. 55 Respondent’s Outline of Submissions at [13]. 56 Respondent’s Outline of Submissions at [14]. 57 Respondent’s Outline of Submissions at [15]-[16]. 58 Respondent’s Outline of Submissions at [17]. -- 33 of 38 -- 34 [92] The respondent also points to his acknowledgement of the risk and he has informed Dr Beech that he intends to avoid shops and not to talk to young people, and visit “adult focused” areas.59 [93] In addition to the proposed amendment to the Supervision Order the respondent also points to there not being a rejection of the obligations under the Supervision Order. Applicant’s position [94] The applicant contends that: (a) Given the respondent’s criminal history and index offences, the contravention of conditions 9, 15 and 29 must be viewed as serious. The current contravention should not be characterised as minor or technical in nature.60 (b) The nature of the contravention involving a serious sexual offence against a 15 year old boy should not be seen as an isolated or a “trivial” event. The contravention represents a significant concern and an unacceptable risk of serious sexual reoffending in the community.61 [95] The applicant refers to the psychiatric evidence in respect of the risk, namely: (a) Dr Sundin has the opinion that the respondent’s unmodified risk of future sexual reoffending is “unacceptable” and in the “high” range. (b) Dr Beech has the opinion that the respondent’s unmodified risk of future sexual reoffending is in the “high” range. [96] Further, if the respondent was released into the community on the current supervision order the psychiatrists expressed the following views on the risk: (a) Dr Sundin, was not confident that the risk can be contained under the existing Supervision Order. (b) Dr Beech considered that the risk would reduce to moderate by the operation of the Supervision Order itself. [97] These views were further clarified in oral evidence, including as follows: (a) Dr Sundin expressed her view that she would not recommend that the respondent be released under any Supervision Order. (b) Dr Beech also expressed concerns that the Supervision Order may not be effective in respect of opportunistic offending such as the current contravention. [98] The views of the psychiatrists are also expressed in the context that the respondent now falls within a very small group of supervised sex offenders who have been convicted in respect of a new sexual offence while under supervision. 59 Respondent’s Outline of Submissions at [18]. 60 Applicant’s Outline of Submissions at [31]. 61 Applicant’s Outline of Submissions at [32]. -- 34 of 38 -- 35 [99] It is in this content that the applicant submits that Dr Sundin and Dr Beech are “guarded on the question of whether risk can be reduced to an acceptable level, and adequate protection of the community can be ensured” by release on a Supervision Order.62 [100] In these circumstances, the applicant’s position is that: (a) Whether a Continuing Detention Order is required under s 22(2) to ensure the adequate protection of the community or whether a Supervision Order under s 22(7) is sufficient requires judicial determination. (b) The evidence supports a continuing detention order and that the respondent has not discharged the onus on him such that the Court could be satisfied that the adequate protection of the community could be achieved by a return to the current Supervision Order or an amended Supervision Order. Whether a Supervision Order, despite the contravention, ensures the adequate protection of the community? [101] Given the finding that the contravention has occurred, the respondent must prove that the supervision order, in its existing terms or as amended, will ensure the adequate protection of the community by removing unacceptable risk that the respondent will commit a serious sexual offence. [102] Here the risk is the specific risk of serious sexual offences against teenage boys. The legislative scheme must accept that some level of risk is acceptable, consistent with the concept of adequate protection of the community. [103] 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 sexual offences”.63 (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”.64 62 Applicant’s Outline of Submissions at [36]. 63 Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at [29] (Chesterman JA). 64 Attorney-General (Qld) v Beattie [2007] QCA 96 at [19] (Keane JA). -- 35 of 38 -- 36 [104] 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 Sutherland [2006] QSC 268 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.” [105] 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. [106] In making the “value judgement” required, I have considered and accept the views expressed by Dr Sundin and Dr Beech and the applicant’s evidence read in support of the application. [107] The following evidence is particularly relevant to this issue: (a) The respondent has a history of offending over a long period. (b) The respondent’s offending is persistent despite sanctions, imprisonment, completing the HISOP and close supervision under a supervision order. (c) The respondent demonstrates little insight, has poor judgment and has very poor self-awareness. (d) The respondent has presented as “glib” and “manipulative” in interviews with a Court appointed psychiatrist. (e) The respondent has received on-going one-on-one treatment with an experienced psychologist whilst on the Supervision Order. (f) Prior to the current contravention, there was a contravention in 2018 with parallel behaviour (lingered with an adolescent male in contravention of the Supervision Order). (g) The respondent has had a “negative attitude” to supervision, and he is described as “querulous”. This is a demonstration that the respondent has reduced insight into the reasons for the Supervision Order and the risk posed by his own behaviour. (h) The respondent has had multiple contraventions while on the Supervision Order and does not take responsibility for his conduct. Rather he perceives the Supervision Order to be unreasonable. (i) The respondent’s performance on the HISOP was poor and evidences that the respondent continues to externalise blame and minimise his responsibility. This is confirmed by the more recent report from the respondent’s treating psychologist. (j) At the time of committing the contravention offending the respondent had not suffered an “emotional collapse”. -- 36 of 38 -- 37 (k) The respondent is now in the very small group of supervised sex offenders who have been convicted of a new sexual offence committed whilst under supervision. (l) The risk of re-offending is the respondent would come in contact with a young male and the offending my be opportunistic or may involve predatory grooming behaviour. It could include the respondent selecting a vulnerable or compliant victim. The offending may include kissing, indecent touching or masturbation. It could progress to penetrative sexual activity if within a sexual relationship. The victim is likely to suffer psychological harm. (m) It is unlikely that there would be an observable increase in risk prior to any offending that would be picked up by those monitoring the respondent. (n) Conditions in a supervision order would not prevent future offending of the nature of the contravention offending. Further, this would be difficult to “interrupt” or to detect afterwards. (o) This is particularly so, where the respondent is avoidant, reluctant to speak about his sexual deviance and is also reluctant to be honest and open in his disclosures to those supervising him. (p) There is no evidence that a Supervision Order is going to prevent the respondent from impulsively sexually offending against teenage boys. (q) The risk is not shopping centres, but rather that the respondent has a persistent sexual deviant arousal to adolescent males that has been present for many years and he acted on it again whilst under the Supervision Order, resulting in the contravention offending. [108] I recognise that the respondent has previously completed the HISOP, received one-on-one psychological treatment and to some extent has complied with the Supervision Order for a number of years. However, his performance in all of these was poor and this points to the existence of a high level of risk of re- offending in respect of the respondent. [109] The evidence shows significant barriers to treatment including entrenched patterns of “externalising blame”, “responsibility shifting” and “taking a victim stance”. Further, the evidence shows that the respondent is reluctant to discuss his sexual interests and arousals. He is also reluctant to discuss strategies to manage his sexual interests and arousals which results in the reduced effectiveness of risk management elements in the Supervision Order. [110] Even if the Supervision Order was amended to prohibit the respondent attending shopping centres and extended for a further 10 year period, a significant risk of the respondent reoffending would remain. I acknowledge that the terms of a Supervision Order would have some effect on reducing the risk. The opportunity for grooming offences would likely be contained. However, the risk of opportunistic offending, such as the current contravention offending, would remain. -- 37 of 38 -- 38 [111] The applicant submits that the respondent is a “high risk, treatment resistant, recidivist sex offender who has offended whilst on supervision”. This is established on the evidence. Whilst a supervision order would have some moderating effect on the risk, as shown by the current contravention there remains a real risk of further serious sexual offending by the respondent. [112] In light of the evidence, 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. [113] The evidence also establishes that the respondent may benefit from one-on- one sessions with a new experienced psychologist, specifically looking at the barriers to change identified by the psychiatrists. This will be offered to the respondent and could result in the respondent being able to engage in the HISOP in a meaningful way. Either through one-on-one treatment or a combination of one-on-one treatment and a repeat participation in HISOP, the respondent may in the future be able to be released on a supervision order which is able to manage his risk of reoffending in the community. [114] 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 a requirement of the Supervision Order dated 2 November 2015. (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 dated 2 November 2015, be ensured by the existing Supervision Order or an amended Supervision Order. [115] 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. [116] The order of the Court is that: 1. The Interim Detention Order made on 24 January 2020 is rescinded. 2. The Supervision Order made on 2 November 2015 is rescinded. 3. The respondent be detained in custody for an indefinite term for control, care and treatment under the DPSO Act. -- 38 of 38 --