Attorney-General for the State of Queensland v ECA [2021] QSC 220

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v ECA [2021] QSC 220 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ECA (respondent) FILE NO: SC No 2842 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 2 August 2021 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 2 August 2021 JUDGE: Wilson J ORDERS: 1. Pursuant to s 30(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the decision made on 5 August 2019, that the respondent is a serious danger to the community in the absence of a division 3 order, be affirmed. 2. Pursuant to s 30(3)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the respondent continue to be subject to the continuing detention order made on 5 August 2019. 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 the subject of a continuing detention order under part 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant applied for review of the order – where the respondent had schizophrenia and paedophilia – where the respondent’s paedophilia could not be treated until his schizophrenia was treated – where the respondent’s schizophrenia could not be treated without inpatient admission – where the Court did not have power to order inpatient -- 1 of 22 -- 2 admissions – whether the continuing detention order should be renewed Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(2), s 30, s 32, s 33 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396; QCA 324, cited COUNSEL: J Tate for the applicant E Whitton for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] HER HONOUR: This is an application by the Attorney-General for the State of Queensland under part 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for the review of a detention order for the respondent. The effect of the review under section 30 of the Act is that, if the Court affirms the decision that the respondent would be a serious danger to the community in the absence of a division 3 order, the respondent will either continue to be subject to a compulsory detention order or be released from custody under a supervision order. [2] The parties agree that the division 3 order made by Boddice J on the 5th of August 2019 should be affirmed, and the respondent should continue to be subject to a continuing detention order. [3] I note that the respondent concedes that the Court would be satisfied there is sufficient cogent evidence that the continuing detention order made by his Boddice J on the 5th of August 2019 be preserved. The respondent accepts the applicant’s submission that have been set out in the supplementary outline of the submissions dated the 19th of July 2021. I note that the respondent’s ability to participate in these proceedings has been an ongoing issue because, particularly, of the fact that the respondent was previously self-represented. Instructions for these proceedings have been taken from the respondent personally, but also from his representative at the Office of the Public Guardian. [4] For reasons that I will explain, the respondent is in a somewhat unique position due to the interplay between his mental health issues and his paedophilia. I will make some observations about this at the end of my decision, which I hope will be applied. Background [5] The chronology of this matter is somewhat complicated and has been set out in the material. On the 5th of August 2019, Boddice J declared the respondent to be a serious danger to the community and ordered that he remain in custody for an indefinite term under a continuing detention order for control, care and treatment. [6] The first annual review was scheduled for the 17th of August 2020. That hearing date was abandoned at the last minute, on the 6th of August 2020, when the respondent was referred to the Queensland Civil and Administrative Tribunal (“QCAT”) for the appointment of a public guardian. -- 2 of 22 -- 3 [7] On the 2nd of March 2021, QCAT appointed a public guardian for legal matters relating to proceedings under the Act. [8] On the 25th of June 2021, an updated clinical report was provided by Dr Robert Stewart (Prison Mental Health Service treating psychiatrist). Dr Stewart had provided earlier reports dated the 19th of June 2020 and 4th of August 2020. [9] On 2 July 2021, Dr Eva Timmins prepared an addendum report to her initial reports, which were dated the 28th of February 2019 and 18th of July 2020. [10] On the 5th of July 2021, an addendum report was prepared by Dr Michael Beech to his initial report dated the 19th of July 2020. [11] The respondent is a recidivist sex offender. At the division 3 hearing, Boddice J provided this summary of the respondent’s criminal history: “[11] On 7 November 2011, the respondent was sentenced in respect of two counts of indecent treatment of a child under 16 (under 12) and one count of entering a dwelling with intent by break at night time, all committed on 21 January 2009. The respondent had pleaded guilty to those offences on the third day of his trial. [12] The sentencing judge gave the following summary of the respondent’s offending and subsequent conduct: On the night in question [the respondent] went to the complainant’s house in the early hours of the morning. He ultimately obtained access to the house through a window. He then made his way to the bedroom of a three and a-half year old girl. There he removed her pyjama bottoms and underpants and exposed her vagina, licked her vagina and took indecent photos of her in her semi- naked state. He was found at the scene by the complainant’s father. [The respondent] was naked. He was restrained until apprehended. The offences are, of course, serious offences. They are prone to causing great distress to the little girl in question and indeed to her whole family. The victim impact statement, which was tendered, attests to the sorts of effects which one could well imagine occurring by reason of the conduct in question. The experience was harrowing for all concerned and continues obviously to have its consequences. At the scene of the crime [the respondent] gave a false name. He took part in an interview; the next day but made denials. He was interviewed some days later and made relevant admissions, but subsequently claimed that those admissions were forced. He pleaded not guilty. The matter went to trial. On the third day of the trial he changed his pleas to pleas of guilty to a number of counts -- 3 of 22 -- 4 and to an alternative in relation to count 2. The Crown was prepared to accept those pleas in discharge of the indictment. The pleas were made in circumstances where an overwhelming Crown case was becoming even stronger. Subsequently, he applied unsuccessfully to withdraw his pleas of guilty. When the matter then came on for sentencing, he behaved in an inappropriate manner. I ultimately ordered a presentence report including a psychiatric report… [13] The sentencing judge imposed an effective head sentence of five years and three months imprisonment for these offences. A parole eligibility date was set at 21 January 2013. [14] On 14 December 2011, the respondent was sentenced in respect of two counts of indecent treatment of a child under 16 (under 12) and two counts of indecent treatment of a child under 16 (child under 12) (take photograph etc), following verdicts of the jury that he was guilty of each of those offences. The offences were committed between March and June 2007, that is, before the offences for which he was sentenced in November 2011. [15] The sentencing judge summarised the circumstances of those offences: … the accused was a visitor in the home of his relatives. Those relatives occasionally looked after the complainant child who was, as I recall it, about 10 to 13 months old at the relevant time. They baby-sit that child whilst her mother had other things to do. It was during one of those occasions that he entered the room in which the child was sleeping in her cot. He had a camera with him. On the jury’s finding he must have placed his fingers in the area of her vagina but not inserted his fingers into her vagina. He then rubbed the area of her breasts and subsequently took photographs of her. He was not discovered at that time. [16] After observing that the respondent had, after the commission of these offences, committed the offences the subject of his sentence on 7 November 2011 and that those offences had involved the respondent in the small hours of the morning entering the bedroom of a three and a half year old child and had included taking photographs of that child, the sentencing judge sentenced the respondent to an effective head sentence of two years imprisonment to be served cumulatively upon the sentences imposed on 7 November 2011. A parole eligibility date was set at 21 January 2014. [17] On 15 February 2012, the respondent was sentenced, following verdicts of guilty by a jury, in respect of two counts of indecent treatment of a child under 16 and one count of indecent treatment of a child under 16. Those offences had been -- 4 of 22 -- 5 committed between October 2007 and March 2008, that is, after the offending involving the ten month old child and before the offending involving the three year old child. The complainant in these offences was a child aged approximately 14 or 15 years. The offences involved sending and receiving explicit photographs. Two of the counts of indecent treatment involved procuring to commit. The remaining count involved indecent images. [18] The respondent was sentenced to an effective head sentence of six months’ imprisonment for these offences, to be served cumulatively on the existing terms of imprisonment. A parole eligibility date was set at 21 March 2014.” [12] In determining that the respondent presented an unacceptable risk of committing a serious sexual offence as defined by the Act, his Honour was satisfied that the protection of the community required the imposition of a continuing detention order. His Honour observed that: “[49] The respondent’s offending behaviour the subject of the index offenses involved sexual offending against separate complainants of varying ages on three separate occasions. It is properly to be characterised as involving serious sexual offending of an escalating nature. That feature was considered by both Dr Beech and Dr Sundin to be particularly compelling when considering the risk presented by the respondent in respect of future serious sexual offending, particularly in the context of not only a treatment resistant mental illness but ongoing lack of insight and denial of the offences. [50] I accept the opinions expressed by both Dr Beech and Dr Sundin as to the respondent’s current diagnoses and as to the risks he currently presents in respect of serious sexual offending in the future. I accept that that risk is properly to be characterised in the moderate-high range. That risk is exacerbated by not only the treatment resistant nature of his mental illness but the respondent’s poor insight and ongoing denials of his previous sexually deviant behaviour. [51] Whilst a supervision order, which contained as one of its conditions a requirement that the respondent be accommodated in a secure mental health facility, would assist in potentially addressing the respondent’s ongoing mental illness and with improvements therein potentially the treatment and management of his sexual deviancy, I am satisfied on the present evidence that such a supervision order would not render the respondent’s risks of future serious sexual offending no longer unacceptable. [52] First, there is no acceptable basis upon which it can be accepted that placement in such a facility would result in any improvement in his mental illness which to date has been treatment resistant. Whilst there may be an opportunity to trial -- 5 of 22 -- 6 a different anti-psychotic medication, namely, Clozapine, it does not follow that it will be successful. I accept Dr Beech’s evidence that its success rate is in the order of 30% in respect of treatment resistant schizophrenia. [53] Second, the risks posed by the respondent in respect of future serious sexual offending is not dependent upon treatment of his mental illness. The respondent has significant sexually deviant behaviour. He has acted upon that deviance on multiple occasions in respect of complainants of significant age disparities and in an escalating nature. [54] Third, the respondent’s continuing denial of that sexual offending behaviour has prevented any genuine attempts at addressing his sexual deviance. Against that background there is plainly a need for his sexual deviant behaviour to be the subject of appropriate treatment prior to any consideration of his release into the community subject to a supervision order. I accept Dr Sundin’s opinion that the respondent could not safely be released into the community under the auspices of a supervision order. [55] One final matter remains to be considered, namely, a submission by the respondent that his current involuntary patient status provides adequate protection to the community such that consideration could be given to making no order under the Act. [56] The respondent’s current status as an involuntary patient is a completely inadequate structure to address the risk posed by the respondent in relation to serious sexual offending in the future. Involuntary treatment orders are easily revoked and do not, in any event, provide any assistance in the treatment of the respondent’s serious sexual deviancy, which exists independently of the treatment of his mental illness.” Legislative framework [13] The statutory objects of the Act are to provide for the continued detention in custody or supervised release of a particular class of offender to ensure adequate protection of the community, and to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation. The Act establishes a comprehensive statutory scheme for the continued detention in custody, or for the release under supervision, of prisoners who are considered to be at risk of committing serious sexual offences in the future if they are released at all, or if they are released from custody without appropriate supervision. [14] The Act confers jurisdiction on the Supreme Court to hear application for orders under the Act. Section 5 places the statutory responsibility for making the necessary applications on the Attorney-General. The primary orders which may be granted under the Act are called “division 3 orders”, which are provided for in section 13 of the Act. They may be imposed if the Court is satisfied that the prisoner is a serious danger to the community in the absence of a division 3 order. -- 6 of 22 -- 7 [15] On the 5th of August 2019, as I have stated, Boddice J declared the respondent to be a serious danger to the community and ordered that he remain in custody for an indefinite term under a continuing detention order for control, care and treatment. [16] Once a continuing detention order is made under part 2, division 3 of the Act, the Attorney-General must make application for a review to be carried out. The application for review is governed by section 30 of the Act, which creates a two-step inquiry concerning: (a) whether the division 3 order should be affirmed; and (b) if so, whether the order should be a continuing detention order or a supervision order. [17] As to the first step, section 30(1) provides that this section applies if, on the hearing of the review under section 27 or 28 and having regard to the required matters, the Court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order. Arrangements must be made for the respondent to be examined by two psychiatrists. [18] Section 13(2) of the Act provides that a prisoner is a serious danger to the community if there is an “unacceptable risk” that the prisoner will continue to commit a serious sexual offence if released on custody, or if released on custody without a supervision order being made. The expression unacceptable risk is undefined by the Act. It is incapable of precise definition, but it is an expression that requires the striking of a balance. The relevant risk is the risk of the commission of a serious sexual offence; that is, an offence of a sexual nature involving violence or against children. “Risk” means the possibility, chance or likelihood of commission of such an offence. [19] An “unacceptable” risk is a risk which does not ensure adequate protection of the community, and this phrase was considered in Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, where the Court of Appeal observed: “[34] It is to be emphasised here that the primary judge's assessment "call[s] for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right". It follows that it would be wrong for: [A] court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.” [20] For the Court to make a division 3 order, it must be satisfied that the prisoner is a serious danger to the community in the absence of an order. The paramount -- 7 of 22 -- 8 consideration is the adequate protection of the community. On a review, section 32 permits the Court to affirm the decision if it is satisfied by acceptable, cogent evidence, and to a high degree of probability, that the evidence is of sufficient proof to affirm the decision that the prisoner is a serious danger to the community in the absence of a division 3 order. [21] If the Court affirms the decision that the prisoner is a serious danger to the community in the absence of a division 3 order, then the discretion granted by section 30(3) of the Act is enlivened. Once that decision has been affirmed, then the Court is able, by section 33(3) of the Act, to order that the respondent be subjected to continuing detention or to be released from custody subject to a supervision order. [22] Under section 33(4), in deciding whether to make an order under section 33(3)(a) or (b), the paramount consideration is the need for adequate protection of the community. The Court must consider whether the adequate protection of the community can be reasonably and practicably managed by a supervision order, and whether the requirements under section 16 can be reasonably and practicably managed by a Corrective Services officer. [23] The Attorney-General bears the onus of satisfying me that a continuing detention order ought to be made. If the Court declines to order continuing detention, then the Court must rescind the continuing detention order. The medical evidence [24] There is a significant amount of material before the Court due to the complexity of and delay in these proceedings. The most relevant and recent psychiatric reports include: the reports of Dr Stewart, who is the treating psychiatrist, dated the 19th of June 2020, 4th of August 2020 and 25 June 2021; the reports of Dr Beech dated July 2020 and 5 July 2021, and an addendum dated the 19th of July 2021; and the report of Dr Timmins dated the 2nd of July 2021 and an addendum email dated the 20th of July 2021. The most recent reports of Dr Stewart, Dr Beech and Dr Timmins are, in my view, of most assistance, and I will summarise them in some detail. Report of Dr Stewart [25] In his most recent report, which is dated the 25th June 2021, Dr Stewart states that: “The patient has a provisional diagnosis of schizophrenia. This illness has resulted in persisting abnormalities of his mental state and is associated with impairment of the overall function. He continues to express entrenched delusional beliefs of persecution. His central persecutory belief is that he has been convicted by the Court in a gross miscarriage of justice. He believes that there has been a conspiracy involving the judiciary, the Court, the police and even mental health services. While his provisional diagnosis of schizophrenia was made during his first psychiatric admission in 2015, at present he is currently not receiving any medication. In January last year, he refused to accept ongoing treatment with a depot antipsychotic medication. He does not accept that he is, or has ever been, psychiatrically unwell. In view of the significant delay that -- 8 of 22 -- 9 would likely result from a referral to an authorised mental health service, I felt that a reasonable compromise was to allow the patient to continue without medication on the condition that he agreed to see me every fortnight or as frequently as clinically required.” [26] Dr Stewart states that: “He has made it quite clear that, if the current treatment authority were to be revoked, he would disengage immediately from the prison mental health services. It is for the purpose of ongoing and frequent review of his mental state that I argue that the current treatment authority should remain in place, and this will enable timely intervention with appropriate treatment if his mental state were to deteriorate.” [27] In addition, Dr Stewart notes that: “So far, the patient has complied with the condition that he see me fortnightly, and, since January 2020, he has not refused to attend. Earlier in 2021, there was a brief period when he was becoming more preoccupied with persecutory beliefs centring on individuals at the prison, and at that time I was considering referring him for an inpatient assessment. However, this temporary disturbance of his mental state settled without the use of any medication, and I did not pursue an admission to the hospital. His current treatment authority is of a community category. I have repeatedly discussed a further treatment authority with the patient. I have explained to him that it remains my recommendation that it continue until such time as it is revoked in the community either by the Mental Health Review Tribunal or his treating psychiatrist. I have further discussed with him that, in my opinion, he needs to be monitored closely in the community by a mental health service to monitor his mental state, and this is to ensure an appropriate clinical response to any acute disturbance of his mental state. At this time, he does not require inpatient care from us. From a psychiatric point of view, he could be managed in the community with competent case management and regular psychiatric review. In terms of the patient benefitting from any form of residential rehabilitation within the mental health service, it is my opinion that, given his rejection of any diagnosis of mental illness, he is unlikely to cooperate with any rehabilitation. Therefore, I am not convinced that enforced residential rehabilitation will produce any significant enduring benefit, given his persisting opinion that he is not suffering from any mental illness. Of course, over time he may develop insight into his psychiatric illness, and thus may develop the capacity to consent to treatment. -- 9 of 22 -- 10 Fortunately, the potential risk for misuse of recreational drugs is low. Of much greater concern will be his level of social function when he is released from custody. He has an elderly parent living in South Australia and an elderly uncle living in the greater Brisbane area. He will be entirely dependent on any support offered by mental health services and the related social services in the community.” [28] Dr Stewart also states that he would like to comment that: “His mental state has not deteriorated and his persecutory beliefs have not intensified following the cessation of the antipsychotic medication in January 2020. As he has been receiving an adequate dose of the antipsychotic drug paliperidone for a significant period of time, I would suggest that, if he does suffer from schizophrenia, it is highly likely to be treatment-resistant. The only possible future treatment that may provide a significant reduction of his symptoms and overall function would be a trial of the oral antipsychotic Clozapine. I have discussed this with the patient on occasion and he is not remotely interested in considering this option. Therefore, I will leave that for him to discuss with his treating team following his return to the community. Even if the patient were to agree to Clozapine, any therapeutic benefit is not guaranteed. The other diagnostic possibility is that he doesn’t suffer from schizophrenia, but rather some paranoid syndrome. I would also speculate that his underlying personality is not particularly robust and this reduces his resilience.” [29] Finally, Dr Stewart notes that: “The patient has a provisional diagnosis of schizophrenia and this illness has resulted in persisting abnormality of his mental state and is associated with impairment of his overall function. He continues to express entrenched delusional beliefs of persecution. The essential persecutory belief is that he has been convicted by the Court due to this gross miscarriage of justice, and he believes that there has been a widespread conspiracy involving the judiciary, Court, police and even mental health services.” [30] I note that Dr Stewart did not consider the risk of sexual reoffending, and it does not appear he was asked to do so, although he notes the risk of misuse of recreational drugs. Report of Dr Timmins [31] Next, I will refer to the report of Dr Timmins dated the 2nd of July 2021. Dr Timmins provides a comprehensive clinical analysis with recommendations in relation to the respondent. -- 10 of 22 -- 11 [32] In relation to the formulation, she states that he is now a 42-year-old man who remains in custody under a continuing detention order under the Act. He continues to decline any treatment for his sexual deviance and has also largely refused treatment for his psychotic illness since July 2019. His original sexual offending occurred in a cluster across 2007 to 2009 and involved contact offences and internet offending against underage girls, one of whom was very young. He has been incarcerated since 2009. [33] In relation to diagnosis, Dr Timmins states that, in her opinion: “[The respondent] most likely meets the DSM-5 criteria for paedophilia, attracted to both males and females (non- exclusive). He also meets the criteria for schizophrenia (paranoid type). He is currently untreated with psychotropic medication, but is under an involuntary treatment authority. He had evidence of psychotic symptoms during interview and in the custodial records. He is slowly deteriorating, but is taking a long time to become floridly psychotic, such that the risk to himself from other prisoners increases to a degree that he needs transfer to an inpatient unit for treatment.” [34] Dr Timmins also believes he has evidence of personality traits, mainly schizotypal and schizoid traits. He scores 10 out of 40 on the PCLR, which does not indicate the presence of psychopathy. In relation to the mental state examination, she states: “On interview on the 14th of June 2021, [the respondent] continues to present with the relapse of his schizophrenic illness, with a formal thought disorder and a preoccupation with persecution from various agencies. He presents as irritable, angry and more psychotic than on previous interviews. He has delusional beliefs about his hair, his food and drink, in addition to previous persecutory delusional beliefs. It appears that, on short reviews, he can present at his baseline, but there is some deterioration noted on the unit in recent months, with possible risk issues from other prisoners emerging. In the QCS documentation, the indications of this include an altercation in October 2020 leading to his placement on a safety order, agitation and yelling in his cell in December 2020, an assault in January 2021, and numerous prisoners telling officers, “[the respondent] is yelling in his cell at night” in April 2021. Medical notes suggest new delusional beliefs regarding being poisoned were noted in March 2021. When considered along with the presentations in the interview, this evidence is further confirmation that [the respondent] is slowly losing control of his capacity to manage himself without risks as he becomes more psychotic. Whether this meets the threshold for psychiatric admission is a decision for the treating psychiatrist.” [35] In relation to a prognosis, Dr Timmins states that: “[The respondent] has been consistently treated with antipsychotic medications since approximately July 2019, but is managed under a treatment authority ensuring regular -- 11 of 22 -- 12 psychiatric reviews. He has also refused any sex offender programs whilst in custody. He has very poor insight into his sexual offending and mental illness and, if the current situation of waiting continues, then [the respondent] is likely to continue with a gradual deterioration that has been seen in his psychotic illness. Eventually, he will not be able to contain his psychotic symptoms at all, and his behaviour will become increasingly problematic, potentially aggressive, and disengage from clinicians’ monitoring. When this will occur is difficult to predict, but there are signs it is becoming increasingly difficult for [the respondent] to contain himself. It is important to note that his admission to The Park high-secure unit occurred several years after he was first incarcerated. It may take this long again for his mental state and risk issues to completely deteriorate such that the Mental Health Act can lead to an admission for more assertive treatment. In relation to risk, with respect to treatment of his sexual deviance and risk of sexual offending in the community, little has changed since he came under the continuing detention order in August 2019. He has not engaged in any sex offender programs, but has seen a psychologist recently. I am not sure how far this treatment will get, given his current mental state and denial of offending. I remain unconvinced that he will engage in addressing these issues in the future. [The respondent] continues to score in the moderate to high range on the risk assessment instruments.” [36] Dr Timmins believes that the respondent presents a high risk of reoffending in a sexual manner if released into the community at this time: “He continues to have poor insight into his offending pathway and has no understanding of how to mitigate his own risk to the community. His previous victims have been very young and there is a risk of penetrative offences. He has also used the internet to contact and groom other potential victims and collect child exploitation material. He is also psychotic, which is another issue. As a way forward, [the respondent] probably needs a long-term psychiatric rehabilitation unit, which can initially stabilise his mental state to a degree where he can meaningfully engage in understanding his risk to the community of sexual offending, in addition to managing his mental health treatment needs and re- engagement into the community. He could be managed under a community supervision order and a treatment authority.” [37] Dr Timmins states and concludes: “Given the current situation with his psychosis, irritability and poor insight, I am concerned that he would not be adequately managed in the community even with a strict community -- 12 of 22 -- 13 supervision order as per the Dangerous Prisoners (Sexual Offenders) Act 2003.” [38] In an email which provides an update, Dr Timmins states of, as the 20th of July 2021, when the email was written: “I have not changed my opinion expressed in my report dated 2 July 2021. I remain of the opinion that he requires an inpatient admission to stabilise his mental state first before any treatment for his sexual offending can be considered. He is psychotic, refusing treatment, and has poor insight. The admission will have to be in a psychiatric hospital such as a high-secure unit, and will have to be as an involuntary patient given his presentation. An assessment by the high-secure service unit may assist the situation. At the very least, an assessment by another psychiatrist will help to understand [the respondent’s] current treatment needs from a clinical point of view. It is not unusual to gain a second opinion with difficult patients and, if high-secure willing, then this is a prudent idea to explore this option.” Report of Dr Beech [39] Dr Beech has provided a number of reports, the most recent being on the 5th of July 2021 and an update of that on the 19th of July 2021. The clinical opinion of Dr Beech mirrors those expressed by Dr Timmins. In relation to formulation, Dr Beech states: “From 2015 onwards, [the respondent] has denied he has a mental illness and has been resistant to taking medication. He has been treated involuntarily under a treatment authority. His illness has been treatment-resistant and depot antipsychotic medication has not produced a remission and, certainly, had not led to the dissipation of his delusional beliefs. By early 2020, [the respondent] has refused depot antipsychotic medication, and since then has been allowed a trial off medication despite the persisting mental illness. His delusions involve a specific theme. [The respondent] states that he is innocent of all offending and says any past admissions to guilt were coerced. Instead, he believed he has been the victim of a range of persecutory bodies, including police officers, Judges, other prisoners, and clinicians. His refusal to accept any responsibility for the offending has precluded him from engaging in rehabilitation, including participation in sex offender treatment programs. By my June 2020 interview, [the respondent] remained preoccupied with his belief that he has suffered from false allegations related to both his offending and the presence of a mental illness. This interfered with my ability to interview him about the offending, rehabilitation, and his plans for release. In fact, his persecutory beliefs expanded to and involved me. He remained adamant that he did not have a mental illness. His -- 13 of 22 -- 14 treating psychiatrist, Dr Stewart, had earlier said [the respondent] could be managed medically in the community with assertive care management and close clinical supervision. The caveat to this was that community mental health services would have to decide how they would manage him and whether they would place him in a community rehabilitation unit.” [40] It is Dr Beech’s opinion then that the respondent has chronic, severe paranoid schizophrenia that had proven to be treatment-resistant. This occurred probably on a background of schizoid personality traits. It is also Dr Beech’s opinion that the offending and the circumstance of the offending indicated he had paedophilia, and he does not think that his mental illness played a role in the offending per se, but it certainly interfered with treatment, rehabilitation and future management. He is an untreated child sex offender. [41] Dr Beech, in his report, set out the respondent’s current treatment: “In prison he developed chronic treatment-resistant paranoid schizophrenia and delusions incorporate beliefs that he has been persecuted by, as I said, police, Judges and clinicians. Specifically, he does not believe that he has a mental illness and he does not admit to any of the offending, alleging everything is due to the conspiracy of persecution against him. The onset of the schizophrenia involved florid psychotic symptoms that led to two hospital admissions. Since at least early 2020, he has been off medication, but remained an involuntary patient. Without that involuntary status, he would disengage from review. There has been no severe decline in his mental state since then, but case notes point to continuing yelling and screaming at night which disturbs the other prisoners, while medical notes point to the element of other delusional beliefs, although still with a persecutory theme, but this time that he is being poisoned. As a result of his relative stability, he has been allowed to remain off medication with a caveat that any severe deterioration will result in a return to hospital. His treating doctor recommends ongoing involuntary treatment management and, in the community, close supervision. However, specifics about how he would be managed under the MHA in the community depends on how community health services decide to treat him.” [42] This new material does not substantially alter the opinions that Dr Beech expressed in his reports dated the 19th of July 2020. In relation to risk, Dr Beech states: “[The respondent’s] delusional beliefs, refusal to accept responsibility for the offending, and his inability to participate in sexual offender treatment mean that he has a limited knowledge or understanding of his offending. From a simple actuarial view, he is at moderate-high risk of reoffending because of his age, the nature of his offending, the nature of the victims, the likely presence of paedophilia, his lack of insight, -- 14 of 22 -- 15 his mental illness, and the lack of treatment. Added to this should be the concern that in the community, without supervision, he is likely to refuse ongoing treatment and, probably, psychiatric intervention.” [43] In his earlier report, Dr Beech had said there were three options: “The first is to see if his condition would deteriorate off medication. I think it is now clear that he remains chronically delusional, but has not deteriorated much otherwise. In the community, he would require close, assertive psychiatric oversight and, in my opinion, the Court should have some indications of what he might involve. It would be particularly helpful to know if, on release, he would be transferred to a community rehabilitation unit for accommodation, monitoring, management and treatment. A continuing supervision order and a treatment authority could work together, specifically if he were placed in a rehabilitation unit. I believe that would reduce the risk to below moderate. Absent the ability to place him in a CRU, the accommodation would need to be met by Queensland Corrective Services, necessitating the most likely placement in a precinct style residence. It is difficult to know how [the respondent] would be able to be accommodated in a small unit with other supervisees. But, generally, he is described as settled and polite during the day. I strongly suspect that he would believe he does not require supervision and it is likely that he would perceive any restrictions on his movements as part of the overall persecution. However, his general conduct in prison indicates now that he would likely conform to supervision. Despite his delusional beliefs, there should be plans for active attempts to place him in supervised accommodation in the community, and that any conditions around supervision should include mental health services’ involvement, a prescription of non-contact with children and minors, and monitoring of any internet use.” [44] The report from the 19th of July notes that there is a contrast between the records and reports of Dr Stewart, on the one hand, and the observations of others, including Boddice J and Dr Timmins, on the other hand. Dr Beech suggests that this difference might be explained by the settings. Dr Stewart interviewed the respondent in an ongoing clinical setting as a treating clinician. The other observations were made in the context of cross-sectional interactions, with a particular focus on past offending, risk assessment, and plans for the future: “[The respondent] might be relatively comfortable with the former, but become agitated with the later. It is then that his underlying psychosis might become agitated, leading to increased evidence of formal thought disorder, persecutory ideation, and emotional arousal. Day to day, he might be settled, -- 15 of 22 -- 16 but the material indicates difficulty generally within his prison setting with the other inmates.” [45] Dr Beech states that the concern he has is that the prison provides institutional support and, outside that routine, the respondent could deteriorate: “His delusional insightlessness and vulnerability to delusional misinterpretation of events around him could make supervision very difficult.” [46] Dr Beech states: “I had previously thought that his generally settled state in prison would augur him well for his ability to abide by supervision in a prison precinct. I am now concerned that he would become destabilised on release. This is particularly so because I think, overall, there is evidence that his mental state has deteriorated off medication, and despite a treatment authority, there is no plan for medication to be reinstituted. He would, therefore, be released into the community unmedicated. The report of Dr Stewart indicates that his management would revert to the community mental health services, rather than more intensive community rehabilitation and accommodation. This is particularly so because his insightlessness would lead him to not engage with those services. Overall, I think a transfer from prison to a secure mental health service would be a better prospect, allowing for a staged rehabilitative transfer into the community, rather than an abrupt release.” Community Corrections material [47] I also have an affidavit from Ms Monson. Ms Monson is the manager of the high-risk offender management unit within Community Corrections at Queensland Corrective Services. She refers to the reports of both Dr Timmins and Dr Beech and states: “Furthermore, consistent with the psychiatric evidence, QCS does not consider the QCS contingency precincts to be a suitable community accommodation option for the respondent. The QCS contingency precincts are not secure facilities. Offenders are able to freely access the community within the terms of their order requirements and any curfew restrictions. QCS contingency accommodation does not provide an intensive personal support program and does not include such activities as escorted leave or day-to-day life skills. It is necessary to highlight QCS capacity to practically administer requirements that may be contemplated by the Court to suitably and effectively manage the respondent’s risk. Generally, there are practical limitations in the time and coverage capacity and physical resources that QCS can employ to detect compliance or, indeed, breach behaviour of offenders -- 16 of 22 -- 17 subject to supervision. QCS does not have the capacity to reliably and safely escort the respondent at all times in the community in order to provide him with intensive reintegration support. The extent to which this management could be employed by QCS would be for QCS surveillance officers to escort the respondent for a limited timeframe one to two hours and on a very infrequent basis where deemed necessary, for instance, on the day of release, to Centrelink, and during his first visit to a treatment provider. Constant supervision of the respondent through physical surveillance cannot be practically achieved. Rather, use of electronic monitoring could be applied to the respondent and this could, at best, provide an overview of his movements generally. Electronic monitoring does not provide QCS with knowledge of whom the respondent has interacted with, whether he has followed someone in the community, why he is frequenting certain places, and whether persons in said areas were in any danger; nor would the application of electronic monitoring be sufficient to offer the requisite level of restriction that may be required should the respondent’s mental health deteriorate rapidly. In protecting against areas where it is considered the respondent has deteriorated rapidly, in the absence of clear contravention grounds, QCS would be reliant on the imposition of curfew restrictions, and the sustainability of enduring curfews is limited to the extent to which the respondent requires access to the community to fulfil other order requirements and to service his general living needs, for instance, access to recommended treatment and go grocery shopping.” The parties’ submissions [48] The Attorney-General submits that this is a difficult case. The issues can be seen by considering the recent reports prepared by Dr Timmins, Dr Beech, and the respondent’s treating psychiatrist, Dr Stewart. [49] The Attorney-General submits that, in Dr Stewart’s most recent report dated the 25th of June 2021, he opined that the respondent’s schizophrenia was adequately treated without medication and that he could be adequately managed in the community under a treatment authority with strict conditions. [50] In contrast, both Dr Beech and Dr Timmins consider the respondent has an established diagnosis of paranoid schizophrenia that requires treatment. He has not received treatment since July 2019 and is suffering a slow decline in his mental state. As Dr Timmins observes: “On interview on 14 June 2021, [the respondent] continues to present with a relapse of his schizophrenic illness with formal thought disorder and a preoccupation with persecution from -- 17 of 22 -- 18 various agencies. He has presented as irritable, angry and more psychotic than on previous interviews. He has delusional beliefs about his hair, his food and his drink, in addition to previous persecutory delusional beliefs.” [51] The Attorney-General also refers me to the findings of Member Kanowski when considering the appointment of a guardian under the Guardianship and Administration Act 2000 (Qld). Relevantly, I am referred to [33] to [37] of his judgment, which state: “ADU’s tangentiality affects his ability to communicate any decision he makes in relation to the review proceedings in the Supreme Court. However, this barrier can probably be overcome if ADU is allowed a lot of time to express himself. The more profound impact of the mental illness is upon ADU’s ability to freely and voluntarily make decisions about such a matter. Defending a review proceeding would involve a series of decisions, such as whether to engage a lawyer, whether to present evidence, the type of evidence to be presented, whether to cross-examine witnesses, what questions to ask in cross- examination, what submissions to make, and so on. There may then be decisions required about the prospects for an appeal, and whether to initiate or defend an appeal. A person subject to a continuing detention order may also wish to decide from time to time whether an application in the Supreme Court for leave to initiate a review should be made. ADU has such strong and preoccupying delusions of persecution, involving a denial of guilt and distrust of lawyers, that he is in no position to make informed and rational decisions about how to conduct a DPSO Act proceeding. He rules out the option of seeking legal representation, even though representation would, objectively, be beneficial. ADU is unable to accept and adjust to the reality that the Court will proceed on the basis that he committed the offences in question. His fixation on innocence prevents him from engaging with the real questions before the Court, such as whether, as a convicted child sex offender with ongoing mental illness, he poses a serious danger to the community and, if so, how the risk should be met. Put a different way, ADU’s delusions and preoccupations deprive him of the ability to understand the nature and the effect of decisions, such as the futility of a decision to defend the proceedings on the basis that he is innocent. The presumption of capacity for the personal matter of legal matters in relation to proceedings under the DPSO Act is rebutted in ADU’s case. I find that he has impaired capacity for that matter. I will make a declaration about capacity accordingly.” [52] On the evidence in this case, the applicant submits that the respondent would clearly represent a serious danger to the community in the absence of a division 3 order. The -- 18 of 22 -- 19 respondent’s risk of sexual reoffending is moderate to high to high, and he remains floridly psychotic. It is evident that the respondent’s untreated medical illness precludes him from undertaking sex offender programs in custody to reduce his risk. Equally, until his current mental state has been stabilised through assertive treatment, the question of release on supervision cannot be addressed with any degree of confidence. The fragility of a treatment authority in a forensic setting is well understood. [53] The applicant submits the unlikelihood of the respondent complying with residential rehabilitation and, by implication, the requirements of a supervision order can be seen from Dr Stewart’s report, where Dr Stewart states: “In terms of the patient benefiting from any form of residential rehabilitation within a mental health service, it is my opinion that with his rejection of any diagnosis of mental illness, he is unlikely to cooperate with any rehabilitation. Therefore, I am not convinced that enforced residential rehabilitation would produce any significant enduring benefits, given his persisting opinion of not suffering from any mental illness. Of course, over time he may develop insight into his psychotic illness, and thus may develop capacity to consent to treatment.” [54] In relation to the matters that I have to determine, I accept the submissions that have been made by the Attorney-General. I note that the respondent’s counsel does not contest the submissions made by the Attorney-General, or the findings that the Attorney-General submits I should make. I note also that the Attorney-General submits that, at this point, a circuit-breaker seems to be indicated. [55] Currently, the respondent is unable to consider his options or, arguably, to appreciate his predicament. The Attorney-General submits that a possible recovery plan could involve three steps: (a) referral to a high-secure program for assessment and treatment; (b) once a stable mental state is achieved and an effective treatment regime implemented, consideration could be given to the respondent’s participation and programs or other tailored interventions to reduce his ongoing risk; and (c) once those steps are taken, the respondent’s risk could be re-assessed, together with possible psychiatric placement options. [56] The respondent accepts the applicant’s submissions contained in the supplementary submissions outline dated the 19th of July 2021. Counsel for the respondent notes that the respondent suffers from severe paranoid schizophrenia. He has no insight into his illness. He has refused medication since January 2020. He has been untreated since that time, save for a regular review of his condition in custody by Dr Stewart, who is employed by prison mental health. Dr Stewart opines that the respondent’s mental health has not deteriorated since cessation of medication. [57] Dr Timmins opines that the respondent’s psychiatric illness is worsening and that it will inevitably continue to do so absent treatment. Dr Beech’s view is that the respondent remains chronically delusional but has not deteriorated much since the cessation of medication. Those psychiatrists see a likely benefit for the respondent -- 19 of 22 -- 20 being transferred to a secure psychiatric facility. However, the transfer to a secure psychiatric facility can only be ordered by the prison mental health service in conjunction with the treating psychiatrist. Dr Stewart does not support the transfer of the respondent to a secure psychiatric facility at this time, and this will occur only if he observes the significant deterioration of his mental state. [58] Dr Stewart opines that the respondent’s illness could potentially be managed in the community. Dr Stewart does not provide any opinion in respect to the risk that the respondent may commit a further serious sexual offence, nor would he be expected to. [59] The respondent’s primary diagnosis also includes paedophilia and the sexual deviance, which exists independent of his psychiatric illness. Both reporting psychiatrists are of the view that the respondent should be treated for paedophilia before he is released from a custodial environment. [60] Counsel for the respondent notes that there is no way for the respondent to be treated for paedophilia while his schizophrenia remains so severe. Accordingly, although the respondent’s sexual deviance is independent from his mental illness, the illness must be treated before there is any real prospect of the respondent being released from custody subject to supervision. The respondent’s counsel submit that the respondent is, therefore, in an impossible position. The respondent’s counsel submits that the respondent cannot be released into supervision until he has addressed his sexual deviancy, and that he is too unwell to do this in custody. However, he is not unwell enough to warrant a transfer to a secure psychiatric facility where some inroads might be made into his severe psychotic illness. [61] Counsel for the respondent submits that the Court has no power to make orders which dictate how the respondent is medically treated or where he is incarcerated. Notwithstanding this, some recognition by the Court of the opinions expressed by the reporting psychiatrists by way of judicial comment is warranted, specifically about the desirability to the transfer to The Park. The respondent, through those assisting him at the Office of the Public Guardian, endorses the applicant’s proposed circuit- breaker of referral to The Park high-secure program. [62] I have gone through the evidence and all parties accept that there is sufficient cogent evidence that the continuing detention order made by Boddice J on the 5th of August 2019 should be affirmed. In my view, the psychiatric evidence of Dr Beech and Dr Timmins clearly demonstrates that he is a high to moderate risk of reoffending if released into the community without an order. I find that there is sufficient cogent evidence, considering the matters required to be taken into account under the Act, to satisfy a Court to the high degree of probability necessary that, if released without a division 3 order, the respondent would present an unacceptable risk of committing a serious sexual offence as defined by the Act. [63] Then there is the question of what to do next. Should a continuing detention order or a supervision order be imposed? Dr Stewart is of the view that the respondent’s schizophrenia could be adequately managed in the community under a treatment authority. However, he did not provide any opinion in respect of the risk that the respondent may commit a further serious sexual offence, and nor would he have been expected to. -- 20 of 22 -- 21 [64] In my view, the more relevant evidence before me is the reports of Dr Timmins and Dr Beech. In Dr Timmins’ view, the respondent’s unmodified risk of sexual offending is high and he could not be safely managed in the community. [65] In Dr Beech’s view, the respondent represents an unmodified risk to the community without suitable alternatives being available. I note Dr Beech’s view that a continuing supervision order and a treatment authority could work together: “Specifically, he could be placed in a supervised specialised rehabilitation unit, and I believe that would reduce the risk to below moderate.” [66] I note the explanations that Dr Beech provides for the contrast between the records and reports of Dr Stewart and the observations of others, including Dr Timmins. [67] Taking into account the longitudinal opinions of Dr Beech and Dr Timmins, in my view, a supervision order would not provide for the adequate protection for the community. The respondent remains an unacceptable risk. He requires adequate treatment to stabilise his mental illness, and needs to at least undergo a tailored intervention before consideration could be given to whether his risk is such that he could be released into the community under a supervision order. [68] The index offences, the clinical opinions of Dr Timmins and Dr Beech, and the longitudinal evidence provides acceptable and cogent evidence of sufficient weight to justify the continuation of the continuing detention order. In my view, the available evidence supports the finding that the respondent is a serious danger to the community in the absence of a part 2 division 3 order, and that a continuing detention order should be preferred. In my view, he is currently a high-risk, untreated sex offender with a diagnosis of paedophilia and schizophrenia, who lacks insight. [69] As I said before, I have taken into account the longitudinal opinions of Dr Beech and Dr Timmins, and I am satisfied that a supervision order would not provide for the adequate protection of the community. [70] In my view, the applicant has discharged its onus of proof. The respondent remains an unacceptable risk and, as I stressed before, he requires adequate treatment to stabilise his mental illness and needs to at least undergo a tailored intervention before consideration is given to whether his risk is such that he can be released into the community under a supervision order. [71] Accordingly, in my view, the evidence supports a finding that a continued detention order should be preferred. I note counsel for the respondent’s submission that his client is in an impossible position; he cannot be released into supervision until he has addressed his sexual deviancy, he is too unwell to do this in custody, and he is not unwell enough to warrant a transfer to a secure psychiatric facility where some inroads might be made into his severe psychotic illness. [72] Whilst I do not have the power to make orders which dictate how the respondent is medically treated or where he is incarcerated, for what it is worth, I concur with the views expressed by both parties and the reporting psychiatrists of Dr Beech and Dr Timmins that referral to The Park high-secure program is desirable. This would allow -- 21 of 22 -- 22 his mental state to become stabilised to a point where he could engage with programs aimed at reducing his risk of reoffending before his next review. [73] Both parties accept that an appropriate approach moving forward would be a referral to The Park high-secure program for assessment and treatment and, once a stable mental state is achieved and an effective treatment regime implemented, consideration could then be given to the respondent’s participation in programs or other interventions to reduce his ongoing risk. Once these steps are taken, reassessment of the respondent’s risk can be completed, together with possible psychiatric placement options. In my view, considering the material that is before me, this is an appropriate way forward. But, as I have stated before, I do not have the power to make those orders. I can just express my opinion, for what it is worth. I note that the respondent, through those assisting him from the Office of the Public Guardian, endorses this proposal. [74] Taking all of that into account, in my view, the orders that should be made are that: (a) Pursuant to section 30(1) of Act, the decision made on the 5th of August 2019 that the respondent is a serious danger to the community in the absence of a division 3 order be affirmed. (b) Pursuant to section 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on the 5th of August 2019. -- 22 of 22 --