Attorney-General for the State of Queensland v Larry [2021] QSC 174 [2021] 31 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Larry [2021] QSC 174 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v THOMAS JOEL LARRY (respondent) FILE NO/S: BS No 396 of 2011 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 27 July 2021 DELIVERED AT: Brisbane HEARING DATE: 12 July 2021 JUDGE: Williams J ORDER: The order of the Court is that: 1. The interim supervision order made on 12 July 2021 is rescinded. 2. The respondent be subject to a further supervision order for a period of five years until 27 July 2026, on the conditions set out in Annexure A. 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 is subject to a supervision order made in May 2011 – where the duration of the supervision order was extended as a result of contraventions of the supervision order on six occasions – where the applicant seeks an order pursuant to Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) that the respondent be made subject to a further supervision order for a period of five years – where the respondent accepts that the evidence favours the imposition of a further supervised release order and that the order ought to be for a duration of five years – whether the respondent is a serious danger to the community in the absence of a further supervision order pursuant to Division 4A – whether adequate protection of the -- 1 of 36 -- 2 community can be ensured by the respondent’s release on the proposed further supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 13A, s 16, s 17, s 19B, s 19C, s 19D, s 21A, s 24 Attorney-General for the State of Queensland v DBJ [2017] QSC 302, cited Attorney-General for the State of Queensland v Foy [2014] QSC 304, cited Attorney-General for the State of Queensland v Larry [2012] QSC 25, cited Attorney-General for the State of Queensland v Larry [2011] QSC 120, cited Attorney-General for the State of Queensland v Loudon [2017] QSC 146, cited Attorney-General for the State of Queensland v Sambo [2008] QSC 262, considered Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Harvey v Attorney-General (Qld) [2014] QCA 146, considered COUNSEL: J Tate for the applicant C Smith for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] This is an application for an order pursuant to Part 2 Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSO Act). The applicant, the Attorney- General for the State of Queensland, is seeking an order that the respondent be made subject to a further supervision order for a period of five years from the expiration of the current supervision order on 21 July 2021. [2] The respondent is subject to a supervision order made on 19 May 2011 by Boddice J,1 as amended by Applegarth J on 10 December 2012.2 [3] As a result of contraventions of the supervision order on six occasions, the duration of the supervision order was extended by operation of s 24(2) of the DPSO Act. In January 2021, Davis J declared that the respondent’s supervision order had been extended by operation of s 24(2) of the DPSO Act from 22 May 2021 to 21 July 2021.3 [4] At the conclusion of the hearing on 12 July 2021, an interim supervision order was made on the same terms as the existing supervision order until 4.00pm on 29 July 2021. 1 Attorney-General for the State of Queensland v Larry [2011] QSC 120. 2 Attorney-General for the State of Queensland v Larry [2012] QSC 399. 3 Attorney-General for the State of Queensland v Larry [2021] QSC 6. -- 2 of 36 -- 3 [5] The respondent accepts that the evidence favours the imposition of a further supervision order and that the order ought to be for a duration of five years. [6] A draft further supervision order was provided to the Court at the hearing. Three conditions in the draft order were originally in contention. Following further evidence at the hearing, some of the issues in contention between the applicant and the respondent narrowed. Ultimately the issue of whether condition 10 should be included was the only matter left for determination in respect of the draft further supervision order. Background, index offences and contraventions [7] The respondent was sentenced to a term of imprisonment of eight years for burglary and attempted rape. The period of imprisonment included a term of three months for an offence committed at the Lotus Glen Correctional Facility on 10 June 2008. [8] A supervision order was made on 19 May 2011 and was amended on 10 December 2012. [9] In his Honour’s reasons for making the supervision order, Boddice J summarised the relevant background, the index offences and the respondent’s criminal history as follows:4 “[3] The respondent, a Torres Strait Islander, was born on 12 November 1976. He is currently serving a period of imprisonment for a number of offences. That sentence is due to expire on 22 May 2011. [4] Relevantly, this sentence includes a sentence of eight years for burglary and attempted rape committed on 8 March 2002. The respondent broke into the home of the complainant in the early hours of the morning. He placed a doona over a window of the complainant’s bedroom before waking her up and attempting to rape her. The complainant struggled and screamed. The offence of rape was not ultimately committed. During the incident, the respondent punched the complainant on three separate occasions causing significant injuries. [5] The respondent’s current period of imprisonment also includes a term of three months for an offence committed at the Lotus Glen Correctional Facility on 10 June 2008. The complainant was conducting a certificate course at the centre when the respondent, then a prisoner at the facility, unexpectedly stood up, pulled his pants down, exposed his genitals and gave the complainant a note containing a poem. The respondent explained his conduct as having had ‘a brain snap’. [6] During his current period of imprisonment, the respondent has completed a number of programs, including the Sexual Offending Maintenance Program. The last of these courses was completed in 2009. 4 Attorney-General for the State of Queensland v Larry [2011] QSC 120 [3]-[10]. -- 3 of 36 -- 4 [7] On 30 May 2010, an incident was reported to have occurred at the Townsville Correctional Centre involving the respondent and a nurse at that Centre. It was reported that during a consultation, the respondent became sexually aroused and touched the nurse just below her right buttock. He then allegedly tried to pull the nurse towards him and asked that she examine his penis. The respondent was charged with sexual assault in relation to this incident. However, the charge was struck out after the prosecution offered no evidence in relation to it. … [9] This history includes two previous sexual offences. The first was committed in the early hours of 5 March 1993 at Coconut Island. The complainant woke to find the respondent standing naked in her bedroom. He left when told to do so by the complainant. The second offence occurred on the night of 25 May 1995 at Warraber Island. On that occasion, the complainant woke to find the respondent sitting on top of her. He smelt of alcohol. The complainant punched the respondent who punched her in the face before running away. [10] The respondent’s criminal history also includes offences of violence. On 9 August 1996, the respondent was convicted of aggravated assault of his ex-girlfriend. The assault involved punching her in the back of the head and punching her again in the jaw whilst following her. He subsequently pushed her in the side of the head before leaving the scene. On 12 June 1998, the respondent was convicted of having, in company, stolen a pair of tracksuit pants and unlawfully doing grievous bodily harm. The circumstances of that offence involved the random selection of an entirely innocent person and a brutal beating of that person. On 7 March 2002, the respondent threatened a drinking companion with a butter knife, forcing her into the bedroom. He stated he was going to stab her but was subdued when another person came into the bedroom. On 18 June 2003, the respondent was convicted of assault occasioning bodily harm. This offence was committed on 19 April 2003 whilst he was in custody at the Cairns watchhouse. … [18] Having regard to the opinions expressed by the specialis[t] psychiatrists, I am satisfied the respondent is a serious danger to the community in the absence of a Division 3 order. The respondent has a prolonged history of sexual and violent offences. He committed his 2008 exposure offence after the completion of relevant courses. His explanation for the motivation of that offence indicates that notwithstanding the completion of those programs, he continues to exhibit a tendency to externalise blame for his offending. Further, that offence occurred without the disinhibiting influence of alcohol -- 4 of 36 -- 5 or illicit substances, which demonstrates a capacity to re-offend sexually without those influences. Risk assessments made over a number of years place the respondent in the high risk category. Those assessments include the three expert psychiatric assessments made by Doctors Beech, Grant and Harden. I am satisfied a Division 3 order should be made in respect of the respondent. [19] Whilst a Division 3 order ought to be made, the opinions expressed by Drs Beech, Grant and Harden suggest there is no need for a continuing detention order. The risks of re-offending, albeit high, can be adequately met by the imposition of a supervision order. Each psychiatrist proffered the opinion that that order should be for a period of ten years, particularly having regard to the respondent’s age. I am satisfied it is appropriate the order be for that period. I am also satisfied the proposed conditions will adequately address the continuing risk associated with the imposition of a supervision order. This is particularly so having regard to the accommodation arrangements that have been reached for the respondent’s accommodation upon release …” [10] There have been six contravention proceedings and the respondent was returned to the community under terms of the supervision order on each occasion. [11] The six contravention proceedings were as follows: (a) The proceedings before Mullins J on 14 February 2012 involved the failure of the respondent to identify that he had met and commenced a relationship with a woman that he had met through an internet dating service. Mullins J commented as follows: “The respondent had met a woman, who is referred to in the material as C, through an internet dating service. On 18 August 2011 the respondent told the supervising Corrective Services officer that he had been seeing this woman for three to four weeks. He had been asked on at least four prior occasions about the identity of people he was associating with and whether he had any romantic relationships and he had failed to identify that he had met and commenced a relationship with C. His supervising Corrective Services officer then gave him a direction to cease all contact with C and that he was not to make any direct or indirect contact with her. The supervising Corrective Services officer inspected the respondent's mobile telephone three days later on 22 August 2011 and found that the respondent had attempted to make five telephone calls to C on that day that were unanswered. That was blatant defiance of the reasonable direction of the Corrective Services officer in the circumstances.”5 5 Attorney-General for the State of Queensland v Larry [2012] QSC 25. -- 5 of 36 -- 6 (b) The proceedings before Applegarth J on 12 December 2012 involved the respondent ingesting synthetic cannabis and other breaches of the supervision order. Applegarth J commented on the contravention as follows: “[1] … I am satisfied that the respondent contravened the supervision order made by Boddice J on 20 May 2011 by: • returning to his approved accommodation on the night of 30 May 2012 after the required time of 10 pm, having returned home at around 12.30 am on 31 May 2012; • ingesting the substance Kronic (a synthetic form of THC), contrary to a reasonable direction that was issued to him on 15 February 2012; • ingesting the illicit drug cannabis. [2] Urine samples were taken on 25 and 31 May 2012. After testing positive for these substances, the respondent was arrested on 12 June 2012 …” (c) The proceedings before Flanagan J on 7 September 2015 related to the consumption of synthetic cannabis. Flanagan J commented as follows: “It is alleged by the Attorney-General that the respondent breached that requirement by taking a synthetic drug. On 23 December 2014, the respondent was required to submit to random drug and alcohol testing as directed by an authorised Corrective Services officer. The respondent was directed to and did provide a urine analysis sample. At that time he denied the use of any illicit substances. His urine sample collected on 23 December 2014, however, confirmed that he had ingested synthetic cannabis. The respondent was subsequently arrested pursuant to a warrant and returned to custody. The circumstances of the contravention are not disputed by the respondent and constitute admitted facts. … He was living, at that time, with other persons who were also subject to supervision orders. According to the respondent he only took one puff of the synthetic cannabis. He knew that he would be caught and he immediately regretted his actions. The respondent told Dr Grant that other persons at the house were regularly smoking the substance, watching pornography, playing loud music, and he found the environment stressful. He had, over a period of time, according to him, been pressured by others to smoke the substance and, after resisting a number of times, he finally succumbed to that pressure. One may proceed, therefore, on the basis that the alleged contravention has been established.”6 (d) The proceedings before Burns J on 10 October 2016 related to using a mobile phone to contact female family members when he had been directed not to do so, and curfew breaches. Burns J commented as follows: 6 Attorney-General v Larry [2015] QSC (unreported) (Flanagan J) (7 September 2015). -- 6 of 36 -- 7 “The respondent lasted another six or seven months until April 2016 when, during a case management meeting with his senior case manager (an officer employed by Corrective Services), the respondent made admissions to using another offender’s mobile phone to contact female family members. He had been previously directed not to do so. That direction was issued because when it was previously suspected the respondent had contacted women, he had told those supervising him that they were family members. … There are also quite a number of what are described as curfew breaches. These are particularised in a schedule to the application filed by the Attorney-General. Shortly stated, these breaches are constituted by the respondent leaving his approved residence within the Precinct and attending other residences in the Precinct, without the prior approval of a corrective services officer. The breach of the supervision order through the use of a mobile telephone owned by another person and the curfew breaches are admitted by the respondent.”7 (e) The proceedings before Burns J on 28 August 2017 involved the respondent further ingesting marijuana. Burns J commented as follows: “On 12 January 2017, Mr Larry reported to the Townsville Probation and Parole District Office and was, amongst other things, directed to submit to a urinalysis and breath test. The test returned a positive result for marijuana. Subsequent testing confirmed that result. Furthermore, Mr Larry has, through his counsel, admitted the alleged contravention.” (f) The proceedings before Dalton J on 8 October 2018 related to contact with women in breach of the terms of the supervision order and illicit drug use. Dalton J commented as follows: “… The breaches have not involved crimes of a sexual nature; although, they have involved contact with women in defiance of the terms of his supervision order. The other breaches in the community have been use of cannabis and synthetic cannabis, and I note that that is in accordance with the way he behaved before 2003, and that the psychiatrist diagnosed him with substance abuse disorder …” Statutory scheme [12] Division 4A of the DPSO Act is relevant to the current application. [13] Pursuant to s 19B(1) of the DPSO Act, the Division applies to a “released prisoner” subject to a supervision order. The schedule defines “released prisoner” as a prisoner released under a supervision order. 7 Attorney-General for the State of Queensland v Larry [2016] QSC (unreported) (Burns J) (10 October 2016). -- 7 of 36 -- 8 [14] Pursuant to sections 19B(2) and (3) of the DPSO Act, the Attorney-General may apply for a further supervision order for the released prisoner within the last six months of the effect of the current order. [15] Further, pursuant to s 19C of the DPSO Act, the application must state the period of supervised release sought and be accompanied by any affidavit material to be relied upon by the Attorney-General. [16] Section 19D of the DPSO Act states as follows: “19D Application of provisions for division 3 orders (1) Division 1 (other than section 5(1) and (2)), division 2, section 13, section 15 and divisions 3B and 3C apply for the application and the operation of any further supervision order for the released prisoner— (a) as if a reference in the provisions to a division 3 order were a reference to a further supervision order; and (b) as if a reference in the provisions to an application for a division 3 order were a reference to an application under this division; and (c) as if a reference in the provisions to the prisoner were a reference to the released prisoner; and (d) as if a reference in the provisions to a prisoner’s release day were a reference to the day that the current order expires; and (e) as if the reference in section 5(5) to 2 business days were a reference to 7 business days; and (f) as if the psychiatrist’s assessment under section 11(2)(a) were an assessment of the level of risk that the released prisoner will, after the expiry of the current order, commit another serious sexual offence if a further supervision order is not made; and (g) as if the references in section 13(5) to the making of an order were only a reference to the making of a further supervision order for the released prisoner; and (h) as if the reference in section 16 to the ordering of release from custody were a reference to the making of a further supervision order; and (i) with other necessary changes. (2) If the court is satisfied the application may not be finally decided until after the current order expires, it may make an interim supervision order for the released prisoner. -- 8 of 36 -- 9 (3) The power under subsection (2) applies for the application instead of the power to make the orders mentioned in section 8(2)(b) or 9A(2) as applied under subsection (1).” [17] As a result of the terms of s 19D, the process to be adopted in respect of obtaining a further supervision order is a modification of the process for an original order in Divisions 1, 2 and 3 of the DPSO Act. [18] The application is an application for a “further supervision order”, that is, it is the making of a new order and not an extension of an existing order. Accordingly, it is relevant to consider the requirements for making an order under Division 3 of the DPSO Act. [19] Section 13 of the DPSO Act 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; -- 9 of 36 -- 10 (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (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).” -- 10 of 36 -- 11 [20] Accordingly, to make a further supervision order it is necessary to establish, by acceptable, cogent evidence to a high degree of probability, that the respondent is a serious danger to the community in the absence of a supervision order. [21] Further, 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). [22] 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. [23] 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 the risk which does not ensure adequate protection of the community. [24] Bowskill J in Attorney-General for the State of Queensland v DBJ,8 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 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 8 [2017] QSC 302. -- 11 of 36 -- 12 protection of the community. If that were the case, every risk would be unacceptable …” (footnotes omitted) [25] The determination as to whether the respondent is a serious danger to the community in the absence of a Division 4A order is to be made at the time that the original supervision order is due to expire and the onus is on the applicant to demonstrate that a further supervision order is necessary to ensure adequate protection of the community.9 [26] Section 19C of the DPSO Act requires the applicant to state the period of supervised release sought in the application. [27] Section 13A of the DPSO Act which requires the Court to state the period for which a supervision order is to have effect and provides that a supervision order must have a minimum of five years duration. However, s 13A does not apply to Division 4A orders. By virtue of s 19D, only sections 13 and 15 of Divisions 3 apply to Division 4A orders. Therefore, a further supervision order with a duration of a period of less than five years is open when a further supervision order is being made. [28] In considering whether adequate protection to the community can be reasonably and practically managed by a supervision order pursuant to s 19D, the requirements under s 16 of the DPSO Act as to whether those requirements can be reasonably and practically managed by the Corrective Services officers are also a relevant consideration to an application for a further supervision order. [29] Pursuant to s 17 of the DPSO Act, reasons must be given for the making of a further supervision order at the time of making the order. [30] In respect of s 21A of the DPSO Act, no submission from an eligible person has been received as no eligible person is able to be identified.10 [31] As an application under section 19D of the DPSO Act is a modified process, the comments of Boddice J in Attorney-General for the State of Queensland v Foy11 are of some assistance in approaching the relevant factors to be considered on the application: “[17] Section 19D of the [DPSO] Act gives this Court a discretion to make a further supervision order in respect of an offender subject to an existing supervision order. The discretion to be exercised is to make a further supervision order, or to decline to make that further supervision order. Unlike s 13 of the [DPSO] Act, the discretion does not involve a consideration whether to make a continuing detention order.12 [18] In exercising the discretion under s 19D of the [DPSO] Act, all relevant factors must be considered by the Court. Those factors include not only the matters specified in s 13 of the 9 Attorney-General for the State of Queensland v Kanaveilomani [2013] QCA 404 at [118]-[120]. See also Attorney-General for the State of Queensland v Lawrence [2009] QCA 136. 10 See affidavit of R Embrey affirmed 6 April 2021. 11 [2014] QSC 304. 12 For a discussion of the discretion under s 13 of the [DPSO] Act see Fardon v Attorney-General (2004) 223 CLR 575. -- 12 of 36 -- 13 [DPSO] Act but also factors since the making of the initial supervision order, such as the Respondent’s performance on the existing supervision order, and the impact of the imposition of a further supervision order on the Respondent. [19] … The fact an application under s 19D does not involve consideration of whether a continuing detention order should be made, does not render the factors relevant to a consideration of whether a supervision order ought to be made, and on what terms, as set out in s 13 of the [DPSO] Act, inoperable when exercising the discretion under s 19D of the [DPSO] Act.” Psychiatric evidence Dr Scott Harden [32] Dr Harden interviewed the respondent on 10 July 2020 and prepared a report for the purposes of these proceedings dated 8 December 2020. Dr Harden had previously examined the respondent in 2010, 2016 and 2018. [33] Dr Harden has diagnosed the respondent as follows: (a) Alcohol Abuse and Marijuana Abuse (in remission in custody); (b) Antisocial Personality Disorder (now, through maturation of Antisocial Traits); (c) Learning and Language Difficulties. [34] Further, Dr Harden assessed the respondent as follows: (a) Static 99R: the respondent scored six, placing him at the “well above average (high)” risk category; (b) Stable 2007: scored positively on 13 out of 24 items indicating the respondent falls within the “high needs group” in relation to sex offender dynamic risk. In particular, Dr Harden noted: “Areas in which he scored highly and which could be a focus for future intervention were under the areas of impulsiveness, poor problem- solving skills, sex drive/preoccupation, and cooperation with supervision.” (c) Hare Psychopathy Checklist (PCL-R): scored 22 out of 40, which is not elevated; (d) SVR-20 (V2): scored positively on seven out of 20 items, placing him at a “moderate-high” risk category. [35] In relation to assessment of risk, Dr Harden provided the following opinion: “His future (unmodified) risk of sexual reoffence is Moderate- High. This assessment takes into account all information made available to myself. -- 13 of 36 -- 14 The critical issues are substance misuse, learning issues, poor attachment and intimacy/relationship/sexual behaviour deficits and poor compliance with risk reduction. In the absence of a supervision order the material suggests that although he is making progress he does not yet have the capacity to navigate sexual relationships without potential resumption of sexual offending. Supervision and intervention consistent with a supervision order reduce the risk to low by decreasing his capacity for use of substances and monitoring his activity to decrease his capacity to act out sexually. ... I would recommend that if he were released from custody that he continue on a supervision order in the community. This should be for a period of at least another five years.”13 [36] Dr Harden provided the following recommendation in respect of the respondent: “I would recommend that if he were released from custody that he continue on a supervision order in the community. This should be for a period of at least another five years. I would recommend that he continue to be required to be abstinent from alcohol and drug use. He should continue with psychological therapy. He reports a positive relationship with the current treating psychologist. His NDIS structured support should continue. This should be used to enhance his pro social community integration. He should be allowed to form intimate/sexual relationships but he should be very carefully monitored and supported in this process so that he can successfully learn and apply new strategies which will move him away from the sexual offending pathway.”14 [37] In relation to the original four conditions in the draft proposed further supervision order which were in contention, Dr Harden provided the following further opinion: “I have reviewed the supervision order and I have also reviewed my report. My responses are below in italics. • Condition 10 o The respondent submits there is no nexus between generalised offending and any increased risk of Mr Larry committing a serious sexual offence. There is a nexus between general offending and sexual offending and it is thought to be mediated by generalised rule breaking. That said 13 Exhibit “SH-2” to the Affidavit of Dr Scott Harden sworn 1 February 2021 at pp 30-1. 14 Exhibit “SH-2” to the Affidavit of Dr Scott Harden sworn 1 February 2021 at p 31. -- 14 of 36 -- 15 I do not believe that this condition is an essential part of the supervision order in terms of risk reduction for Mr Larry given the presence of the other conditions and associated monitoring. • Condition 25 o The respondent queries whether the requirement needs to remain, or, if could be varied to permit a BAC of 0.05 or to permit such a change after 1 or 2 years on the further order. His offending has in the past at times been associated with alcohol use. It is correct that this use was excessive alcohol use and intoxication. I would be reluctant to allow use of alcohol to even a mild extent. Mr Larry has not demonstrated great self-control in his substance abuse patterns in the past. It would be better for him to not use alcohol or any other intoxicants. • Condition 28 o The respondent submits this requirement be removed to advance social reintegration. I do understand the desire to reduce the range of restrictions in the community and exclusion zones associated with alcohol-related institutions. This condition could perhaps be modified to only cover restricting access to places whose only purpose is to sell alcohol (for example bottle shops). • Condition 34 o The respondent submits this requirement be removed to advance social reintegration. The need to plan ahead and structure a timetable with pro social activities is an important part of his reintegration into the community. I do not understand how this condition interferes with his social reintegration. I would be opposed to the removal of this condition.” Dr Ken Arthur [38] Dr Arthur prepared a report dated 14 May 2021 following an assessment of the respondent on 30 April 2021. Dr Arthur has not previously examined or reported on the respondent in relation to proceedings under the DPSO Act. [39] Dr Arthur diagnosed the respondent as follows: (a) Alcohol and Cannabis Misuse Disorder (currently in remission in a controlled environment); (b) Antisocial Personality Disorder; and (c) Mild Intellectual Disability. [40] Further, Dr Arthur assessed the respondent as follows: -- 15 of 36 -- 16 (a) Static 99-R: the respondent scored six, placing him in the “well above average risk” group; (b) Psychopathy Checklist (PCL-R): the respondent scored 23 out of 40, which is slightly elevated; (c) Risk for Sexual Violence Protocol (RSVP): Dr Arthur reports as follows: “… I have identified the following factors relevant to the future risk of sexual recidivism – Sexual Violence: • Chronicity - duration/frequency • Escalation • Physical coercion Psychological Adjustment: • Extreme minimisation or denial • Problems with self-awareness • Problems with stress/coping • Problems resulting from child abuse Mental Disorder: Problems with substance abuse Social Adjustment: • Problems with intimate relationships • Problems with employment • Nonsexual criminality Manageability • Problems with supervision [229] I have identified further possible risk factors of relevance – Social Adjustment: • Problems with nonintimate relationships Manageability: • Problems with planning • Problems with treatment.” [41] In respect of the assessment of risk, Dr Arthur states in his report as follows: -- 16 of 36 -- 17 Propensity to reoffend Based on the static risk factors, Mr Larry remains in the “well above average” group of offenders. There is no evidence of a lessening of sexual activity/preoccupation, and indeed since ceasing the prescribed Sertraline, he reported an increase in sexual functioning. There are many ongoing dynamic risk factors for recidivism, particularly in the spheres of psychological and social adjustment. It appears that Mr Larry has remained highly focused on relationships for the duration of his order and although he denied it, his behaviour suggests ongoing sexual preoccupation. He remains vulnerable to a relapse in substance use and displays ongoing evidence of poor emotional regulation, impulsivity and a propensity for violence when aroused. He is susceptible to boredom and relies heavily on supports to provide him with meaningful distraction. He displays a limited appreciation for his risk of future sexual violence and continues to experience difficulties managing relationships Pattern of offending Mr Larry’s earlier offences all followed a similar pattern. In the context of intoxication, he has broken into the residence of women whom he knows (or knows of), with the intention of seeking sexual intercourse. The second and third offences were associated with physical violence; during the second offence he responded violently when the victim punched him whereas in the attempted rape he initiated significant instrumental violence, punching the victim multiple times around the head. The most recent offence consisted of Mr Larry exposing himself to a tutor whilst in jail. The drivers behind this are unclear, although it is likely he was experiencing some degree of sexual preoccupation as he had just completed the Sexual Offender Treatment Program. Whilst there have been no further convictions, there was another charge of inappropriate touching of a female nurse and the alleged rape of an intoxicated woman that he met on the train. The first three offences appear to consist of some degree of planning but there is also an element of impulsivity. Attempt to change Mr Larry has availed himself of many Sexual Offender Treatment Programs and individual psychological therapy. He did take SSRI medication for a period of time although voluntarily ceased this due to reported side effects. There has been some contact with Drug and Alcohol Services. -- 17 of 36 -- 18 Effects of treatment programs At interview, Mr Larry displayed very little retention of core concepts from treatment programs. He does appear to have modified his view of substances somewhat although it is uncertain whether he can maintain abstinence without the strict conditions of a supervision order. Whilst his treating Psychologist has identified some improvements over time, he has failed to apply cognitive strategies to cope with negative emotional states/interpersonal difficulties. He continues to display poor problem solving and remains prone to impulsive, antisocial behaviours. Although he has improved in his capacity to discuss sexual matters with his treating Psychologist, supervision staff have continued to express concern that he is under-reporting his level of sexual preoccupation/activity. Overall, it seems there have been modest gains made in Mr Larry’s acknowledgement of the need to remain abstinent from drugs of abuse, some increased self-awareness and acceptance of his difficulties with relationships. [42] Dr Arthur also provided the following opinion in relation to risk: “[238] I accept that there has been some improvement in Mr Larry’s self-regulation, reflected in the reduced frequency of aggressive/violent episodes. Furthermore, he has been able to remain largely abstinent from drugs for the last few years and there is no evidence of a return to alcohol use. His treating Psychologist has noted improvements in his engagement and whilst there have been ongoing suspicions of heightened sexual preoccupation, Mr Larry has not displayed any inappropriate sexual behaviour or sexualised attachments to staff. He appears to have retained the support of some family members and his general interactions with supervisory staff have been respectful and largely appropriate. However, there remain a number of areas of concern. [239] Even though he was acquitted of the alleged rape in 2013, his behaviour in relation to the charge showed poor judgement, the possibility of predatory sexual behaviour (unprotected sexual intercourse with an intoxicated woman) and a lack of insight regarding the risk of such activity. His failure to abide by the conditions of his order surrounding the use of social media and the monitoring of relationships speaks to Mr Larry’s impulsivity, poor judgement and unwillingness/inability to comply with lawful behaviour. The threat of a return to custody has not dissuaded him from such behaviour. Furthermore, despite extensive psychological therapy, it appears that he requires further -- 18 of 36 -- 19 assistance in negotiating both intimate and non-intimate relationships. [240] The main risk factors for future sexual recidivism are substance misuse, ongoing impairments in his ability to negotiate relationships, intellectual impairment (impacting on insight/problem solving/self-awareness) and his Antisocial Personality Disorder. [241] In the absence of an order, it is likely that Mr Larry will move closer to family members; whilst he stated that it is his intention to return to Sue Island where he has prosocial supports, he has recently talked about transferring to Townsville where he also has family. Given his lack of motivation/capacity to engage in employment and limited recreational activities, he will be prone to boredom and most likely seek out relationships with women due to his underlying level of sexual preoccupation and perhaps dependency needs. Even if NDIS support was available to him, he may not accept such support if he perceives there are family members around to assist him. If exposed to substances, he is at significant risk of a relapse into alcohol and cannabis misuse, particularly if he reconnects with antisocial peers. If intoxicated and suitably aroused, he may sexually reoffend. He would be at particular risk in situations where there is some ambiguity in the nature of his relationship with the victim or she may not be able to give consent. Mr Larry is a large, solidly built man who would have little difficulty in physically dominating most women; should he use physical coercion there would be a significant risk of harm to the victim. He also represents a risk of domestic violence in established relationships if faced with perceived rejection or infidelity. [242] It is my opinion that over the last 10 years Mr Larry’s unmodified risk of sexual recidivism has reduced, but remains moderately high, or ‘above average’.”15 [43] Dr Arthur provided the following recommendation in respect of the respondent: “[245] I appreciate that living in Brisbane limits his opportunity to interact with women of a similar cultural background who are familiar to him or his family. Because of this, consideration should be given to allowing Mr Larry to transfer to Townsville, where he not only has more family support but has a better chance of finding an appropriate romantic partner. Whilst this would disrupt treatment and his current support structure, it would provide an opportunity for his treatment team to monitor his functioning within relationships and to assist further with the development of social and self-regulatory skills. 15 Dr Arthur’s report dated 14 May 2021 at pp 45-6. -- 19 of 36 -- 20 [246] Regardless of family support, I believe that Mr Larry will continue to require NDIS funded workers to facilitate safe community access and engagement in meaningful daytime activities. If not already sourced, the provision of a Public Trustee may reduce the risk of financial distress and protect him from being taken financial advantage of by unscrupulous others. [247] Given the concerns of supervisory staff, Mr Larry may benefit from the judicious use of psychotropic agents to assist him with emotional regulation and impulse control; I would recommend a referral to a Psychiatrist or experienced GP for this purpose. SSRI medications such as Citalopram, Paroxetine or Fluoxetine may be of benefit. [248] Contact with prosocial family members should be encouraged, along with reintegration into the indigenous community. Close supervision will be required to ensure Mr Larry does not return to substance use or reassociate with antisocial peers.”16 [44] In respect of the four conditions in the draft proposed further supervision order which were originally in contention, Dr Arthur provided the following further opinion: “In response: Condition 10: Mr Larry has a significant criminal history that includes drug offences, break and enter and serious violence. These are non-sexual offences but are associated with increased risk of a sexual recidivism. General offending is a recognised static and dynamic risk factor for sexual recidivism. Condition 25: Mr Larry himself identifies alcohol use as a significant risk factor for recidivism. His offences in the community were association with alcohol intoxication. He reported at interview that he does not wish to drink anymore. This remains a significant risk factor for sexual recidivism. Condition 28: Given the significance of alcohol in the commission of his offences, it is reasonable to ensure his exposure to this drug is managed in the community. He can still gain written permission in advance if there is a good reason for him to access these venues. Condition 34: Mr Larry is heavily reliant on others to source appropriate recreational and social activities. Planning his week in advance ensures that he has thought about his responsibilities and goals. This remains an important part of his rehabilitation and combats boredom and reduces impulsive decision making.” 16 Dr Arthur’s Report dated 14 May 2021, 45-6. -- 20 of 36 -- 21 Dr Josephine Sundin [45] Dr Sundin prepared a report dated 24 June 2021 following an assessment of the respondent on 22 April 2021. Dr Sundin previously examined the respondent on 24 March 2018 and prepared a report on 12 September 2018. [46] Dr Sundin’s diagnosis of the respondent is as follows: (a) Antisocial Personality Disorder; (b) Alcohol Use Disorder (in remission in a controlled environment); (c) Cannabis Abuse (vulnerability); (d) Borderline Intelligence; (e) Learning and Language Difficulties (ongoing). [47] Further, Dr Sundin assesses the respondent as follows: (a) Static-99R: The respondent scored six placing him in a group of offenders who are considered to be “well above average”. (b) Outstanding criminogenic treatment needs: The respondent is in the high needs group. Dr Sundin notes: “He continues to demonstrate problems with impulsivity, poor problem solving skills and variable cooperation with supervision. He is preoccupied with his desire for a relationship but shows less evidence of sex drive/preoccupation than demonstrated previously.” (c) Hare Psychopathy checklist (PCL-R 20): The respondent does not meet criteria for Psychopathy. (d) Sexual Violence Risk Scale: The respondent assessed at moderate risk for future sexual offending. [48] Overall, Dr Sundin assesses the respondent as follows: “I consider that [the respondent’s] unmodified risk for future sexual offending is moderate and that the presence of a supervision order reduces this risk of offending to low.” [49] In respect of the assessment of risk, Dr Sundin provides the following opinion: “Overall, I consider that Mr Larry’s unmodified risk for future sexual offending is moderate and that the presence of a supervision order reduces this risk of offending to low. … I endorse the recommendations made both by Dr Harden and Ms Miller with respect to the benefits of ongoing psychological treatment for this man and the necessity of Mr Larry being engaged in a treatment programme to learn strategies as to how to establish and sustain an appropriate intimate partner relationship with an adult female. -- 21 of 36 -- 22 Whilst I appreciate Mr Larry’s desire to be released from his supervision order; in my opinion he continues to have outstanding criminogenic treatment needs which are relevant to the unmodified risk he poses for future sexual reoffence. I therefore respectfully recommend to the Court that Mr Larry can be maintained in the community under the existing supervision order whilst he remains engaged in psychological counselling and receive support from his NDIS worker.”17 [50] Dr Sundin provided the following recommendation in respect of the respondent: “My overall impression clinically was that Mr Larry continues to underestimate his own needs but that he has benefitted from the intervention from his psychologist, Ms Miller, and the training in community skills that he has gained through his NDIS workers. I endorse the recommendations made both by Dr Harden and Ms Miller with respect to the benefits of ongoing psychological treatment for this man and the necessity of Mr Larry being engaged in a treatment programme to learn strategies as to how to establish and sustain an appropriate intimate partner relationship with an adult female. … I would urge that his QCS case managers actively engage in strategies to move Mr Larry out of the precinct and into supported accommodation in the community with a reduction in his level of curfews during this extended period of supervision. In my opinion, it is important that the level of curfews and day to day supervision be gradually eased so that a meaningful assessment can be made of Mr Larry’s capacity to live independently and emotionally and behaviourally self-regulate. The NDIS workers may be able to assist in identifying suitable supported accommodation for Mr Larry to assist in this ongoing plan of management.”18 [51] In respect of the four conditions in the draft proposed further supervision order which were originally in contention, Dr Sundin provided her opinion verbally to Ms Pagliano of Crown Law, who summarised the advice in her affidavit as follows: “… Dr Sundin then verbally advised me that she did not consider condition (10) was necessary to manage the respondent’s risk of sexual offending; that with respect to condition (25), the respondent’s request that the respondent be allowed to change the Blood Alcohol Concentration limit after a period of time was not unreasonable, although Dr Sundin suggested a period of two years before any such change would be appropriate; that condition (28) could be rephrased to allow the respondent to enter premises that serve and sell alcohol, with written permission of a Corrective Services Officer; and that, 17 Dr Sundin’s report dated 24 June 2021 at pp 10-11. 18 Dr Sundin’s Report dated 24 June 2021 at pp 11-12. -- 22 of 36 -- 23 with respect to condition (34), it is important the respondent is involved in talking to a Corrective Services officer about his plans each week, but not necessarily that it be in writing. Dr Sundin suggested that verbal plans could be sufficient for the purpose of condition (34).” Oral evidence at hearing [52] Dr Harden, Dr Arthur and Dr Sundin all attended the hearing in person and gave further evidence in relation to the draft conditions that were contentious. [53] The questions in both evidence in chief and cross-examination were focused on the following: (a) Whether condition 10, which states “You must not break the law by committing an indictable offence”, should be included. (b) Whether condition 25, which states “You are not allowed to take (for example, swallow, eat, inject, or sniff) any alcohol. You are also not allowed to have with you or be in control of any alcohol”, should be included. (c) Whether condition 28, which contains a prohibition on attending particular licenced premises without advance written permission, should be included or redrafted. [54] Dr Scott Harden’s further evidence can be summarised as follows: (a) In respect of condition 10: (i) There is a general nexus between general offending and sexual offending: the nexus is rule-breaking behaviour. Given the rest of the supervision order the condition is not required for risk reduction in this case.19 (b) In respect of condition 25: (i) Alcohol was associated with the respondent’s sexual offending. The respondent should not drink alcohol at all. On the supervision order his breaches in general have not been with regard to alcohol use.20 (ii) The respondent has a problem managing alcohol and his behaviour when intoxicated. There is no reason to introduce alcohol into his management.21 (iii) If the respondent is really serious about managing his risk of sexual re- offending, he should never drink alcohol again.22 (c) In respect of condition 28: 19 T1-18; L14-21. 20 T1-18; L26-28. 21 T1-18; L30-33. 22 T1-18; L38-39. -- 23 of 36 -- 24 (i) The condition in its current form is quite restrictive. It should be redrafted to just restrict access to where you would only go if you were getting alcohol.23 [55] Dr Arthur’s further evidence can be summarised as follows: (a) In respect of condition 10: (i) The respondent’s sexual offending occurred in the context of general offending and there are aspects of the general offending. For example, if he were to break and enter and engage in substance abuse and engage in violence against women, these would be related to his risk of further sexual offending. General offending is an identified risk factor for sexual offending. It has been included in the existing supervision order and there is no reason to change that.24 (ii) The inclusion of such a clause would not impede his reintegration into the community.25 (iii) It is appropriate that the high-risk offender management unit be aware of any indictable offence so they can manage the risk.26 (iv) Removing the general prohibition would not facilitate his rehabilitation. Its inclusion may assist in identifying an escalation of anti-social behaviour and perhaps a rejection of supervision.27 (b) In respect of condition 25: (i) The sexual offences (other than those that occurred in custody) occurred while the respondent was intoxicated. The respondent identified alcohol as his only risk factor for recidivism and indicated he had no desire to return to drinking alcohol.28 (ii) The respondent does not have good insight into the drivers for his offending. The use of a substance that has an impact on his self-control and an impact on his ability to problem solve and make reasonable judgment is extremely concerning.29 (iii) In respect of whether the respondent should be allowed to consume alcohol up to 0.5 BAC at some point in the 5 year period, Dr Arthur stated he did not consider that allowing the respondent to have alcohol was a good idea. Controlled drinking was hard to manage and was difficult for people who had problem drinking in the past. Further, it may not be practical for HROMU to be able to manage a condition allowing controlled drinking of alcohol. Abstinence is a better option from a risk management perspective.30 23 T1-18; L43-46. 24 T1-7; L22-33. 25 T1-7; L35-39. 26 T1-7; L45-T1-8; L2. 27 T1-11; L1-4. 28 T1-8; L4-11. 29 T1-8; L 18-21. 30 T1-10; L24-39. -- 24 of 36 -- 25 (iv) For a person with problem substance abuse, any substance use is risky. Given that, it is not a good idea for the respondent who has an alcohol use disorder to have occasional or limited use of alcohol.31 (c) In respect of condition 28: (i) The respondent’s willpower and capacity to regulate his behaviour in relation to substances is not strong. It makes sense for HROMU to have on-going control and supervision over places the respondent attends to assist the respondent to reinforce his desire for abstinence.32 (ii) This should be discussed as part of the weekly planning discussion.33 [56] Dr Sundin’s further evidence can be summarised as follows: (a) In respect of condition 10: (i) Indictable offences are considered to be a general risk factor for sexual offending. The respondent’s history of general indictable offending has been mainly part of the actual sexual offending. They have not been a pattern of escalating indictable offences leading up to sexual offending.34 (b) In respect of condition 25: (i) Alcohol is a problem for the respondent and the respondent acknowledges this. When interviewed the respondent was clear that he wanted to remain abstinent from alcohol. Rum is a particular problem for the respondent.35 (ii) If the respondent wanted to be able to drink alcohol in the future, then controlled use of alcohol should be tested out under supervision.36 (c) In respect of condition 28: (i) It is appropriate for the respondent to go to venues that sell alcohol or clubs provided he gets written permission from his case officer. It should be part of his plan and risk mitigation can be discussed in preparation for going to such places.37 (ii) The condition should be changed so that it is positive: that is he may attend venues if he has written permission. That is clearer for someone who has an intellectual disability and it encourages him to talk with his case officer.38 (iii) A discussion and permission in advance are necessary to manage the respondent’s risks in attending venues selling alcohol.39 31 T1-12; L41-43. 32 T1-8; L40-T-9; L1. 33 T1-9; L8-11. 34 T1-13; L42-46. 35 T1-14; L17-23. 36 T1-14; L22-35. 37 T1-15; L31-35. 38 T1-16; L6-11. 39 T1-15; L17-T1-16; L11. -- 25 of 36 -- 26 Revised draft further supervision order [57] Following the further psychiatric evidence at the hearing, the draft further supervision order was revised as follows: (a) The respondent accepted the inclusion of condition 25. (b) It was agreed to redraft condition 28 to delete “not” in the first line, so that it is permissive conditional upon obtaining prior written permission from a Corrective Services officer. Accordingly, condition 28 was agreed as follows: “You are allowed to go to pubs, clubs, hotels, nightclubs or any retail venues (such as, but not limited to liquor stores) that sell, serve or are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.” [58] It remains in contention between the parties whether condition 10, which states “You must not break the law by committing an indictable offence”, is a necessary condition. [59] Subject to a determination on whether condition 10 should be included and the Court being satisfied as required under the DPSO Act, the parties agree that the release of the respondent into the community on the terms of the revised draft further supervision order would be appropriate. Consideration [60] Jackson J in Attorney-General for the State of Queensland v Loudon40 identified that the relevant questions that arise on an application for a further supervision order are as follows: “[3] … [U]nder s 19D the questions to be decided on an application for a further supervision order are a modified form of those that arise on an application for a final order under Part 2 Division 3 of the DPSOA. First, is the court satisfied that the respondent is a danger to the community within the meaning of s 13(1) of the DPSOA? Second, if the court is so satisfied, should the court order that the respondent as a released prisoner be subject to the requirements it considers appropriate that are stated in a further supervision order of the kind made under s 13(5)(b) of the DPSOA?” [61] The application for a further supervision order has been made within the last six months of the current order and is in respect of a “released prisoner”. Following the preliminary hearing, the matters were set down for hearing for a determination to be made. Further psychiatric assessments have been obtained. [62] The procedural requirements in respect of the application for a further supervision order have been met. 40 [2017] QSC 146. -- 26 of 36 -- 27 [63] As indicated previously, the respondent accepts that the evidence favours the imposition of a further supervision order. [64] The psychiatric evidence establishes that: (a) the respondent’s unmodified risk of sexual re-offence is “moderate-high” for Dr Harden and Dr Arthur and “moderate” for Dr Sundin. (b) the imposition of a supervision order will reduce the respondent’s risk of future serious sexual offending to “low”. (c) the respondent has ongoing treatment needs which can be managed on a supervision order. Whether the respondent is a serious danger to the community in the absence of a further supervision order pursuant to Division 4A? [65] The first question is whether the respondent is a serious danger to the community in the absence of a further supervision order pursuant to Division 4A. This issue is not contentious between the parties, or between the three psychiatrists. [66] Based on the evidence of Dr Arthur, Dr Sundin and Dr Harden, and the other affidavit evidence read in support of the application, which I accept, I am satisfied that there is acceptable, cogent evidence, which satisfies me to the high degree of probability required that the respondent remains a serious danger to the community in the absence of a further supervision order made under Division 4A of the DPSO Act. [67] In the circumstances, I am satisfied that the respondent remains a serious danger to the community in the absence of a further supervision order pursuant to Division 4A of the DPSO Act. Whether adequate protection of the community can be ensured by the respondent’s release on the proposed further supervision order? [68] The second question is whether the adequate protection of the community can be ensured by the respondent’s release on the proposed further supervision order. [69] The risk being protected against is the risk of the respondent, without a further supervision order, committing a serious sexual offence and that risk must be of an unacceptable magnitude. The legislative scheme must accept that some level of risk is acceptable, consistent with the concept of adequate protection of the community. [70] The assessment of the risk 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.” [71] Each of the three psychiatrists have provided their opinions in respect of the appropriate conditions given their assessment of the risks and their clinical diagnoses in respect of the respondent. -- 27 of 36 -- 28 [72] It is also necessary to recognise that the requirements of the supervision order should only be as onerous as is necessary to protect the community from serious sexual offences being committed: Attorney-General (Qld) v Francis.41 [73] On behalf of the respondent it was submitted that the general condition not to commit an indictable offence was unnecessary. Condition 9 contains a specific requirement not to commit the relevant category of offences. [74] Reference was made to relevant authorities which have considered similar general clauses. Holmes JA (as the Chief Justice then was) stated in Harvey v Attorney- General (Qld):42 “As it seems to me, whether a condition that a prisoner not commit an indictable offence for the duration of a supervision order is capable of being ‘appropriate to ensure adequate protection of the community’ against further sexual offending must in any given case be a question of fact. It is unlikely that such a broad condition will in most instances be necessary or appropriate, but it is not inconceivable that a prisoner’s pattern of offending (for example, escalation from general criminal offences to sexual offences) may be such that the condition is apposite. I would not accept, therefore, that it is beyond the power of the court under s 16(2) to impose such a condition.” [75] As Lyons J (as the Senior Judge Administrator then was) also stated: “I also agree that whilst such a condition would generally not be a necessary condition in most supervision orders there may be circumstances where it would be required and that it could therefore be imposed.” [76] In Attorney-General for the State of Queensland v Sambo,43 Applegarth J stated: “[88] Counsel for the respondent relied upon the decision of Douglas J in Attorney-General for the State of Queensland v Thumm44 in which the conclusion was reached that the inclusion of a requirement that the respondent not commit an offence of a sexual nature during the period of the order removed the need to include a further condition that he not commit an indictable offence during that period. Reliance was placed by Douglas J in that case on what the Court of Appeal said in Attorney- General for the State of Queensland v Francis45 that where the protection of the community is adequately ensured, then the liberty of the subject should be constrained to no greater extent than is warranted by the statute that authorises the constraint. I respectfully adopt the same approach in the context of this case. The additional requirement is not necessary to bring offensive behaviour to the attention of authorities, so as to provide ‘a 41 [2007] 1 Qd R 396 at [39]; Attorney-General (Qld) v Kanaveilomani [2013] QCA 404 at [108]-[110]. 42 [2014] QCA 146 at [11]. 43 [2008] QSC 262. 44 [2008] QSC 180 at [9]-[13]. 45 [2006] QCA 324 at [39]. -- 28 of 36 -- 29 canary in the mine’. In such a circumstance, other requirements of the order which extend considerable discretion to corrective service officers could be used to minimise the risk of the respondent committing an offence of a sexual nature. If the respondent contravened the requirements of the supervision order, he would be subject to the processes under Division 5 of the Act, including possible arrest under s 20 and a contravention hearing. If the respondent committed a serious offence, and if the circumstances justified it, an application could be made to amend the requirements of the order to provide additional protection to the community. [89] I consider that the additional requirement requested exceeds what is appropriate to ensure adequate protection of the community from the respondent committing a serious sexual offence and the respondent’s rehabilitation or care or treatment. Those interests are adequately protected by the other requirements of the order and the other provisions of the Act.” [77] Here, the respondent has already had 10 years under a supervision order and this is an application to put in place a supervision order for a further five years. As recognised by Dr Arthur, the respondent’s history shows some general offending as well as the serious sexual offending. However, there is no clear evidence that offending of a general nature is linked in the case of the respondent to the risk of serious sexual offending. There is no evidence of a clear pattern of escalation from general offending to sexual offending to warrant the continued inclusion of the general prohibition. [78] The inclusion of specific conditions, including those that address offences of a sexual nature and a prohibition on alcohol and drugs together with on-going supervision by Corrective Services, I have reached the conclusion that the supervision order and the DPSO Act offer adequate protection. The inclusion of a general prohibition is not necessary, also taking into account that this further supervision order is to transition the respondent into the community and the respondent’s on-going supervision and rehabilitation in this period is likely to be more productive without the general prohibition being included in the supervision order. [79] While there is some divergence in views by the psychiatrists, on balance, the common views are reflected in the revised draft supervision order set out at Annexure A (in which condition 10 has been deleted). [80] Further, if, on all the evidence, a supervision order would be likely to reduce the risk to an “acceptably low level”, then a supervision order should be made: Attorney- General for the State of Queensland v Beattie.46 [81] In making the “value judgment” required, I have considered and accept the views expressed by Dr Arthur, Dr Sundin and Dr Harden, generally in relation to the draft further supervision order subject to the comments outlined above, and the evidence read in support of the application. I find that the adequate protection of the 46 [2007] QCA 96 at [19]. -- 29 of 36 -- 30 community can be reasonably and practically managed by the terms of the revised draft further supervision order set out in Annexure A. [82] Further, I am satisfied that the requirements under s 16 of the DPSO Act can be reasonably and practically managed by Corrective Service officers. Order [83] Accordingly, being satisfied that the respondent is a serious danger to the community in the absence of a further supervision order made pursuant to Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003, the order of the Court is that: 1. The interim supervision order made on 12 July 2021 is rescinded. 2. The respondent be subject to a further supervision order for a period of five years until 27 July 2026, on the conditions set out in Annexure A. -- 30 of 36 -- 31 Annexure A SUPREME COURT OF QUEENSLAND REGISTRY: Brisbane NUMBER: BS396/11 Applicant ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND AND Respondent THOMAS JOEL LARRY FURTHER SUPERVISION ORDER Before: Justice Williams Date: 27 July 2021 Initiating document: Application filed 17 February 2021 (CFI 191) THE COURT is satisfied that Thomas Joel Larry, is a serious danger to the community in the absence of a further supervision order made pursuant to Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003. The rules in this order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003. THE COURT ORDERS THAT Thomas Joel Larry must follow the rules in this order for 5 years, until 27 July 2026. TO Thomas Joel Larry: 1. You must obey the rules in this supervision order. 2. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison. 3. You must obey these rules for the next five years. Reporting 4. On the day of the day of the making of this order, you must report before 4 pm to a Corrective Services officer at the Community Corrections office closest to where -- 31 of 36 -- 32 you will live. You must tell the Corrective Services officer your name and the address where you will live. 5. A Corrective Services officer will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A Corrective Services officer might visit you at your home. You must let the Corrective Services officer come into your house. To “report” means to visit a Corrective Services officer and talk to them face to face. Supervision 6. A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a Corrective Services officer gives you about: a) where you are allowed to live; and b) rehabilitation, care or treatment programs; and c) using drugs and alcohol; and d) who you may have contact with; and e) anything else, except for instructions that mean you will break the rules in this supervision order. A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation. If you are not sure about a direction, you can ask a Corrective Services officer for more information, or talk to your lawyer about it. 7. You must answer and tell the truth if a Corrective Services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with. 8. If you change your name, where you live or any employment, you must tell a Corrective Services officer at least two business days before the change will happen. A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday. No offences 9. You must not break the law by committing a sexual offence. Where you must live 10. You must live at a place approved by a Corrective Services officer. You must obey any rules that are made about people who live there.47 47 Clause 10 in the initial proposed further supervision order stated: “You must not break the law by committing an indictable offence”. This has been deleted on the basis set out in my reasons. -- 32 of 36 -- 33 11. You must not live at another place. If you want to live at another place, you must tell a Corrective Services officer the address of the place you want to live. The Corrective Services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a Corrective Services officer to live at another place. This also means you must get written permission from a Corrective Services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place. 12. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a Corrective Services officer. You are allowed to leave Queensland only after you get written permission from a Corrective Services officer. Curfew direction 13. A Corrective Services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction. Monitoring direction 14. A Corrective Services officer has power to tell you to: a) wear a device that tracks your location; and b) let them install a device or equipment at the place you live. This will monitor if you are there. This is called a monitoring direction. You must obey a monitoring direction. Employment or study 15. You must get written permission from a Corrective Services officer within two business days of starting a job, studying or volunteer work. 16. When you ask for permission, you must tell the Corrective Services officer these things: a) what the job is; b) who you will work for; c) what hours you will work each day; d) the place or places where you will work; and e) (if it is study) where you want to study and what you want to study. 17. If a Corrective Services officer tells you to stop working or studying, you must obey what they tell you. Motor vehicles 18. You must tell a Corrective Services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the -- 33 of 36 -- 34 Corrective Services officer these details immediately (on the same day) you get the vehicle. A vehicle includes a car, motorbike, ute or truck. Mobile phone 19. You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a Corrective Services officer the details (make, model, phone number and service provider) about any mobile phone you own, or have, within 24 hours of when you get the phone. 20. You must give a Corrective Services officer all passwords and passcodes for any mobile phone you own or have. You must let a Corrective Services officer look at the phone and everything on the phone. Computers and internet 21. You must give a Corrective Services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a Corrective Services officer look at the computer, phone or other device and everything on it. 22. You must give a Corrective Services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things. No contact with any victim 23. You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you. “Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way. Rules about alcohol and drugs 24. You are not allowed to take (for example, swallow, eat, inject, or sniff) any alcohol. You are also not allowed to have with you or be in control of any alcohol.48 25. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs. 48 This was clause 25 in the initial draft supervision order. -- 34 of 36 -- 35 26. A Corrective Services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, or pee (urine) when they tell you to do this. 27. You are allowed to go to pubs, clubs, hotels, nightclubs or any retail venues (such as, but not limited to liquor stores) that sell, serve or are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.49 Rules about medicine 28. You must tell a Corrective Services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a Corrective Services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine. 29. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor. Rules about rehabilitation and counselling 30. You must obey any direction a Corrective Services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor. 31. You must obey any direction a Corrective Services officer gives you about participating in any treatment or rehabilitation program. 32. You must let Corrective Services officers get information about you from any treatment or from any rehabilitation program. Speaking to Corrective Services about what you plan to do 33. You must talk to a Corrective Services officer about what you plan to do each week. A Corrective Services officer will tell you how and when to do this (for example, face to face or in writing). 34. You must tell a Corrective Services officer the name of new persons you have met. This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly. 35. You may need to tell new contacts about your supervision order and offending history. The Corrective Services officer will instruct you to tell those persons and 49 This was clause 28 in the initial draft supervision order and contained the word “not” in the first line between the words “You are” and “allowed”. The drafting was changed to assist with the respondent understanding that this was permitted so long as he obtained prior approval. -- 35 of 36 -- 36 the Corrective Services officer may speak to them to make sure you have given them all the information. Other specific requirements 36. You cannot get pornographic images on a computer or phone from the internet or magazines without written approval from a Corrective Services officer. Your treating psychologist will provide advice regarding this approval. Signed: Registrar of the Supreme Court of Queensland -- 36 of 36 --