Attorney-General for the State of Queensland v Tiers [2021] QSC 115

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Tiers [2021] QSC 115 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ALGANA TIERS (respondent) FILE NO/S: BS No 6580 of 2010 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: Orders made on 21 May 2021, reasons delivered on 28 May 2021 DELIVERED AT: Brisbane HEARING DATE: 21 May 2021 JUDGE: Davis J ORDERS: THE COURT being satisfied to the requisite standard that the respondent has contravened requirement (26) of the supervision order made by Applegarth J on 25 May 2020 (“the supervision order”), ORDERS THAT: 1. Under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”), the respondent be released from custody and continue to be subject to the requirements of the supervision order with the following amendment. 2. Requirements 30, 43(c) and 43(d) of the supervision order be deleted. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a supervision order was made on 28 May 2020 with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) - where the supervision order contained conditions prohibiting the ingestion of alcohol - where the respondent consumed alcohol - where psychiatric evidence supported the conclusion that -- 1 of 16 -- 2 the adequate protection of the community could be ensured by the respondent’s release back on the supervision order - where the supervision order contained conditions prohibiting the respondent from entering a park - whether such conditions were necessary - whether those conditions should be deleted from the supervision order Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 5, s 13, s 14, s 15, s 16, s 22, s 30 Attorney-General for the State of Queensland v Ellis [2012] QCA 182, followed Attorney-General for the State of Queensland v Fardon [2011] QCA 155, followed Attorney-General (Qld) v Fardon [2013] QCA 64, followed Attorney-General for the State of Queensland v Fardon [2013] QCA 299, followed Attorney-General (Qld) v Fardon [2018] QSC 193, followed Attorney-General v Fardon [2019] 2 Qd R 487, cited Attorney-General for the State of Queensland v Fardon [2011] QCA 111, cited Attorney-General v Francis [2007] 1 Qd R 396, followed Attorney-General v Lawrence [2010] 1 Qd R 505, followed Attorney-General for the State of Queensland v Tiers [2018] QSC 130, related Attorney-General for the State of Queensland v Tiers (No 2) [2018] QSC 229, related Attorney-General for the State of Queensland v Tiers [2020] QSC 135, related Attorney-General (Qld) v Yeo [2008] QCA 115, followed Kynuna v Attorney-General (Qld) [2016] QCA 172, cited Turnbull v Attorney-General (Qld) [2015] QCA 54, cited LAB v Attorney-General [2011] QCA 230, followed COUNSEL: S Richards for the applicant C Smith for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The respondent is subject to a supervision order made on 28 May 2020 by Applegarth J pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). The applicant alleges breaches of the supervision order and seeks orders under s 22 of the DPSOA. Background [2] Mr Tiers is an indigenous man born on 19 November 1986. He is presently 34 years of age. -- 2 of 16 -- 3 [3] Mr Tiers lived on Palm Island until his parents separated when he was about six years of age. He moved with his mother to Townsville but she drank heavily and was violent. He lived with other family members from about the age of 11. [4] In 2002 when Mr Tiers was 15 years of age, he committed a series of offences, including burglary and rape. The victim of the rape was a four year old girl. Boddice J described the offending in these terms: “At the time of the offence, the respondent had heavily abused alcohol and marijuana. He had also been sniffing paint. After being rejected by a female in whom he had shown some interest at a party, the respondent became angry and frustrated and entered the house in which the child was sleeping in her own bed. The respondent viciously assaulted the child before brutally raping her, causing serious injuries to her genital area. The child also suffered significant injuries to her face and other parts of her body.” [5] For that offence Mr Tiers was sentenced to eight and a half years detention. It was that offence which brought him within the scope and operation of the DPSOA. [6] An application under the DPSOA was made against Mr Tiers and on 3 December 2010 he was released subject to a supervision order1 for a period of five years. [7] Mr Tiers was unable to comply with the terms of the supervision order. He was the subject of contravention proceedings relating to breaches in February 2011, November 2011, June 2012, April 2013, January 2015 and November 2015. All but the last of those contravention proceedings resulted in Mr Tiers being released back on supervision. The contravention in November 2015 resulted in an order that the supervision order be rescinded. A continuing detention order was made.2 [8] The continuing detention order was reviewed pursuant to Part 3 of the DPSOA and on 21 June 2017 the order was rescinded and a supervision order made.3 In November 2017, Mr Tiers breached the new supervision order by consuming alcohol. Those breach proceedings came before Bowskill J in April 2018. [9] After an extensive analysis of the medical evidence then available, her Honour concluded that the adequate protection of the community could not be ensured4 1 Section 13(5)(b). 2 Section 22(2). 3 Section 30. 4 Section 22(7). -- 3 of 16 -- 4 unless Mr Tiers was released to live in supported accommodation. Her Honour adjourned the application and in doing so said: “[53] It is appropriate that every effort be made to see if there is a suitable form of supported accommodation that could be made available to Mr Tiers; and, if there is, for Corrective Services to have the opportunity to consider the suitability of any such accommodation, and for Dr Grant and Dr Beech5 to be invited to comment further on that, should they wish to do so. It is therefore appropriate to adjourn the hearing of this application, until the outcome of those enquiries is known.”6 [10] The application came back before her Honour on numerous occasions but then finally on 3 October 2018, her Honour concluded: “[20] Ultimately, being satisfied that, for the reasons outlined in the decision published on 4 June 2018, Mr Tiers has contravened the supervision order made by Boddice J on 21 June 2017, and further, not being satisfied that adequate protection of the community can, despite that contravention, be ensured, I make an order under s 22(2)(a) that the supervision order made on 21 June 2017 be rescinded and that the respondent be detained in custody for an indefinite term for control, care or treatment.”7 [11] As can be seen from the above passage her Honour rescinded the supervision order and made a continuing detention order. [12] The continuing detention order was reviewed in May 2020. By that point Mr Tiers was 33 years of age and, apart from the short periods of time that he had been released on supervision, he had been in custody since he was 15. [13] The evidence before Applegarth J was that: (a) Mr Tiers was only borderline general intellectual ability;8 (b) he may suffer foetal spectrum disorder; (c) he suffers impairment in areas of neuro development; (d) he is institutionalised; 5 Both psychiatrists whose evidence was before her Honour on the issue of Mr Tiers reoffending. 6 Attorney-General for the State of Queensland v Tiers [2018] QSC 130 at [53]. 7 Attorney-General for the State of Queensland v Tiers (No 2) [2018] QSC 229. 8 Attorney-General for the State of Queensland v Tiers [2020] QSC 135 at [10]. -- 4 of 16 -- 5 (e) his incarceration has impaired the development of his living skills which contribute to his failures to live in the community on supervision; (f) he needs support in the community;9 (g) he suffers a personality disorder10 and polysubstance abuse disorder.11 [14] Ultimately, his Honour rescinded the continuing detention order and made a supervision order for a period of five years until 25 May 2025. [15] Condition 26 of the supervision order is in these terms: “26. 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.” [16] The particulars of the present contravention as alleged in the applicant’s application are: “On 19 December 2020, Queensland Corrective Services (‘QCS’) Surveillance Officers obtained information from a source that two male persons at the Townsville Contingency House were under the influence of alcohol and engaging in a physical altercation. As a result of the information received, the Queensland Police Service (‘QPS’) and the Queensland Ambulance Service were deployed. QCS Surveillance Officers engaged several other men who reside at the same location in breath tests. As per requirement 28 of his supervision order, the respondent was directed to supply a sample of his breath for testing which returned a positive reading to alcohol at a level of 0.094% BAC. A secondary confirmation test was unable to be completed.” [17] Mr Tiers admits the contravention. Statutory context [18] The DPSOA provides for the continued detention or supervised release of “a particular class of prisoner”.12 The prisoners the subject of the DPSOA are those serving a term of imprisonment for a “serious sexual offence”13 which is “an 9 At [10]. 10 At [41] and [55]. 11 At [41] and [55]. 12 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3. 13 Section 5(6). -- 5 of 16 -- 6 offence of a sexual nature … involving violence” or “an offence of a sexual nature … against a child”.14 [19] The Attorney-General may apply to the court for orders against those prisoners. The court may make a continuing detention order15 or a supervision order.16 A continuing detention order requires the detention in custody of the prisoner beyond the date of expiry of the sentence then being served. A supervision order provides for the release of the prisoner under supervision notwithstanding the expiry of any sentence being served. [20] Section 13 is pivotal to the DPSOA. It has significance to the present application as the provisions which deal with breaches of supervision orders17 adopt terms and concepts included in s 13. Section 13 provides: “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— 14 Section 2 and the Schedule (Dictionary). 15 Sections 13, 14 and 15. 16 Sections 13, 15 and 16. 17 Primarily see section 22. -- 6 of 16 -- 7 (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offence sin 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 – -- 7 of 16 -- 8 (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).” [21] Section 13 operates in this way: (a) the test under s 13 is whether the prisoner is “a serious danger to the community”;18 (b) that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”19 if no order is made; (c) if that conclusion is reached, then a supervision order (as opposed to a continuing detention order) can only be made where the adequate protection of the community can be ensured by the making of a supervision order;20 (d) where “adequate protection of the community” can be ensured by a supervision order, then the making of a supervision order ought to be preferred to the making of a continuing detention order.21 [22] If a contravention or likely contravention of a supervision order is suspected, a warrant may be issued pursuant to s 20 of the DPSOA. Upon the arrest of the prisoner, the court is empowered to make orders pursuant to s 22. Section 22 provides as follows: “22 Court may make further order (1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order). (2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the 18 Section 13(1). 19 Section 13(1) and (2). 20 Section 13(6). 21 Attorney-General v Francis [2007] 1 Qd R 396 at [39]; Attorney-General (Qld) v Yeo [2008] QCA 115; Attorney-General v Lawrence [2010] 1 Qd R 505; LAB v Attorney-General [2011] QCA 230; Attorney-General for the State of Queensland v Ellis [2012] QCA 182; Attorney-General (Qld) v Fardon [2013] QCA 64. -- 8 of 16 -- 9 existing order as amended under subsection (7), the court must— (a) if the existing order is a supervision order, rescind it and make a continuing detention order; or (b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order. (3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following— (a) act on any evidence before it or that was before the court when the existing order was made; (b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order— (i) in the nature of a risk assessment order, subject to the restriction under section 8(2); or (ii) for the revision of a report about the released prisoner produced under section 8A; (c) consider any further report or revised report in the nature of a report of a type mentioned in section 8A. (4) To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a). (5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies. (6) For applying section 11 to the preparation of the report— (a) section 11(2) applies with the necessary changes; and (b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist. -- 9 of 16 -- 10 (7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court— (a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and (b) may otherwise amend the existing order in a way the court considers appropriate— (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment. (8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).” [23] By s 22, once a contravention is proved the court must rescind the supervision order and make a continuing detention order22 unless the prisoner satisfies the court that the adequate protection of the community can be ensured by his release back on supervision.23 It is well-established that the concept of “the adequate protection of the community” in s 22(7) has the same meaning as it bears in s 13.24 Therefore, a prisoner facing an application under s 22 must prove that the supervision order will ensure adequate protection of the community by removing any unacceptable risk that he will commit a serious sexual offence. [24] This is the third supervision order to which Mr Tiers has been subject. He has breached all of them and his history of performance under supervision orders gives no confidence that he will not breach again. [25] In Attorney-General (Qld) v Fardon,25 Jackson J reviewed the authorities and concluded that persistent breaches of a supervision order are only relevant to the extent that they impact upon consideration of the statutorily defined question which is whether “adequate protection of the community” can be ensured by release on 22 Section 22(2). 23 Section 22(7). 24 Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]; see also Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36]. 25 [2018] QSC 193; on appeal on another point Attorney-General v Fardon [2019] 2 Qd R 487. -- 10 of 16 -- 11 supervision.26 The principle as stated by Jackson J is, in my view, correct and is supported by statements in the Court of Appeal. [26] In Attorney-General for the State of Queensland v Fardon,27 this was said: “[28] While in some respects the respondent has adhered to important conditions, such as abstention from alcohol and illicit drugs, returning negative results on random testing, it is his present unwillingness fully to commit to the supervision regime, manifested in his disregarding and circumventing it, which precluded the conclusion that releasing him under a supervision order would ensure adequate community protection. It was not reasonably open, on all of this evidence, to conclude that a supervision order would be “efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences” (Attorney- General for the State of Queensland v Fardon [2011] QCA 111 per Chesterman JA at para 29).” [27] The reference in that passage to the statement of Chesterman JA is a reference to the following statement by his Honour: “[29] The concern which the psychiatric evidence raises is whether the supervision order will be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences. The risk of those offences is rated ‘low to moderate’ with the intervention of the supervision order, but whether that order will perform as intended, given the respondent’s stated attitude to it, and his inclination to disregard it or circumvent it, was not the subject of consideration by the primary judge. Accordingly there may be doubt about the conclusion that the adequate protection of the community can be ensured by release on a supervision order.”28 [28] In yet another decision involving Mr Fardon,29 Morrison JA referred to a passage that is often quoted from Attorney-General for the State of Queensland v Francis:30 “[39] … The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed 26 At [76]. 27 [2011] QCA 155. 28 Attorney-General for the State of Queensland v Fardon [2011] QCA 111 at [29]. 29 Attorney-General for the State of Queensland v Fardon [2013] QCA 299. 30 [2007] 1 Qd R 396. -- 11 of 16 -- 12 by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.” And then observed: “There can be no doubt that the respondent’s willingness to submit to the supervision regime is a relevant factor. In some cases it will be determinative.”31 Expert psychiatric evidence [29] Psychiatrist Dr Harden has been involved with Mr Tiers’ case since 2009. He prepared a report for the purposes of the present application. [30] Dr Harden’s diagnoses of Mr Tiers is: “In my opinion he meets diagnostic criteria for Antisocial Personality Disorder. He has previously met criteria for Alcohol Abuse, Marijuana Abuse, Inhalant Abuse and Opiate abuse without clear evidence of physical dependence but arguable psychological dependence. He has borderline or low average cognitive function overall. Extensive neuropsychological testing has been completed showing strengths and weaknesses some of these consistent with poor educational exposure. The possibility of Foetal Alcohol Spectrum Disorder has been raised however this adds little additional understanding to his case as there is no specific pattern of cognitive deficits associated with alcohol use in pregnancy and his deficits have otherwise been well described on neuropsychological testing. It would however offer him possible further assistance via the National Disability Insurance Scheme. He would meet diagnostic criteria for this disorder as described in various documents outside formal diagnostic schemes (one of them attached to the previous report of Dr Andrews32). Inside the formal diagnostic schemes (DSM and ICD) the condition would be classified as some kind of cognitive disorder related to alcohol exposure as a teratogen. The issue of Attention Deficit Hyperactivity Disorder features has been raised in the report of Ms Richards, I accept that there may be some features of this present in day-to-day activity for Mr Tiers, however I do note the previous testing of the neuropsychologist Dr Andrews which showed his ability to attend and concentrate for a prolonged period (some hours) and the lack of impulsivity when 31 At [22]; then citing Attorney-General for the State of Queensland v Fardon [2011] QCA 155 at [29]. 32 A neuropsychologist. -- 12 of 16 -- 13 conducting such testing. I accept that sometimes in quiet one-to-one interactions such as neuropsychological testing features of attention deficit hyperactivity disorder that might be important in the more distracting circumstances of everyday life do not appear. Clearly this possible issue should be considered further.” [31] Of particular importance to Dr Harden is the fact that Mr Tiers has only committed one sexual offence, albeit a very serious and violent one, and that was a long time ago. In that respect, he observed: “When dealing with only one catastrophic sexual offence committed a long time ago the error of measurement in any comments on risk must of course be greater than usual (that is there is a greater than usual chance that the likelihood of reoffending could be either greater or less than that stated in my opinion).” [32] Dr Harden explained that, while considering that acute intoxication with alcohol or intoxicants might increase risk of reoffending sexually during the time of intoxication, there are difficulties in quantifying that increase in risk. Ultimately, his assessment of risk was: “Taking into account all the available information his future risk of sexual reoffence is probably now low to moderate. There has been some significant decline in risk of sexual offending in the 19 years since his only offence. The risk of sexual reoffending is further reduced by a supervision order to the low range.” [33] In a case such as Mr Tiers where he has often breached a supervision order by consuming alcohol but that breach has not been considered one that increases risk of reoffending, questions arise as to the utility of having the condition at all. Dr Harden addressed that issue and opined: “In response to specific questions in my letter of instruction it is my view that acute intoxication with alcohol or other intoxicants probably does increase the acute risk of sexual reoffending during the time of intoxication. It is hard to quantify the degree of this increase in risk given my above notes about there being only one very dated sexual offence albeit occurring when he was intoxicated with alcohol. This does not lead to a sustained increase in his baseline (chronic) level of risk once he is no longer intoxicated. Avoidance of intoxication is therefore probably relevant to managing his acute risk of sexual reoffending.” -- 13 of 16 -- 14 [34] Ultimately Dr Harden made recommendations as follows: “I would recommend that if he were to be released that he continue to be monitored in the community by means of a supervision order. In my opinion given my views above regarding risk and alcohol consumption there should continue to be conditions in the supervision order prohibiting alcohol or illicit substance use and intoxication. I have not been able to generate alternative new conditions apart from the general prohibition on alcohol and illicit substance use already present in his order. In my opinion due to his pattern of use and other issues Mr Tiers is unlikely to benefit from a more nuanced approach such as allowing the use of alcohol but prohibiting intoxication (staying under 0.05) that might be useful in some other individuals in this situation. With regard to the order conditions it seems to me that the condition prohibiting alcohol use is required as is the condition giving the power to test for alcohol use (conditions 26 and 28). The conditions prohibiting attendance at licensed premises or parks without written permission are less clear in being absolutely required and do not seem to relate to the times when he has used alcohol on the order, hence they could probably be removed from the supervision order (conditions 29 and 30). I would recommend a comprehensive and integrated program to deal with the issue of substance misuse. This should involve his forensic psychologist, ATODS and preferably involvement of a specialist addiction psychiatrist. The addiction psychiatrist should specifically review the possibility of use of psychopharmacology or replacement programs to reduce his substance misuse and the question of attention deficit hyperactivity disorder which has been raised. The availability of specialist psychiatric opinion of this kind in Townsville is limited, however it may be possible to obtain specialist opinion via video link as since the pandemic many specialists are much more familiar with the use of such technology. Development of a highly structured week with limited idle time should be aimed for possibly with use of NDIS funding if this is available.” [35] As already observed, Mr Tiers is borderline intellectually impaired. Any unnecessary complications in the supervision order are likely to be counterproductive. Therefore, Dr Harden was asked to consider the utility of conditions 29 and 43(c) and (d) of the supervision order. [36] Those provisions are: -- 14 of 16 -- 15 “29. You are not allowed to go to pubs, clubs, hotels or nightclubs which 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. 43. You must not: a) … c) go to a public park; d) go to a shopping centre; …” [37] Dr Harden responded: “While alcohol intoxication should be avoided in Mr Tiers it is reasonable to question some of these ancillary conditions as they do not appear to have been helpful in preventing use of substances. I certainly do not consider the 43(c) and (d) conditions necessary in his case. I am ambivalent regarding 29 as I am not sure that spending time at the pub would be helpful to Mr Tiers. The risk of removing this condition with regard to any increased risk of sexual offending is however small if any and indirect.” Consideration [38] I find the contravention proved. [39] I find that notwithstanding the contravention Mr Tiers has proved that the adequate protection of the community can be ensured by his release back on the supervision order. I come to that conclusion primarily on the basis of the following: 1. While Mr Tiers has been unable to maintain full compliance with a supervision order, he has not, while on supervision, committed any sexual offence let alone a “serious sexual offence” as defined by the DPSOA. 2. It is almost 20 years since Mr Tiers committed his only serious sexual offence. 3. I accept Dr Harden’s evidence that the risk of sexually reoffending on a supervision order is low. [40] There is no need for requirements 43(c) and 43(d) and they should be removed from the supervision order. [41] Requirement 30 is in these terms: -- 15 of 16 -- 16 “30. You are not allowed to visit a public park. If you want to go to a public park, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.” [42] Requirement 30 is inextricably linked to conditions 43(c) and (d) and ought also be deleted. [43] In my view, condition 29 is necessary for Mr Tiers’ general management on supervision and that ought not be deleted. [44] I make the following orders: THE COURT being satisfied to the requisite standard that the respondent has contravened requirement (26) of the supervision order made by Applegarth J on 25 May 2020 (“the supervision order”), ORDERS THAT: 1. Under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 the respondent be released from custody and continue to be subject to the requirements of the supervision order with the following amendment. 2. Requirements 30, 43(c) and 43(d) of the supervision order be deleted. -- 16 of 16 --