Attorney-General for the State of Queensland v Lawrence [2021] QSC 79 (2021) 7 QR 541

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Lawrence [2021] QSC 79 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v MARK RICHARD LAWRENCE (respondent) FILE NO/S: BS No 7468 of 2007 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: Orders made on 30 March 2021 Further orders made on 16 April 2021 Reasons delivered on 16 April 2021 DELIVERED AT: Brisbane HEARING DATE: 30 March 2021 JUDGE: Davis J ORDERS: Orders made on 30 March 2021 1. The respondent be released from custody to be subject to the supervision order made on 16 April 2020. 2. The question of what further orders, if any, should be made is reserved. 3. Reasons reserved. Order made on 16 April 2021 1. The application is dismissed. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – Where the respondent was the subject of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the respondent was released on a supervision order made by Justice Bowskill on 16 April 2020 – where the respondent was arrested on 21 December 2020 pursuant to a warrant on the basis that the respondent was likely to contravene the supervision order – where, at the hearing of the -- 1 of 24 -- 2 return of the arrest warrant, the Attorney-General made application seeking findings that the respondent is likely to contravene the supervision order and further subsequent orders – where the Attorney-General, in her application, did not allege any actual contravention of the supervision order by the respondent – where the Attorney-General bore the onus of proving the jurisdictional fact namely, that the respondent was likely to contravene the supervision order before the discretion to make orders arose – where the respondent did not bear any onus of proof unless the Attorney-General proved the jurisdictional fact – where the medical evidence did not directly address the jurisdictional fact – whether the respondent is likely to breach the supervision order by not complying with the requirements therein Criminal Code, s 304A Dangerous Prisoners (Sexual Offenders) Act 2003, s 8, s 9, s 11, s 12, s 13, s 16, s 20, s 21, s 22, s 27, s 30 Attorney-General for the State of Queensland v Lawrence [2008] QSC 230, related Attorney-General for the State of Queensland v Lawrence [2009] QCA 136, related Attorney-General v Lawrence [2010] 1 Qd R 505, related Attorney-General for the State of Queensland v Lawrence [2011] QSC 26, related Attorney-General for the State of Queensland v Lawrence [2011] QCA 301, related Attorney-General for the State of Queensland v Lawrence [2012] QSC 386, related Attorney-General for the State of Queensland v Lawrence [2014] QSC 77, related Attorney-General for the State of Queensland v Lawrence [2014] QCA 220, related Attorney-General (Qld) v Lawrence [2016] QSC 58, related Attorney-General (Qld) v Lawrence [2017] QSC 61, related Attorney-General for the State of Queensland v Lawrence [2020] QSC 73, related Attorney-General for the State of Queensland v Lawrence (No 2) [2020] QSC 81, related Attorney-General (Qld) v Beattie [2007] QCA 96, followed Attorney-General for the State of Queensland v Downs [2014] QSC 140, followed Attorney-General for the State of Queensland v Fardon [2019] QSC 2, cited Attorney-General for the State of Queensland v Griffin [2015] QSC 31, followed Attorney-General v Newman [2019] 2 Qd R 1, cited Attorney-General v Phineasa [2013] 1 Qd R 305, cited Attorney-General (Qld) v Sands [2016] QSC 225, followed Attorney-General for the State of Queensland v Sorrenson (2019) 2 QR 57, cited -- 2 of 24 -- 3 Coco v The Queen (1993) 179 CLR 427, followed Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, cited Grange v Rockett (1990) 170 CLR 104, cited Grollo v Palmer (1995) 184 CLR 348, cited Kynuna v Attorney-General for the State of Queensland [2016] QCA 172, cited Lawrence v Attorney-General for the State of Queensland [2009] HCA Trans 244, followed Lawrence v Attorney-General for the State of Queensland [2012] HCA Trans 247, followed Lawrence v Attorney-General for the State of Queensland [2015] HCA Trans 83, followed Lawrence v Attorney-General for the State of Queensland [2017] QCA 27, followed Love v Attorney-General (NSW) (1990) 169 CLR 307, followed Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279, cited COUNSEL: J Rolls for the applicant B Mumford for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] Mark Richard Lawrence was, on 16 April 2020, released from custody pursuant to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA).1 He was arrested in December 2020 on suspicion that he was likely to contravene the supervision order.2 The Attorney-General applied for orders consequent upon the likely contravention. [2] On 30 March 2021, I made the following orders: “1. The respondent be released from custody to be subject to the supervision order made on 16 April 2020. 2. The question of what further orders, if any, should be made is reserved. 3. Reasons reserved.” [3] These are the reasons for the orders made on 30 March 2021 and my reasons for dismissing the Attorney-General’s application. 1 Attorney-General for the State of Queensland v Lawrence[2020] QSC 73 and Attorney-General for the State of Queensland v Lawrence (No 2) [2020] QSC 81. 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 20. -- 3 of 24 -- 4 Background [4] Mr Lawrence was born on 9 August 1961. He is presently 59 years of age. He has a complicated criminal and psychiatric history which has been analysed in detail in various judgments given over the years that Mr Lawrence has been the subject of orders under the DPSOA.3 In short, he has cognitive deficits and has been diagnosed with anti-social personality disorder with prominent psychopathic traits and suffering from the paraphilia sexual sadism. [5] In 1985, Mr Lawrence informed Dr Joan Lawrence, Psychiatrist, that he had, since about the age of 15, wanted to “kill a girl” and fantasised about abducting, raping and murdering her by cutting her throat. [6] Mr Lawrence began sexually offending against children when he was about 16. He spent time in both prison and as a patient at Wolston Park Hospital. [7] In 1983, while in Wolston Park, Mr Lawrence and another patient killed a young female patient. That killing mirrored the fantasies that Mr Lawrence has reported that he had experienced since his teenage years. The young woman was abducted, in the sense of being enticed away, and sexually assaulted before Mr Lawrence killed her by cutting her throat with a broken glass bottle. He later told a psychiatrist that he ejaculated while cutting the victim’s throat. [8] As a result of the killing at Wolston Park, Mr Lawrence was convicted of manslaughter on the basis of diminished responsibility4 and was sentenced to 15 years’ imprisonment. He then committed offences whilst in prison. For present purposes, the significant conviction was suffered on 4 April 2002, when he was convicted of raping a fellow prisoner. He was sentenced to a term of imprisonment of seven years cumulative on the sentences then being served. [9] The various sentences expired on 7 February 2008. By that point, proceedings under the DPSOA had been commenced against Mr Lawrence and he was detained pending finalisation of those proceedings. [10] A continuing detention order (CDO) was made under the DPSOA on 3 October 2008.5 That order survived both an appeal to the Court of Appeal6 and an unsuccessful application for special leave to appeal to the High Court.7 [11] Mr Lawrence’s CDO was reviewed annually pursuant to Part 3 of the DPSOA. It is unnecessary to analyse all the material which has been tendered on the various applications for review. In summary, no psychiatrists have expressed an opinion that Mr Lawrence would pose an acceptable risk if released into the community without a supervision order. However, as Mr Lawrence has aged and he has undergone treatment (including anti-libidinal medication), his risk of reoffending has diminished. Worryingly though, the psychiatric opinion has always been that if Mr Lawrence did reoffend, he may commit a sexually motivated murder.8 3 In particular, Attorney-General (Qld) v Lawrence [2016] QSC 58 at [8]-[19] and [26]-[137]. 4 Criminal Code, s 304A. 5 Attorney-General for the State of Queensland v Lawrence [2008] QSC 230. 6 Attorney-General for the State of Queensland v Lawrence [2009] QCA 136. 7 Lawrence v Attorney-General for the State of Queensland [2009] HCA Trans 244. 8 Attorney-General for the State of Queensland v Lawrence [2020] QSC 73 at [70], [106]. -- 4 of 24 -- 5 [12] On two occasions (20119 and 201410), Mr Lawrence received the benefit of orders rescinding the CDO and releasing him on a supervision order. On both occasions, the Attorney-General successfully appealed and the CDO was restored.11 Special leave to appeal to the High Court was sought and refused on both occasions.12 All other reviews resulted in an affirmation of the CDO.13 One of those orders (made in 2016) was appealed unsuccessfully by Mr Lawrence.14 The last review of the CDO was undertaken by Bowskill J who made findings on 24 March 202015 and then on 16 April 2020 made orders rescinding the CDO and releasing Mr Lawrence on a supervision order.16 [13] Mr Lawrence’s release on 16 April 2020 was the first time he had not been in prison since the 1983 manslaughter of the young female patient at Wolston Park. [14] Special conditions of the supervision order were fashioned by Bowskill J to meet the risk posed by Mr Lawrence. Importantly, conditions 18, 20, 21, 22 and 25 are: “(18) You must take prescribed medicine only as directed by a doctor; (20) You must choose and attend only one general practitioner. You must give the name and address of your general practitioner to a Corrective Services officer within 24 hours of seeing them for the first time. In the case of an emergency, you may see another general practitioner,· (21) You must continue to see your psychologist, Dr Lars Madsen (or another psychologist a Corrective Services officer directs you to see), at the times recommended by the psychologist or directed by a Corrective Services officer; (22) You must continue to engage in treatment with your psychiatrist, Dr Sarah Steele (or another psychiatrist a Corrective Services officer directs you to see), at the times recommended by the psychiatrist or directed by a Corrective Services officer; (25) You must obey any other direction a Corrective Services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor, or about participating in any other treatment or rehabilitation program.” 9 Attorney-General for the State of Queensland v Lawrence [2011] QSC 26. 10 Attorney-General for the State of Queensland v Lawrence [2014] QSC 77. 11 Attorney-General for the State of Queensland v Lawrence [2011] QCA 301 and Attorney-General for the State of Queensland v Lawrence [2014] QCA 220. 12 Lawrence v Attorney-General for the State of Queensland [2012] HCA Trans 247 and Lawrence v Attorney-General for the State of Queensland [2015] HCA Trans 83. 13 Attorney-General for the State of Queensland v Lawrence [2012] QSC 386, Attorney-General (Qld) v Lawrence [2016] QSC 58, Attorney-General (Qld) v Lawrence [2017] QSC 61. 14 Lawrence v Attorney-General for the State of Queensland [2017] QCA 27. 15 Attorney-General for the State of Queensland v Lawrence [2020] QSC 73. 16 Attorney-General for the State of Queensland v Lawrence (No 2) [2020] QSC 81. -- 5 of 24 -- 6 [15] A warrant for Mr Lawrence’s arrest issued on the basis of a reasonable suspicion that Mr Lawrence was likely to contravene those conditions of the supervision order.17 He was brought before the court on 21 December 2020 and remanded in custody.18 On that occasion, an application seeking further orders was filed by the Attorney- General by leave. [16] That application did not allege any actual contravention of the supervision order. It alleged that Mr Lawrence was “likely” to contravene conditions 18, 20, 21, 22 and 25. The particulars, as appear in the application, are: “The respondent has been subject to a 24 hour curfew since his release from custody. QCS have identified a number of issues and concerns since the respondent was released subject to a supervision order. On 6 December 2020, the Queensland Ambulance Service (QAS) was contacted by a resident of the Wacol precinct accommodation, where the respondent resides, after the respondent reportedly suffered a seizure. The respondent refused to be transported to hospital and refused treatment. QAS advised that the respondent may have suffered heat stroke. On 7 December 2020, the respondent reported that he was feeling better but was going to see his treating General Practitioner (GP) later that week. Later, on 7 December 2020, QAS were called by another resident of the Wacol precinct, stating that the respondent had experienced further seizures. The respondent was transported to the Princess Alexandra Hospital (P AH) where he was subsequently admitted. He remained at the PAH until 9 December 2020. In accordance with QCS procedures, QCS conducted disclosure with PAH staff regarding the respondent’s background and the supervision order. The doctors at the PAH, at the time of the respondent’s discharge from hospital, told QCS staff that there were no physiological or neurological explanations for the respondent’s seizures and that the seizures were potentially psychogenic: events resembling an epileptic seizure but without the characteristic electrical discharges associated with epilepsy. On 14 December 2020, QAS were called again and the respondent was transported to the PAH. He told QCS that he was ‘not feeling very well at all’ and that he ‘has the sweats, can barely stand, has toxins going through his body and needs to go to emergency’. He was at the PAH for several hours prior to being discharged. Upon discharge, the respondent voiced displeasure about a comment made by a QCS staff member to PAH staff regarding ensuring no female nurses be assigned to him. 17 Dangerous Prisoners (Sexual Offenders) Act 2003, s 20(1). 18 Dangerous Prisoners (Sexual Offenders) Act 2003, s 21. -- 6 of 24 -- 7 Following discharge, the respondent also stated that he believed he needs Valium for his seizures however his GP is accusing him of ‘drug shopping’ and as such wanted to change GP. The respondent also said he wanted a new psychiatrist as he believes his psychiatrist speaks to him like he’s an ‘idiot’. During a case management meeting with QCS on 15 December 2020, the respondent provided a letter to QCS staff voicing the same concerns about the disclosure made to PAH staff about ensuring no female nurses are assigned to him. He also told QCS that he was changing his GP and has made an appointment at an alternative medical clinic for 22 December 2020. He did not discuss with the practitioner whether they could continue to administer his anti-libidinal medication or meet his other complex needs. The respondent was asked why he wanted to change from his current GP. He said that he attended his last appointment with his GP the week before and requested Valium but the GP refused to prescribe it. He said that the GP accused him of ‘drug seeking’. The respondent told QCS that he was not seeking any drugs in any way and believed Valium would assist him with his ‘fits’. He also said he had a history of epilepsy. During this same meeting, the respondent also requested a change of treating psychiatrist. He said his current treating psychiatrist, Dr Arthur, does not listen to him. During the week of 7 December 2020, the respondent also sought to change his appointment with Dr Lars Madsen, psychologist, to a telephone appointment. It was determined by QCS that the respondent should attend the appointment in-person unless he was acutely unwell. He attended as directed. On 16 December 2020, the respondent cancelled his session with Dr Madsen and engaged in a telephone appointment instead, citing ongoing health issues. He subsequently requested a leave pass to go shopping. During a telephone conversation with his Senior Case Manager on 17 December 2020, the respondent indicated that he still intended to change his GP and he remained upset with his GP for refusing to prescribe him Valium and accusing him of ‘drug seeking.’ The respondent claimed he required Valium to assist him to relax. He said that his anti-depressant isn’t working anymore and it makes him more depressed. He told his Senior Case Manager that he wants to cease taking this medication. The respondent was directed to seek medical advice prior to ceasing his anti-depressant. He again requested a new treating psychiatrist. During this conversation, the respondent said words to the effect that he was ‘better off in jail, better off just spending the rest of my life in jail’, as he felt that the supervision order was too restrictive and progression was too slow. The respondent said that the psychiatric reports were ‘50% false’ and he objected to them. -- 7 of 24 -- 8 The respondent also raised concerns again about the disclosure made by QCS to PAH staff. He said he felt unwell the day prior however avoided calling QAS as he did not feel comfortable attending. He said that when he was admitted to hospital, female staff were alone in his room rendering care and checking his ‘obs’ and that when he was in the emergency waiting area earlier this week, he sat away from people but ‘... there were a lot of females there, if I wanted to offend I would have done it there.’ The respondent expressed growing frustration with his situation and appeared not to be coping well with his current circumstances. The view was then formed by QCS in consideration of the psychiatric evidence at hearing and the respondent’s behaviour that he was experiencing acute risk factors including rejection of supervision, disengagement with medical requirements, emotional collapse and potential victim access, and that he was likely to contravene requirements of the supervision order.” [17] Risk assessments were sought from experienced forensic psychiatrists, Dr Ness McVie and Dr Andre Aboud. Those psychiatrists had examined Mr Lawrence previously and reports from them formed some of the evidence before Bowskill J.19 Further reports were prepared by the doctors for the current proceedings. For reasons which appear later, the reports are of limited use as they largely address the wrong question. The respective positions of the parties [18] On behalf of the Attorney-General it is submitted that the particularised acts demonstrate that Mr Lawrence was, at the time the warrant was issued, likely to contravene the supervision order. The Attorney-General accepts, though, that she must prove that Mr Lawrence is now likely to contravene the order. It is submitted on the Attorney-General’s behalf that the evidence demonstrates this and that, therefore, the onus falls on Mr Lawrence to prove that the adequate protection of the community can be ensured by his release on supervision.20 The supervision order must be rescinded and the CDO restored unless Mr Lawrence discharges the onus cast upon him. The Attorney-General accepts, though, that Mr Lawrence has, on the evidence, discharged the onus. [19] Mr Mumford of Counsel for Mr Lawrence, at no time conceded that any onus fell upon Mr Lawrence. He submitted that the evidence does not show that Mr Lawrence was likely to breach the supervision order at the time the warrant issued and does not show that he is now likely to contravene the supervision order. Therefore, Mr Mumford submits, no onus falls upon Mr Lawrence to prove anything and the application should be dismissed. In the alternative, Mr Mumford submits, that if the onus has fallen upon Mr Lawrence, he has discharged it and ought to be released back on the supervision order. 19 Attorney-General for the State of Queensland v Lawrence [2020] QSC 73. 20 Dangerous Prisoners (Sexual Offenders) Act 2003, s 22(7). -- 8 of 24 -- 9 Relevant legislative provisions [20] Section 3 of the DPSOA states its objects in these terms: “3 Objects of this Act The objects of this Act are— (a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.” [21] The “particular class of prisoner” to whom the DPSOA is addressed are prisoners serving a period of imprisonment for a “serious sexual offence”.21 [22] The term “serious sexual offence” is defined, relevantly in Mr Lawrence’s case, as: “… an offence of a sexual nature, whether committed in Queensland or outside Queensland— (a) involving violence …” [23] A sexually motivated manslaughter involving rape is clearly an “offence of a sexual nature … involving violence”,22 notwithstanding that a sexual assault is not a legal element of the offence of manslaughter.23 The offence of raping an inmate (while in custody serving the manslaughter sentence) is obviously a “serious sexual offence”. [24] Part 2 of the DPSOA concerns the making of CDOs or supervision orders. There are various procedures prescribed by the DPSOA and a number of machinery provisions. These lead to the final hearing under s 13, by which time a respondent will have undergone an examination by two court appointed psychiatrists.24 [25] Section 13 provides, 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— 21 Section 5(6); definition of “prisoner” and see generally Attorney-General v Newman [2019] 2 Qd R 1 at [10]-[23]. 22 Attorney-General v Phineasa [2013] 1 Qd R 305 at [38] and Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279 at [16]-[21]. 23 Attorney-General for the State of Queensland v Sorrenson (2019) 2 QR 57 at [30]-[73]. 24 Dangerous Prisoners (Sexual Offenders) Act 2003, ss 8, 9, 11 and 12. -- 9 of 24 -- 10 (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (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. -- 10 of 24 -- 11 (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).” [26] Once the court is satisfied that the prisoner “is a serious danger to the community in the absence of a [order under the DPSOA]”,25 the court may: (a) make a continuing detention order;26 (b) make a supervision order;27 or (c) make no order.28 [27] The practical effect of s 13(6) is that unless the court is satisfied that a supervision order provides adequate protection of the community against the commission by a respondent of a “serious sexual offence” as defined in the DPSOA,29 then the court must make a CDO. If a supervision order is made, it must contain certain mandatory requirements30 and, by s 16(2): “(2) The order may contain any other requirement the court or a relevant appeal court considers appropriate— (a) to ensure adequate protection of the community; or 25 Section 13(1). 26 Section 13(5)(a). 27 Section 13(5)(b). 28 Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575 at [34]. 29 Not an assessment of risk of any sexual offending; Attorney-General for the State of Queensland v Fardon [2019] QSC 2 at [40]. 30 Section 16(1). -- 11 of 24 -- 12 Examples for paragraph (a)— • a requirement that the prisoner must not knowingly reside with a convicted sexual offender • a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school • a requirement that the prisoner must wear a device for monitoring the prisoner’s location (b) for the prisoner’s rehabilitation or care or treatment.” [28] As earlier observed, Mr Lawrence’s CDO was periodically reviewed. That occurred pursuant to Part 3. Sections 27 and 30 are pivotal. They provide: “27 Review—periodic (1) If the court makes a continuing detention order, it must review the order at the intervals provided for under this section. (1A) The hearing for the first review and all submissions for the hearing must be completed within 2 years after the day the order first had effect. (1B) There must be subsequent annual reviews while the order continues to have effect. (1C) Each annual review must start within 12 months after the completion of the hearing for the last review under this section. (2) The Attorney-General must make any application that is required to be made to cause the reviews to be carried out. 30 Review hearing (1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order. (2) On the hearing of the review, the court may affirm the decision 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 affirm the decision. (3) If the court affirms the decision, the court may order that the prisoner— (a) continue to be subject to the continuing detention order; or -- 12 of 24 -- 13 (b) be released from custody subject to a supervision order. (4) In deciding whether to make an order under subsection (3)(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. (5) If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order. (6) In this section— required matters means all of the following— (a) the matters mentioned in section 13(4); (b) any report produced under section 28A.” [29] Part 3 effectively mirrors s 13. On each review, the onus falls upon the Attorney- General to prove that the prisoner is at that time “a serious danger to the community in the absence of a division 3 order”.31 The court may then affirm the CDO. Alternatively, the court may rescind a CDO and make a supervision order but may only take that course where that will provide adequate protection to the community against the commission by the respondent of a “serious sexual offence”.32 [30] Division 5 of Part 2 concerns contraventions of supervision orders. Section 20 provides, relevantly: “20 Warrant for released prisoner suspected of contravening a supervision order or interim supervision order (1) This section applies if a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the released prisoner’s supervision order or interim supervision order. (2) The officer may, by a complaint to a magistrate, apply for a warrant for the arrest of the released prisoner directed to all police officers and corrective services officers to arrest the released prisoner and bring the released 31 Section 30(1). 32 Section 30(4). -- 13 of 24 -- 14 prisoner before the Supreme Court to be dealt with according to law. (3) The magistrate must issue the warrant, in the approved form, if the magistrate is satisfied the grounds for issuing the warrant exist. …” (emphasis added) [31] Section 21 concerns the custody of a respondent pending resolution of contravention proceedings under s 22. Section 22 provides, relevantly, 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 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. … (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).” (emphasis added) -- 14 of 24 -- 15 Proper construction of the provisions as they apply here [32] There are two points in time when likeliness of a breach of a supervision order is critical. The first is upon the issue of the warrant under s 20. If there is a reasonable suspicion of likeliness of contravention, then upon compliance with certain formalities, a magistrate must issue a warrant for the arrest of the person the subject of the supervision order. That is what occurred here. [33] The issue of the warrant commences the proceedings under Division 5. In Attorney- General (Qld) v Sands,33 Burns J approved a practice which had developed whereby the Attorney-General would file an application in which the contravention or likely contravention would be specified. In that respect, Burns J said this: “[4] On the final hearing pursuant to s 22 of the Act, the court may make a further order but only if satisfied, on the balance of probabilities, that the prisoner is ‘likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order’: s 22(1). Because the Act confers a right on the Attorney-General to appear at the final hearing (and any earlier hearing pursuant to s 21 of the Act) to make submissions, call evidence and test the evidence before the court (s 22A), the filing of an application by the Attorney-General to be heard on what is effectively a final hearing on the return of the warrant is not strictly necessary. However, in practice, an application is invariably filed on behalf of the Attorney-General and served on the prisoner. That is a commendable practice because, by doing so, the prisoner is given clear notice of the orders that will be sought by the Attorney-General at the final hearing as well as the factual basis for the alleged contravention or likely contravention. Furthermore, by doing so, the Attorney-General takes on the onus of establishing that the prisoner is likely to contravene, is contravening, or has contravened a requirement of the relevant supervision order, something about which the Act is silent.” (emphasis added) [34] The second point in time when “likeliness” of a breach must be considered is at the hearing required by s 22. Where an actual contravention is relied upon, the court must look to the time of the breach and consider whether the breach actually occurred. However, it has been held by A Lyons J (as her Honour then was) in Attorney- General for the State of Queensland v Downs,34 by Daubney J in Attorney-General for the State of Queensland v Griffin35 and by Burns J in Attorney-General for the State of Queensland v Sands36 that the discretion to make orders under s 22 only arises if the person was at the time of hearing the application for orders under s 22 “likely to contravene” the supervision order. In my respectful opinion, their Honours were correct in so holding. 33 [2016] QSC 225. 34 [2014] QSC 140 at [32]. 35 [2015] QSC 31 at [18]-[21]. 36 [2016] QSC 225 at [5]. -- 15 of 24 -- 16 [35] By the time consideration is being given to the making of orders under s 22, a warrant has issued under s 20 and the person has been brought before the court. [36] The magistrate, in issuing the warrant, exercises executive, not judicial, power.37 The magistrate makes no positive finding of likelihood of contravention. The magistrate must38 issue a warrant if satisfied “the grounds for issuing the warrant exist”. The “grounds” are that “a police officer or corrective services officer reasonably suspects … [the prisoner is likely to breach the supervision order]”. As observed in George v Rockett,39 reasonable suspicion of the existence of a fact is a far cry from belief in the existence of that fact40 let alone proof of the fact to any standard. [37] Therefore, the final hearing under s 22 is the first occasion where a court considers the fact of a likely contravention. There is nothing to suggest that when the court is to determine whether or not to release the prisoner back on the supervision order the consideration is the prisoner’s likelihood to contravene at that point in time when a magistrate issued a warrant on a reasonable suspicion of likelihood of contravention. [38] Further, s 22 does not limit the likelihood of contravention to the contravention considered by the magistrate under s 20. One can easily imagine a situation where a magistrate acts upon a reasonable suspicion of a likelihood of contravention of one requirement of the supervision order, but further investigations reveal the likelihood of breach of others and perhaps a diminution in the likelihood of contravention of the condition that founded the warrant. What must be considered is the likelihood of contravention as it presents at the time the court is to make orders under s 22. [39] In Attorney-General for the State of Queensland v Sands,41 Burns J noted that the DPSOA is silent as to which party bears the onus of proving the likelihood of breach but proceeded on the basis that the onus was upon the Attorney-General. In my view, the onus is clearly on the Attorney-General. [40] The Attorney-General is the moving party. The likelihood of contravention is the jurisdictional fact, proof of which entitles the Attorney-General to seek discretionary relief. Upon proof of the jurisdictional fact, the onus then shifts to the prisoner under ss 22(2) and (7) to establish that “the adequate protection of the community can, despite the … likely contravention of the existing order be ensured by [the supervision order]”.42 There is nothing to suggest that the respondent must disprove the jurisdictional fact (likely contravention) failing which he must then prove that adequate protection of the community can be ensured by his release on supervision. [41] The onus is upon the Attorney-General to prove that Mr Lawrence now is likely to contravene a requirement of the supervision order. If, and only if, the Attorney- General meets that threshold (which I have called the jurisdictional fact), need Mr Lawrence establish, if he can, that the adequate protection of the community can be ensured by his release on supervision. 37 Grollo v Palmer (1995) 184 CLR 348 at 359-362, Love v Attorney-General (NSW) (1990) 169 CLR 307 at 320-321, Coco v The Queen (1993) 179 CLR 427 at 444. 38 Section 20(3). 39 (1990) 170 CLR 104. 40 At 115-118. 41 [2016] QSC 225. 42 Upon the making of orders under ss 13 and 30, the onus of proof of the converse is upon the Attorney- General; Attorney-General v Lawrence [2010] 1 Qd R 505 at [33]. -- 16 of 24 -- 17 [42] As already observed, s 22(7) imports various concepts from s 13. If consideration of s 22(7) arises, the question is whether the release of Mr Lawrence on supervision provides adequate protection to the community against commission by Mr Lawrence of a “serious sexual offence” which in Mr Lawrence’s case is “a sexual offence … involving violence”.43 That raises consideration of risk. [43] Risk involves the consideration of at least two elements being likelihood of an offence being committed and the consequence of such a likelihood eventuating.44 Bowskill J applied these principles when ordering that Mr Lawrence be released on supervision.45 Her Honour concluded that while the consequences of Mr Lawrence reoffending may include a sexually motivated homicide, the likelihood of an offence being committing is low and manageable on conditions, including Mr Lawrence taking anti-libidinal medication.46 Her Honour fashioned the supervision order accordingly.47 [44] Section 22(1) incorporates the first element of risk but not the second. In other words, in determining whether the jurisdictional fact is established, the only question is whether a contravention is “likely”. Section 22(1) does not invite a broader inquiry as to risk and does not invite consideration of whether Mr Lawrence’s release on supervision ensures adequate protection of the community against the commission by Mr Lawrence of a serious sexual offence. Those considerations only arise if the jurisdictional fact is established. [45] Much of the medical evidence before me concerns the risk of Mr Lawrence committing a serious sexual offence and the consequences of that occurring. Commission of a sexual offence would establish a breach of the supervision order. Establishing “likelihood” of the commission of a sexual offence would establish the jurisdictional fact. However, if the “likely contravention” which the Attorney- General seeks to establish is the commission of a serious sexual offence then the onus is upon the Attorney-General to prove that fact notwithstanding s 22(7). If the Attorney-General fails, no onus falls upon Mr Lawrence. The psychiatrists’ evidence Dr McVie [46] After reviewing the material, Dr McVie expressed her opinion in these terms: “Mr Lawrence does meet criteria for a DSM 5 diagnosis of the paraphilia, paedophilia, based on his charges prior to 1983, some victims being more than five years younger than he at the time, and his reported masturbation fantasies of sex with young boys. He has not had opportunity to have contact with children since 1984. He currently denies any sexual interest in children. Mr Lawrence does meet criteria for a DSM 5 diagnosis of the paraphilia sexual sadism due to his reports of sexual fantasies of 43 See Kynuna v Attorney-General for the State of Queensland [2016] QCA 172. 44 Attorney-General (Qld) v Beattie [2007] QCA 96 at [19], Attorney-General v Lawrence [2011] QCA 301 at [90]. 45 Attorney-General for the State of Queensland v Lawrence [2020] QSC 73 at [23] and [115]. 46 At [123]. 47 Attorney-General for the State of Queensland v Lawrence (No 2) [2020] QSC 81. -- 17 of 24 -- 18 abducting and raping then killing adult women. He has described masturbating to these fantasies, particularly the part in the fantasy when he cuts the woman’s throat. His reporting of this fantasy has caused him to be detained in custody past his end of sentence date. He had never described these fantasies until some 12 months after he and a co-patient killed another patient in the grounds of Wolston Park Hospital in 1983. While there has been speculation that he may have been acting on these fantasies at the time of the killing, there was no evidence of sexual activity found at the crime scene, he and his co-offender were not charged with any sexual offence (even though both admitted their intent had been to have sexual intercourse with the victim), and Mr Lawrence has embellished his fantasies (backdating the onset of the fantasies to the age of 12 and including specific films relating to the fantasies) as well as having given varying accounts of his actions at the time of the ki1ling (variously saying he ‘thought’ he ejaculated when he cut her throat, then later denying this.) By his report, his fantasies are currently in remission while on the treatment, Goserelin. He did not report any such fantasies through the period from November 2020 to February 2021. There was no evidence of sexual sadism associated with his offence of rape and sexual assault against another male prisoner in 1999. Mr Lawrence also meets criteria for a diagnosis of antisocial personality disorder. This disorder is also in remission. His behavior in custody had been unremarkable over at least the ten years prior to his release in April 2020. He also presents with psychopathic traits, higher than the average prisoner. He has been reported as having borderline intellectual functioning. His full-scale IQ was reported to be 74 (formal assessment by a psychologist in May 1979). In relation to his statements that he has previously had epilepsy, the material does indicate he was prescribed the anticonvulsant drug, carbamazepine (Tegretol) at least until 1998. This drug is regularly used as a mood stabilizer in disorders such as bipolar disorder, and has been used to modify behaviour in persons with impaired intellectual functioning. I am also aware that the diagnosis of temporal lobe epilepsy was not uncommonly made at Wolston Park hospital in the 1980s and I have seen other patients from that era, diagnosed with temporal lobe epilepsy as young adults with behavioural problems, who subsequently were found to not have any evidence of epilepsy. It is possible that, historically, Mr Lawrence had been told he had epilepsy.” [47] She then made the following recommendations: “Structured risk assessment indicates Mr Lawrence’s risk of sexual recidivism is high. This risk is currently managed by long term psychological intervention and antilibidinal medication, and long- term structured supervision. -- 18 of 24 -- 19 If Mr Lawrence were to be released from custody without any supervision order his risk of re-offending sexually would be high. He would cease taking his medication. His sexual impulses would return. He would be at high risk of decompensating in any stressful environment. His sexual sadistic fantasies could then be played out. Based on his previous behavior and his long term reported sexual fantasies, Mr Lawrence would most likely abduct, rape, and kill an adult female. It is also likely he would sexually assault a vulnerable male or female. He has previously expressed sexual interest in young males. Any residual paedophilic interest could resurface, and a child could potentially be a victim. While he appears to have decompensated from November 2020, no medical cause was found for his symptom cluster. There was also no evidence of emergence of his sexual fantasies, or of his having acted on, or considered acting on, his fantasies. Mr Lawrence remains keen to comply with any management or medication that will enable him to be released from custody. I am not aware if Mr Lawrence has seen his psychologist Dr Lars Madsen, or his psychiatrist, Dr Arthur, since his return to custody. I would support Mr Lawrence being released on his supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003, with conditions as on the order of 16 April 2020. The most important condition remains the continuation of his subcutaneous injection of Goserelin monthly. He needs to continue regular therapy with Dr Lars Madsen. He will require to be under the supervision of a treating psychiatrist. He may also benefit by review by an endocrinologist.” (emphasis added). [48] Dr McVie opines that Mr Lawrence is a risk of sexually offending if released without a supervision order and that such offending would most likely be a sexually based murder. She then goes on to support Mr Lawrence being released on the supervision order which I take as an opinion that if there is compliance with the conditions of the supervision order, he is manageable as to risk. Other than the passage that I have highlighted above, there is nothing in her report (presumably because she wasn’t asked) as to the likelihood of Mr Lawrence complying with other terms of the order by taking his medication etc. [49] Dr Aboud also reviewed all the evidence available to him and diagnosed Mr Lawrence in these terms: “Mr Lawrence meets DSM criteria for a psychiatric diagnosis of Antisocial Personality Disorder. He has been previously been assessed to manifest a range of Psychopathic Traits. While there appears to have been some moderation over time regarding these traits, his core psychopathic disposition remains. He also meets criteria for a diagnosis of the paraphilia Sexual Sadism. There has -- 19 of 24 -- 20 been mention in previous psychiatric reports that he also has likely Paedophile tendencies, and this does appear to be the case. His IQ has been found to be slightly above 70, and may justify consideration of a diagnosis of Borderline Mental Retardation. Other psychiatrists have commented that he appears to function at a higher level than this label suggests, and I would agree with this.” [50] Dr Aboud’s opinion as to risk level and his recommendations were expressed in this way: “Mr Lawrence continues to present a range of particularly worrying risk factors for sexual and violent reoffending, including: chronicity, diversity and specific nature of his sexual offending; sexual deviance; previous impulsivity; breaches of criminal justice orders; antisocial personality and psychopathic traits; limited insight, self awareness and processing of emotions such as empathy and remorse. While I am aware that he completed the required sexual offender treatment programs and has engaged in individual therapy with a skilled psychologist for the last several years, I am also aware that he suffers from unusual and highly concerning psychopathology, specifically a combination of the paraphilia sexual sadism and an antisocial personality with some psychopathic traits. Given his past offending history, it must be recognised that should he reoffend there is potential for the offence behaviour to be very serious, namely the committal of a sexually sadistic murder. The actuarial assessments of sexual and violent recidivism, such as Static-99R, Risk Matrix 2000s, and Risk Matrix 2000v all indicate that Mr Lawrence represents a high risk. The dynamic assessments, such as components of the HCR-20 and RSVP, indicate that his risk is broadly reduced, and this is on account of: the softening of his psychopathic personality traits as part of the natural aging process; his more settled behaviour, reflective of improved impulse and emotional control; his successful participation in recommended therapy programs; his ongoing engagement in individual treatment with a psychologist over many years; his agreement to take prescribed antilibidinal medication and antidepressant medication since April 2017; his agreement to engage with a treating psychiatrist, and to agree to change from an oral antilibidinal medication to a more potent injected (implant) antilibidinal medication. In respect of the latter, his regular blood tests show that his serum testosterone has been reduced to consistent levels well below that of the male range, and noticeably lower than his previously measured levels when he was prescribed the oral medication. His serum testosterone levels, when prescribed oral Cyproternne Acetate 100mg twice daily, was a round 3 or 4 nmol/L. His serum testosterone level, since October 2018, when prescribed Goserelin Acetate 3.6mg injected implant every 28 days, has been around l nmol/L. He has denied experiencing any sexual arousal or urge or deviant fantasy since commencement of this medication. -- 20 of 24 -- 21 Of significance, he was returned to custody on 18 December 2020, after a successful period of over 8 months residing in the community subject to a supervision order, but following a brief period of perhaps 2 or 3 weeks when he was considered to be disengaging from the community supervision process. This period was hallmarked by: his stated increased frustration with the restrictions of the order and his seeming lack of progress; fluctuating regard for his QCS case manager, and perception of overly restrictive monitoring and supervision practises; his perceived sense that his treating psychiatrist was ignoring his needs; his perceived sense that his GP was not taking him seriously. At this time he had been experiencing fits, that had been investigated and considered to be likely psychogenic and possibly stress-related, but which he strongly felt required anti-epileptic medication treatment. It is my view that the decision to return him to custody was indicated in the circumstances, as it appeared that his risk of rejecting necessary supervision was escalating. However, at the current time, it is my opinion that in the context of his continued acceptance of the antilibidinal medication, Mr Lawrence’s overall risk, of both sexual violence and general violence, is again reduced to between moderate and low, and would potentially be manageable in the context of the existing supervision order. If he was released to the community, I recommend that his management plan include: ongoing prescription of the antilibidinal hormonal medication (Goserelin Acetate); regular (at least monthly) monitoring of serum testosterone levels, with an aim to keep serum testosterone levels below 3 nmol/L; review of his need for the current antidepressant medication, given his experience of its negative impact on him, and that it is not be as crucial to his risk management as the antilibidinal medication; continued engagement with his psychologist to further manage issues associated with sexual deviance, institutionalisation, community reintegration, psychosocial stress, interpersonal conflict, loneliness and isolation, feelings of disempowerment and low self esteem, issues of underlying anger, negative affective states and emotional regulation, adaptive coping and problem solving; future community living circumstances that are restrictive in the first instance (including placement at the precinct contingency accommodation, employment of curfew, provisions made to prevent unsupervised access to children and vulnerable adults, such as those with intellectual impairment or mental illness or physical fragility); intensive support in respect of community reintegration; close monitoring and supervision. Given the various difficulties he experienced during December 2020, in respect to his community supervision, I also recommend that future difficulties that relate to his perception and expectations of case management, psychiatric treatment or general practitioner treatment be brought to the attention of his treating psychologist for specific appraisal and focused intervention. It is likely that his true difficulties were partly (even largely) based in Mr Lawrence’s highly subjective point-of- view as opposed to the objective reality, and including his personal -- 21 of 24 -- 22 sense of frustration and impatience that he must learn to contain and his unrealistic perspective about the risk that he presents. It appears to me that the difficulties that led to his return to custody were largely underpinned by his inability to manage certain emotions, underpinned by perceptions, in turn underpinned by the interplay between his personality framework and nuanced intellectual difficulties. In addition, I recommend that efforts be made to preserve his various therapeutic relationships, including with his GP and psychiatrist, as I do not believe the difficulties really related to them, rather how his selective feelings about them at the time. Further, given that his release to the community remains contingent on his compliance with injected antilibidinal medication (on account of the formulation of risk and its management), it could be argued that it would not be unreasonable for QCS to progress to allowing him the latitude of managing him as would be the case for a typical offender in his situation, as opposed to a ‘special’ case harbouring ‘special’ risks. I say this on the basis that the ‘special’ issues surrounding his case and his risk are for the most part accounted for by him being administered antilibidinal medication by injection.” (Underlining added). [51] Dr Aboud’s opinion, clearly enough, is that Mr Lawrence’s risk can be managed if he complies with the supervision order, in particular by taking the anti-libidinal medication. Again, the Dr Aboud has not expressed an opinion (again, probably because he wasn’t asked) as to the likelihood of Mr Lawrence breaching the supervision order. The closest he comes to expressing such an opinion is the passage I have underlined above. The hearing on 30 March 2021 [52] I was satisfied on the evidence of Doctors McVie and Aboud that if the onus fell upon Mr Lawrence under s 22(7) to prove that the adequate protection of the community could be ensured by his release on supervision, then he had discharged that onus. I therefore made an order releasing him on supervision. [53] What required further consideration (and which I reserved) was whether a finding ought to be made that Mr Lawrence was likely to contravene the order, and what orders should flow from a finding either way. [54] In making the supervision order, Bowskill J recorded some of the evidence of Dr Aboud which was then before her. Her Honour observed: “[69] In terms of how the risk of reoffending by the respondent might manifest, Dr Aboud said, in his updated report dated 3 March 2020 (at p 19): ‘Should Mr Lawrence reoffend sexually, one would speculate that it may take the form of planned or impulsive violent sexual assault of a vulnerable adult or a child. His victim might be male or female. The offence will likely be driven by a need for sexual gratification. Psychological coercion and physical coercion are both -- 22 of 24 -- 23 likely. Extreme physical violence may be employed to subdue his victim, and including the use of a weapon. Post offence behaviour will include minimisation and denial of the offending itself and of the underlying drivers. Of even greater concern might be his tendency to act out sadistic sexual fantasy. Specifically this fantasy would be to abduct a young adult female, take her to an isolated place and rape her and then kill her by cutting her throat. Prior to being prescribed antiandrogen medication, it was likely that he still harboured such deviant fantasy; despite self-report that this was no longer the case. While the clear primary focus of his fantasy is of a female victim, it is possible that he might also entertain thoughts of victimising a male. One is aware that he has disclosed harbouring thoughts of raping a male in 1991, and actually did so in 1999. It is unclear whether such proclivity would extend to killing the male victim. His risk for sexual offending would be increased in the circumstances of psycho-social stress and instability, interpersonal conflict and relationship difficulties, loneliness and isolation, negative affective states, sexual preoccupation and sexual frustration, feelings of disempowerment, low self-regard and associated feelings of anger, opportunity for victim access. It is possible that there will be little in the way of observable indicators, given his tendency toward hiding his emotion, cognitions and sexual deviance. Thus the most robust indication of escalating risk could be: disengagement from correctional service supervision and monitoring processes; disengagement from psychological therapy intervention; discontinuation or poor compliance with recommended risk management medication.’” [55] Conditions 18, 20, 21, 22 and 25 are together the important ones which establish the scheme of Queensland Corrective Services supervision, psychological therapy intervention and medication referred to by Dr Aboud. [56] The real issue on the question of the jurisdictional fact is whether it is likely that Mr Lawrence will breach the supervision order by not engaging with those requirements. There has been no appeal from the judgment of Bowskill J. The Attorney-General does not seek to reopen those orders on the basis of new material. Therefore, her Honour has dealt with general questions of risk and they do not arise here unless the Attorney-General establishes the jurisdictional fact. [57] There is no real suggestion that Mr Lawrence’s condition has diminished such that it is “likely” that he will commit a serious sexual offence if he is released on supervision and complies with the regime set by Bowskill J. -- 23 of 24 -- 24 [58] The reports of both doctors are to the effect that if Mr Lawrence is released on supervision, then he is an acceptable risk provided that he complies with the orders, especially by taking the anti-libidinal medication. Both doctors recommend his release and therefore, by inference opine that he will comply, or at least do not raise any specific concerns that he would not. [59] In those circumstances, in my view, the Attorney-General has failed to prove that Mr Lawrence now is likely to contravene the supervision order. It is not necessary to rule on Mr Mumford’s submission that the evidence did not establish that Mr Lawrence was likely to contravene the order at the time of his arrest. [60] Given that the Attorney-General has failed to prove the jurisdictional fact so that a consideration of s 22(7) does not arise, the appropriate course is to dismiss the application. Orders [61] In addition to the orders made on 30 March 2021: 1. The application is dismissed. -- 24 of 24 --