Attorney-General for the State of Queensland v Gibson [2021] QSC 61 [2021] 13 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Gibson [2021] QSC 61 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ASHLEY LENNON GIBSON (respondent) FILE NO/S: BS No 4542 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 25 March 2021 DELIVERED AT: Brisbane HEARING DATE: 25 March 2021 JUDGE: Davis J ORDER: 1. The order made on 15 February 2021 by Callaghan J that “the respondent, Ashley Lennon Gibson, continue to be subject to the continuing detention order made on 10 August 2017” is set aside pursuant to r 668 of the Uniform Civil Procedure Rules 1999. 2. Pursuant to s 30(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the continuing detention order made on 10 August 2017 is rescinded. 3. Pursuant to s 30(3)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent, Ashley Lennon Gibson, is released subject to a supervision order for 10 years until 24 March 2031 in terms of the Schedule attached to these reasons. CATCHWORDS: CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER GENERALLY - Where the respondent is the subject of a continuing detention order (CDO) pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) made by Dalton J on 10 August 2017 - Where, at the first annual review of the CDO by Davis J in 2019, the respondent was assessed by his treating psychologist, Dr -- 1 of 21 -- 2 Madsen, as being incapable of functioning in the broader community and requiring constant supervision and support - where Dr Sundin and Dr Arthur, who were engaged to assess the respondent pursuant to section 8 of the DPSOA, assessed the respondent as being an unacceptable risk to the community without accommodation providing 24 hour supervision - where suitable accommodation was not available to the respondent at the time of the first annual review in 2019 before Davis J or the second annual review on 15 February 2021 before Callaghan J - where the CDO was subsequently affirmed by Davis J and Callaghan J respectively at each annual review - where suitable accommodation is now available to the respondent - whether appropriate to rescind the CDO and release the respondent subject to a supervision order PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENT AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER - GENERALLY - where the applicant makes application pursuant to r 688 of the Uniform Civil Procedure Rules 1999 (UCPR) to the Court to rescind the CDO and release the respondent on a supervision order - where the discretion to rescind the CDO and impose a supervision order pursuant to UCPR r 688 and section 30(3) of the DPSOA arises - whether it is appropriate to exercise discretion and set aside the order Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 3, s 13, s 13A, s 16, s 16A, s 27, s 30 Uniform Civil Procedure Rules 1999, r 268, r 667, r 668 Attorney-General for the State of Queensland v Allwood [2021] QSC 15, cited Attorney-General for the State of Queensland v DXP [2019] QSC 77, cited Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited Attorney-General for the State of Queensland v Gibson [2019] QSC 206, related Attorney-General for the State of Queensland v Ashley Lennon Gibson [2021] QSC 26, related Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329, cited Attorney-General for the State of Queensland v S [2015] QSC 157, followed Attorney-General for the State of Queensland v WTA [2020] QSC 300, cited Briginshaw v Briginshaw (1938) 60 CLR 336, cited Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165, cited Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited -- 2 of 21 -- 3 Kynuna v Attorney-General (Qld) [2016] QCA 172, cited Yeo v Attorney-General (Qld) [2012] 1 Qd R 276, followed COUNSEL: M Maloney for the applicant A E Loode for the respondent SOLICITORS: G R Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] Ashley Lennon Gibson is the subject of a continuing detention order (CDO) made under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). As required by Part 3 of the DPSOA, the CDO was recently reviewed by Callaghan J. His Honour ordered that the CDO continue.1 That was the second annual review of the CDO. The first was conducted by me in 2019.2 [2] The Attorney-General now applies, pursuant to r 668 of the Uniform Civil Procedure Rules 1999 (UCPR), to have the order made by Callaghan J vacated and a supervision order made. Questions arise as to whether that is an appropriate course given that the Attorney-General always has a right to bring an application to further review a CDO under the provisions of the DPSOA. Background [3] Mr Gibson is an indigenous man born on 10 December in either 1980 or 1981. He is now either 39 or 40 years of age. [4] In Attorney-General for the State of Queensland v Gibson,3 I recorded Mr Gibson’s criminal history.4 It is unnecessary to repeat that detail. It is sufficient to observe that over a period of about three years he was convicted of a number of offences of a sexual nature against children. Any offence of a sexual nature against a child is, by the terms of the DPSOA, a “serious sexual offence” and enlivens the jurisdiction to make orders under the legislation. On any measure, a sexual offence against a child is serious. 1 Attorney-General for the State of Queensland v Ashley Lennon Gibson [2021] QSC 26. 2 Attorney-General for the State of Queensland v Gibson [2019] QSC 206. 3 [2019] QSC 206. 4 At [4]. -- 3 of 21 -- 4 [5] However, even within the category of offending sexually against children, there are varying degrees of seriousness. Mr Gibson’s offending is confined to him exposing himself and pinching two 12 year old girls on their bottoms. [6] On 10 August 2017, Dalton J made a CDO against Mr Gibson. That CDO was reviewed by me in August 2019.5 On 22 August 2019, I affirmed the decision of Dalton J that Mr Gibson is a serious danger to the community in the absence of an order under the DPSOA and I ordered that he continue to be subject to the CDO. [7] On that occasion, I analysed the medical evidence then available.6 It is unnecessary to repeat that analysis. Some aspects are significant though to the current application and ought to be recorded. [8] Doctors Arthur and Sundin, both experienced forensic psychiatrists, examined Mr Gibson for the purposes of the first review of the CDO. Dr Arthur diagnosed Mr Gibson as follows: “• Exhibitionistic Disorder • Mixed Cluster B Personality Disorder with Antisocial and Narcissistic Features • Substance Use Disorder, predominantly alcohol, currently in remission in a controlled environment • Mild Neurocognitive Disorder (uncertain aetiology) • Chronic Renal Failure, currently on dialysis” [9] Dr Sundin’s diagnosis was: “• Mild-Moderate Neuro-Cognitive Disorder; • Exhibitionistic Disorder; • Alcohol Use Disorder, in sustained remission whilst in a controlled environment. • Mixed Personality Disorder with anti-social and narcissistic traits.” [10] Mr Gibson’s Neurocognitive Disorder renders him partially impaired. On the first review of the CDO, Sharon Low, an occupational therapist, opined that Mr Gibson was capable of undertaking basic life tasks, such as eating, drinking, maintaining 5 Attorney-General for the State of Queensland v Gibson [2019] QSC 206. 6 At [10], [17]-[30]. -- 4 of 21 -- 5 basic hygiene and preparing simple meals. However, his treating psychologist, Dr Madsen, thought that he was incapable of functioning in the broader community and that he would need constant supervision and support which is not available within the contingency accommodation provided for prisoners under supervision known as “The Precinct”. Doctors Arthur and Sundin agreed with Dr Madsen. [11] No appropriate accommodation was available. Both psychiatrists opined that in the absence of 24 hour supervision, Mr Gibson’s risk to the community was unacceptable. In confirming the CDO, I observed: “[31] The evidence is overwhelming that the respondent is an unacceptable risk of committing a serious sexual offence in the absence of an order under Part 2 of Division 3. The real issue is whether the adequate protection of the community can be ensured if he is released on supervision. [32] I accept the evidence of Drs Sundin, Arthur and Madsen that the respondent, if not in prison will only function in the community in accommodation where he is offered 24 hour support. I accept the evidence of Dr Sundin, confirmed by Dr Arthur, that in the absence of such support the respondent remains at a high risk of commission of a serious sexual offence. [33] At present, there is no evidence of the availability of a place for the respondent at a men’s hostel offering 24 hour supervision and support. In those circumstances, I will order that the respondent continue to be subject to the continuing detention order made on 10 August 2017 by Dalton J. [34] In applications made under the Act, the Court often sees situations where prisoners have either cognitive deficits or mental health issues such that they need special accommodation in the community. Often in those cases the evidence is that accommodation is not available. This appears to be one such case. [35] Continued incarceration under the Act of a person who has served the term of imprisonment imposed as a result of his offending should not become the default position because of the unavailability of other less restrictive accommodation. [36] Between now and the next review of the continuing detention order for the current respondent, proper investigation should be made as to the availability of accommodation in a men’s hostel providing 24 hour support. An affidavit detailing those investigations and explaining the results should be before the Court when the matter is next reviewed.” -- 5 of 21 -- 6 [12] Mr Gibson’s second annual review of his CDO came before Callaghan J on 15 February 2021. Perhaps understandably, Mr Gibson’s cognitive functioning had not improved. As the risk of sexual reoffending had not diminished, his Honour continued the CDO, observing as he did so: “[21] Davis J insisted,7 and I respectfully endorse his Honour’s view that: ‘Continued incarceration … should not become the default position because of the unavailability of other less restrictive accommodation.’ [22] But that is where the respondent is left - incarcerated. A purported object of the Dangerous Prisoners (Sexual Offenders) Act 2003 is to facilitate rehabilitation. It was agreed that there was nothing more the prison system could do in that regard for the respondent. He is someone whose needs must be met by the public health system rather than under a corrective services regime. However, in the absence of suitable accommodation for people like him, prisons will become a refuse heap for individuals who cannot, by reason of mental infirmity, function in a socially acceptable way. In circumstances where adequate protection of the community can, in fact, be achieved in other ways, cases like this demonstrate that the Act is failing to meet its own objectives as expressed section 3.8 Prison beds are being occupied by people who do not need to be in them.” [13] The position then before Callaghan J (as it was before me in 2019) was that Mr Gibson: 1. was a serious danger to the community in the absence of an order under the DPSOA; 2. adequate protection of the community against the commission by Mr Gibson of a serious sexual offence could be ensured by a supervision order provided he was residing in supervised accommodation where 24 hour support was provided; 3. adequate protection of the community could not be ensured against the commission by Mr Gibson of a serious sexual offence by a supervision order if he was living either at The Precinct or in the general community. 7 This is a reference by Callaghan J to Attorney-General for the State of Queensland v Gibson [2019] QSC 206 at [35]. 8 Section 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 includes, as an object of the legislation, the “care or treatment (of the prisoner) to facilitate their rehabilitation” [(3)(b)]. -- 6 of 21 -- 7 [14] After the orders were made by Callaghan J, the search for appropriate accommodation continued and that search has been successful.9 [15] On 15 March 2021, the Attorney-General filed an application seeking the following orders: “1. That pursuant to r 668(2)(b) of the Uniform Civil Procedure Rules 1999, the order made by this Court on 15 February 2021, that the respondent continue to be subject to the continuing detention order made on 10 August 2017, be set aside. 2. That the review application be listed for hearing on a date set by the court. 3. That the court can be satisfied to the requisite standard, pursuant to s 30(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that the respondent is a serious danger to the community in the absence of a division 3 order. 4. That pursuant to s 30(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody subject to a supervision order. 5. Such other orders as the court considers necessary.” [16] That is the application presently before me. [17] Also before me was an application brought by Mr Gibson for bail in relation to a charge of sexual assault.10 That offence was allegedly committed against a nurse who was treating him while he was incarcerated at Capricornia Correctional Centre in Rockhampton. Mr Gibson was receiving treatment at Rockhampton Base Hospital. Mr Gibson grabbed the nurse’s vagina. [18] The bail application was heard with the application made in the DPSOA proceedings. The Crown’s position on the bail application was that bail ought to be granted if the application under r 668 was allowed. I have delivered separate reasons granting bail to Mr Gibson on the sexual assault charge. The new evidence [19] After the review by Callaghan J, the search for suitable accommodation for Mr Gibson continued and a place has been found for him in a supported independent living facility. 9 The evidence is analysed later under the heading “The new evidence”. 10 Re: an application for bail by Ashley Lennon Gibson file 3176/2021. -- 7 of 21 -- 8 [20] The features of the proposed supported independent living facility in which Mr Gibson will, if released on supervision, reside, are: 1. Full time support is offered, including support with medication management, food preparation and community access. 2. The staff to resident ratio is 1:3. 3. All staff are male. 4. When in the community (eg attending medical appointments), Mr Gibson will be escorted by a staff member on a one-on-one basis. 5. The facility is staffed full-time, that is 24 hours a day, seven days a week, but is not a secure facility. [21] While the facility is not secure, Mr Gibson will, if the CDO is rescinded, be subject to a supervision order made under the DPSOA. A supervision order must contain conditions that he “comply with a curfew direction or monitoring direction”.11 Section 16A of the DPSOA concerns curfew and monitoring directions. It provides: “16A Curfew and monitoring directions (1) The purpose of this section is to enable the movements of a released prisoner to be restricted and to enable the location of the released prisoner to be monitored. (2) A corrective services officer may give 1 or both of the following directions to the released prisoner— (a) a direction to remain at a stated place for stated periods (curfew direction); Example— a direction to remain at the released prisoner’s place of residence from 2.30p.m. to 7.00p.m. on school days, if the prisoner is not required to be at a place of employment during these hours (b) a direction to do 1 or both of the following (monitoring direction)— (i) wear a stated device; (ii) permit the installation of any device or equipment at the place where the released prisoner resides. 11 Dangerous Prisoners (Sexual Offenders) Act 2003, s 16(1)(da). -- 8 of 21 -- 9 (3) A corrective services officer may give any reasonable directions to a released prisoner that are necessary for the proper administration of a curfew direction or monitoring direction. (4) A direction under this section must not be directly inconsistent with a requirement of the relevant order for the released prisoner.” [22] While the accommodation is not secure, Mr Gibson may be subject to both a curfew and the requirement of wearing a monitoring device if so directed. The evidence is that he will be the subject of suitable directions. [23] The opinions of each of Dr Sundin and Dr Arthur were sought as to the suitability or otherwise of the proposed accommodation. Both doctors were asked to assume that both a curfew direction and a monitoring direction would be made. [24] Dr Sundin thought that the accommodation was suitable. Dr Arthur opined this: “I have no major issues with the accommodation as outlined in your letter. I agree that whilst NDIS support workers do not have authority to detain Mr Gibson, as long as they are adequately trained and there is a very clear process in place for dealing with eventualities such as Mr Gibson engaging in substance use, having unauthorised visitors or leaving the residence without permission, his risk should be adequately managed. Because of the usual levels of staff turnover and limited training/experience of many support workers (particularly relating to forensic clients), the management plan should be regularly reviewed and all staff supporting Mr Gibson should be aware of his risks and the need for such supervision. In my experience I have found that the attitudes and beliefs of such staff does impact on the quality of care given, and there is always the potential for over- identification with clients and possible collusion/splitting.” Statutory provisions [25] Rule 668 under which the application is brought provides, relevantly, as follows: “668 Matters arising after order (1) This rule applies if— (a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or (b) facts are discovered after an order is made that, if discovered in time, would have entitled the person -- 9 of 21 -- 10 against whom the order is made to an order or decision in the person’s favour or to a different order. …” [26] The DPSOA provides a scheme for the treatment and preventative detention of a certain category of prisoner,12 namely those who have committed a “serious sexual offence”. Relevantly to Mr Gibson, a “serious sexual offence” is an offence “of a sexual nature … against a child”.13 [27] By s 13 of the DPSOA, a court may make orders against a prisoner if the prisoner is a “serious danger to the community in the absence of [an order]”.14 A prisoner is a serious danger to the community if, without an order there is “an unacceptable risk that the prisoner will commit a serious sexual offence”. [28] A finding can only be made that a prisoner is an unacceptable risk where that finding is based on “acceptable, cogent evidence” and the finding is made “to a high degree of probability”.15 [29] Dalton J found, upon the making of the CDO, that Mr Gibson was an unacceptable risk of committing an offence of a sexual nature against a child. That risk has not altered. [30] Once such a finding is made, a discretion arises to make either a supervision order or a CDO,16 although there is a discretion to make no order.17 If, as here, a CDO is made, then it must be reviewed annually.18 Section 30 governs the hearing of such a review. It provides: “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. 12 Dangerous Prisoners (Sexual Offenders) Act 2003, s 3. 13 Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, Schedule 1, Definition of “serious sexual offence”. 14 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(1). 15 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(3). 16 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5). 17 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [34]. 18 Dangerous Prisoners (Sexual Offenders) Act 2003, s 27. -- 10 of 21 -- 11 (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 (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.” [31] Section 30 mirrors s 13 and the terms appearing in s 13 have the same meaning in s 30.19 The initial question under s 30, like under s 13, is whether the prisoner is a serious danger to the community in the absence of some order. Then the question is whether adequate protection of the community can be ensured by the making of a supervision order rather than a CDO. Importantly, s 30(2), like s 13(3), places the 19 Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60]. -- 11 of 21 -- 12 onus of proof upon the Attorney-General20 and imposes a statutory version of the Briginshaw principles.21 Consideration [32] Rule 668 is an exception to the general rule that, subject to a statutory right of appeal, a court’s decision is final and cannot be revisited. Equity always recognised exceptions to the general rule, in particular, fraud.22 Rule 668 is one of the statutory exceptions, although there are others.23 [33] While the DPSOA only applies to persons who have been convicted of certain types of criminal offences, DPSOA proceedings are commenced by application in the civil jurisdiction. It is, therefore, a different process to the imposition of criminal sentence.24 Given that DPSOA proceedings are civil in nature and the UCPR clearly governs such proceedings, there is no reason why r 668 could not be applied to vary an order made in DPSOA proceedings in appropriate circumstances. [34] Rule 668 was held to apply to DPSOA proceedings in both Attorney-General for the State of Queensland v WTA25 and Attorney-General for the State of Queensland v Allwood.26 [35] Reliance is placed by the Attorney-General upon r 668(1)(b). Relevantly here, it is submitted that had the existence of the supported independent accommodation been discovered by the time of the review of the CDO before Callaghan J, Mr Gibson would have been entitled to a different order; a supervision order, not a CDO. That can be readily accepted. The psychiatric evidence before Callaghan J was (as it was before me on the first review of the CDO) that adequate protection of the community could be ensured by a supervision order provided supported accommodation was available. Once that point is reached, a supervision order must be preferred over the continuation of a CDO.27 Therefore, the discretion under r 668 clearly arises. The 20 Attorney-General for the State of Queensland v S [2015] QSC 157 at [38], Yeo v Attorney-General (Qld) [2012] 1 Qd R 276 at [73], reviewed and analysed by Applegarth J in Attorney-General for the State of Queensland v DXP [2019] QSC 77 at [20]-[22]. 21 Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363. 22 Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165 at [52]-[60]. 23 See, for example, Uniform Civil Procedure Rules 1999, r 667. 24 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [73]-[82]. 25 [2020] QSC 300. 26 [2021] QSC 15. 27 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396. at [39]. -- 12 of 21 -- 13 real question is whether it should be exercised here. That gives rise to consideration of the statutory scheme of the DPSOA. [36] By s 30, the onus falls upon the Attorney-General on a review of a CDO to justify the continuation of orders made under s 13 of the DPSOA. The Attorney-General must prove, by acceptable cogent evidence, to a high degree of probability that the prisoner is a “serious danger to the community in the absence of a Division 3 order” at the time of the review. It is only if that point is reached, then the judicial power to continue the CDO, or to make a supervision order, arises. If the Attorney-General fails in proving that jurisdictional trigger, then the prisoner ceases to be subject to any order. [37] If the jurisdictional trigger is proved, then the discretion arises to make a CDO or supervision order or, adopting by analogy what was said about s 13 in Fardon v Attorney-General (Qld),28 no order. Cases can be imagined where there has been the discovery of late evidence but it would be inappropriate to vary the order under r 668 rather than put the Attorney-General to the strict proof required by s 30. However, this is not such a case and it is appropriate to set aside the order of Callaghan J affirming the CDO. [38] The following factors are determinative: 1. The latest review was only a month ago. 2. There is no suggestion of any change in any circumstances relevant to risk other than the availability of the supported accommodation. 3. Specifically, there is no suggestion of any improvement in Mr Gibson’s physical or mental state which might lead to him being released without a supervision order. 4. It is very clear from Callaghan J’s judgment that, had the new evidence been available to his Honour, the CDO would have been rescinded and a supervision order made. 5. On the evidence now available, the proper course is to release Mr Gibson on a supervision order. 28 (2004) 223 CLR 575. -- 13 of 21 -- 14 [39] A draft supervision order has been provided to me. It is not a condition of the supervision order that Mr Gibson lives in the particular supported accommodation which has been found. It is, though, a condition of the supervision order that Mr Gibson “comply with any reasonable direction under s 16B”29 of the DPSOA. Section 16B relevantly provides: “16B Other directions (1) A corrective services officer may give a released prisoner a reasonable direction about — (a) the prisoner’s accommodation; or Example— a direction that the released prisoner may only reside at a place of residence approved by a corrective services officer …” [40] Obviously, there will be a direction given that Mr Gibson live in the accommodation which has been identified. [41] I am satisfied that the supervision order proposed is acceptable and that the adequate protection of the community can be ensured by the rescission of the CDO and the making of a supervision order.30 [42] It is necessary to fix the duration of the supervision order.31 In doing that, the appropriate question is “when will [Mr Gibson] reach a point at which he is an acceptable risk without a supervision order?”.32 [43] Mr Gibson’s risk of offending is linked inextricably to his cognitive impairment. That is not likely to improve. He clearly needs long-term care and treatment and supervision and direction as to where to live. Dr Arthur opines that a supervision order of 10 years is appropriate and I agree. [44] The Attorney-General seeks a number of orders, including a finding under s 30(2) of the DPSOA, that Mr Gibson is a “serious danger to the community in the absence of a Division 3 order”. Callaghan J found that to be the case on 15 February 2021. There 29 Dangerous Prisoners (Sexual Offenders) Act 2003, s 16(1)(daa). 30 Dangerous Prisoners (Sexual Offenders) Act 2003, s 30(4). 31 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13A. 32 Attorney-General for the State of Queensland v DXP [2019] QSC 77 at [29] following Attorney- General for the State of Queensland v KAH [2019] 3 Qd R 329. -- 14 of 21 -- 15 is no suggestion of any fresh evidence casting doubt upon that finding. It is not necessary for me to revisit it under an application brought under r 668 of the UCPR. [45] What is necessary is to set aside the order of Callaghan J that Mr Gibson continue to be subject to the CDO, rescind the supervision order33 and to make a supervision order. [46] I make the following orders: 1. The order made on 15 February 2021 by Callaghan J that “the respondent, Ashley Lennon Gibson, continue to be subject to the continuing detention order made on 10 August 2017” is set aside pursuant to r 668 of the Uniform Civil Procedure Rules 1999; 2. Pursuant to s 30(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the continuing detention order made on 10 August 2017 is rescinded; 3. Pursuant to s 30(3)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent, Ashley Lennon Gibson, is released subject to a supervision order for 10 years until 24 March 2031 in terms of the Schedule attached to these reasons. 33 Dangerous Prisoners (Sexual Offenders) Act 2003, s 30(5). -- 15 of 21 -- 16 SCHEDULE “A” To: Ashley Lennon Gibson: You are being released from prison but only if you obey the rules in this supervision order. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison. You must obey these rules for the next 10 years. Reporting On the day you are released from prison, you must report before 4 pm to a corrective services officer at the Community Corrections office closest to where you will live. You must tell the corrective services officer your name and the address where you will live. A corrective services office will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A corrective services officer might visit you at your home. You must let the corrective services officer come into your house. To “report” means to visit a corrective services officer and talk to them face to face. Supervision A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a corrective services officer gives you about: (a) where you are allowed to live; and (b) rehabilitation, care or treatment programs; and (c) using drugs and alcohol; and (d) who you may have contact with; and (e) anything else, except for instructions that mean you will break the rules in this supervision order. A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation. If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it. You must answer and tell the truth if a corrective services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with. -- 16 of 21 -- 17 If you change your name, where you live or any employment, you must tell a corrective services officer at least two business days before the change will happen. A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday. No offences You must not break the law by committing a sexual offence. You must not break the law by committing an indictable offence. Where you must live You must live at a place approved by a corrective services officer. You must obey any rules that are made about people who live there. You must not live at another place. If you want to live at another place, you must tell a corrective services officer the address of the place you want to live. The corrective services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a corrective services officer to live at another place. This also means you must get written permission from a corrective services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a corrective services officer. You are allowed to leave Queensland only after you get written permission from a corrective services officer. Curfew direction A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction. Monitoring direction A corrective services officer has power to tell you to: (a) wear a device that tracks your location; and (b) let them install a device or equipment at the place you live. This will monitor if you are there. This is called a monitoring direction. You must obey a monitoring direction. Employment or study You must get written permission from a corrective services officer before you are allowed to start a job, start studying or start volunteer work. -- 17 of 21 -- 18 When you ask for permission, you must tell the corrective services officer these things: (a) what the job is; (b) who you will work for; (c) what hours you will work each day; (d) the place or places where you will work; and (e) (if it is study) where you want to study and what you want to study. If a corrective services officer tells you to stop working or studying you must obey what they tell you. Motor vehicles You must tell a corrective services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the corrective services officer these details immediately (on the same day) you get the vehicle. A vehicle includes a car, motorbike, ute or truck. Mobile phone You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a corrective services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone. You must give a corrective services officer all passwords and passcodes for any mobile phones you own or have. You must let a corrective services officer look at the phone and everything on the phone. Computers and internet You must get written permission from a corrective services officer before you are allowed to use a computer, phone or other device to access the internet. You must give a corrective services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a corrective services officer look at the computer, phone or other device and everything on it. You must give a corrective services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things. No contact within any victim You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you. -- 18 of 21 -- 19 “Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way. Rules about alcohol and drugs 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. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs. A corrective services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, spit (saliva), pee (urine) or blood when they tell you to do this. 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. You are not allowed to visit any business that is only licensed to supply 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. Rules about medicine You must tell a corrective services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a corrective services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor. Rules about rehabilitation and counselling You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor. You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program. You must let corrective services officers get information about you from any treatment or from any rehabilitation program. Speaking to corrective services about what you plan to do You must talk to a corrective services officer about what you plan to do each week. A corrective services officer will tell you how and when to do this (for example, face to face or in writing). -- 19 of 21 -- 20 You must also tell a corrective services officer the name of new persons you have met. This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly. You may need to tell new contacts about your supervision order and offending history. The corrective services officer will instruct you to tell those persons and the corrective services officer may speak to them to make sure you have given them all the information. Contact with children You are not allowed to have any contact with children under 16 years of age. If you want to have supervised or unsupervised contact with a child under 16 years of age you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to have contact with the child. “Contact” means any type of communication, including things like talking with them face to face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way. “Supervised” means having contact with the child while another person is with you and the child. “Unsupervised” means having contact with the child while there is no other person with you and the child. If you have any repeated contact (that is, more than one time) with a parent, guardian or carer of a child under the age of 16, you must: (a) tell the person(s) about this supervision order; and (b) tell a corrective services officer the details of the person(s). You must do this immediately. This means you have to tell the person, and tell a corrective services officer, on the same day you have contact with the person. Queensland Corrective Services has power to give information about you, and about this supervision order, to any parent, guardian or caregivers that you have contact with. Queensland Corrective Services also has power to give information about you, and about this supervision order, to an external agency (such as the Department of Child Safety). You must not: (a) attend any school or childcare centre; (b) be in a place where there is a children’s play area or child minding area; (c) go to a public park; (d) go to a shopping centre; -- 20 of 21 -- 21 (e) join any club or organisation in which children are involved; (f) participate in any club or organisation in which children are involved. If you want to do any of these things, you must first get written permission from a corrective services officer. If you do not get written permission, you cannot do any of these things. You must not collect photos/ videos/ magazines which have images of children in them without prior approval of a Corrective Services officer. If you have any you may be asked to get rid of them by a corrective services officer. You are not to get child exploitation material or images of children on a computer or phone from the internet. You cannot get pornographic images on a computer or phone from the internet or magazines without written approval from a corrective services officer. Your treating psychologist will provide advice regarding this approval. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence. You must talk about this with a corrective services officer when asked. You must advise your case manager of any personal relationships you have started. Signed: ……………………………………………….. Registrar of the Supreme Court of Queensland -- 21 of 21 --