Attorney-General for the State of Queensland v Boulton [2021] QSC 52

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Boulton [2021] QSC 52 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v BRANDON JAMES BOULTON (respondent) FILE NO/S: BS No 10872 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 19 March 2021 DELIVERED AT: Brisbane HEARING DATE: 1 March 2021 JUDGE: Williams J ORDER: On being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act), I order that: 1. Pursuant to s 30(1) of the DPSO Act the decision made by A Lyons J on 8 March 2018 and affirmed by Bowskill J on 17 February 2020, that the respondent, Brandon James Boulton, is a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSO Act, be affirmed. 2. Pursuant to s 30(3)(a) of the DPSO Act, it is ordered that the respondent, Brandon James Boulton, continue to be subject to the continuing detention order made by A Lyons J on 8 March 2018 and affirmed by Bowskill J on 17 February 2020. 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 has been the subject of a continuing detention order since March 2018 – where this is the second review of the continuing -- 1 of 28 -- 2 detention order pursuant to Part 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent was assessed by two psychiatrists for the purpose of the review – whether it is appropriate that the respondent continue to be subject to the continuing detention order or be released from custody under a supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 27, s 30 Attorney-General for the State of Queensland v Anderson [2020] QSC 142, followed A-G for the State of Qld v Boulton [2018] QSC 41, cited Attorney-General for the State of Queensland v Boulton [2020] QSC 13, cited COUNSEL: J Tate for the applicant C Reid for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] This is an application by the Attorney-General for the State of Queensland (the applicant) under Part 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) for a review of the continuing detention order made in respect of the respondent. [2] On 8 March 2018 her Honour Justice Lyons found the respondent to be a “serious danger to the community” and ordered that the respondent remain in custody for an indefinite term under a continuing detention order for control, care and treatment.1 [3] The first annual review under the DPSO Act was heard by Bowskill J in February 2020. Her Honour found that the respondent continued to be a serious danger to the community, affirmed the decision that the respondent was a serious danger to the community in the absence of an order pursuant to Division 3 of the Act and ordered that the respondent continue to be subject to the continuing detention order.2 [4] This is the second annual review under the DPSO Act and, in order to comply with s 27(1A) of the DPSO Act, the hearing and all submissions are to be completed within two years after the day the order first had effect. [5] It is not contentious in the current review that the evidence supports the finding that the respondent is a serious danger to the community in the absence of a Part 2 Division 3 order. [6] What is contentious in the current review is, given that finding, whether it is appropriate that the respondent continue to be subject to the continuing detention order or be released from custody under a supervision order. 1 A-G for the State of Qld v Boulton [2018] QSC 41. 2 Attorney-General for the State of Queensland v Boulton [2020] QSC 13. -- 2 of 28 -- 3 [7] Dr Aboud and Dr McVie have each prepared reports for the purposes of this review. However, there is a divergence in views as to the appropriate treatment for the respondent. [8] It appears to be common ground between the psychiatrists that the respondent is a high risk of future serious sexual reoffending with violence and that he has significant treatment needs.3 [9] The area of substantial difference between the psychiatrists is the issue of whether the respondent should receive future treatment in custody or in the community. [10] The respondent’s position is that he should be released into the community under a supervision order for a period of at least 10 years. Statutory scheme [11] Section 27 of the DPSO Act provides for periodic reviews as follows: “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.” [12] Section 30 of the DPSO Act directs the Court on the hearing of the review as follows: “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 Affidavit of Dr N McVie sworn 2 February 2021, Exhibit ENM-2 at 21; Affidavit of Dr A Aboud sworn 15 February 2021, Exhibit AA-2 at 20. See also affidavit of Dr E Timmins sworn 27 November 2019, Exhibit ET-2 at 37; Affidavit of Dr N McVie sworn 15 January 2020, Exhibit ENM-2 at 25. -- 3 of 28 -- 4 (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.” [13] Section 30 incorporates the term “serious danger to the community” which in turn encompasses the notions of “serious sexual offence” and “unacceptable risk”. This in effect mirrors s 13 of the DPSO Act. [14] Section 13 of the DPSO Act 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— (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 -- 4 of 28 -- 5 (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. (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— -- 5 of 28 -- 6 (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).” [15] In the decision of Attorney-General for the State of Queensland v Anderson4 Davis J summarised the effect of s 13: “[5] The effect of s 13 is: (a) the court must consider whether the prisoner is a ‘serious danger to the community in the absence of a Division 3 order’;5 (b) a prisoner is a ‘serious danger to the community’ where there is an unacceptable risk that the prisoner will commit a ‘serious sexual offence’ in the absence of an order;6 (c) a ‘serious sexual offence’ is, relevantly here, ‘an offence of a sexual nature … involving violence; or … against a child …’;7 (d) orders under Division 3 are: (i) a continuing detention order;8 or (ii) a supervision order;9 (e) if there is a finding that the prisoner is a serious danger to the community in the absence of a Division 3 order, then the court may: (i) make no order; (ii) make a continuing detention order; or (iii) make a supervision order;10 (f) in determining what, if any order, to make “the paramount consideration is to be the need to ensure adequate protection of the community” from the commission by the prisoner of a “serious sexual offence”;11 4 [2020] QSC 142. 5 Section 13(1). 6 Section 13(2). 7 Section 2 and Schedule (Dictionary). As to the term “involving violence” see Attorney-General v Phineasa [2013] 1 Qd R 305 at 312-16, [23]-[45]. 8 Section 13(5)(a). 9 Section 13(5)(b). 10 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597, [34]. 11 Section 13(b). -- 6 of 28 -- 7 (g) if the adequate protection of the community cannot be ensured by a supervision order, then a continuing detention order should be made;12 and (h) if the adequate protection of the community can be ensured by a supervision order, then supervision ought to be preferred to the making of a continuing detention order.13 [6] The process of the assessment of risk in terms of the DPSOA was explained by McMurdo J (as his Honour then was) in Attorney- General for the State of Queensland v Sutherland14 where his Honour said: ‘[30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.’15” [16] Further, his Honour helpfully summarised the process that is to be undertaken under s 30: “[10] The process under s 30 involves the following steps: (a) determination of whether the respondent is a serious danger to the community in the absence of a Division 3 order; (b) if so, the court must determine whether adequate protection of the community can be ensured by the respondent’s release on a supervision order; (c) if so, then release of the respondent on supervision ought to be preferred to the maintenance of the continuing detention order; and (d) if not, then the continuing detention order ought to be maintained.” History of serious sexual offences [17] The respondent’s history of serious sexual offending is relevant to the consideration of the risk he poses to the community in the event that he is released from custody. [18] The index offences were described by Lyons SJA at the initial Division 3 hearing as follows: 12 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39]. 13 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39]. 14 [2006] QSC 268. 15 At [30] and see also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 657, [225], [226]. -- 7 of 28 -- 8 “[2] In February 2016 the respondent was dealt with for two episodes of sexual offending. The first episode occurred between 2010 and 2012 and related to one charge of indecent treatment of a child under 12 and two charges of attempted indecent treatment of a child under 12. Those offences were committed against two brothers who were 6 and 10. The second episode occurred in 2015 and related to offences of carnal knowledge and grooming of a child under 16 with intent to procure engagement in a sexual act. Those offences related to a 15 year old female. In addition to those offences, the respondent was also dealt with on that date for breaching a suspended sentence imposed on 30 July 2013 for an earlier offence of rape which was committed in 2012 when he was 16 and the complainant was 17. His full-time discharge date is 10 March 2018.”16 [19] Her Honour set out a summary of the respondent’s criminal history at [3] and prior offending at [4]. This includes, relevantly: (a) 2013 – rape; burglary (Children’s Court). (b) 2015 – breach of suspended sentence re rape; breach of probation order re burglary and commit indictable offence (District Court). (c) 2016 – Carnal knowledge of children under 16 years; grooming child under 16 years with intent to procure engagement in a sexual act; indecent treatment of children under 16 child under 12 years; attempted indecent treatment of child under 16 (procure to commit) child under 12 years (two charges); breach of a suspended sentence. (d) Previous offending in 2005 (assault) and 2007 (indecent treatment), and further incidents of sexual offending. Background Applicant’s position [20] The applicant’s position is that the respondent is currently subject to a continuing detention order and should only be released to the community under a supervision order if adequate protection of the community is met and, if it is reasonable and practical for a supervision order to provide that protection as required under s 30(4) of the DPSO Act. [21] In relation to the respondent being a serious danger to the community, the applicant relies on the original reasons of her Honour Justice Lyons in relation to the making of the continuing detention order where her Honour states: “[12] I am satisfied on the evidence therefore that the respondent clearly represents a serious danger to the community in the absence of a Division 3 order. I consider that the respondent’s risk of sexual re-offending and the offending against children is unacceptable. In forming this view I have considered the factors in s 13(4) of the Act. In the circumstances of this case a 16 A-G for the State of Queensland v Boulton [2018] QSC 41. -- 8 of 28 -- 9 Division 3 Order is clearly required and indeed Counsel for the respondent concedes that the grounds for an Order under s 13 have been made out. [13] The real issue in this case is whether there should be a continuing detention order or whether the respondent can be released subject to a supervision order with conditions. The evidence of the psychiatrists is that the respondent’s risk in the community would be reduced to moderate to low or moderate to high should he complete a High Intensity Sexual Offender Program (HISOP) in custody prior to release.”17 [22] The evidence in the current review hearing is that the respondent has not completed the HISOP program. The respondent commenced the program in November 2018 but was removed from the program in August 2019. The Exit Notice and the HISOP Completion Report are in evidence as Exhibit AC-6 and AC-7 to the Affidavit of Andrew Connellan sworn 19 November 2019. Relevantly, the Completion Report states as follows: “Prisoner Boulton was identified as having treatment needs in the area of deviant sexual interest given the pattern within his victim typology and interests in BDSM behaviours i.e. inflicting pain and having sexual control. Prisoner Boulton maintained revenge was his primary motivation for offending throughout his program participation, however the prisoner’s resistance to exploring his offending in detail made it difficult to ascertain additional contributing motivators. As such, screening of this treatment need remains largely outstanding and further assessment of such would prove instrumental in identifying his level of risk, it is thus recommended the prisoner engage with a psychologist and/or counsellor to determine the weight of this treatment need. Prisoner Boulton was exited from the Crossroads: High intensity Sexual Offending program after violating conditions outlined in a consent form prisoner Boulton signed prior to commencement in HISOP. As a result he was exited from the program on 15 August 2019. The prisoners recommendation for completion of the HISOP remains outstanding. Re-assessment for program engagement should occur following the screening of association issues with other group participants to allow him the best opportunity to explore the full extent of his offending behaviour within the program. Additionally, prisoner Boulton’s readiness, willingness and ability to participate fully in a high intensity treatment program should be assessed in conjunction with an assessment of his custodial behaviour.”18 17 A-G for the State of Queensland v Boulton [2018] QSC 41 at 6-7. 18 Affidavit of A Connellan sworn 19 November 2019, Exhibit AC-7 at55. -- 9 of 28 -- 10 [23] The applicant also refers to and relies on the primary diagnoses of Dr Aboud, Dr Timmins and Dr McVie that were prepared as part of their risk assessment reports for the March 2018 hearing. These diagnoses remain relevant and are as follows: (a) Dr Aboud: • Psychopathy; • Anti-Social Personality Disorder (with clear psychopathic traits); • Polysubstance Abuse (alcohol, cannabis and LSD); and • Deviant Paedophile Urges. (b) Dr Timmins: • Psychopathy; • Anti-Social Personality Disorder with evidence of Narcissistic traits; • Polysubstance Abuse (in sustained remission in a controlled environment); • Possible presence of Sadism and, to a lesser extent, Masochism; and • Paedophilia and deviant sexual fantasies cannot be excluded. (c) Dr McVie: • Psychopathy; • Sexual deviance (eclectic); • Substance Use Disorder (preference for cannabis and hallucinogens); • Conduct Disorder in childhood with evidence of Antisocial Personality Traits in adolescence; and • Attention Deficit Hyperactivity Disorder. [24] Dr Aboud and Dr McVie have prepared further reports for the second review. However, the original diagnosis has not changed materially. [25] The applicant summarises Dr Aboud’s original assessment as follows: “• Static 99R: the Respondent scored 6, indicating a high risk of re- offending; • Risk Matrix 2000/S: scored 4 for Step 1, with 3 ‘aggravating factors’ for Step 2, which placed him in the group regarded as Very high risk of re-offending; • Risk Matrix 2000/V: scored 6, which placed him in the group regarded as Very high risk of reoffending; • Psychopathy Checklist (PCL-R): the Respondent scored 29/38 (equating to a pro rata score of 30.5/40), which is above the cut- off point for diagnosing psychopathy. -- 10 of 28 -- 11 • HCR-20: scored 18/20 (Historical), 5/10 (Clinical) and 8/10 (Risk Management). The overall score was 31/40, which represents an overall risk of high; and • Risk for Sexual Violence Protocol (RSVP): Dr Aboud notes: ‘I considered Mr Boulton to have positive scores for the following items: • Psychological coercion in sexual violence • Extreme minimisation or denial of sexual violence • Attitudes that support or condone sexual violence • Problems with self-awareness • Problems with stress or coping • Problems resulting from child abuse • Psychopathic personality disorder • Problems with substance use • Problems with employment • Non-sexual criminality • Problems with planning • Problems with treatment • Problems with supervision I considered that he had partial or questionable scores for the following items: • Chronicity of sexual violence • Diversity of sexual violence • Physical coercion in sexual violence • Sexual deviance • Problems with intimate relationships • Problems with non-intimate relationships.’”19 [26] For this review, Dr Aboud has updated his assessment of Static 99R as follows: “When I previously assessed Mr Boulton in 2017, I gave him a score of 6. I have revisited this assessment and have revised the score to 10, which placed him in the group regarded as Well Above Average (previously known as High) risk of reoffending.’20 19 Affidavit of Dr A Aboud sworn 27 September 2017, Exhibit AA-3 at 18-19, 23. 20 Affidavit of Dr A Aboud sworn 15 February 2021, Exhibit AA-2 at 17-19. -- 11 of 28 -- 12 [27] There is no relevant change in the assessment undertaken by Dr McVie. Dr McVie’s assessment for the current review has been summarised by the applicant as follows: “• Static 99R: the Respondent scored 6, placing him at the ‘high’ or well above the average risk, category; • PCL-R: scored 31/38, placing him above the cut-off for a formal diagnosis of Psychopathy. Dr McVie observes: ‘This confirms the clinical impression of psychopathy, which had also been suggested by previous therapists. The affective features of psychopathy, the grandiosity, failure to accept responsibility and inability to understand emotions, inability to display genuine concerns for others and inability to develop true empathy, are reflected in the comments by facilitators in the HISOP exit report as well as in the recent reports of Dr Lars Madsen.’ • Stable 2007: the Respondent is assessed as having significant treatment needs. In Dr McVie’s opinion: ‘Mr Boulton continues to present with significant treatment needs, particularly in the areas of relationship stability, social influences, and cooperation with supervision. His problems with impulsivity and lack of concern for others remain prominent, though he does appear to have developed some insight into this. The HISOP exit report listed unmet treatment needs as including significant social influences, capacity for relationship stability, general social rejection/loneliness, lack of concern for others, impulsive acts, poor problems solving, sex drive preoccupation, sex as coping, deviant sexual preferences and cooperation with supervision. He has since engaged in individual therapy to address these needs.’ • RSVP: on this instrument for assessing risk for future sexual offending, Dr McVie indicates: ‘Mr Boulton’s risk factors include chronicity of sexual violence, with behaviour over at least an eight year period. He showed diversity, with change in victim type. There is some associated physical coercion and definite psychological coercion. He has minimized his previous sexual violence and was considered to lack self-awareness, either being unable to reflect on his own criminal behaviour or having a personality structure which results in his reframing his own role in a positive light and projecting blame on others. There has been some progress in relation to his self-awareness over the past twelve months. Some of his problems may be related to his own history of being abused as a child. There is no stable pattern of deviant sexual arousal. He has previously reported considerable -- 12 of 28 -- 13 viewing of a variety of pornography. He meets criteria for psychopathy, which is a significant risk factor. He has a clear history of substance abuse, likely problems in relationships, with employment, and with non-sexual criminality. He has failed to benefit from rehabilitative services in the past, and in previous supervision.’ • HCR-20: on this violence risk assessment instrument, Dr McVie notes: ‘Although Mr Boulton does not have criminal convictions for physical violence offences, he does have a history of violence and aggression from early childhood. He has multiple historic risk factors which inform his high risk of violence including substance use, personality disorder and problems with supervision. His history of failure to learn from previous attempts at therapy, and the likelihood he will return to previous patterns of behaviour if released from custody unsupervised does suggest he will present a high risk of future violence if released into the community. Recent assessment indicates some increasing maturity and some more realistic concerns for the future.’”21 [28] In relation to risk, both psychiatrists consider there is a high risk of reoffending. Their views are as follows: (a) Dr Aboud: “Taking into consideration the various instruments used to assess and predict violence and sexual violence risk, it is my view that Mr Boulton’s overall unmodified risk of sexual offending is high. His risk of non sexual violence would be moderate, while his risk of general offending would be high. I take into account: his antisocial personality structure; his psychopathic traits; his vulnerability to poor adaptive, and avoidant, coping (including previous use of alcohol and substances and sexual preoccupation); his likely sexual deviance; his intimacy deficits and emotional congruence with children; his deceptive and manipulative self presentation, which allows him to win the confidence of others, so as to obtain victim access. One is also aware that he has breached criminal justice orders on numerous occasions, and he sexually offended when subject to a criminal justice order, and he has demonstrated significant minimisation and denial, lack self awareness, and a rather manipulative and deceptive interpersonal style. … It is my overarching view that once he has successfully completed the outstanding material relevant to the HISOP, to the satisfaction 21 Affidavit of Dr N McVie sworn 2 February 2021, Exhibit ENM-2 at 20-1. -- 13 of 28 -- 14 of the program facilitators should he re-enter the group, or to the satisfaction of Dr Madsen should he not re-enter the group, then his risk of sexual reoffending will be reduced to moderate-high. Following this, I would then consider his risk of sexual reoffending would be further reduced to moderate-low, in the context of a supervision order. In the absence of successful completion of the HISOP material, I would consider his risk of sexual reoffending to be moderate-high, and unreasonably high, even in the context of a supervision order. It is therefore my strong recommendation that he complete this necessary and important therapy in a custodial environment, prior to consideration of release.”22 (emphasis added) (b) Dr McVie: “Overall, his sexual deviance is diverse. Other than the one incident with a 6 year old boy, all his victims have been within five years of his age. He has not offended against boys under 16 since he was aged 15 years. The victims of offences he committed at age 16 and age 19 were both females. He denies any sexual interest in, or fantasies about, children. He does not meet criteria for a diagnosis of paedophilia. He has undergone over 200 hours of group sex offender therapy and failed to complete this program due to due to [sic] being exited following unacceptable behaviour. He has subsequently engaged in individual therapy with an experienced psychologist and appears to be progressing well with this therapy as well as developing some maturity in social functioning with increasing age. The affective features of his psychopathy will impair his ability to be able to develop true remorse and empathy. Given his history of general criminal behaviour and his varied history of sexual offending, it is difficult to propose a clear scenario for sexual violence recidivism. … Risk assessment, both actuarial and structured clinical judgement, continues to indicate Mr Boulton is at high risk of reoffending with sexual violence and he continues to present with significant treatment needs. His history clearly indicates a high risk of further general criminal offending. … Despite the challenges he presents, my recommendation remains that he be released on a supervision order.”23 22 Affidavit of Dr A Aboud sworn 15 February 2021, Exhibit AA-2 at 19-20. 23 Affidavit of Dr N McVie sworn 2 February 2021, Exhibit ENM-2 at 22-3. -- 14 of 28 -- 15 [29] Ultimately at the hearing it appears it was common ground that the respondent requires individual psychological therapy with an experienced forensic psychologist following his removal from the HISOP in August 2019. In his report, Dr Aboud was of the view that the treatment should include, if possible, completion of the HISOP in custody. However, in oral evidence (which will be discussed further below), it was recognised this would need to be the equivalent of the HISOP modules being covered in individual therapy as the group program was considered not appropriate by Corrective Services. [30] The relevant view of Dr Aboud is as follows: “It is my opinion that Mr Boulton still does need to complete the HISOP material prior to consideration of his release from custody. However, given the rather complex circumstances of his exiting the program in late 2019 and his seemingly successful engagement in individual therapy with Dr Madsen, combined with his history of disruptive group behaviour, it is not clear to me whether: he should recommence and complete the HISOP or complete the HISOP material with Dr Madsen on an individual basis. It is my overarching view that once he has successfully completed the outstanding material relevant to the HISOP, to the satisfaction of the program facilitators should he re-enter the group, or to the satisfaction of Dr Madsen should he not re-enter the group, then his risk of sexual reoffending will be reduced to moderate-high. Following this, I would then consider his risk of sexual reoffending would be further reduced to moderate-low, in the context of a supervision order. In the absence of successful completion of the HISOP material, I would consider his risk of sexual reoffending to be moderate-high, and unreasonably high, even in the context of a supervision order. It is therefore my strong recommendation that he complete this necessary and important therapy in a custodial environment, prior to consideration of release.”24 [31] Dr McVie’s view, as set out in her report, is as follows: “Given his history of general criminal behaviour and his varied history of sexual offending, it is difficult to propose a clear scenario for sexual violence recidivism. Risk assessment, both actuarial and structured clinical judgement, continues to indicate Mr Boulton is at high risk of reoffending with sexual violence and he continues to present with significant treatment needs. His history clearly indicates a high risk of further general criminal offending. He should continue his one to one psychological therapy to address his sexual offending. He may, in the future, benefit from participation in a maintenance program for sexual offenders in the community, 24 Affidavit of Dr A Aboud sworn 15 February 2021, Exhibit AA-2 at 20. -- 15 of 28 -- 16 though I remain cautious about his ability to participate in groups and gain positive benefit from groups process. My previous recommendation was, based on his history with education, and his score on the interpersonal and affective facets of the PCL-R, I would consider Mr Boulton would be difficult to manage in a group situation, and would, at best, be disruptive to others. I considered Mr Boulton could learn more deviant behaviours, being exposed to a group of offenders with various different types of sexual offending, and that he would be unlikely to be able to develop any real remorse or victim empathy due to his psychopathic features. I continue to consider that he is not yet suitable for any group program. His custodial behaviour has improved over the past twelve months. He has displayed some capacity to adhere to his stated intentions. Despite the challenges he presents, my recommendation remains that he be released on a supervision order.”25 [32] The applicant also relies on the earlier report of Dr Evelyn Timmins in relation to consideration of the respondent’s current risk. Dr Timmins’ report prepared for the first annual review in February 2020 relevantly states as follows: “His offending is likely to take several forms and is likely to involve sexual offending as well as other forms of general offending, with or without violence. His risk of sexual offending continues to be towards various potential victims, both male and females, adult and underage. He may engage in grooming behaviour and use substances to ensure compliance. There will be a raised risk when he feels stressed, slighted, rejected or angry in some way. He may or may not be in an intimate relationship that is sexually satisfying. He may or may not be acting out of revenge. His risk is raised when intoxicated or using substances which he continues to use in custody. There will probably be an element of planning, although he is just as likely to act impulsively. There would be physical and psychological coercion involved in the offending and a high degree of harm to the victim. … Mr Boulton’s risk of sexual reoffending remains HIGH if released into the community without a Supervision Order in place. With a supervision order, his risk continues to likely be MODERATE to HIGH given that he appears to have learnt very little during the HISOP program, has engaged in disruptive and deceptive behaviour through the program which has led to sexual assault allegations and 25 Affidavit of Dr N McVie sworn 2 February 2021, Exhibit ENM-2 at 23. -- 16 of 28 -- 17 an eventual exit from the HISOP program in addition to intermittent substance use and very few plans for his release. I continue to be of the opinion that he requires treatment for his sexual offending, before he is released. Given his behaviour in the HISOP course this now would best be done with individual psychological therapy with an experienced forensic psychologist. … I am also guarded as to how successful supervision will be under a DPSOA Order given his previous history with previous supervision under community-based orders, despite the rigours of a Community DPSOA order. His psychopathic personality, his propensity to use substances and use of sexual behaviours to retaliate against others will cause him issues in the community.”26 [33] Dr Lars Madsen is the respondent’s treating clinical psychologist. Dr Madsen has been treating the respondent since February 2020 and prepared a report dated 19 November 2020. In that report, Dr Madsen expresses the following view: “Opinion: Despite Mr Boulton’s occasional disagreeable interpersonal demeanour, it is my view that he has continued to engage well. Notably, he has talked better about some of his emotional experiences and reactions to things. In addition, he appears more committed to the therapeutic process, is responsive to feedback in our sessions and also to engaging in specific therapeutic activities. More generally, in the prison he appears to be going well. He continues to live in the residential part of the prison, appears to have (at-least) amicable relationships with staff and other prisoners, has a job and is involved in arguably a worthwhile hobby when bearing in mind his context. Taken together this suggests that he is emotionally and behaviourally well regulated, and generally compliant with rules and expectations of him. At this time, I would recommend that treatment remains ongoing.”27 [34] The applicant refers to and relies upon the evidence set out in each of the above expert reports as clearly demonstrating that the respondent represents a serious danger to the community in the absence of a Division 3 order. The risk of sexual reoffending is high and the applicant submits it is unacceptable. [35] In relation to how the risk may materialise, the applicant relies upon the view expressed by Dr Aboud in his report as follows: “Should he reoffend, one would speculate that it would take the form of planned sexual violence, although the planning phase might be brief or prolonged, depending on the type of victim targeted. The victim could be a pubescent girl and involve a grooming period, with offending taking place in the context of a pseudo-relationship. 26 Affidavit of Dr E Timmins sworn 27 November 2018, Exhibit ET-2 at 37-38. 27 Affidavit of L Madsen affirmed 21 January 2021, Exhibit LBM-2 at 9. -- 17 of 28 -- 18 The victim could be a younger adult female, with more impulsive and opportunistic offending taking place in the context of psychological or physical coercion, but again projecting some form of assumed relationship. The victim could also be a pre-pubescent boy, with offending taking place either in a planned or more opportunistic manner, and likely mirror similarities to his own experiences of being sexually abused by an older male when he was a boy. In all offending pathways, it is likely that his victim will not be a stranger, and he will be manipulative, persuasive and coercive. His actual use of force will likely be instrumental, and if present, limited to what is necessary to achieve his objective. In respect of female victims, he will probably attempt vaginal penetration with his penis. In respect of a pre-pubescent male victim, he will likely attempt to engage in mutual masturbatory activity, which could escalate to other sexual activities. Offending will most likely occur in the context of behavioural disinhibition by illicit substances and/or alcohol. He might also be experiencing psychosocial difficulties, including relationship problems with partner, friends or family, employment problems, or negative emotional states. Sexual preoccupation may be a maladaptive way to manage these difficulties via emotional distraction, sexual or relational entitlement, redressing underlying low self worth and pursuit of gratuitous acts. He will use whatever means available to him to evade apprehension, including threatening his victim or trying to buy their silence. His post offence behaviour will be self serving and selfish, including a focus on his own emotions and an initial preference to deny his behaviour to police. Sexual offending might occur during the same time period as general offending, as it is likely that there are shared risk factors that might promote different modalities of offending for Mr Boulton.”28 [36] The applicant refers the Court to the index offences, the opinions of Dr Aboud and Dr McVie and the report of Dr Timmins from the first annual review, together with the other material before the Court, as providing acceptable and cogent evidence of a sufficient weight to justify the continuation of the continuing detention order at this review. [37] The applicant identifies the key factors for consideration by the Court in relation to this application as being: (a) The respondent’s assessed high risk and his outstanding treatment needs; (b) The clinical prerequisite of designing a treatment intervention to promote the respondent’s ongoing rehabilitation so as to reduce risk to an acceptable level on release to the community; and 28 Affidavit of Dr A Aboud sworn 15 February 2021, Exhibit AA-2 at 19. -- 18 of 28 -- 19 (c) The paramount consideration in s 30(4)(a) and that at the current point in time, the respondent remains a high risk partially treated sex offender with a diagnosis of sexual deviance and psychopathy. The respondent’s position [38] The respondent refers to and relies on the comments of Bowskill J at the first review hearing, relevantly: (a) In respect of Dr Timmins’ evidence: “Dr Timmins says that she continues to be of the opinion that he requires treatment for his sexual offending, before he is released. But given his behaviour in the HISOP course, this now would best be done with individual psychological therapy with an experienced forensic psychologist.”29 (b) In respect of Dr McVie’s opinion: “… preferable for the respondent to engage in this intensive one to one therapy in the community, because if he is in the community he is going to have hope, and have an opportunity to practise the skills that he is learning, and … then bring them back to therapy and address them in therapy as to how to manage them.”30 [39] Further, reference is also made to Bowskill J’s comments in respect of a review in a period shorter than 12 months and a “road map” to progress this matter.31 [40] Ultimately, the respondent contends that the respondent is currently receiving individual regular treatment with Dr Madsen and is unsuitable for group based programs. In these circumstances, it is submitted that the respondent could continue his treatment in the community consistent with the views of Dr McVie. Oral evidence at hearing [41] At the hearing of this matter, Dr Aboud and Dr McVie gave oral evidence and were cross-examined, two Corrective Services officers (Ms Niclaire Byrne and Mr Robert Wood), also gave evidence and were cross-examined and Dr Madsen gave evidence and was cross-examined. [42] A considerable amount of the evidence that was given at the hearing was in relation to specific details and arrangements for the treatment of the respondent. [43] It is not the task of this Court to direct or settle a treatment plan. If the Court is satisfied the respondent is a serious danger to the community in the absence of a Division 3 order, the task of this Court is to assess whether the adequate protection of the community can be ensured by the respondent’s release on a supervision order. [44] Some of the oral evidence concerned whether the respondent remains only partially treated and whether at least some aspects of treatment need to occur prior to the 29 Attorney-General for the State of Queensland v Boulton [2020] QSC 13 at 11 [29]. 30 Attorney-General for the State of Queensland v Boulton [2020] QSC 13 at 15 [42]. 31 See 19-21 [57]-[62]. -- 19 of 28 -- 20 respondent being considered ready to be released under a supervision order. This evidence is relevant to the consideration to be undertaken on the review. [45] For the purposes of the current application before the Court, I have extracted some relevant parts of the transcript below. [46] Dr Aboud gave oral evidence consistent with his report. The key additional issue addressed in oral evidence was whether it was necessary and appropriate for the respondent to complete at least the outstanding modules from the HISOP prior to his release, or the equivalent in individual sessions with Dr Madsen. The outstanding modules are identified in the affidavit of Ms Byrne as being “Intimacy, Sexuality and Attachments; Managing Emotions; and New Future Plan”.32 [47] In respect to this issue, Dr Aboud gave evidence as follows: (a) “Yes, I was going to ask you – what I read to you was really just to lead into the primary question, which is, can you, please, explain the mechanics of the risk reduction, firstly, achieved by successful completion, and then after successful completion, further reduction through the imposition of a supervision order. It’s just so that we’ve got clarity around how that works?---Well, there’s two – there’s two components to the mechanics. The first one relates to the – the understanding that it is through the program that an individual – any individual – undertakes the work that reduces risk. The second is temporal, which is that at the point of entering the community, I believe his risk should be reduced such that the further reduction of risk that would occur in the context of a supervision order would take that overall risk to below the level upon which, in my view, he would be considered to be safely managed in a community setting. So just to rephrase – or to – or to – or to say it again, perhaps, more succinctly, the sexual offender work, be it group or individual, that is relevant to Mr Boulton needs to be completed prior to – to release because if it was not completed prior to release he would be exiting the prison with a high risk that would not be reduced sufficiently enough by a supervision order to make him safe.”33 (b) “Commencing with, ‘Should he reoffend’?---Yes, but I would not consider that what Dr Timmins has – has written is vastly different from what I have – have written. I do think that the psychological work, i.e., that that would be conducted by the HISOP, or individually to address the outstanding HISOP material, would be in order to address some of that, not all of it, but certainly some of it. The remainder, as is commonplace in individuals who have completed a program, is that they would continue to work individually with a psychologist to address the aspects of sexual offender treatment that were not covered by the program material, but could only then be covered individually. That would include, for example, sexual deviance. So I see the treatment of Mr Boulton as being attempting to replicate the standard sexual offender treatment modality that exists in the prison setting for individuals who sexually offend, who are considered to be high risk, and to then incorporate the ongoing psychological therapy as required. In Mr Boulton’s case, it would be necessary 32 See Affidavit of N Byrne sworn 22 February 2021 at [15(a)]. 33 T1-7 21-37. -- 20 of 28 -- 21 for him to continue to see a treating psychologist beyond completion of HISOP material.”34 (c) “I would largely agree with Dr McVie with one caveat, and it is that the material that should be completed – or would have been completed in the HISOP – which is classically the work that all sexual offenders who are embraced into the HISOP as high risk sex offenders have to complete pre- release – due to the nature of the HISOP, I believe that Mr Boulton should – should wisely and safely have to complete that specific material pre-release as if he was attending the HISOP. And it should – it should not be considered a safer option that on the basis that he is too problematic, or challenging, or even risky to be completing a group program, that he would, therefore, somehow be released earlier without having to do the work. So I understand the point, and I merely wish to demarcate between the work that he would have to do individually with Dr Madsen to meet the requirements of the HISOP, as opposed to the ongoing work that would have – that he would necessarily need to undertake anyway which could be done in the community. I understand. Just so that there’s clarity, what Niclaire Byrne in her affidavit tells us is that Mr Boulton has concluded these units, disclosure, autobiography, map of offending and consequences, and he still has to complete intimacy, sexuality and attachments, managing emotions, and, finally, the new futures plan. So it’s those last four that you indicate quite clearly need to be completed to the satisfaction of, perhaps, Dr Madsen?---Yes, and just to take a very obvious module there, the new futures plan - - - Yes?--- - - - the construction of a new futures plan is very much about preparing an individual for a new future in the community. So it would seem odd to be preparing oneself for a new future in the community when one is already in the community. It would seem that the cart is coming before the horse. But I can understand if – if that would be the decision of the court, in which case there would be a lot of, in my view, pre-release work that would be – that would then have to take place post-release, and, perhaps, hoping that Mr Boulton is in the right place psychologically, emotionally and motivationally to conduct that work. The other aspect of this is that I’m quite clear that once he’s completed that work, one needs to – to look to the facilitator, which individually would be Dr Madsen, to understand if Dr Madsen feels that the work has completed successfully to his satisfaction. And, again, if Mr Boulton was released before doing the work, then there – there would not really – it wouldn’t make sense that at that point Dr Madsen was having to somehow evaluate whether the work was completed to a satisfactory level because Mr Boulton was already released into the community.”35 (d) “Well, clearly any work that Dr Madsen is doing with Mr Boulton that relates to – so just to take the start point, the first thing one needs to know is whether or not QCS HISOP believe that it is – that it is – that it is feasible for Mr Boulton to rejoin the group. If the answer is no then Dr Madsen needs to stop any work that is designed to make – to improve Mr Boulton’s opportunities of rejoining the group and he needs to focus entirely on two aspects of treatment. Number one is the broader treatment that he would seek to continue with Mr Boulton 34 T1-8 31-45. 35 T1-9.44 to T1-10.33. -- 21 of 28 -- 22 post-release and, secondly, specific work that would be covered in the HISOP. There probably needs to be, in my view, a greater emphasis on the specific work that is contained in the HISOP – the outstanding work, the modules that were read by Mr Tate, and Dr Madsen needs to formulate exactly how he would cover that material in the sessions that he does with Mr Boulton and discuss it with Mr Boulton and they just create an individual program understanding as to what material they will cover. Mr Madsen will be the judge about how engaged and successful Mr Boulton is in covering the material. And then at the end of that, Dr Madsen will have ultimately worked with Mr Boulton to complete all of those modules, including a new futures plan, which would be a document created by Mr Boulton. And Dr Madsen will write an exit report – a completion report, to mirror that that would have occurred with the HISOP. Obviously, it will need to be adapted. Obviously, it will not be a group therapy program. Obviously, it will have limitations because of it. But I believe that, practically, it’s the best one can do in the circumstances. And it’s also the fairest, I think, to Mr Boulton, so that it maximises his chances of not re- offending at the point of release and it very seamlessly mirrors the program that would have occurred in the first place with ongoing therapeutic involvement by Dr Madsen in material that is not directly related to the HISOP, which Dr Madsen is probably already engaging Mr Boulton in anyway. So that’s how I envisage it.”36 (e) “And I wouldn’t expect that that would be Dr Madsen’s approach, but I don’t know what his approach would be. But my expectation is that he would look at the overall material that is to be covered and he would then formulate a plan as to how he’s going to cover the material, which may well be at a very different pace to that that exists on the HISOP group, which has to necessarily give account or allow for multiple people to speak and listen to each other and challenge each other. This would be likely condensed by the fact that it’s just two people talking to each other about the material.”37 (f) “And so I don’t think myself that it would be too difficult or onerous for Dr Madsen to try and match his therapy against the HISOP material, produce a plan and explain it to Mr Boulton, including a rough timeline. I think that would be more challenging, because the timeline may even be adaptive during the therapy depending on the pace that therapy was progressing at.”38 [48] Dr McVie gave oral evidence including as follows: (a) “Now, Doctor, tell me if I have this wrong, but on my reading of your report, there is substantial agreement between yourself and Dr Timmins and Dr Aboud in relation to risk, in terms of manifestation of risk. You’re less certain that you can posit exactly what that is. But the real difference lies in treatment interventions and whether that should be in custody or in the community. Is that a fair summary of the differences?---Yes. I think, in general. The actuarial risk assessment is not going to change until this man gets released from prison. It will always stay high.”39 36 T1-13 8-33 37 T1-14 9-16. 38 T1-14 31-36. 39 T1-17 3-9. -- 22 of 28 -- 23 (b) “Well, my opinion on that approach is that I would expect that an experience forensic psychologist like Dr Madsen would have an understanding of the elements of the group program and would also develop an understanding of Mr Boulton. And individual therapy would focus on the elements of the group program that would be of the most benefit to Mr Boulton in progressing him into the community and in lowering his risk, rather than going through some structured ‘We have to complete A, B, C, D, E’, which is the way the group program is run in prison. I don’t think there’s any need for Dr Madsen to do an exit report from a HISOP module extension. That, to me, seems a bit of a waste of time.”40 (c) “Would you consider that that specific treatment or modules would need to be done before Mr Boulton was released to the community?---Again, I have a different view on that. I think Mr Boulton has spent a very long time in custody. He attempted the HISOP program. He didn’t do very well in the program. He has changed his way of thinking about himself and where he’s going. I think one thing that hasn’t been said this morning is that Mr Boulton told me he made a decision that he was going to comply with directions in prison. And he has, effectively, spent 12 months in prison, from the material I gave, without any breaches, any incidents. He’s still writing letters of complaint but he decided he was going to comply and he was able to do that. And I think one of the reasons he was able to do that was because he was engaged in individual therapy and he was getting some support which assisted him to change the way he thought about his situation.”41 (d) “And rather than following strictly the modules that you’ve been referred to from HISOP that Mr Boulton wasn’t taken through, you would be content with those matters being covered generally by Dr Madsen during the one on one counselling?---I would. I think there are certainly elements in those modules that he clearly needs to cover. Yes?---But I think that can be done outside of the prison environment. And those modules, of course, are the ones you were taken though of intimacy, sexuality and attachments, managing emotions and the new future plan?---Yes.” 42 (e) “So intimacy, sexuality attachments and range of emotions. I must admit, I’m a little more cynical about the new futures plan. I’ve seen multiple people present new futures plans with lists of what they’re going to do, what they’re going to – I’m not sure how realistic a lot of their new futures plans are. They seem to be something that have been produced in a group environment and they copy what other people write. Yes?---So I think an individualised plan as to how he’s going to approach living in the community that he works through with his treating psychologist is going to be much more helpful to him. 40 T1-18 4-12. 41 T1-18 19-30. 42 T1-20 5-14. -- 23 of 28 -- 24 Yes. And as you say, if he were to be released from prison on a supervision order, he would be under strict controllers - - -?---Yes.”43 [49] Ms Byrne’s evidence was that the group based HISOP was not a “viable option” for the respondent. In respect of whether consideration of a “relapse prevention plan” was appropriate prior to release, Ms Byrne’s evidence was: “I don’t know necessarily it would be harder to manage them. It would be around the individual, or Mr Boulton in this circumstance, having adequate thoughts and plans in place to manage situations that he might find either putting himself at risk or anxiety-provoking. Always better to know how to manage before the situation rather than trying to reactively manage whilst in the situation.”44 [50] Dr Madsen also gave evidence at the hearing, including that the respondent would need psychological therapy for “the foreseeable future for years”. He was not asked to and had not undertaken a risk assessment of the respondent. [51] Further, Dr Madsen gave evidence as follows: (a) “So when I see them, when I start to work with someone who has been removed from a group and they are not suitable for a group program, what I need to do is to tailor my therapeutic approach and engagement with him – it’s usually a him – in a way that is going to work to achieve the objectives of why we’re engaging him. So I want to be able to engage with someone and change the behaviours, the thoughts and the emotional reactions that are relevant for this individual that caused them problems in the group, but ultimately also are related to their offending behaviours. Like, that’s the ultimate goal, to change the things about them that make them risky of doing offending. So my approach is not to just say, ‘Okay, here you go, here’s the module that you didn’t do in the sex offender program, and now you read that and you fill it out and come back and we’ll talk about it. Because that didn’t work there, it’s probably not going to work here. A lot goes on for these individuals when you try to engage them about their life and about what’s going on for them and that becomes the obstacle for them benefiting from the treatment. So that is – you know, that’s the challenge that I have. That’s my expertise and that’s – you know, that’s why I do this. So with someone like Brandon in terms of what it looks like going forward, well, of course I would cover many of the areas that are covered within the group program because that’s all relevant and suitable and what you do anyway, but it would have to look like – it will look differently because you’ll need to take it into account how he is in our sessions, what happens in between sessions and his problematic personality traits and characteristics. So it’s – so for example, with Brandon in particular at the end of last year one of the – one of the characteristics that he’d exhibit when we would engage in therapy was he would be very detached. He would be almost sort of – you know, present himself as being cold and callous and over- controlling within our sessions. That’s a problem if we’re trying to engage and benefit and talk about his life and talk about what’s going on for him. So a number of our therapy sessions were actually around figuring out, ‘Well, 43 T1-20 21-33. 44 T1-24 15-19. -- 24 of 28 -- 25 what’s really going on for you here in this situation? Why are you doing this right now here? What – you know, this is getting in the way of you benefiting from treatment. It’s getting in the way of you being able to participate.’ So that takes a month, right, to sort of process, talk about, challenge him on, try different exercises on to be able to kind of shift that behaviour so that he then is able to engage more effectively with me. Yes?---So that’s an example, I guess, of how this kind of therapy with these kinds of individuals works. It’s messy. It’s usually not from A to B. It’s a little bit around the spot and sometimes people are so upset and angry for whatever reason that you don’t do anything at all.”45 (b) “If he were to do the equivalent of that material, or what you consider is appropriate before release, how long, how many sessions using your best endeavours, accepting that it could be difficult to be 100 per cent accurate?---Look, I would – I would recommend sessions twice a week for a period of six months and then review by, you know, obviously independent folks to see how Brandon might have gone. … Now, just lastly, and fairness to Mr Boulton, that therapy could be delivered whilst he’s in custody or whilst he’s in the community under a supervision order?---Of course.”46 (c) “Whereas what you’re doing is tailoring a program to assist Mr Boulton to move forward with his life and touching upon all aspects of his life, including the reoffending?---Absolutely. So you would attach upon matters such as intimacy and managing his emotions as part of a more general approach to his behaviours with you and with others?---Correct.”47 (d) “And as you say, obviously more contact would be better?---Absolutely. We know that with folks that there’s a loose algorithm in terms of individuals such as Brandon Boulton, that the higher the risk and the more psychopathic a person is the greater the level of intense intervention is required. So for someone like him he would require sort of, yeah, a reasonable degree of intervention ongoing weekly.”48 (e) “All right. The treatment that you’re considering for Mr Boulton – because obviously you have a plan for Mr Boulton in the long term I take it; is that right?---That’s correct, yeah. Well, I should clarify that. That up until – you know, my engagement with him was very much I was trying to engage him to return to the – to the group program and to see how things went. So if there was a change in my – in my engagement in terms of, you know, this would be the treatment going forward, then – then yes, our – our sessions would – would be very similar but they would take on a slightly different focus as well.”49 45 T1-32.33 to T1-33.22. 46 T1-33 28-39. 47 T1-34 19-25. 48 T1-34 31-35.. 49 T1-35 24-31. -- 25 of 28 -- 26 (f) “And of course, throughout the treatment, the aim would be to deal not only with his specific characteristics but also with the risk of reoffending?---Absolutely. And in doing that, you would cover a whole range of ground. And I assume much of the material that’s already covered by HISOP?---Absolutely. But specifically for him?---It would be tailored and nuanced to – to be relevant to his particular circumstances.”50 Consideration [52] The respondent is currently undertaking individual psychological therapy with Dr Madsen. It is agreed that the treatment is to be ongoing for the foreseeable future. [53] The relevant issue is whether the respondent should complete focused treatment prior to release which prepares him for release into the community on a supervision order. This may be an adaptation of or informed by the three modules of the HISOP which the respondent has not completed. [54] Dr Madsen has estimated that this treatment may be completed within approximately six months, depending on the respondent’s progress. Counsel for the applicant indicated that should the respondent continue to be subject to a continuing detention order, it may be appropriate to obtain further reports from the treating psychiatrists at the completion of those sessions and an application made to the Court rather than waiting for the next annual review. Further, the applicant indicated if this was the case, no specific directions were required and appropriate steps would be taken at that time. [55] It is, however, necessary to consider and determine the application currently before the Court on the currently available evidence. Whether the respondent is a serious danger to the community in the absence of a Division 3 Order? [56] This is not contentious between the parties or between the psychiatrists. Based on the evidence of Dr Aboud and Dr McVie, and the evidence they gave orally at the hearing together with the other affidavit and longitudinal evidence in respect of the respondent, I am satisfied that there is acceptable, cogent evidence, which satisfies me to the high degree of probability required pursuant to s 30(2) of the DPSO Act that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the DPSO Act. [57] The psychiatric evidence identifies the respondent’s risks of sexual reoffending is high and he has outstanding treatment needs, with a diagnosis of sexual deviance and psychopathy. [58] In the circumstances, I am satisfied that the respondent presents a serious danger to the community in the absence of a Division 3 order under the DPSO Act and that the decision made by Lyons SJA on 8 March 2018 and affirmed by Bowskill J on 17 February 2020 be affirmed. 50 T1-35 39-46. -- 26 of 28 -- 27 Whether adequate protection of the community can be ensured by the respondent’s release on a supervision order? [59] While a supervision order at this stage, coupled with ongoing psychological treatment by Dr Madsen in the community, may reduce the risk to some extent, I am not satisfied it would provide for the adequate protection of the community. [60] Given the respondent’s assessed risks, his outstanding treatment needs and the nature of his sexual deviance and psychopathy, there is a real risk of reoffending if the respondent does not complete relevant treatment in custody to reduce the risk to an acceptable level on release to the community. [61] Further, the completion of a treatment plan to promote the respondent’s rehabilitation should include aspects such as a relapse prevention plan and risk management strategies. It is preferrable that these matters are the subject of the individual treatment with Dr Madsen prior to release into the community. [62] This treatment whilst in custody will also enable consideration to be given to what conditions may be suitable in any supervision order to address the respondent’s particular circumstances. This would enable a supervision order to be prepared to ameliorate risks specifically identified in this process. Dr Aboud described this as an “Exit Report”, but whatever form it takes it is likely to assist in the adequate protection of the community being “reasonably and practicably” managed by a supervision order. [63] Without this further treatment in custody, the respondent remains a high risk partially treated sex offender, with a diagnosis of sexual deviance and psychopathy. [64] The paramount consideration under s 30(4)(a) of the DPSO Act is the adequate protection of the community. [65] While there are differing views, on all the evidence, I cannot be satisfied that the adequate protection of the community could be reasonably and practicably ensured by a supervision order. Release on a supervision order or the continuing detention order to be maintained [66] In these circumstances, I am satisfied that an order pursuant to s 30(3)(a) of the DPSO Act ought to be made that the respondent continue to be subject to the continuing detention order made on 8 March 2018 and affirmed on 17 February 2020. Orders [67] Accordingly, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act), I order that: 1. Pursuant to s 30(1) of the DPSO Act the decision made by A Lyons J on 8 March 2018 and affirmed by Bowskill J on 17 February 2020, that the respondent, Brandon James Boulton, is a serious danger to the community in the absence of an order pursuant to Division 3 of the DPSO Act, be affirmed. -- 27 of 28 -- 28 2. Pursuant to s 30(3)(a) of the DPSO Act, it is ordered that the respondent, Brandon James Boulton, continue to be subject to the continuing detention order made by A Lyons J on 8 March 2018 and affirmed by Bowskill J on 17 February 2020. -- 28 of 28 --