Attorney-General for the State of Queensland v SBV [2021] QSC 53

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v SBV [2021] QSC 53 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v SBV (respondent) FILE NO/S: BS No 8432 of 2015 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 19 March 2021 DELIVERED AT: Brisbane HEARING DATE: 8 March 2021 JUDGE: Williams J ORDER: THE COURT, being satisfied there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order made under Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) ORDERS THAT: 1. The application for a Division 4A Order be set for final hearing on 7 June 2021. 2. Pursuant to s 19D(1) and s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists named by this Honourable Court, being Dr Beech and Dr Brown, who are to prepare independent reports, which are to be prepared in accordance with s 19D(1)(f) and s 11 of the Act. 3. Pursuant to s 39PB(3) of the Evidence Act 1977, Dr S Harden, Dr Beech and Dr Brown give oral evidence to the court other than by audio visual link or audio link. 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 supervision order since February 2016 – where this is a preliminary hearing in relation to the application -- 1 of 19 -- 2 for a further supervision order pursuant to Division 4 of the DPSO Act – where the applicant seeks an order pursuant to s 19D and s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and together with an order that the respondent be assessed by two psychiatrists in advance of a further application by the applicant for an order that the respondent be subject to a further supervision order – whether the Court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5, s 7A, s 38A Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 8, s 13, s 19B, s 19C, s 19D, s 19E, s 19F Evidence Act 1977 (Qld), s 39PB Attorney-General (Qld) v Fardon [2018] QCA 251, cited Attorney-General for the State of Queensland v Kynuna [2020] QSC 68, cited COUNSEL: J B Rolls for the applicant C R Smith for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The respondent is currently the subject of a supervision order made on 1 February 2016 under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act). [2] The supervision order is due to expire on 11 June 2021. [3] The applicant seeks an order pursuant to s 19D and s 8 of the DPSO Act and, together with an order that the respondent be assessed by two psychiatrists, in advance of a further application by the applicant for an order that the respondent be subject to a further supervision order under the DPSO Act. [4] This is a preliminary hearing in relation to the application for a further supervision order pursuant to Division 4A of the DPSO Act. Background [5] The applicant is currently 50 years of age. [6] The index offences are that on 16 November 2014 the respondent was sentenced to seven years imprisonment for 26 offences of a sexual nature committed against three young boys. On 10 April 2015, the Court of Appeal allowed the respondent’s appeal and reduced the sentence effectively to four years. -- 2 of 19 -- 3 [7] The offending occurred over a period from October 1997 to March 2001. Whilst on bail in respect of charges for this offending, the respondent was released on bail and fled Australia on 25 April 2002. A bench warrant was issued on 6 June 2002. [8] On 6 November 2003, the respondent was charged in Mexico for crimes comparable to rape, corruption of minors, and child prostitution. The offending involved three male children all under the age of 12. [9] On 29 January 2008 the respondent was sentenced to 10 years imprisonment in Mexico. [10] On 13 December 2011, he was granted early release and was held in custody pending extradition to Australia on 2 February 2012. [11] Upon his return to Australia the respondent was sentenced before the District Court at Ipswich in relation to the index offences. [12] On 11 June 2014 the respondent pleaded guilty to two counts of attempted sodomy, one count of sodomy, one count of indecent treatment of a child under the age of 12, 19 counts of indecent treatment of a child under the age of 16,1 two counts of expose a child under the age of 12 to an indecent object and one count of possession of a child abuse computer game. [13] The sentencing judge imposed a term of imprisonment on the respondent of seven years imprisonment for sodomy and terms of imprisonment between three to six years for the indecent treatment offences, and 12 months imprisonment for the computer game offence. All terms were to be served concurrently. [14] On 10 April 2015 the Court of Appeal allowed the appeal and substituted sentences of four and three years imprisonment in respect of the six and seven year terms of imprisonment previously imposed with the terms of imprisonment to be served concurrently. [15] The respondent was due for release on 3 February 2016. [16] On 1 February 2016 Mullins J made an order releasing the respondent subject to a supervision order pursuant to s 13(5)(b) of the DPSO Act. The supervision order was for a period of five years, expiring on 3 February 2021. [17] On 31 July 2017 the respondent was found to have contravened the supervision order in a number of respects including not complying with a reasonable direction of Corrective Services officers, by establishing contact with a male person under 16 without prior approval, failing to advise of any repeated contact with a male person under 16 and retaining and collecting images of children. The Chief Justice ordered that the respondent be released from custody subject to the supervision order made in 2016 with amendments. [18] On 22 January 2021, Davis J declared that pursuant to s 24(2), the respondent’s supervision order now expired on 11 June 2021. 1 Including three counts of indecent film, four counts of procure to commit and two counts of expose. -- 3 of 19 -- 4 [19] In addition to the criminal history in respect of the index offences, the respondent also has a criminal history in Queensland as follows: (a) On 13 July 2017 the respondent was convicted of two counts of breaching s 43AA of the DPSO Act. He received a sentence of two months imprisonment to be suspended for a period of 12 months. These offences were the subject of a contravention proceeding. (b) On 16 April 2018 the respondent was dealt with by the Brisbane District Court in relation to an offence which occurred on 24 April 2002, being one count of indecent treatment of a child under the age of 16, which involved taking a photograph of a child under 12 years of age. The respondent was sentenced to a period of 12 months imprisonment suspended for a period of two years. Psychiatric evidence [20] Dr Scott Harden interviewed the respondent on 21 August 2020 and prepared a further report dated 16 November 2020. Dr Harden previously provided a report in July 2017. [21] As part of preparing the updated report, Dr Harden undertook updated assessments of the respondent. At page 25 of his report, Dr Harden summarised these results as follows: “On the STATIC 99R [the respondent] scored 6 on this risk assessment instrument. This initially placed [the respondent] in the Well above Average risk category relative to other adult male sex offenders. However given that he had over four years in the community on a supervision order without reoffending some substantial reduction in risk is required resulting in him probably falling to the Average Risk category. The Authors state in the 2016 coding revision that ‘Our research has found that, in general, for every five years the offender is in the community without a new sex offence, their risk for recidivism roughly halves (Hanson, Harris, Helmus, & Thornton, 2014)’. On scoring the Stable 2007 in 2015 he had a score of 11 out of a possible score of 26 which placed him in the Moderate needs group in terms of sexual offender’s dynamic risk. On rescoring this in 2020 he scored 6, a significant reduction but still placing him in what is described as the Moderate range. On the Hare Psychopathy Checklist in 2015 I have given [the respondent] an overall score of 9. I rescored this in 2020 giving him a score of 5. This score is not elevated. On the SVR-20 I assessed [the respondent] in 2015 as being positive for 5 items out of 20 and possibly positive for 2 items. In my opinion this placed him generally in a Moderate risk category on this measure of Sexual Violence Risk. In 2020 I scored him as having 4 positive items and no possibly positive items. In my opinion this placed him in the Low – Moderate range on this measure of Sexual Violence Risk.” -- 4 of 19 -- 5 [22] Further, at pages 26 and 27 of his report, Dr Harden states the following opinion in relation to the diagnosis of the respondent, the evaluation of risk and recommendations: “In my view he would not meet diagnostic criteria for Paedophilia (deviant sexual attraction to prepubertal children) as his attraction is clearly to boys in the immediate postpubertal period. He would meet criteria in my opinion for Other Specified Paraphilia Disorder (Hebephilia). It is largely accepted this this is attraction to young people in the period immediately after the onset of puberty and approximately between 11 and 14 years of age. This is sexually attracted to males and is non-exclusive and he has sexual attraction to adult females as well. It is still my opinion that he does not have a personality disorder. His personality features appear to be more obsessional in nature if anything. It seems to me that his predominant dysfunctional personality features are in fact obsessive-compulsive personality traits. It would not be unreasonable to argue that he has some avoidant and narcissistic personality traits as well. I take the point that it could be argued that he reaches the level of personality disorder because of his dysfunction in a number of settings. Risk His ongoing unmodified risk of sexual re-offence in the community is in my opinion in the Moderate (Average) range. His greatest risk factors are in my opinion, his deviant sexual attraction and emotional identification with male adolescents as well as his previous problems with cooperation with supervision. If he were to reoffend it would be against boys in the immediate post pubertal period. He would require victim access over a substantial period of time to emotionally groom them. He is unlikely to impulsively or suddenly offend against young people who are not known to him. The offences are unlikely to pose physical risk to the victims. On a supervision order in the community in my opinion the risk of sexual recidivism is low. Recommendations He should have ongoing psychological therapy and support with an appropriately skilled practitioner. He should not have recurrent unsupervised contact with boys under 16 years of age and he is aware of this. It continues to be my view that it is unlikely that transient contact with young people poses a significant risk so restrictions on him accessing areas where young people may be are not necessary. -- 5 of 19 -- 6 There is no evidence to suggest that intoxicants have played a significant role in his offending so no restrictions with regard to use of alcohol are indicated. He is likely to make a good adjustment to the community if the conditions of any order are not so restrictive as to unduly interfere with his employment, accommodation or association with other adults. I would also encourage supervising staff to help him expedite obtaining employment.” Statutory scheme [23] The objects of the DPSO Act are stated in s 3 which provides as follows: “3 Objects of this Act The objects of this Act are— (a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.” [24] Section 5 of the DPSO Act authorises the applicant to make certain applications for orders and that any such application be listed for a “preliminary hearing” to decide “whether the court is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order”.2 [25] As a matter of general practice, the application is usually supported by a risk assessment report prepared by a psychiatrist. [26] Section 8 deals with the preliminary hearing and states as follows: “8 Preliminary hearing (1) If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order. (2) If the court is satisfied as required under subsection (1), it may make— (a) an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports; and (b) if the court is satisfied the application may not be finally decided until after the prisoner’s release day— 2 Section 5(3). -- 6 of 19 -- 7 (i) an order that the prisoner’s release from custody be supervised; or (ii) an order that the prisoner be detained in custody for the period stated in the order. Note— If the court makes an order under subsection (2)(b)(i), the order must contain the requirements for the prisoner stated in section 16(1).” [27] Section 8(1) governs what is the relevant issue at the preliminary hearing: namely, whether the Court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order. [28] In order to consider this issue, it is necessary to have regard to s 13 which governs Division 3 orders. Section 13 is of significance as it refers to “serious danger to the community” and identifies what is a serious danger to the community for the purposes of the legislative scheme. [29] Section 13 states as follows: “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (aa) any report produced under section 8A; -- 7 of 19 -- 8 (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— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and -- 8 of 19 -- 9 (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).” [30] Section 13 also introduces the concept of “serious sexual offence”. A serious sexual offence is defined in the Schedule 1 Dictionary to mean as follows: “serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland— (a) involving violence; or (b) against a child; or (c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.” [31] Division 4A deals with an application to extend supervised release. In particular, s 19B states as follows: “19B Attorney-General may apply for further supervision order (1) This section applies to a released prisoner subject to a supervision order (the current order). (2) The Attorney-General may apply for a further supervision order for the released prisoner. (3) The application may be made only within the last 6 months of effect of the current order. (4) Despite subsection (2), the Attorney-General can not make the application if a further supervision order has been made for the released prisoner. (5) However, subsection (4) does not prevent the making of the application if— (a) under section 13(5)(b) or 30(3)(b), a new supervision order is made for the released prisoner; and (b) no further supervision order has already been made for the new supervision order.” [32] Sections 19C to 19F are also relevant and state as follows: “19C Requirements for application The application must— (a) state the period of supervised release sought; and -- 9 of 19 -- 10 (b) be accompanied by any affidavits to be relied on in support of the application. 19D Application of provisions for division 3 orders (1) Division 1 (other than section 5(1) and (2)), division 2, section 13, section 15 and divisions 3B and 3C apply for the application and the operation of any further supervision order for the released prisoner— (a) as if a reference in the provisions to a division 3 order were a reference to a further supervision order; and (b) as if a reference in the provisions to an application for a division 3 order were a reference to an application under this division; and (c) as if a reference in the provisions to the prisoner were a reference to the released prisoner; and (d) as if a reference in the provisions to a prisoner’s release day were a reference to the day that the current order expires; and (e) as if the reference in section 5(5) to 2 business days were a reference to 7 business days; and (f) as if the psychiatrist’s assessment under section 11(2)(a) were an assessment of the level of risk that the released prisoner will, after the expiry of the current order, commit another serious sexual offence if a further supervision order is not made; and (g) as if the references in section 13(5) to the making of an order were only a reference to the making of a further supervision order for the released prisoner; and (h) as if the reference in section 16 to the ordering of release from custody were a reference to the making of a further supervision order; and (i) with other necessary changes. (2) If the court is satisfied the application may not be finally decided until after the current order expires, it may make an interim supervision order for the released prisoner. (3) The power under subsection (2) applies for the application instead of the power to make the orders mentioned in section 8(2)(b) or 9A(2) as applied under subsection (1). -- 10 of 19 -- 11 19E Fixing of period of further supervision order If the court makes a further supervision order, the order must state the period for which it is to have effect. 19F Effect of further supervision order If a further supervision order is made for the released prisoner, it has effect in accordance with its terms for the period stated in the order.” [33] As a result of the statutory scheme, the procedure for making an application to extend a supervision order in effect is an “adoption and an adaption of the procedure for the making of a Division 3 order”.3 [34] A preliminary hearing is required where the Court must determine whether there are “reasonable grounds for believing the prisoner is a serious danger to the community in the absence of [an extension of the supervision order]”. If the answer to this question is yes, then the usual practice is for orders to be made appointing two psychiatrists to prepare assessment reports and for the application for a final hearing to be set down. [35] In contrast, the required level of satisfaction at the final hearing is the higher standard identified in s 13(3) of the DPSO Act and requires the Court to be satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision that the prisoner is a serious danger to the community in the absence of a Division 3 order. Position of the parties [36] The applicant contends that there are reasonable grounds for believing that there exists an unacceptable risk that the respondent will commit a serious sexual offence if no further supervision order is made. It is submitted that such an offence would be the sexual assault of a post-pubertal male child. [37] The applicant refers to the report of Dr Harden and in particular, his conclusion that in the absence of a supervision order, the respondent still presents a moderate risk of sexual offending. Further, this risk would be reduced to low with a further supervision order. [38] The applicant relies on the following matters in support of this submission: (a) The respondent has offended against multiple child victims in Australia and in Mexico. (b) The respondent has been diagnosed with sexual paraphilia of another specified paraphilic disorder (hebephilia). (c) The respondent has a longstanding history of sexual offending against young boys, stretching back to 1997. (d) The respondent has had multiple contraventions of his supervision order which were dealt with at one hearing. 3 Attorney-General for the State of Queensland v Kynuna [2020] QSC 68 at 12 [28] per Davis J. -- 11 of 19 -- 12 (e) The respondent has attended psychological counselling with Mr Smith and requires ongoing counselling in accordance with the view expressed by Dr Harden. (f) The respondent also is required to be prohibited from having unsupervised contact with boys under the age of 16. [39] The respondent opposes the orders sought and submits that the application should be dismissed. The respondent contends that the Court should not be satisfied that there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of an order pursuant to s 19D and s 8 of the DPSO Act on the material relied upon by the applicant. [40] At the commencement of the preliminary hearing the respondent sought to cross- examine Dr Harden as to his opinion that the respondent’s unmodified risk of sexual reoffence in the community is moderate, particularly given the further circumstances identified below. [41] The respondent sought to rely on the rehabilitation steps undertaken by the respondent which evidenced a reduction in the risk. [42] Further, the respondent sought to rely upon the amendments to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (CPOR Act) which amended the definition of “reportable offender”. The following provisions are relevant to the current considerations: “5 Reportable offender defined (1) A reportable offender is a person who is— (a) sentenced for a reportable offence after the commencement of this section; or (aa) sentenced for an offence for which a court has made a declaration under subsection (5A); or (b) an existing reportable offender; or (c) a corresponding reportable offender; or (d) subject to an offender reporting order; or (e) subject to an offender prohibition order; or (f) a post-DPSOA reportable offender. (2) However, a person mentioned in subsection (1)(a) is not a reportable offender only because— (a) the person was convicted of a prescribed offence, if the conviction was not recorded under the Penalties and Sentences Act 1992, section 12 or the Youth Justice Act 1992, section 183, (or an equivalent order under the laws of a foreign jurisdiction); or (b) the person was sentenced for a single prescribed offence, if the sentence did not include— -- 12 of 19 -- 13 (i) a term of imprisonment; or (ii) a requirement that the person be under the supervision of a supervising authority or another person or body; or (c) the person, as a child, committed— (i) a single offence against the Classification of Computer Games and Images Act 1995, section 26(3), the Classification of Films Act 1991, section 41 or 42 or the Classification of Publications Act 1991, section 13, 14, 15 or 16; or (ii) a single offence of possessing or publishing child pornography (in whatever terms expressed) under the laws of Queensland; or (iii) a single offence of possessing or publishing child pornography (in whatever terms expressed) under the laws of a foreign jurisdiction; or (iv) a single offence (including an offence under the law of a foreign jurisdiction) that falls within a class of offence that the regulations state is an offence for the purposes of this subparagraph. (3) Also, a person is not a reportable offender if the person— (a) is receiving protection under a foreign witness protection law specified under a regulation for the purposes of this subsection; or (b) has the same status as a person mentioned in paragraph (a) under an order made under a corresponding Act specified under a regulation for the purposes of this subsection. (4) For this section, it is irrelevant whether or not a person may lodge, or has lodged, an appeal in relation to a finding of guilt, sentence or offender reporting order. (5) For subsection (1)(a), a person is a reportable offender even if the reportable offence was committed before the commencement of this section. (5A) For subsection (1)(aa), if a court finds a person guilty of an offence other than a reportable offence, it may also declare it is satisfied the facts and circumstances surrounding the offence constitute elements of a reportable offence. -- 13 of 19 -- 14 (6) For subsection (1)(b) to (d), a person is a reportable offender even if the person was sentenced for the reportable offence before the commencement of this section. (7) A reference to a single offence in subsection (2)(b) and (c) includes a reference to more than 1 offence arising from the same incident. Note— For when offences arise from the same incident, see section 11. (8) In subsection (2)(b)(ii)— supervision of a supervising authority does not include supervision under a fine option order. … 7A Post-DPSOA reportable offender defined (1) A post-DPSOA reportable offender is a person who— (a) was sentenced for a reportable offence, whether before or after the commencement date; and (b) was, but is no longer, subject to a division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003; and (c) at the time the person stopped being subject to the division 3 order mentioned in paragraph (b), was not subject to reporting obligations as a reportable offender under section 5(1)(a), (aa) or (b). (2) A person becomes a post-DPSOA reportable offender when the person stops being subject to the division 3 order mentioned in subsection (1)(b).” [43] Pursuant to s 38A of the CPOR Act, a reportable offender who has ever been subject to a Division 3 Order under the DPSO Act will “continue to comply with the reporting obligations imposed by the part for the remainder of the offender’s life”. [44] Schedule 2 of the CPOR Act sets out the obligations imposed in respect of a lifetime reportable offender under the CPOR Act. [45] The respondent sought to cross-examine Dr Harden in relation to whether the requirements in Schedule 2 of the CPOR Act in effect addressed any risk identified in respect of the respondent. [46] This evidence was objected to by the applicant. However, a way forward was agreed at the hearing, namely that the objection be noted and that the evidence be allowed from Dr Harden and both parties to make submissions on its relevance following receipt of the evidence. Dr Harden gave oral evidence at the hearing on this basis. -- 14 of 19 -- 15 [47] Dr Harden’s oral evidence at the preliminary hearing is set out below. [48] It was common ground between the parties that the relevant test at a preliminary hearing is that the Court must be satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of orders made under the Act for the prisoner’s ongoing supervision. It was not contended that the provisions of the CPOR Act modified that test. Rather, the evaluation of the risk was to take into account the reporting obligations that would arise on release. Oral evidence of Dr Harden [49] Dr Harden was cross-examined by the respondent and relevantly gave evidence as follows: “Dr Harden, you have seen those provisions within CPOR. In your view, is that a supervisory regime that would deal with the risk that you’ve talked about in your report or not?---I will try and answer the question, but it isn’t very easy. I think the question you’re asking is what is the risk reduction of this regime, and the answer is I don’t know, because this is a list of things that these people – that a person must inform the police of. But this is not the operational manual, this is not the operational process on the ground, and risk reduction is about what actually happens or actually doesn’t happen. So for some – and then – so I think if you were to from for myself or other psychiatrists the question more appropriately, it would actually have to include how does this actually work, what will happen, because then we can try and answer the question, all right. It needs reporting frequency, who is monitoring things, and how do they monitor it. In the short answer is, at this stands, it doesn’t offer much in the way of risk reduction, because it’s just an obligation to inform. I think, Dr Harden, the only way in which I might be able to advance upon that for today’s purposes would be to take you to the fact that there are criminal penalties that apply in the event that the respondent were not to comply with the conditions of the order?---Yes, so that’s something, but criminal penalties may or may not act as a sufficient motivating factor, and it would – depends also on how frequently there is contact and monitoring, and similar things like that. So it doesn’t – at the moment, as that stands, it doesn’t necessarily act to significantly reduce risk in and of itself. And the only other way in which I might be able to address the unknowns posed by you there, Dr Harden, is to say that the reporting frequency is quarterly, but that it can be increased. So he is required to make quarterly reports to the police?---Yes, quarterly reports are pointless, to be frank.” [50] In re-examination, Dr Harden gave evidence as follows: “MR ROLLS: Doctor, as a result of anything that has been put to you by my learned friend in her cross-examination of you, has that caused you to alter the contents of your report in any way?---No.” -- 15 of 19 -- 16 Relevant authorities [51] The Court of Appeal decision of Attorney-General (Qld) v Fardon4 is relevant to the current application. [52] In relation to the statutory scheme created by Division 4A of the DPSO Act, the Court of Appeal5 stated as follows: “[11] The practical effect of s 8 is to provide a threshold to be met by applicants for Division 3 orders, as a pre-requisite for being able to seek those orders at a final hearing. If the threshold is passed, it allows the application to proceed to a final hearing and, in the meantime, s 8 allows the Court to make orders, including that the prisoner undergo a psychiatric examination. It can be seen that there is limited occasion for any exercise of discretion under s 8. If the court is satisfied that reasonable grounds for the prescribed belief are shown, a hearing date must be set; the discretion is confined to deciding whether orders for psychiatric examination and further supervision or custody pending the final hearing should be made. In contrast, s 13 confers a complete discretion as to whether and which orders are made once the requisite satisfaction for the purposes of that provision is reached. [12] Another relevant aspect of the Act is that the periods of Division 3 orders are finite.6 In order to perpetuate further detention or supervision beyond the period of an existing order, the Attorney-General must apply afresh, via the preliminary and final hearing process, for a further detention or supervision order. Section 19B of the Act entitles the Attorney-General to apply for a further supervision order in respect of a released prisoner already subject to a supervision order, as the respondent is. Section 19D(1) imports the application of provisions applicable to applications for Division 3 orders to applications for further supervision orders with necessary changes. The references in ss 8 and 13 to ‘a Division 3 order’ therefore include reference to ‘a further Division 3 order’. [13] The significance of this is that the Act does not impose a default position by which past satisfaction of the requirement in s 8(1) carries over, so that future applications can avoid the threshold of a preliminary hearing. The starting point imposed by the legislature is that any application for a Division 3 order or a further Division 3 order must satisfy the threshold test of a preliminary hearing. If it cannot satisfy that test the application must fail.” [53] The Court of Appeal, having found error, went on to determine the application. The Court’s comments in relation to the undertaking of that exercise are of assistance: 4 [2018] QCA 251. 5 Constituted by Holmes CJ, Gotterson JA and Henry J. 6 Section 13A. -- 16 of 19 -- 17 “[46] The fact of the Court’s findings of dangerousness and the number of expert conclusions that the respondent posed a moderate to high level of risk over such a prolonged period, combined with the respondent’s past offending, provide reasonable grounds for believing that the respondent is still a serious danger to the community in the absence of a further supervision order. To draw upon the above quote from Prior v Mole, they are facts and circumstances sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance that the respondent is a serious danger to the community in the absence of a further supervision order. [47] The positive indicators of the past five years are obviously capable of grounding a contrary belief about the respondent’s present dangerousness. However, the existence of countervailing evidence supporting a countervailing belief does not per se mean the grounds supporting the belief contended for by the Attorney-General are not reasonable. There may potentially exist reasonable grounds for rival beliefs. [48] It must be remembered we are not here concerned with whether we are satisfied the respondent is in fact a serious danger to the community in the absence of a further supervision order. We are only concerned at this point with whether we are satisfied there are reasonable grounds for believing he is such a danger. It is not to the point that the positive indicators of the last five years might provide reasonable grounds for a rival belief. The nub of the matter is whether the force of those recent indicators so detracts from the force of the historically sourced grounds relied upon by the appellant that those grounds are not presently reasonable grounds. The fact that without more evidentiary material the application would be unlikely to meet the s 13 test or that, as counsel for the appellant acknowledged, the respondent’s satisfactory conduct of recent years and the current favourable psychiatric opinion might well prove decisive against any further finding of dangerousness on a final hearing are not to the point for the purposes of this application. [49] It would be fallacious to reason that the respondent’s past offending and prolonged period of past dangerousness should forever be regarded as reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order. However, they are powerful considerations. Although their force has been diminished by the passage of five years of compliant conduct under supervision and the recent assessment of low risk, they remain reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order. [50] That conclusion of satisfaction of the preliminary hearing test is to say nothing of what conclusion may be reached at a final hearing …” -- 17 of 19 -- 18 [54] The Court of Appeal in Fardon did consider the CPOR Act, but in another context. In that case, the Court considered the possibility of an application being made by the Police Commissioner for a prohibition order. [55] The submission was made that the existence of those provisions informed the assessment of risk. The Court of Appeal concluded at [30] that: “However, there are so many variables influencing whether such an application might be made, let alone granted, that the existence of those provisions must inevitably be an irrelevant consideration in the present hearing.” [56] This is different to the submission made in the current application which is seeking to rely on another provision of the CPOR Act which now places on the respondent automatic reporting restrictions for the rest of his life. The respondent submits that the comments of the Court of Appeal in relation to the prohibition orders were “prospective in nature”. This is to be contrasted with the automatic restrictions in this case and it is submitted that “[n]o speculation is necessary”. [57] The issue for determination on the current application is whether the level of satisfaction has been met in accordance with the test for a preliminary hearing. The applicant contends that matters such as the CPOR Act supervision regime would more appropriately be addressed at any hearing seeking a final order and that this is not an appropriate forum for such an issue to be determined consistent with the comments of the Court of Appeal in Fardon. Consideration [58] Given the oral evidence given by Dr Harden that consideration of Schedule 2 of the CPOR Act did not change his view as set out in his written report, it is not necessary to conclusively determine whether the operation of the CPOR Act Schedule 2 automatic restrictions may operate in respect of an individual such that the preliminary hearing test is not made out. In this case, even taking into account the relevant provisions of the CPOR Act and Dr Harden’s view in respect of its operation, there are reasonable grounds for believing that the respondent is a serious danger to the community in the absence of an extension of the supervision order. [59] The opinion of Dr Harden that the respondent presents a moderate risk, including his view that the greatest risk factors are the respondent’s deviant sexual attraction and emotional identification with male adolescents, as well as his previous problems with cooperation and supervision, the respondent’s age and longstanding history of sexual offending, the respondent’s need for ongoing psychological therapy and support are all facts and circumstances sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance that the respondent is a serious danger to the community in the absence of a further supervision order. [60] There are, based on the material before the Court, reasonable grounds for believing that there exists an unacceptable risk that the respondent will commit a serious sexual offence if no further supervision order is made. Such an offence would be a sexual assault of a post-pubertal male child. -- 18 of 19 -- 19 [61] In reaching this conclusion, I have expressly kept in mind that a preliminary hearing is not the occasion to determine whether the respondent is a serious danger to the community in the absence of an extension of the supervision order. The only inquiry is whether there are “reasonable grounds for believing the prisoner is a serious danger to the community in the absence of [an extension of the supervision order]”. [62] Whilst there are indicators referred to by the respondent which might provide reasonable grounds for a “rival belief” as identified by the Court of Appeal, I do not consider that the overall indicators, based on the matters set out above, nullify what would otherwise constitute reasonable grounds. They are factors to be fully considered and explored at the final hearing. [63] In the circumstances, I am satisfied that there are reasonable grounds for believing that the respondent is a serious danger to the community past 11 June 2021 when the current supervision order expires in the absence of an extension of the supervision order. [64] I have been provided with draft orders proposing the respondent undergo examinations by Dr Beech and Dr Brown to prepare independent reports in accordance with s 19D(1)(f) and s 11 of the DPSO Act. [65] Further, an order is sought pursuant to s 39PB(3) of the Evidence Act 1977 (Qld) that Dr Harden, Dr Beech and Dr Brown give oral evidence to the Court other than by audio visual link or audio link. It is likely that the medical evidence will be significant and possibly contentious between the parties, with the doctors likely to be subject to cross-examination. In these circumstances, it is appropriate to make the orders sought. Orders [66] Accordingly, I make the following orders: THE COURT, being satisfied there are reasonable grounds for believing the respondent is a serious danger to the community in the absence of a further supervision order made under Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) ORDERS THAT: 1. The application for a Division 4A Order be set for final hearing on 7 June 2021. 2. Pursuant to s 19D(1) and s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists named by this Honourable Court, being Dr Beech and Dr Brown, who are to prepare independent reports, which are to be prepared in accordance with s 19D(1)(f) and s 11 of the Act. 3. Pursuant to s 39PB(3) of the Evidence Act 1977, Dr S Harden, Dr Beech and Dr Brown give oral evidence to the court other than by audio visual link or audio link. -- 19 of 19 --