Attorney-General for the State of Queensland v OCA [2020] QSC 384 [2021] 2 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v OCA [2020] QSC 384 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v OCA (respondent) FILE NO/S: BS No 8781 of 2020 DIVISION: Trial Division PROCEEDING: Originating application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 18 December 2020 DELIVERED AT: Brisbane HEARING DATE: 14 December 2020 JUDGE: Williams J ORDER: The respondent be released from custody subject to a supervision order containing the conditions appearing in Appendix 1 to these reasons. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was subject to examination by psychiatrists for the purposes of the application – where the applicant sought orders that the respondent be detained in custody for an indefinite term for care, control or treatment – where the applicant sought, in the alternative, that the respondent be released from custody subject to such a supervision order – where the applicant conceded that it was open on the evidence that adequate protection of the community could be ensured by a supervision order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) – where the respondent conceded the need for a supervision order under Division 3 of Part 2 of the DPSO Act – whether the applicant presents a serious danger to the community in the absence of a supervision order under Division 3 of Part 2 of the DPSO Act – whether such an order should be made -- 1 of 46 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 11, s 13, s 16 Attorney-General for the State of Queensland v Beattie [2007] QCA 96, cited Attorney-General for the State of Queensland v Fardon [2011] QCA 111, cited Attorney-General for the State of Queensland v Fardon [2011] QCA 155, cited Attorney-General for the State of Queensland v FJA [2020] QSC 359, cited Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329; [2019] QSC 36, cited Attorney-General for the State of Queensland v S [2015] QSC 157, cited Attorney-General for the State of Queensland v Sambo [2008] QSC 262, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited Turnbull v Attorney-General for the State of Queensland [2015] QCA 54, cited COUNSEL: J Rolls for the applicant T Ryan for the respondent SOLICITORS: Crown Law for the applicant Cridland Hua Law for the respondent [1] This is an application by the Attorney-General for the State of Queensland for orders in respect of OCA (the respondent) pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act). [2] The originating application filed 12 August 2020 seeks orders that: (a) pursuant to s 13(5)(a) of the DPSO Act, the respondent be detained in custody for an indefinite term for care, control or treatment; (b) in the alternative, pursuant to s 13(5)(b) of the DPSO Act, the respondent be released from custody subject to such requirements that this court considers appropriate. [3] A draft form of supervision order was handed up at the hearing on 14 December 2020 and was marked MFI A for identification (Draft Supervision Order). This is reproduced as Appendix 1 to these reasons.1 1 As discussed further in the conclusion of these reasons, the Draft Supervision Order has been revised to include a 10 year term including the calculated end date. -- 2 of 46 -- 3 Issues [4] The issues for determination in respect of the application are as follows: (a) Whether the court is satisfied the respondent is a serious danger to the community in the absence of a Division 3 order; and (b) If the court is satisfied in respect of (a), taking into account the matters set out in s 13(6) of the DPSO Act, whether it is appropriate to order that: (i) the respondent be detained in custody for an indefinite term for control, care or treatment; or (ii) the respondent be released from custody subject to the requirements considered appropriate. Position of the parties [5] The applicant in its written submissions concedes: “The evidence would support a finding that the respondent is a serious danger to the community in the absence of a Division 3 order. Further, the evidence also supports the making of a supervision order, made pursuant to s. 13(5)(b) of the [DPSO] Act. Such an order ought to be for a period of ten years.”2 [6] The submissions on behalf of the respondent state: “1. The respondent does not resist the Court making a finding that he is a serious danger to the community in the absence of a Division 3 Order. 2. The respondent submits that the opinions expressed by the appointed assessing psychiatrists, Dr Michael Beech and Dr Scott Harden, support the making of a Supervision Order, rather than a Continuing Detention Order, because the level of the applicant’s risk of committing a serious sexual offence would be reduced under a Supervision Order to such a level that the adequate protection of the community from the assessed risk can be ensured. 3. The primary issue for the determination by the Court in the present application is likely to be the duration of the Order.”3 (footnotes omitted) [7] The respondent’s submissions also identify a further issue in relation to the proposed clause 10 of the Draft Supervision Order, namely whether it is necessary to meet the relevant risk. [8] The psychiatrists were required to attend the hearing for cross-examination. The oral evidence focussed on these two issues: namely, the duration of any supervision order 2 Applicant’s written submissions at [2]. 3 Respondent’s written submissions. -- 3 of 46 -- 4 and whether clause 10 of the Draft Supervision Order was necessary to meet the relevant risk. Background [9] The respondent’s background is as follows: (a) The respondent was born on 6 December 1996 and he is currently 24 years of age. (b) On 14 December 2018, he was convicted upon his own guilty plea in the District Court at Brisbane of: (i) The offences of involving children in making child exploitation material, grooming a child under 16 years with intent to procure engagement in a sexual act, and possessing child exploitation material; and (ii) A number of summary offences. (c) The offences were all committed between 22 May 2017 and 24 July 2017, in breach of a suspended sentence imposed in the District Court at Bundaberg on 22 May 2017 for the offence of carnal knowledge of a child under the age of 16 years. (d) The respondent was sentenced by Richards DCJ as follows: (i) A period of three and a half years imprisonment for the offences involving making child exploitation material. (ii) Lesser terms of imprisonment for the remaining indictable and summary offences. (iii) The breach of the suspended sentence was declared proved and the respondent was ordered to serve two years and 32 days imprisonment, being the balance of the suspended sentence. (iv) A parole eligibility date of 14 December 2018 was set. (v) The respondent’s custodial end date is 24 January 2021. [10] The following table outlines the rest of the respondent’s criminal history4: Date Description of offence Sentence 12/11/08 Bundaberg Children’s Court • Unlawful entry of vehicle (on 20/06/07) • Stealing (on 22/11/07) • Wilful damage (on 23/12/07) • Using a carriage service to menace, harass or cause offence (on 06/08/08) • Stealing (on 12/03/08) On all charges: No conviction recorded Good Behaviour Bond: 6 months 4 Reproduced from the applicant’s submissions at [33]. -- 4 of 46 -- 5 Date Description of offence Sentence 20/06/16 Bundaberg Magistrates Court • Possessing dangerous drugs (on 01/05/16) • Possess utensils or pipes etc. for use (on 01/05/16) On all charges: No conviction recorded Recognisance: $300 Good Behaviour periods: 6 months Drug diversion 22/05/17 Bundaberg District Court • Carnal knowledge of children under 16 years (& attempts) (between 30/04/15 & 01/03/16) • Unlawful stalking uses/threatens violence – domestic violence offence (between 01/02 & 09/06/16) • Common assault – domestic violence offence (on or about 08/06/16) • Deprivation of liberty – unlawfully detain/confine – domestic violence offence (on or about 08/06/2016) • Attempting to pervert Justice (3 charges on divers [sic] dates between 23/06 & 14/07/16, on 13/07, on 27/07/16) Above refers to Indictment No. 35/17 The following Magistrates Court matters were heard by the District Court: • Breach of bail condition (2 charges between 07/06 & 10/06/16) Conviction recorded Sentenced imprisonment: 3 years, to be suspended for 3 years after serving 333 days Declare that time spent in pre-sentence custody be deemed as time already served under this sentence: 333 days (between 23/06/16 & 21/05/17) On all charges: Conviction recorded Sentenced to Probation Period: 3 years Order Unlawful stalking uses/threatens violence – domestic violence offence, Common assault – domestic violence offence, and Deprivation of liberty – unlawfully detain/confine – domestic violence offence all convictions to be a Domestic Violence offence Summary offences dealt with under s 651CC On all charges: conviction recorded, not further -- 5 of 46 -- 6 Date Description of offence Sentence • Possession of a knife in a public place (on 08/06/16) • Contravention of Domestic Violence Order (on 23/07/16) Above refers to Indictment No. 48/17 punished Restraining order issued; shall continue in force until 22/05/22 unless revoked or varied [11] Other relevant background in respect of the respondent includes the following: (a) Previous offences of a sexual nature (i) On 7 July 2013 the respondent was referred by the Bundaberg Child Protection Investigation Unit for a Youth Justice Conference concerning three counts of using a carriage service to menace, harass or cause offence, two counts of indecent treatment of a child under the age of 16 years (expose) and one count of unlawful stalking. The respondent was 16 years of age at the time of the offending. (ii) On 6 July 2013 the respondent admitted to police in an interview that he had hacked the social media account of a 12 year old girl and exposed himself to her friends. The friends were also 12 years old but the respondent said he believed they were 14 or 15 years old. The respondent committed the offences via a laptop and webcam from his home. (iii) On 22 May 2017 the respondent was convicted upon his guilty plea in the District Court to the offences of carnal knowledge of a child under 16 years, unlawful stalking, common assault, deprivation of liberty, and three counts of attempting to pervert justice, and some summary offences. The respondent was 18 and 19 years old at the time of the offending and was 20 when sentenced. The offending involved a 14 year old girl. The sentence was three years imprisonment to be suspended after serving 333 days, in effect immediate release from custody, and the respondent was placed on probation for three years. There was also a restraining order prohibiting the respondent from any contact with the victim and is in place until 22 May 2022. (b) Family/developmental history (i) The respondent is one of three siblings. His parents divorced when he was around 11 years old and both re-partnered. The respondent resided with his mother and step-father. (ii) The respondent was sexually assaulted as a 10 year old at a scout camp. (iii) Following the incident the respondent’s behaviour changed. The respondent began to engage in criminal antisocial behaviours which came to the attention of police and the courts. -- 6 of 46 -- 7 (iv) He has engaged in violent behaviour since he was 12 years old, including an occasion of beating and strangling a school peer for calling him a derogatory name. (v) Since puberty the respondent has been using computers and IT systems to create and manipulate social media and websites. This included creating a “phishing” website that tricked others into providing password information for their social media accounts. Further he has hacked into social media accounts. (vi) The respondent has engaged in a number of sexualised social media contacts with other children. (c) Sexual history (i) The respondent currently identifies as homosexual. He previously identified as bisexual. (ii) From the age of 12, the respondent engaged in consensual masturbation and oral sex with male peers. (iii) At the age of 17, the respondent had sex with a girl to “see what it was like”. He has a six year old son from that but has no contact with his son. (iv) At the age of 19, he had a 10 month relationship with a 14 year old, the victim in the first offending. This relationship included regular sexual intercourse and may have involved practices such as “knife play” and the use of hand cuffs. (d) Drug and alcohol history (i) The respondent denies any use of illicit substances apart from having previously tried cannabis and alcohol. He did not like the effect of cannabis on him. In the case of alcohol, he did not like the effect on his father and chose not to drink. (e) Medical and psychiatric history (i) The respondent’s mental health history includes depression, anxiety and a previous suicide attempt. (ii) The respondent is assessed as having “ingrained chronic suicidal ideations”. (iii) In approximately 2008 the respondent was diagnosed with ADHD. (iv) The respondent has had two self-harm episodes in custody: September 2018 and 9 July 2019. The case notes describe this as deliberate self- harm by a hunger strike to manipulate the environment in order to achieve a desired outcome, being accommodation with another prisoner. (v) The respondent is currently medicated with an anti-depressant. (vi) The respondent admits to making up symptoms to obtain medication at the request of other prisoners. -- 7 of 46 -- 8 (f) Prison conduct (i) The respondent is currently at Woodford Correctional Centre with a high security classification. (ii) His behaviour has been varied. There have been periods when his behaviour has required breach action and/or separate confinement in the Detention Unit. (iii) There have been two violations: (A) Failing to provide a urine sample for testing – 29 August 2018; (B) Sexually assaulting a fellow prisoner – 23 June 2019. (iv) The respondent has been the alleged victim of sexual assault on two occasions. (A) 19 April 2019 – reportedly forced to have sex with another inmate whilst in custody in another correctional centre. (B) 14 July 2019 – complaint of a sexual assault at another correctional centre. The complaint was later withdrawn. (v) The respondent has been employed in Industries whilst in custody. (g) Treatment programs (i) The respondent has undertaken the following programs: (A) “Strong Not Tough” Resilience Program, 9 November 2016; (B) Getting Started Preparatory Program (GS:PP); (C) Crossroads: High Intensity Sexual Offending Program (HISOP), commenced 19 June 2019 but not completed. The respondent withdrew from the program prior to completion. (ii) The GS:PP program ran from 29 February to 24 April 2019. The completion report includes the following comments: (A) The respondent did not demonstrate empathy for his victims, nor general empathy towards others in the program. (B) His level of engagement with the group participants and facilitators was “limited”. (C) He demonstrated “emerging insight” into his sexual offending. (D) He discussed his offences “systematically” and minimised the extent of the offending and externalised blame. (E) The respondent engaged in “positive impression management” during the program. (iii) The respondent commenced the HISOP on 19 June 2019 but pulled out of the program after attending only one session. He was assessed as “unsuitable” at the time given his lack of being ready, willing and able to participate in the treatment. -- 8 of 46 -- 9 (h) Parole (i) The respondent was eligible for parole on 14 December 2018. He made an application for parole in 2019 but withdrew his application and stated an intention to complete his full term. (i) There is no “eligible person” pursuant to s 9AA of the DPSO Act and no submissions to be considered. Current offences [12] The background to the current offending is as follows: (a) On 14 December 2018, the respondent was convicted upon his own guilty plea in the District Court at Brisbane of the offences of: (i) grooming a child under 16 years with intent to procure engagement in a sexual act; (ii) involving a child in the making of child exploitation material; and (iii) possessing child exploitation material. (b) The respondent was 20 years old during the period of the offending, and he was 22 when sentenced. (c) On 22 May 2017, the respondent sent the victim a message. This was shortly after his release from his release from custody. (d) The respondent was aware of the victim’s age as she had told him on several occasions. (e) The respondent continued to message the victim, telling her that she made him sexually aroused, sending photographs of himself to her (including of him partially exposed), and requesting that she send nude photographs to him. He requested, on multiple occasions, to meet up in person. She declined. (f) On 2 July 2017, the respondent went to the restaurant where the victim worked. He watched the victim for approximately 30 minutes. He sent her messages. (g) The respondent told the victim the police would be speaking with her as they had looked at his telephone. The respondent asked the victim to tell the police that she was 16 years old. She told the respondent that she would not lie to the police. (h) The respondent and the victim continued to correspond on social media. (i) In response to requests from the respondent, the victim sent various photographs of herself in underwear and on a later occasion a photograph of her bare breasts. (j) On 24 July 2017, police executed a search warrant at the respondent’s residence. [13] When sentencing the respondent, Richards DCJ made the following relevant remarks: “… [OCA], you have pleaded guilty to a number of charges, a number of sex offences. The grooming and involving a child in making child -- 9 of 46 -- 10 exploitation material and possession of child exploitation material involve you contacting a 14 year old girl almost immediately after you were released on a suspended sentence – partially suspended sentence for being in a relationship with a 14 year old girl, and stalking her when you split up. The grooming was persistent. She was not a particularly willing participant, but you pressured her to send photos, initially again she refused, but she did in the end send you three photos, which became progressively more revealing. She declined to meet you in person, so you went to where she worked and sat there for 30 minutes just watching her. You sent messages which were pretty graphic to her. Police visited you, because you had reporting conditions under the legislation and found you had been contacting her by looking through your phone. You initially told them that she was 16, although you were well aware that she was 14. You asked her to lie to the police, but she did not and would not, but even after the police saw you and spoke to her. This is all in the face of you having spent 333 days in custody for the other offending, so you have not learned very much from your time in jail, really. I understand the Crown’s concern that you clearly do need to do some sort of program that will give you some insight into your behaviour. … As I mentioned to Mr Robson that first lot of offending involves an offence which the legislation’s designated it as a serious child sex offence. So if you commit something like that again you are liable to either indefinite detention or life imprisonment, [OCA]. You are still a young man, you really do not want to spend the rest of your life in jail. I accept that it is unlikely that you will – well, you will not get probation – parole straightaway in terms of the sentence, and of course, very unlikely to get parole until you have done whatever courses the Parole Board thinks you need to do before release. To ensure that this behaviour will not be repeated, I accept the submissions that a sentence of three – possibly up to four years, I think, for the grooming and the child exploitation material offending would be appropriate, particularly given that it was committed almost immediately upon your release from jail for offending against a 14 year old girl, and while you are on a suspended sentence. The suspended sentence has to be invoked. That would, given the circumstances of the offence, normally be cumulative, but given the situation where you have not been able to comply with any of the programs – you have not been offered them, because you have been on remand. You have been on remand for a very long time now. I accept the submission from both counsel that the appropriate way to deal with the matter is to reduce what might have been quite a long sentence by reducing the head sentence. I am going to do that by making the suspended sentence concurrent…” -- 10 of 46 -- 11 [14] As outlined above, the respondent was sentenced by Richards DCJ to a period of three and a half years imprisonment for the involving children in making child exploitation material offence. He received lesser terms of imprisonment for the remaining indictable and summary offences. [15] The breach of the suspended sentence imposed on 22 May 2017 was proven. The respondent was ordered to serve the whole of the suspended sentence, being a period of two years and 32 days imprisonment. All terms of imprisonment were ordered to be served concurrently. A parole eligibility date of 14 December 2018 was set. Expert evidence / Risk assessment reports Report, John Glanville, Psychologist, dated 7 June 2017 [16] As part of the requirements of his probation order made on 22 May 2017, the respondent was required to undertake treatment with psychologist John Glanville. Mr Glanville prepared a report for QCS, which included the following opinions: (a) the respondent “has some serious issues; too many to list as what would be deemed ‘most predominant’”. (b) the respondent likely suffers a personality disorder and possesses psychopathic traits. (c) the respondent showed no remorse or guilt and demonstrated “absolutely no empathy” for his victims. (d) the respondent is quite narcissistic, glib, and has poor impulse control. (e) the respondent takes a great delight in controlling and overpowering others. [17] Mr Glanville concluded that the respondent is a high risk “of any form of offending”. Static-99R Assessment, completed by Teaghan Finlayson-Browne, dated 12 June 2017 [18] Ms Finalyson-Browne assessed the respondent on the Static-99R to determine his risk of re-offending and his treatment needs for inclusion in a sexual offender’s treatment program. [19] The respondent attained a score of 10 and was assessed as being a high risk of re- offending. Report, Dr Karen Brown, Consultant Psychiatrist, dated 19 April 2020 [20] Dr Karen Brown prepared a report on instructions from Crown Law for the purpose of a risk assessment in relation to a potential application under the DPSO Act. The report was based on interviews with the respondent on 5 November 2019 and 3 March 2020. [21] Dr Brown’s report included the following opinions: (a) The respondent’s self-report with regards to his offending and risk factors remains “grossly inconsistent and largely unreliable”. -- 11 of 46 -- 12 (b) The respondent presented as very convincing but ultimately considered his affect to be shallow and superficial. (c) The respondent minimised much of his offending and behaviour in prison. Dr Brown thought it was ‘impossible’ to know if his account regarding these events, or indeed any other aspect of his history, was genuine. (d) On the Static-99R, the respondent attained a total score of [7]5, placing him in the high (well above average) risk category for sexual reoffending. (e) On the Hare Psychopathy Rating Scale (PCL-20), the respondent attained an overall score of 30 out of 40, which indicated a diagnosis of psychopathy. (f) The presence of psychopathy increases an offender’s risk of offending. In particular, those with a combination of sexual deviance and psychopathy are more likely to commit serious sexually violent offences. (g) On the Risk for Sexual Violence Protocol (RSVP), the respondent demonstrates 12 risk factors, and five more possible risk factors. (h) On the Historical Clinical Risk Management-20 (HCR-20), the respondent was assessed as demonstrating the presence of a high number of the 20 static and dynamic factors. (i) The respondent’s sexual offending is suggestive of one of more diagnoses of paraphilia, despite his denials of having a sexual interest in children or adolescents, exhibitionism or sadism. It was not possible to make a diagnosis of any paraphilia at this stage. (j) The respondent’s unmodified future risk of sexual reoffence is high. The respondent’s future risk of physical violence is at least moderate and most probably high. [22] Dr Brown was particularly concerned that the respondent had previously expressed a planned intent to torture and kill one of his victims. Dr Brown recommended that this required a much more in depth assessment before a comprehensive understanding of his risks to others can be achieved. [23] Dr Brown also reported that factors that would increase the respondent’s risk of sexual reoffending include contact with young or vulnerable persons, use of social media or other websites for grooming or rejection or humiliation in the context of a relationship. [24] Dr Brown concluded by recommending any sexual offender treatment should occur in the custodial environment. Report, Dr Michael Beech, Consultant Psychiatrist, dated 14 October 2020 [25] Dr Beech’s report was prepared pursuant to the order of Davis J made on 11 September 2020. Dr Beech interviewed the respondent on 18 September 2020. 5 Dr Brown’s report originally had a score of 10. This was corrected to a score of 7 in evidence in chief. The previous score had included the respondent’s juvenile offending history. This change did not affect Dr Brown’s view given that a score of 6 or over is considered high. T1-32 line 19 to 44. -- 12 of 46 -- 13 [26] Dr Beech’s report included the following opinions: (a) He was unable to diagnose a paraphilia. He noted several concerning issues in the offending that have not been properly explored or treated. (b) The respondent has avoided group sexual offender treatment programs. He has engaged in limited individual therapy. (c) The respondent has a mixed personality disorder with antisocial, narcissistic and borderline personality traits and there are possible paraphilias related to exhibitionism, sexual sadism and attraction to adolescent females. (d) On the STATIC-99R, the respondent achieved a score of [7]6. This placed the respondent in the group of offenders who are considered to be at a much above average risk of offending. (e) On the Psychopathy Checklist Revised, the respondent achieved a score of 28. This reflects significant psychopathic traits. (f) On the Risk for Sexual Violence Protocol, the respondent was at above average risk or high. (g) Despite assertions concerning his sexuality, the respondent has offended twice against young females. (h) The second group of offences occurred almost immediately after release, subsequent to the first conviction. (i) The nature of offending has not been adequately explored. The respondent remains “untreated”. (j) The reoffending so soon after release is concerning. It indicates the prospect of a return to custody is not a deterrent to adverse behaviour. (k) The respondent has been deceitful, manipulative and boastful about his activities. (l) Specific concerns include the deceitfulness and manipulation in the past and a quick return to offending, the lack of formal treatment and continued attempts to minimalise responsibility. (m) The risk of offending might be reduced by involving the respondent in a High Intensity Sexual Offender Treatment Program. Individual therapy might also reduce the risk but it would involve significant intensive therapeutic endeavour. [27] Dr Beech commented on the specific risk as follows: “I believe that the most significant risk is that on release into the community, in a bored state or driven by as yet unexplored urges, he will return to social media. He will gain the attention of an adolescent female and seek to meet her to form a relationship. He will persist with this and in the meantime seek indecent images from her. If it goes undetected, I think he is likely to continue with psychological 6 Dr Beech’s report stated a score of 9. In evidence in chief he corrected this to a score of 7. It was a transcription error. The change in the score did not change his view as any score above 6 is a person in the high or much above average risk of reoffending. T1-7 line 11 to 21. -- 13 of 46 -- 14 coercion and attempt to meet the girl in person. Should she try to break off from him, it is likely that he will stalk her. It is difficult to know what to make of the comments he has made in the past, but there is enough information to be concerned about sadistic urges or drives that he may try to act on if the relationship continues. He has an ability to deceive, manipulate, and plan events that a young adolescent girl might struggle to deal with.”7 [28] In relation to a supervision order, Dr Beech commented as follows: “I believe that a supervision order would substantially reduce the risk of re-offending but supervisors would need to be extremely vigilant around his internet use, social media use, contact with minors, and his general activities. On the one hand, he is very adept using the internet, social media, and making contact with potential victims on- line. On the other hand, in the last offending, ultimately monitoring supervision detected the contacts and prevented him from pursuing the relationship with the girl. A supervision order would need to involve either an embargo or significant restrictions on internet and social media use, a prohibition around contact with potential victims, and active monitoring of his activities. I think it should include ongoing psychological counselling but with a very experienced forensic psychologist. Accommodation may be problematic in medium-term and I think that if he is to live with family members, they should be very aware of the nature of his offending and commit to the restrictions to his access to the internet and social media. In view of the nature of the offending and his victims, the lack of understanding around his sexual orientation, and his youth, I think that any supervision order should be for ten years.”8 Report, Dr Scott Harden, Psychiatrist, dated 3 December 2020 [29] Dr Harden’s report was also prepared pursuant to the order of Davis J made on 11 September 2020. Dr Harden interviewed the respondent on 1 October 2020. [30] Dr Harden’s report included the following opinions: (a) On the STATIC-99R, the respondent achieved a score of [7]9, which placed the respondent in the well above average risk category. (b) On the Stable 2007, Dr Harden’s score placed the respondent in the high needs group in terms of a sexual offender’s dynamic risk. (c) On the Hare Psychopathy Checklist, the respondent was scored at 30. This score was elevated to reach the level to enable a diagnosis of psychopathy to be made. 7 Report Dr Beech at page 20 line 1019 to 1028. 8 Report of Dr Beech page 20 line 1046 – page 21 line 1063. 9 Dr Harden’s report originally stated a score of 6. In evidence in chief Dr Harden corrected the score to 7. This took into account one more court appearance as a juvenile. It does not change Dr Harden’s view as once a score at 6 there is a “ceiling effect”. T1-19 line 10 to 27. -- 14 of 46 -- 15 (d) On the SVR-20V2, the assessment placed the respondent in the high risk category. (e) On the PROFESOR10, the respondent’s score placed him in the “predominantly risk” category which is seen as a high risk of sexual offending compared to other sexual offenders in the 25 to 15 age bracket. [31] Dr Harden diagnosed the respondent as having a personality disorder not otherwise specified with antisocial borderline and psychopathic features, with a possible paraphilia not otherwise specified also present. [32] Dr Harden concludes: “Risk statement The actuarial and structured professional judgement measures I administered would suggest that his future risk of sexual reoffence is high if released into the community ([well above]11 average). A supervision order would reduce this risk to low to moderate. The critical issue are [sic] his severe personality disorder and possible sexual paraphalia issues. Recommendations If placed on a supervision order he should be placed on it for five years. He should be offered further individual psychological therapy and group psychological intervention if this is appropriate and available. His personality disorder may make group psychological intervention unachievable. His information technology skills seems to be a significant facilitating factor in the offending. He should not use social media. His use of the Internet should be monitored carefully. Substance use does not appear to be a significant factor and at tis point conditions regarding this do not seem indicated. He should have no unsupervised contact with people under 16 years of age.”12 Updated Report, Dr Karen Brown, Consultant Psychiatrist, dated 8 December 2020 [33] Dr Brown provided an updated report on 8 December 2020 and had the benefit of reviewing the reports prepared by Dr Beech and Dr Harden. 10 Protective + Risk Observations For Eliminating Sexual Offense Recidivism. 11 Dr Harden’s report did not include the words “well above” before “average”. In evidence in chief Dr Harden made this correction. T1-19 line 1 to 7. 12 Report of Dr Harden at page 19 line 15 to 41. -- 15 of 46 -- 16 [34] Dr Brown provided the following updated opinion: “It is now approximately a year since I first assessed [OCA]. During that time he has engaged with seven sessions of individualised sexual offender treatment and he has produced a detailed relapse prevention plan, which, although developed without psychological oversight, shows motivation to address his risk factors, detailed plans to prevent relapse and prosocial goals for the future. I note that he initially struggled to engage with individualised treatment and that his treatment was interrupted, first with a change of psychologist and then due to COVID-19 restrictions. Latterly though, his engagement improved, he arrived prepared to sessions and he completed the allocate homework. As per my original report, [OCA]’s unmodified risk of sexual reoffending is high (or well above average). He demonstrated several risk factors including psychopathy, severe personality pathology and possibly paraphilia, as well as history of manipulation and deceit. However, given his relatively good engagement with individualised treatment to date and release prevention intentions, I now take the view that the risks could be reduced to moderate with appropriate supervision and monitoring in the community. As per the report of Drs Beech and Harden, I recommend that [OCA] should not have contact with persons under the age of 16 years. His internet use should be restricted and closely monitored, in particular his use of social media. Given his narcissistic personality structure and youth, he may struggle to manage these internet restrictions and he should be given adequate support via psychology and case management. He should continue with individual therapy in the community and he should also be referred to a psychiatrist for further assessment and management of post-traumatic stress symptoms. He may benefit from ongoing prescription of antidepressant medication. His sexual drives and preferences should continue to be monitored. There remains a risk that [OCA] will disengage and seek to manipulate or subvert the conditions of supervision in a relatively sophisticated way, which may be difficult to detect (for example by covert use of internet devices) and supervising staff should remain vigilant to this possibility. Given his young age, presence of psychopathy, possible paraphilia and other risk factors as described, (including ongoing evidence of impulsive physical violence in custody), I consider that the unmodified risk of sexual reoffending will remain high for several years, (before beginning to reduce due to age, maturity and treatment effects). I therefore recommend that should a supervision order be made, it is for a period of 10 years.” -- 16 of 46 -- 17 Serious danger to the community [35] Dealing with the first issue, it is necessary to make a determination of whether or not the respondent is a serious danger to the community in the absence of a Division 3 order. [36] Section 13(2) of the DPSO Act provides: “(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.” [37] Further, pursuant to s 13(3) of the DPSO Act, there is a mandated level of satisfaction required, namely: “(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.” [38] Section 13(4) of the DPSO Act outlines the information that the court must have regard to in deciding whether a prisoner is a serious danger to the community. This includes any reports prepared by the psychiatrist under s 11 and any other medical, psychiatric, psychological, or other assessment relating to the prisoner, the prisoner’s antecedents and criminal history. It also includes having regard to the risk that the prisoner will commit another serious sexual offence if released into the community, the need to protect members of the community from that risk and any other relevant matter. [39] ‘Serious sexual offence’ is defined in the Schedule to the DPSO Act 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.” [40] Section 13(7) of the DPSO Act provides as follows: “(7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” -- 17 of 46 -- 18 [41] In light of the evidence read in support of the originating application, in particular the psychiatric reports and updated report, and having regard to the submissions made by the parties, I am satisfied by acceptable, cogent evidence and to the high degree of probability required by the DPSO Act that the respondent is a serious danger to the community in the absence of a Division 3 order. Accordingly, I find that the applicant has established, to the high degree of probability required, that if released without a Division 3 order the respondent presents an unacceptable risk of committing a ‘serious sexual offence’ as defined by the DPSO Act. Which order, if any, should be made? [42] The subsequent issue to be determined is whether it would be appropriate to order a continuing detention order or, alternatively, a supervision order in respect of the respondent. Section 13(5) of the DPSO Act states: “(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).” [43] In determining what form of order should be made under s 13(5), it is necessary to consider the objects of the DPSO Act as set out in s 3 and also the considerations outlined in s 13(6). [44] Section 3 of the DPSO Act provides: “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.” [45] Section 13(6) of the DPSO Act provides: “In deciding whether to make an order under subsection (5)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers.” -- 18 of 46 -- 19 [46] Section 16 of the DPSO Act provides: “(1) If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner— (a) report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and (b) report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and (c) notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and (d) be under the supervision of a corrective services officer; and (da) comply with a curfew direction or monitoring direction; and (daa) comply with any reasonable direction under section 16B given to the prisoner; and (db) comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and (e) not leave or stay out of Queensland without the permission of a corrective services officer; and (f) not commit an offence of a sexual nature during the period of the order. (2) The order may contain any other requirement the court or a relevant appeal court considers appropriate— (a) to ensure adequate protection of the community; or (b) for the prisoner’s rehabilitation or care or treatment.” [47] The Court of Appeal in Attorney-General v Francis13 stated: “Insofar as his Honour was concerned that, if the appellant began to use alcohol or drugs, he might abscond, the risk of a prisoner absconding is involved in every order under s 13(5)(b). The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in 13 [2007] 1 Qd R 396 at [39]. -- 19 of 46 -- 20 principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.” [48] Also relevantly, McMurdo J in Attorney-General for the State of Queensland v S14 said: “Other judgments of the Court of Appeal have expressed the present question somewhat differently. In Attorney-General (Qld) v Lawrence, Chesterman JA (with whom Margaret Wilson J agreed) said this as to the relevant onus of proof: ‘[I]n cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected by insisting that the Attorney- General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community.’ Similarly, in Yeo v Attorney-General (Qld), Margaret McMurdo P (with whom White JA agreed) said: “[73] Under s 13(6), the paramount consideration in determining whether to order a continuing detention order or supervision order is the need to ensure adequate protection of the community. This requires the judge to make a value judgment based on the evidence. It is impossible to eliminate all risk of criminal offending, including offending against children, from a community. A judge must determine what is adequate protection of the community in all the circumstances (Attorney-General v Sutherland [2006] QSC 268, [28]-[30]; Attorney-General v DGK [2011] QSC 73, [28]). The respondent has not persuaded me that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers. It follows that I must release the appellant on an appropriate supervision order.” (footnotes omitted) 14 [2015] QSC 157 at [38]. -- 20 of 46 -- 21 [49] Justice Chesterman, in Attorney-General for the State of Queensland v Fardon,15 stated: “The concern which the psychiatric evidence raises is whether the supervision order will be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences. The risk of those offences is rated “low to moderate” with the intervention of the supervision order, but whether that order will perform as intended, given the respondent’s stated attitude to it, and his inclination to disregard it or circumvent it, was not the subject of consideration by the primary judge. Accordingly there may be doubt about the conclusion that the adequate protection of the community can be ensured by release on a supervision order.” [50] Further, in Turnbull v Attorney-General for the State of Queensland,16 Morrison JA, with whom Philippides JA and Douglas J agreed, stated: “…The means of providing the protection, and avoiding that risk, is a supervision order. When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection.” [51] The issue of whether a respondent will properly comply with the order was considered in the case of Attorney-General for the State of Queensland v Fardon.17 In that case, the Chief Justice, with whom Fraser JA and Mullins J agreed, said at [29]: “These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control. Of substantial present concern is the respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that “there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order”.” Oral evidence [52] At the hearing on 14 December 2020 each of the psychiatrists gave evidence and were cross-examined in respect of their opinions relating to the duration of any potential supervision order and also whether clause 10 of the Draft Supervision Order was necessary to meet the relevant risk. [53] Ultimately these are questions for the Court but the opinions of the psychiatrists assist in the consideration of these issues. 15 [2011] QCA 111 at [29]. 16 [2015] QCA 54 at [36]. 17 [2011] QCA 155. -- 21 of 46 -- 22 Dr Beech [54] In evidence in chief, Dr Beech relevantly commented as follows: (a) In respect of the duration of any supervision order: “You say there that the supervision order should be for a period of 10 years?---Yes. Doctor, you’re aware one of the appropriate tests that your Honour has to undertake is to attempt to identify some point in the future when [OCA] will be an acceptable risk in the community without a supervision order. So with that in mind, do you still say it’s a period of 10 years that should be – the order should ask for?---I do. I say that because although [OCA] is young and the offending has really occurred [indistinct] but in a relatively short period of time, he has many features that indicate the risk of reoffending [indistinct] those features are the early onset of offending. His psychopathy level – I think all psychiatrists have diagnosed psychopathy or [indistinct] psychopathy. I had not diagnosed of paraphilia, but that’s because I don’t have enough information either way. But all psychiatrists have been concerned that there is some kind of sexual deviance around his attraction to young females, and perhaps exhibitionism. And that predicts a reoffending risk. Yet he remains, I believe, untreated. And he is young, and the – so he doesn’t have that protection, if you like, of maturity of aging years. So for all those reasons, I think the risk is going to persist. All right. Perhaps if you could just unpack some of those. You talk about the early onset of his criminal offending – how is that relevant to the determination of the period of time?---In general, people who have an early onset of offending are more likely to persist with their offending. I think it – I don’t know if people know really why, but it probably points to a sexual preoccupation starting at an earlier age. But I think in this case, there is indications of some either sexual preoccupation or inability to refrain, because he reoffended so quickly after his release. Psychopathy – how is that relevant?---Psychopathy is predictor of reoffending across the board. But people who have committed a sexual offence – people who are psychopath are at higher risk of reoffending. They are particularly at high risk of reoffending if there’s evidence of paraphilia. And I think there’s high suggestion that there is paraphilia here. So those two factors combine to elevate the risk. Well, I’ll ask you about the paraphilia – why is – how is that relevant?---It simply is a risk factor for reoffending. It means that your [indistinct] deviant sexual urges, or deviant sexual drives coupled with an antisocial stance where you break rules, or don’t feel compelled to follow rules, may put you at higher risk of reoffending on the [indistinct] -- 22 of 46 -- 23 You say he’s untreated?---He’s untreated. He started treatment – started with psychological intervention. As I said in my report, I’m worried that his psychopathic nature will mean that he will manipulate the treatment, or side-track it. But he’s started individual therapy. But it’s – as I understand it, he’s done less than seven sessions so far. And they haven’t broached, I think, the sexual offending – that I can see in the notes. So he remains untreated. But if he – ideally, his treatment would be a high intensity sexual offender program. So we’re talking something in [indistinct] of over 300 hours of therapy. That’s very difficult to meet on individual sessions, so he’ll remain untreated on the [indistinct] and I think it’s going to take a long time for someone to say he’s been adequately treated on an individual basis. Do the – do those three things link up – the psychopathy, the paraphilia and the lack of treatment? Are you able to treat paraphilia?---You – I don’t know that you can stop someone having that attraction, but you can certainly give people strategies to either distract from that attraction or refrain from acting on that attraction. … - - - of paraphilia?---You – the attraction probably likely to remain, but you can – with individual therapy, you can help people suppress or reduce the urges. And you can certainly help them refrain from acting on those urges and committing an offence. What about the psychopathy, is that treatable?---That’s a good question, Mr Rolls. What – it’s likely that people will maintain that attitude of rule breaking, but ultimately come to accept that continuing to break the rules is to your disadvantage, so will start to refrain [indistinct] and as people get older – so we’re talking older than 30 – they will start to mature, become less impulsive, less likely to act without thinking. What brings about that change in mindset?---I think wisdom of age. Biologically, it may be that continued [indistinct] it may be continued lessons learned from breaking rules – the consequences. Well, simply it might be put the [indistinct]?---Yeah. You also indicated his – so what treatment would a supervision order provide, bearing in mind that the high intensity sexual offender treatment program you identified is one only offered in custody, and so therefore [OCA] presently in time seems to not be in line for that particular form of treatment?---There’d be several areas. There would be the – the sexual nature of the offending by itself, so exploring the – what drove him to offending, to exploring sexual drives and urges to see if there is some form of deviancy. And then it’s [indistinct] treatments for that. He’s got problems with impulsivity. I think the psychologist notes the point even now to difficulties with interaction with others. So it would be addressing impulsivity, and I think emotional responsiveness – emotional disfunction. -- 23 of 46 -- 24 And they’re the treatment notes that he’s getting, is that the case?---Yeah, that’s right. That’s there next to court file index document 24, your Honour. And you looked at those treatment notes, did you?---Sorry? You looked at those treatment notes?---Yes, I have. And I cut you off, I’m sorry. You were going to say?---And treatment would also be along the lines of helping him develop pro-social attitudes and finding – settling down and following a pro-social lifestyle – finding work, not reacting to events around him. The – has he – looking at Ms Geddes notes?---Yes. Do you see that there’s been an appropriate line of treatment being undertaken?---Look, I think it would be difficult to engage with [OCA]’s [indistinct] process of engagement. So at the moment, I don’t think he’s had formal treatment. This is the start of the engagement of psychological treatment. But he’s come – he’s gone to the sessions, he hasn’t refused to go. But I wouldn’t say that this is treatment, per say. It’s the start of the engagement. So this is the [indistinct] work before the treatment commences, in effect?---Yes. They have to engage his – a therapist and clients. I said in my report, my worry is that he’ll be distracted by immediate circumstances, rather than focusing on rehabilitation. And I think there might be some evidence of that, because it talked about things that have happened to him recently. They haven’t set down [indistinct] formal framework for treatment of sexual offending. But again, this is the early stage of treatment. You – you also identify his youth - - -?---Yes. - - - [OCA]’s. How is that relevant?---In general, over time the risk of reoffending reduces. But again, those factors – when those people who have psychopathy or a sexual deviance, that risk doesn’t reduce at the same rate as most sexual offenders. That risk does taper off [indistinct] So he’s got a – [OCA]’s got a fair way before he’s got a – that’s going to taper off?---He’s got a way to go, yes. Yes. Is – so you also diagnose [OCA] as having a mixed personality disorder with anti-social personality – narcissism and borderline personality traits?---Yes. That’s at page 19, your Honour. Is that relevant to the assessment of the duration, in this case?---I think it points to emotional psychological immaturity. The [indistinct] I think, psychopathy. He’s – the pride that he takes in being able to manipulate or deceive others. So that’s, I guess, an important factor generally. But the borderline – the narcissistic features, they talk about the emotional dysregulation he has – the difficulties he has when he feels rejected. And I think that that – and the impulsivity that he has. I think they’re -- 24 of 46 -- 25 the things that are going to make him more likely to reoffend. Hopefully they would be focus of treatment. And again, hopefully, over the passage of time they will start to settle. Doctor, your [indistinct] here, it said that, if he manages to comply with a supervision order for five years, that should see him off, that would be long enough. What do you say about that issue in this case?---Again, I think it’s so – there are so many worrying factors that would point to the persistence of the risk, so I think that five years wouldn’t be sufficient. And they’re fleshed out by those five matters that you referred to previously?---Yes.” (b) In respect of clause 10 of the Draft Supervision Order: “There’s only one clause that is the subject of significant controversy and that is that clause 10 which provides that, “You must not break the law by committing an indictable offence.” Do you see such a clause as being relevant to the risk that you assess?---I’m would think, in general, breaking the law and committing an indictable offence is not a good thing on a supervision order. In this case, it would point to something going wrong that he is now breaking rules, giving in to his antisocial nature and that generally would be a marker that there’s something wrong. I would tend to see it, though, on a spectrum, so there might be a minor indictable offence. It’s [indistinct] on one end, and on the other end, there might be an assault of a female minor or something like that. So I think as we go along that spectrum, the more serious the indictable offence, the higher the risk of reoffending. When you rate seriousness, what is different? What is the grey seriousness because - - -?---For me, the seriousness would start – I would start to get worried if it was an offence of assault or it’s obviously an offence involving a minor. Or, I guess, most of the other ones could come under things that would break other conditions. What about a stalking offence?---Sorry? What about a stalking offence? Yes, so – and I would – I would see that as an offence of violence or assault or that type of thing. So they’re the sort of indictable offences you’re referring to?---Yes. But it’s a spectrum?---It’s a spectrum, and none of it is good, shoplifting would be a concern. How is it relevant to the risk you identify in your report, the risk of the commission of a serious sexual offence?---In general, any antisocial behaviours that would break the law would point to in his becoming – him becoming comfortable with breaking rules. I’m searching for words but – that he would feel comfortable breaching – breaking rules to the extent that he would break the law. And if that were occurring, then I would worry that it would simply mean that he’s going to be comfortable breaking other rules, and that he’s now -- 25 of 46 -- 26 on a trajectory where he will impulsively, perhaps, break supervision conditions around the internet, meeting females, things like that. So, is it – is it evidence of the commission of such offence, breaking the rules for want of a neutral term, is that evidence of an increasing risk of sexual offending?---It’s evidence that something’s going wrong on supervision. But it probably, I would think, a trajectory between wilful damage, say, or stealing or something like that. That would show that something’s going wrong, but then I would think the next part of the trajectory would be getting on the internet and meeting someone, using social media, forming a relation with a person, and that’s when the risk has started to go up acutely. Well, let’s look at the – let’s look at the wilful damage, for example. Say for example, you sometimes – you see this in the treatment reports of Ms Geddes, there’s references to anger?---Yes. So – and [OCA] seems to suggest that that seems to be a motivating effect – a motivating characteristic of his - - -?---Getting into fights, yes. Yes, getting into fights. So again, say for example, [OCA] gets angry and breaks something, so wilful damage, do you see that as being relevant to the assessment of risk having regard to what he said to Ms Geddes?---In that it’s the marker that something’s going wrong on a supervision order, to my mind, the supervision order would be able to deal with that with [indistinct] restriction, things like that being placed on him. The risk would be, though, that having committed the wilful damage, he’s now angry, he’s going to act impulsively and from there, he will start to try to engage a female. So there’s two ways it can go. One Corrective Services is going to find out about the conduct and do something about it?---Yes. The second one, it can – is it – it might be something which involves contravention proceeding which would mean the risk is reassessed by the court?---Yes. Which is the purpose of the contravention proceedings. Is it conduct which would or could indicate that the risk is at such a level it warrants review by the court?---It would – it would warrant review, certainly. I may say that there’s no – no law breaking is a good thing. And so it warrants review?---It warrants review. Because it’s relevant to the risk of sexual offence?---Because, yes, in that it means that something’s going wrong on supervision. Now, and I would be concerned. But whether it needs review by a court or whether it needs review by the supervising officer under the supervision order is - - - That’s something that perhaps should be examined with the relevant psychologist at the time to see what the genesis of all that is?---Yes. -- 26 of 46 -- 27 But the presence of the indictable offence provision creates a means by which that conduct is the subject of review if the supervisors consider it necessary to bring – put the matter before the court?---Yes, as I understand it, I accept that. I just – I just don’t know if I can say it any better. I think there’s a spectrum and it comes to a point where it becomes stalking, violence, female, maybe something on the internet. Something like that would worry me more than, you know, he got into a fight in the precinct and he broke a table.” [55] In cross-examination by Mr Ryan for the respondent, Dr Beech relevantly commented: (a) In respect of clause 10 of the Draft Supervision Order: “What - - -?---In general. I mean, I think it’s just to my mind, there are minor indictable offences, and you think, well, okay, that needs to be talked about because if he’s starting to drive away from petrol stations without paying, he’s on a rule-breaking trajectory and we need to pull that in. If he goes out and assaults someone in the community, I think well, that’s actually stepped over the line too far for me. And the distinction you – and the point perhaps – and this is really your response to the questions my learned friend asked you, it may be for that lower type of offence that doesn’t involve an offence on a person or stalking or something of that sort, it may well be that the actions capable of being taken by the supervisors might be sufficient to identify the level of where things are. Whereas if it’s a more serious offence, if it was assault or stalking, that might be something more appropriate for the court to be involved in reassessment of risk?---That’s correct. Yet again, I don’t think I need to complicate it further. I guess, if he continues to break things in the precinct, if it becomes a daily occurrence, then I think, well, something is getting out of control then. But as you say, it’s a spectrum, there’s a range of behaviour, obviously, that falls within the description of indictable offences. Would it be better to – would you be more comfortable if I put this proposition to you. That it excluded properly indictable offences not including property offences, that that might be a reasonable, perhaps, compromise. That’s what you’ve said in your evidence?---Perhaps. It is such a vague group of behaviours, indictable offences. Property offence where he has punched the wall might – wouldn’t be so worried about. Property offence where he has stolen cable ties and, you know – I would be worried about [indistinct] but there’s, I think – I would be increasingly worried, and I don’t know if I can say what – where the line is, but I would be increasingly worried that it involves – something led to his past offending involves violence or involves a minor. Or involves something associated, for example, with the internet or social media?---Yeah. -- 27 of 46 -- 28 … The – in general, any offending shows an indication of increased risk of sexual offending. If you break the law, break rules in one area, and it just indicates that you’re more likely to break the rules in other areas. So if he’s breaking the law like not paying for petrol, breaking windows, stealing, things like that, then he’s showing disregard for the law, which puts him just generally at risk of committing a sexual offence because he’s – he’s saying, “These laws don’t apply to me.” He’s an immature man prone to impulsivity and anger and things like that, so there might be indictable offences that he might commit that you think, “Well, we’ve got to watch this, but I’m not that concerned because it’s occurred in response to this – these circumstances and we can manage that.” But if he were to commit offences which – like, again, stealing zip ties, stalking, committing violent acts, some offence which might involve a minor which is, like, say, obstruction, deprivation of liberty, or something like that, those would be very high acute risks of reoffending.” Dr Harden [56] In evidence in chief, Dr Harden relevantly commented as follows: (a) In respect of the duration of any supervision order: “Page 19, Doctor, at line 28, you say: If placed on a supervision order, he should be placed on it for five years. Why?---Well, for a number of reasons, and – and I don’t, by the way, disagree with anything that Dr Beech has said on this topic and – and the things he identifies. I think there are a number of unknowns in this case, and that’s one of the issues. We know that at five years, probably, there’ll be about a 50 per cent drop in his risk. That will – in his case, you’re correct that it probably will not drop him to low. So you say five years, he’s still probably not in the low range?---Probably going to be around the moderate range, because if you say that people who are in the high range are somewhere around between 40 and 50 per cent recidivism rates over five years, the moderate range is around about 17 per cent over five years. So if you halve that, you’re down to around about the moderate range, probably. So in fact, having considered it further, I do think – do wonder if it should be slightly longer than five in this gentleman. I think that the issue is, we can interpret his offending in two different ways. So one is we can – particularly when looking at the most worrying of the offences, we can think a lot about whether he’s got deviant sexuality and has sexual sadism, or something like that which we cannot diagnose at this time. Or we can see him as – which I think is a slightly more likely explanation – as a man with a severe personality disorder who’s emotionally unregulated, and who responds very poorly to interpersonal conflict. And therefore you see the most worrying offences being an outpouring of rage at having -- 28 of 46 -- 29 been rejected. Obviously, rage with a vast and worrying amount of violent – potential violence associated with it. If – the first explanation with paraphilia in it does suggest, usually, a longer period required for risk reduction. The second explanation, not as much, and as Dr Beech, I think, rightly pointed out, we’re dealing with, sort of, a speculative issue in about five years time. Well, Dr Beech identified a number of features; [indistinct] that disagree with him, so let’s go through them: Early onset of offending. And you made the adjustment on the basis this morning to recognise, now, an earlier offence. So is that relevant to the assessment of risk?---Yeah, there’s some association with early onset and persistence of sexual offending in its adolescence. The problem with that is - - - And persistence? Did you say sexual - - -?---And persistence of offending. The problem with that is, there’s probably two groups and you don’t know which group they’re going to fall into. So there’s a group that then desist, even with early onset, and then there’s a group that persists. And it’s very hard to identify who falls into which group at this point. And I think Dr Beech said it quite eloquently; he described it as – and I think you don’t disagree with it – there’s lots of unknowns with this gentleman, and this is another?---Yes. How you regard his early onset as whether or not it’s evidence of a persistence which will continue or not?---Yes, correct. Psychopathy; Dr Beech identified psychopathy as being a relevant factor?---Well, psychopathy is another part of his personality disorder, but his severe personality disorder is a relevant factor. They do tend to persist, they do something prolong treatment. We can’t predict that yet, of course, because we’re at the early phases of his treatment. Another unknown?---It is an unknown. That’s correct. Some people – personality is not as immutable as we used to think. I mean, the literature does tell – suggest to us that if you take a personality disorder at this stage and you studied them in five years, a significant percentage will not have personality disorder. Now, he’s got a more severe end of the personality disorder spectrum, but we don’t know how he’s going to behave over time. But I do agree that he - - - So what does that mean? If he’s got a – if it’s a more severe personality, what does that mean in relation to persistence of offending?---Well, it means that if his offending derives mainly from his personality disorder that it’s more likely to persist. And does it?---Yes. -- 29 of 46 -- 30 So you think his personality disorder generates his offending behaviour, and that he’s likely to persist?---I think that the most likely explanation at the moment is that his personality disorder is the critical factor. Paraphilia; is that relevant?---It is relevant. I don’t know that we have enough evidence to say one is present, though. And is that a significant unknown?---It is. I think that – well, paraphilia will be relevant if it’s relevant to the offending. So, for instance, if his paraphilic interest is, for instance, this practice of cuckolding he talks about, which is not a specific paraphilia, then that may or may not be relevant to the offending. Can you define cuckolding, please?---Well, as he defines it, it’s him joining another couple for sexual relations in a threesome. That doesn’t necessarily relate to the offending, so it may or may not actually change the risk. But it could be something else, couldn’t it?---Well, it could be, yes. Can you identify any of the other possible paraphilia?---Well, we’ve had some concerns about the possibility of sexual sadism based on the equipment he had with him at the time of the offence near the park. That’s the knives, the twist ties, the lubricant - - -?---Yes. - - - whatever else that’s - - -?---Yes. - - - in the backpack?---Yes. And how did that indicate – so what’s the effect of sexual sadism? What’s the – how does that manifest?---If he did have sexual sadism - - - If?---If he did have sexual sadism that would substantially increase his risk given that he’s got he psychopathic features. But can you exclude that?---No, not at this point. How would these conditions be diagnosed?---They’re usually diagnosed on the basis of observations, self-report by the person and behaviour at the scene of crimes. Is treatment relevant?---Sorry? Treatment relevant?---Sorry? To identify paraphilia; engaging in treatment?---Well, during treatment you would – people would often self-identify details about their sexual behaviour. Have you seen Ms Geddes’ notes?---I have. Have you seen any evidence in Ms Geddes’ notes that this issue has been canvassed?---No, no. I’ve only seen four sessions’ worth of -- 30 of 46 -- 31 notes, and I would be very surprised if this issue was canvassed at that stage of therapy. So, again, Dr Beech is correct; what he, sort of, says: “There’s not much to see here in relation to the treatment notes”?---Yeah, he won’t be – it’ll be six to 12 months in therapy before you would expect to be starting to deal with those kinds of issues. So it’s six to 12 months of the engagement process that Dr Beech described; is that right? Or is it something else?---No, no, no. It’s not as long as that for engagement, but that’s a hard core – paraphilic material is a hard core issue. There’s a whole lot of other general life issues that are relevant to his sexual offending, and, in his case, particularly his internal personality structure and his external behaviour that causes him to not relate well to other human beings. So those sorts of conflicts and things would – you would start to deal with first before you – this before you start to deal with the much more difficult and sensitive material associated with his sexual preference, or possible sexual preferences. … One of the factors that [indistinct] Mr Beech to identify a longer period of time was the fact [OCA]’s untreated. Do you agree with that notion that he’s untreated?---At this point of time, yes, he’s untreated. And do you agree with the fact that he is untreated, and he is undergoing individual treatment, suggests that a longer period is required to treat him than, say, engaging a high intensity program?---Could you rephrase that? Sorry, that’s - - - Yes, it’s a high intensity program. Well, we’d agree today that 350- odd hours and 12 months of so, whereas individual treatment is going to take a lot longer?---Correct. And it will be governed largely by the relationship between [OCA] and his treater?---Yes. You’d expect a minimum length of treatment around two to four years. And someone with psychopathy, for example, might manipulate those treatment programs so that issues are diverted from time to time to avoid discussing matters which he might find uncomfortable?---Of course, but they do that in both group - - - And that he’d delay the treatment regime?---Can I finish my other answer, and then [indistinct] - - - Yes, sure?---Yes, but they do that in both group and individual treatment. Yes. But in this case it’s individual treatment, and that will delay, further, the treatment regime?---His - - - … -- 31 of 46 -- 32 Doctor, the test for her Honour is to identify what point – at what point in time [OCA] will be acceptable in the community with the absence of an order. Having regard to the matters that I asked you about earlier on, you said psychopathy, possible paraphilia, he’s untreated impacted his youth, do you still think it’s five years?---The problem is, with the use of the word “acceptable” because it’s not a terms we would use. That’s a legal term. Low or below?---Low or below. Okay, it’s likely to be more like seven years than five, I suspect.” (b) In respect of clause 10 of the Draft Supervision Order: “What’s – what’s the next - - -?---And [OCA] is a man with whose offending appears to be driven, in my view, largely by his severe personality disorder, which means that the rule breaking will be associated with increased emotional dysregulation in general and will increase the risk of sexually offending. So if he then – so if he commits some sort of indictable offence – a property offence, that’s something which might be indicative of the risk in your view?---I think it becomes difficult when you start wanting to talk about individual kinds of offences and is this one or that one. But, in general, breaking the rules is going to increase his risk of sexual reoffending. If he was predominantly driven by paraphilia, it would be less so, right, because it would be more about the specific thing, the specific paraphilia that drove him. Because I believe he’s largely driven by his personality disorder, it is relevant.” [57] In cross-examination by Mr Ryan, Dr Harden commented as follows: (a) In respect of the duration of any supervision order: “And if he was – if this man was going to, again on the assumptions that I put to Dr Beach, that he did not reoffend and did not – and complied with the requirements of the order and engaged in treatment, after six years, you would then be getting down to, would you agree, a low level of the risk of him committing a future serious sexual offence?---You’d be heading in that vicinity. … All right. He’s also told you he plans to avoid using the internet and social media. Perhaps except of the purposes of studying and other things like banking and things like that. But obviously, those sort of statements are important, are they not, at the outset, because you want to be hearing someone in his position saying those things to give you some confidence that compliance will be what would occur?---That’s correct. He did seem to understand the kinds of restrictions that would be expected. And in fact, he himself had prepared and you’ve seen it, I take it, a document which purported to be in the form of a relapse prevention programme that he thought could assist him in maintaining his – or -- 32 of 46 -- 33 remaining free of offending?---Yes, provided me with a copy of that. It was very detailed. All right. And that’s something that one doesn’t often see from people who are before these courts in these matters. It’s not a common thing to see someone actually prepare a document that sets out what their goals and ideas are?---It’s – you do see it and it’s certainly, it’s mainly in bright people with psychopathic personalities, in my experience, actually, which is interesting. Yes. Some people don’t even bother to put pen to paper in the slightest, obviously?---Yes, that’s correct. So looking then at that – and I appreciate the evidence that you’ve given today is a little – a variation on what’s recorded in your report. It seems, upon reflection about all of the matters that you’ve considered, that am I right in saying that your evidence is that a period slightly longer than the five years as the duration of the supervision order, would be appropriate in your opinion?---Yes. All right. And you’ve nominated perhaps up to seven years?---Yes. Would six years be a long enough period, do you think?---Probably not based on how I was thinking about it. So something in the order of seven years, you say, comfortably enough, accommodates then these – the variety of considerations?---I think it gives additional time for the risk to drop below average. … All right. And again, that – the longer that treatment goes for, you say, obviously there’s going to be greater benefit to him?---I mean, yes and no. There’s a – you arrive at a point where you move towards more maintenance therapy when the main issues have been dealt with. But there are so many in [OCA] that that will take quite some time. And while I’m at it, I mean, it – it’s not a matter of just treatment hours. The 300 hours figure which people are looking at is really – that was really designed for group programs. The research about 300 hours – about dosing, as it’s [indistinct] is from group programs. And group programs really are, as Dr Beech said, a different approach. And they are more intense, in some ways. Optimally, for [OCA], he should’ve had both. But you know - - - Well, in a case of someone in a one-on-one counselling arrangement, there’s nowhere to run or hide, so to speak, is there? It’s quite – it confronts directly the – or a person’s required to confront their issues?---No. Interestingly enough, individual therapy’s less confrontational than group therapy, in general terms, with sexual offenders. And the reason for that is because other sexual offenders are often more direct than we as therapists are.” -- 33 of 46 -- 34 (b) In respect of clause 10 of the Draft Supervision Order: “… No, I’m more concerned about indictable offences that suggest loss of emotional control. So a fight with another person at the precinct, I’m actually – I am concerned about that. I think it speaks to a loss of control of his aggressive impulses when he’s feeling upset. And that is, in my view, is very likely to be part of what [indistinct] his offending.” Dr Brown [58] In evidence in chief, Dr Brown relevantly commented as follows: (a) In respect of the duration of any supervision order: “How’s age relevant to the period of 10 years that you identify?---Because those persons that are of young age are more likely to sexually offend and in [OCA]’s case, he’s 23. I wouldn’t expect his risk to substantially reduce – substantially reduce, given that he also has psychopathy and possible paraphilia, for another 10 years, and I would actually feel more comfortable that it had significantly reduced if it were longer. Really, I – I do agree with Dr Beech that really, we would be looking sort of into the forties before – with that picture before I would feel comfortable. So the young age, I think, is a significant factor, and it’s obviously then exacerbated by the presence of psychopathy which, as has been pointed out earlier, is associated at present with a significant degree of impulsivity. All right. And you say the possible paraphilia?---Yes. What – how’s that relevant to - - -?---Well, those - - - - - - the 10-year period?--- - - - with paraphilia do – do sexually offend. Their – their – their drive towards law – law-breaking activities is there and coupled with a – a – a diagnosis of psychopathy, that’s particularly of concern. What possible paraphilias do you see [OCA] possessing?---Well, it’s difficult to know. We – the – the – the bottom line is, we just don’t know if he has a paraphilia or not. He – if he – if he does, then we’d be looking at exhibitionism or sadism. But I – I – I mean, I would say that we just don’t know if this man has a paraphilia or not. And that’s why I was asking you about what possible paraphilias - - -?---Yeah. - - - he has?---So – so exhibition and sadism, and I say that because of the exposure online and also, obviously, the – you know, the – the particular items that were – were taken to the – the – one of the more recent offences in the backpack which - - - Done with - - -?--- - - - suggests a – you know, a level of potential sort of torture and – and – and – and other sadistic practices. Of course, that never eventuated, and – and so we don’t know, and we’re -- 34 of 46 -- 35 left with a question mark around that. Certainly, I wouldn’t feel comfortable discounting the possibility of paraphilia, but we just don’t know. And how is that relevant to the assessment of the term that you identify in your report?---Because it – those that – those persons that have a combination of psychopathy and possible paraphilia, and if there were to be a paraphilia, of course that would be more worrying. Those – those persons that have that picture and they’re young, so that by definition their personality and – and – and psychopathy has not attenuated with age, that – that is a – a – a – that is a set of very significant risk factors for sexual reoffending. … I beg your pardon. [indistinct] then?---I would say that the – that – that this man does have a robust diagnosis of psychopathy. The – so the presence of psychopathy means that there will be potentially a degree of treatment resistance, and that in itself then means that a reduction in age is – sorry, an increase in age to reduce risk – risk becomes more relevant. So my – my view would be that although he may engage in treatment, and it’s positive to see that he has, it may be that that treatment is not terribly successful on account of the fact that he has psychopathy, and by definition, he may have a degree of treatment resistance. But over time, his psychopathy will attenuate because persons with psychopathy have antisocial behaviours, and part of that antisocial behaviours picture is driven by impulsivity, and impulsivity does decrease with age because of brain changes in – largely in the frontal lobe. So it’s going to – going to occur between – over the next 10 years, or - - -?---I mean, we would say an – an improvement throughout the lifetime. So of course, you know, somebody who’s 20 versus somebody who’s 40 versus somebody who’s 60, we would see a general reduction in – in impulsivity, but I would say that we would – in – in relation to sexual offending, we would see a reduction that I would feel more comfortable with after a period of 10 years that would be more reliable. I think after five, this man’s going to be 28. He’s still going to have a very significant sexual drive. He’s still going to have a degree of impulsivity that we see in persons that are in their twenties, which is, I think, going to be different to when he is 30, 33, approaching 35, then we start to see a reduction in those types of – in that type of clinical picture. In 10 years, what will the risk be, in your opinion, having regard to all the factors that you’ve identified in that report? If her Honour makes an order for 10 years, what - - -?---Yes. - - - will be his risk?---I – look, I – again, it’s very difficult to – to predict. I mean, obviously, there’s a degree of speculation. But it really depends on whether he engages in treatment and whether he’s responsive to that treatment. If he does, and he see a point in that treatment, and he can see some benefit particularly to him. -- 35 of 46 -- 36 Psychopaths tend to respond to reward-based treatment programs. If he can see some reward in staying – staying adherent to the – to the law and the supervision order, he can see a reward in – in that, then his – after 10 years, with removal, I presume you’re asking, of the order, then I would say his risk would be low to moderate.” (b) In respect of clause 10 of the Draft Supervision Order: “Could I take you then to the clause that is in dispute, that’s clause 10, which requires [OCA] not to break the law by committing an indictable offence?---Yes. Do you see that as relevant to the risk [indistinct] assess?---Yes, I do. Yes. In what way?---Because if he’s committing any offence, it means he’s not adherent to rules, and if he’s not adherent to rules, he’s not behaving in a pro-social manner, and if he’s not behaving in a pro- social manner, that I think is an indicator that he has made a decision that the law does not apply to him. And if he’s made that decision about a particular issue, whatever that issue is, then I would be concerned that he would also then go on to make other decisions around ignoring, essentially, the law. And I think it is a broad marker of emotional dysregulation, of impulsivity, of antisocial behaviour, and I agree with Scott Harden that these personality factors are very significant in this man’s history of offending, and I would be concerned if he began to reoffend. So is there a nexus between the breaking of rules or the committing of offences and sexual – and the risk of sexual offending?---Yes, I believe there is, and I also think that if he does an offence, whatever it is, there should be a reassessment of his risk.” [59] In response to a question from the Court, Dr Brown commented as follows in respect of clause 10 operating to manage the relevant risk in respect of the respondent: “HER HONOUR: Dr Brown, in relation to that particular history that we’ve been referring to, what are the key aspects of that history that would come to mind when you’re giving that view?---There’s a long history of offending that started early, so it’s chronic; it’s relatively diverse in nature; it’s – has not proffered from punishment – so he’s been in court a number of times with non-sexual offending as well, and so you’re looking at somebody who has, essentially – is demonstrating psychopathy; is demonstrating not profiting from punishment; is demonstrating a disregard for the law; it’s demonstrating impulsivity, antisocial behaviour, narcissism – these things are evident through the history. That’s how we diagnose the condition. So it’s these issues that would particularly make me then concerned if he were to commit another offence because he’s not the same as most 23 year olds – most 23 year old males. Yes, 23 year old males can be impulsive. A number of them get involved in fights, but that understanding of impulsivity associated with that age is only relevant when you’re looking at this man’s history, and the issue is -- 36 of 46 -- 37 that in this man, if there’s an offence that’s being committed that, to me, would be a very significant red flag that warrants a review of his risk. And for that reason, I believe that clause 10 needs to remain in the order.” Relevant considerations [60] Consistent with the statutory scheme and the case law, the relevant question is whether the protection of the community can be adequately ensured. An order for supervised release should, in principle, be preferred to a continuing detention order if the supervision is apt to ensure adequate protection. [61] The risk being protected against is the risk of the respondent, if released, committing a serious sexual offence and that risk must be of an unacceptable magnitude. The legislative scheme must accept that some level of risk is acceptable, consistent with the concept of adequate protection of the community. [62] The assessment of that risk and what terms of order would provide for adequate protection of the community is not a matter for expert, particularly psychiatric, opinion. It is a matter for the court. As recognised by McMurdo J in Attorney- General for the State of Queensland v Sutherland,18 the exercise requires a: “…value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.” [63] The applicant has the onus of demonstrating that a supervision order does not afford adequate protection of the community. If, on all the evidence, a supervision order would be likely to reduce the opportunity for the respondent to engage in sexual offences against girls and women to an “acceptably low level” then the supervision order should be made.19 This is subject to there being some evidence that the respondent would be likely to comply with it.20 [64] In making the “value judgment” required, I have considered the views expressed by Dr Beech, Dr Harden and Dr Brown, and the evidence filed in support of the application. I have also considered the applicant’s submission that it is “at least open to find that the preference for a supervision order is not displaced by the evidence adduced in this case”.21 [65] I am satisfied that: (a) the preference for a supervision order is not displaced by the evidence adduced in this case; and (b) adequate protection of the community can be reasonably and practically managed by appropriate terms of a supervision order. [66] As part of that consideration of the appropriate terms of the supervision order under s 13A of the DPSO Act, I am to give consideration to the length of the supervision order. 18 [2006] QSC 268 at [30]. 19 Attorney-General for the State of Queensland v Beattie [2007] QCA 96 at [19]. 20 Attorney-General for the State of Queensland v Fardon [2011] QCA 155. 21 Applicant’s written submissions at [154]. -- 37 of 46 -- 38 [67] Davis J in Attorney-General for the State of Queensland v KAH22 considered s 13A of the DPSO Act and the relevant considerations when faced by various opinions by psychiatrists in respect of the length of the supervision order. At [56], his Honour stated: “The correct legal consideration is ‘when will the respondent reach a point at which he/she is an acceptable risk without a supervision order?’ Assessment of the risk as ‘acceptable’ or otherwise is a matter for the Court not the psychiatrists, but the psychiatrists can, and do, express risk in terms of degree; high, moderate or low. The psychiatrists should be requested to report (if they can) on their predictions as to when the risk will reduce to low, for instance. That evidence will then be directly relevant to the determination under s 13A.” [68] It appears that the psychiatric evidence in relation to the duration of a supervision order, and consequently when the risk reduces to low, involves the consideration of a number of factors, including the following: (a) The treatment needs of the respondent and the extended timeframe of that treatment due to it being provided on an individual basis. (b) The need to more fully understand the nature of the respondent’s offending and his reoffending soon after his release. (c) The respondent’s personality disorder and possible sexual paraphilia. (d) The respondent’s unmodified risk of sexual reoffending remaining high for several years, before beginning to reduce due to age, maturity and treatment. [69] Whilst recognising that the respondent’s liberties should not be infringed for longer than is necessary, in fixing the duration of the supervision order the paramount concern is the adequate protection of the community. The respondent’s age and personality characteristics are such that a longer period of time is required for him to undergo appropriate treatment and for the risk to be reduced to an acceptable level. [70] On balance, I am satisfied that given these factors and the effect on the timing of the moderation of the risk in respect of the respondent, that it is appropriate to include a 10 period term of the supervision order so that the requirements of s 13A of the DPSO Act are met. [71] In respect of clause 10 of the Draft Supervision Order, Counsel for the respondent referred to the decision of Applegarth J in Attorney-General for the State of Queensland v Sambo23 in support of the contention that it exceeded what is “appropriate to ensure adequate protection of the community from the respondent committing a serious sexual offence and the respondent’s rehabilitation or care or treatment”.24 22 [2019] 3 Qd R 329; [2019] QSC 36. 23 [2008] QSC 262. 24 Respondent’s written submissions at [89]. -- 38 of 46 -- 39 [72] Counsel for the applicant referred to the decision of Ryan J in Attorney-General for the State of Queensland v FJA25 in support of the contention that the clause is appropriate as: “… on the evidence, the commission by the respondent of an indictable offence would likely indicate a significant change in the respondent’s behaviour such as to indicate emotional dysregulation, which would warrant a re-assessment of the risk”.26 [73] In these circumstances and on the evidence from the psychiatrists in this case, I am satisfied that it is appropriate to include clause 10 in the supervision order. [74] I am satisfied that adequate protection of the community can be reasonably and practically managed by a supervision order containing the conditions appearing in Appendix 1 to these reasons, with the inclusion of a 10 year term. [75] The respondent’s custodial end date is 24 January 2021. On the basis that the 10 year period of the supervision order operates from that date the term of the supervision order will be until 24 January 2031. This date has been inserted into the Draft Supervision Order in Appendix 1. [76] Further, I find that the requirements under s 16 of the DPSO Act can be reasonably and practicably managed by corrective services officers. [77] I am unable to mandate or make directions in respect of the community support or management by QCS. However, in the circumstances, I encourage the provision of the relevant risk assessment reports prepared by the psychiatrists and these reasons to the persons appointed to supervise, support and manage the respondent to assist them in understanding the importance of each aspect proposed. Conclusion [78] In summary, I have made the following findings: 1. I am satisfied by acceptable, cogent evidence and to the high degree of probability required by the DPSO Act the respondent is a serious danger to the community in the absence of a Division 3 order. Accordingly, the applicant has established, to the high degree of probability required, that if released without a Division 3 order the respondent presents an unacceptable risk of committing a ‘serious sexual offence’ as defined by the DPSO Act. 2. Adequate protection of the community can be reasonably and practically managed by the terms of the Draft Supervision Order, with the inclusion of a 10 year term. 3. The requirements under s 16 of the DPSO Act can be reasonably and practicably be managed by corrective services officers. 25 [2020] QSC 359. 26 Respondent’s written submissions at [80]. -- 39 of 46 -- 40 [79] Therefore, I order that the respondent be released from custody subject to a supervision order containing the conditions appearing in Appendix 1 to these reasons.27 27 Which have been revised to include a 10 year term. -- 40 of 46 -- 41 APPENDIX 1 THE COURT is satisfied that [OCA], is a serious danger to the community. The rules in this order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003. THE COURT ORDERS THAT [OCA] be released from prison and must follow the rules in this supervision order for 10 years, until 24 January 2031. TO [OCA]: 1. You are being released from prison but only if you obey the rules in this supervision order. 2. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison. 3. You must obey these rules for the next 10 years. Reporting 4. On the day you are released from prison, you must report before 4 pm to a corrective services officer at the Community Corrections office closest to where you will live. You must tell the corrective services officer your name and the address where you will live. 5. A corrective services officer will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A corrective services officer might visit you at your home. You must let the corrective services officer come into your house. To “report” means to visit a corrective services officer and talk to them face to face. Supervision 6. A corrective services officer will supervise you until this order is finished. You must obey any reasonable direction that a corrective services officer gives you about: (i) where you are allowed to live; and (ii) rehabilitation, care or treatment programs; and (iii) using drugs and alcohol; and (iv) who you may or may not have contact with; and (v) anything else. A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation. An instruction that means that you will break the rules of this supervision order is not a “reasonable direction”. -- 41 of 46 -- 42 If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it. 7. You must answer and tell the truth if a corrective services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with. 8. If you change your name, where you live or any employment, you must tell a corrective services officer at least two business days before the change will happen. A “business day” is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday. No offences 9. You must not break the law by committing a sexual offence. 10. You must not break the law by committing an indictable offence. Where you must live 11. You must live at a place approved by a corrective services officer. You must obey any rules that are made about people who live there. 12. You must not live at another place. If you want to live at another place, you must tell a corrective services officer the address of the place you want to live. The corrective services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a corrective services officer to live at another place. This also means you must get written permission from a corrective services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place. 13. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a corrective services officer. You are allowed to leave Queensland only after you get written permission from a corrective services officer. Curfew direction 14. A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction. Monitoring direction 15. A corrective services officer has power to tell you to: (i) wear a device that tracks your location; and (ii) let them install a device or equipment at the place you live. This will monitor if you are there. -- 42 of 46 -- 43 This is called a monitoring direction. You must obey a monitoring direction. Employment or study 16. You must get written permission from a corrective services officer before you are allowed to start a job, start studying or start volunteer work. 17. When you ask for permission, you must tell the corrective services officer these things: (i) what the job is; (ii) who you will work for; (iii) what hours you will work each day; (iv) the place or places where you will work; and (v) (if it is study) where you want to study and what you want to study. 18. If a corrective services officer tells you to stop working or studying you must obey what they tell you. Motor vehicles 19. You must tell a corrective services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the corrective services officer these details immediately (on the same day) you get the vehicle. A “vehicle” includes a car, motorbike, ute or truck. Mobile phone 20. You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a corrective services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone. 21. You must give a corrective services officer all passwords and passcodes for any mobile phones you own or have. You must let a corrective services officer look at the phone and everything on the phone. Computers and internet 22. You must get written permission from a corrective services officer before you are allowed to use a computer, phone or other device to access the internet for the first time after your release from custody. 23. You must give a corrective services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of receiving written permission to access the internet using the computer, phone or other -- 43 of 46 -- 44 device. You must let a corrective services officer look at the computer, phone or other device and everything on it. 24. You must get written permission from a corrective services officer before you are allowed to create, access or use any instant messaging service, chat rooms, or social networking sites or applications, that belong to you or any other person. 25. You must give a corrective services officer details (including usernames and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things. No contact within any victim 26. You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you. “Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way. Rules about drugs 27. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs. 28. A corrective services officer has the power to tell you to take a drug test. You must take the drug test when they tell you to. You must give them some of your breath, spit (saliva), pee (urine) or blood when they tell you to do this. Rules about medicine 29. You must tell a corrective services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a corrective services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine. 30. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor. Rules about rehabilitation and counselling 31. You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor. 32. You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program. 33. You must let corrective services officers get information about you from any treatment or from any rehabilitation program. -- 44 of 46 -- 45 34. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence. You must talk about this with a corrective services officer when asked. Speaking to corrective services about what you plan to do 35. Each week, you must talk to a corrective services officer about what you plan to do that week. A corrective services officer will tell you how to do this (for example, face to face or in writing). 36. You must also tell a corrective services officer the name of new persons you have met. This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly. 37. You may need to tell new contacts about your supervision order and offending history. The corrective services officer will instruct you to tell those persons and the corrective services officer may speak to them to make sure you have given them all the information. 38. You must advise your case manager of any personal relationships you have started. Contact with children 39. You are not allowed to have any contact with children under 16 years of age. If you want to have supervised or unsupervised contact with a child under 16 years of age you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to have contact with the child. “Contact” means any type of communication, including things like talking with them face to face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way. “Supervised” means having contact with the child while another person is with you and the child. “Unsupervised” means having contact with the child while there is no other person with you and the child. 40. If you have any repeated contact (that is, more than one time) with a parent, guardian or carer of a child under the age of 16, you must: (i) tell the person(s) about this supervision order; and (ii) tell a corrective services officer the details of the person(s). You must do this immediately. This means you have to tell the person, and tell a corrective services officer, on the same day you have contact with the person. 41. Queensland Corrective Services has power to give information about you, and about this supervision order, to any parent, guardian or caregivers that you have contact with. -- 45 of 46 -- 46 42. Queensland Corrective Services also has power to give information about you, and about this supervision order, to an external agency (such as the Department of Child Safety). 43. You must not: (i) join any club or organisation in which children are involved; (ii) participate in any club or organisation in which children are involved. If you want to do any of these things, you must first get written permission from a corrective services officer. If you do not get written permission, you cannot do any of these things. -- 46 of 46 --